FD v Gibson

JurisdictionScotland
JudgeSheriff Principal MM Stephen QC,Sheriff PJ Braid
Judgment Date09 January 2018
Date09 January 2018
CourtSheriff Appeal Court
Docket NumberNo 4

[2018] SAC (Crim) 2

Sheriff Principal MM Stephen QC and Sheriff PJ Braid

No 4
FD
and
Gibson

Justiciary — Sentence — Compulsion order — Whether express evidence is required from two medical practitioners that a compulsion order is necessary — Approach to the question of necessity where there is an existing compulsory treatment order — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 57A

FD was charged in the sheriffdom of South Strathclyde, Dumfries and Galloway at Lanark on a summary complaint at the instance of Fraser Gibson, procurator fiscal there, the libel of which set forth a contravention of sec 5(1) of the Emergency Workers (Scotland) Act 2005 (asp 2). The appellant pled not guilty and the Crown accepted the appellant's defence under sec 51A of the Criminal Procedure (Scotland) Act 1995. A compulsion order was imposed on the appellant by the sheriff, on 7 September 2017. The appellant appealed against the imposition of the order to the Sheriff Appeal Court.

Section 51A(1) of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’) provides that a person is to be acquitted of conduct constituting an offence if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. Sections 57 and 57A permit a court to make a compulsion order in respect of a person who has been acquitted under sec 51A(1) if it is satisfied that (a) on the evidence of two medical practitioners, certain conditions are met and (b) an order is appropriate.

The appellant, who was subject to an existing compulsory treatment order, pled not guilty to an offence under sec 51A(1). Having obtained reports from two doctors, the sheriff imposed a compulsion order on the appellant under sec 57A. The sheriff observed that neither doctor expressly dealt with the issue of the necessity of the order but held that he was entitled to presume both of them knew the criteria for the imposition of a compulsion order given that they were accredited consultant psychiatrists. The sheriff also concluded that the decision was a judicial rather than medical one and considered the question of necessity himself. Leave to appeal was granted on: (1) whether sec 57A requires express evidence from two doctors that a compulsion order is necessary; and (2) how the question of necessity is to be approached where there is an existing compulsory treatment order.

Held that: (1) a court was not entitled to form its own view on any of the criteria (including necessity) in sec 57A(3) of the 1995 Act without some basis for so doing on the medical evidence from the two doctors (paras 12, 13); (2) only medical matters were relevant to necessity, non-medical matters (such as the existence of a compulsory treatment order, the circumstances of the offence and the antecedents of the accused) were relevant only to appropriateness (paras 15–17); (3) considering the reports as a whole, it was to be inferred that the doctors considered a compulsion order to be necessary (paras 18, 19); (4) the sheriff was entitled to conclude that the order was appropriate (para 20); and appeal refused.

Observed that: (1) the evidence of medical practitioners need not slavishly follow the language of the 1995 Act in order for the sheriff to be satisfied that the conditions in sec 57A(3) were met, the court may draw inferences from what is expressly stated (para 16); and (2) it would not be enough for medical practitioners to say that they were satisfied that the conditions were met, without saying more (para 16).

The cause called before Sheriff Appeal Court, comprising Sheriff Principal MM Stephen, QC and Sheriff PJ Braid, for a hearing, on 9 January 2018.

Eo die the court refused the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by Sheriff PJ Braid—

Opinion of the Court—

Introduction

[1] The appellant appeals against a compulsion order imposed upon him by the sheriff at Lanark on 7 September 2017, in terms of sec 57A of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’). It is argued that the sheriff erred in concluding that the statutory criteria for the imposition of such an order were met.

Background

[2] On 6 July 2017, the appellant pled not guilty to a charge of contravention of sec 5(1) of the Emergency Workers (Scotland) Act 2005 (asp 2), by assaulting, obstructing or hindering a nursing assistant by placing him in a headlock and repeatedly punching him on the head to his injury. That plea was accepted by the Crown in terms of secs 53E and 51A of the 1995 Act, on the basis that the Crown accepted the appellant's defence in terms of sec 51A, that he was unable by reason of mental disorder to appreciate the nature or wrongfulness of his conduct.

[3] At the time of sentence the appellant was detained in the State Hospital at Carstairs, being subject to a compulsory treatment order made under the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (‘the 2003 Act’).

[4] Section 57A of the 1995 Act applies to the appellant by virtue of sec 57 of that Act, which provides that it applies to a person acquitted under sec 51A, references to ‘offender’ in sec 57A being treated as references to such a person. (For the sake of simplicity, in our discussion of sec 57A, we use the term ‘offender’ but we acknowledge that the appellant is not an offender but is a person acquitted under sec 51A.)

[5] Prior to passing sentence, the sheriff obtained four reports, being two reports from a Dr Khan; one from a Dr Billcliff; and one from a mental health officer. Both Dr Khan and Dr Billcliff were registered medical practitioners for the purposes of the 2003 Act.

Issues raised by the appeal

[6] Leave to appeal has been granted in relation to two matters: (a) whether sec 57A of the 1995 Act requires evidence from two medical practitioners expressly to the effect that a compulsion order is necessary; and (b) how the question of necessity is to be approached where there is already a compulsory treatment order in place.

The law

[7] Section 57A of the 1995 Act, in so far as material, is in the following terms:

‘(2) If the court is satisfied–

  • (a) on the written or oral evidence of two medical practitioners, that the conditions mentioned in subsection (3) below are met in respect of the offender; and

  • (b) that having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may … make an order (in this Act referred to as a “compulsion order”) authorising … for the relevant period given by subsection (2A) below, such measures … as may be specified in the order.

(3) The conditions referred to in subsection (2)(a) above are–

  • (a) that the offender has a mental disorder;

  • (b) that medical treatment which would be likely to–

    • (i) prevent the mental disorder worsening; or

    • (ii) alleviate any of the symptoms, or effects, of the disorder, is available for the offender;

  • (c) that if the offender were not provided with such medical treatment there would be a significant risk–

    • (i) to the health, safety or welfare of the offender; or

    • (ii) to the safety of any other person; and

  • (d) that the making of a compulsion order in respect of the offender is necessary.

(4) The matters referred to in subsection (2)(b) above are–

  • (a) the mental health officer's report, prepared in accordance with section 57C of this Act, in respect of the offender;

  • (b) all the circumstances, including–

    • (i) the nature of the offence of which the offender was convicted; and

    • (ii) the antecedents of the offender; and

  • (c) any alternative means of dealing with the offender.’

Submission
Appellant

[8] Counsel for the appellant submitted that the sheriff was not entitled to conclude that the conditions set out in subsec (3) of sec 57A of the 1995 Act were met in relation to the appellant. There was no issue in relation to criteria mentioned in paras (a), (b) and (c). The issue arose in relation to para (d). The sheriff had reports from two medical practitioners. In her report dated 31 May 2017, Dr Billcliff stated (p 7): ‘[The appellant] meets the ground necessary for the granting of a compulsion order’. After going on to deal expressly with the first three criteria, she then said (p 8):

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