John Johnstone V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Bracadale,Lord Marnoch |
| Neutral Citation | [2013] HCJAC92 |
| Court | High Court of Justiciary |
| Date | 01 August 2013 |
| Docket Number | XC237/07 |
| Published date | 01 August 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Bracadale Lord Marnoch | XC237/07 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL AGAINST SENTENCE by JOHN STEWART JOHNSTONE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: A Ogg, Solicitor Advocate; McKennas Law Practice, Glenrothes
Respondent: Wade, AD; the Crown Agent
1 August 2013
Statutory background
[1] Section 58(1) of the Criminal Procedure (Scotland) Act 1995, as originally enacted and applicable to the present case, provided that, where a person was convicted of an offence, the court could order that person's detention in a hospital if certain conditions were met. The first of those was that the court was satisfied:
"(a) ... on the written or oral evidence of two medical practitioners ... that the grounds set out in -
(i) section 17(1) ... of the Mental Health (Scotland) Act 1984 apply ...".
Section 17(1) applied where a person was:
"(a) ... suffering from mental disorder of a nature of degree which makes it appropriate for him to receive medical treatment in a hospital, and
(i) in the case where the mental disorder ... is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition; or
(ii) in the case where the mental disorder ... is a mental handicap, the handicap comprises mental impairment (where such treatment is likely to alleviate or prevent a deterioration of his condition) ... and
(b) it is necessary for the health and safety of that person or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained ...".
Section 1(2) of the 1984 Act defined "mental disorder" as "mental illness or mental handicap however caused or manifested". It also defined "mental impairment" as:
"a state of arrested or incomplete development of mind ... which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned ...".
The term "mental handicap" was replaced with "learning disability" in the Mental Health (Care and Treatment) (Scotland) Act 2003 (s 328(1)).
[2] The second condition that required to be met under section 58(1) was that the court be satisfied, having regard to all the circumstances, that the most suitable method of disposing of the case was by means of a Hospital Order. The State Hospital could be specified only when, on account of the offender's dangerous, violent or criminal propensities, he required treatment under conditions of special security. It was a requirement of any Hospital Order that it specify the form of mental disorder ("being mental illness or mental handicap or both") concerned and no order could be made unless the offender was described by each of the medical practitioners as suffering, at least in part, from the same form of mental disorder (s 58(7)).
[3] The focus in the appellant's case, at the original sentencing diet and in the appellate proceedings, was on whether he suffered from a mental disorder in the form of a mental handicap comprising mental impairment of a nature or degree which made it appropriate for him to receive medical treatment which was likely to alleviate or prevent deterioration of his condition. There was no dispute that the appellant's character, antecedents and the other circumstances of the case, including the nature of the offence, made a Hospital Order with a Restriction Order the most suitable method of disposal were he to be suffering from that type of mental disorder.
[4] The appellant continues to be detained in the State Hospital because, notwithstanding that the psychiatric staff may now consider that there is no effective treatment for his condition which could not also be provided in prison (see infra), he continues to suffer from a mental disorder (which, as now described, includes a personality disorder) the effect of which is that, if released, he would pose a risk of serious harm to the public. Because the grounds for release are now more stringent than those applicable to the making of an Order (the so called "lobster pot" effect; following Mental Health (Public Safety and Appeals) (Scotland) Act 1999, section 1, amending the 1984 Act in the aftermath of R v Secretary of State for Scotland 1999 SC (HL) 17), he is not presently eligible for release under the mental health regime.
Pre trial reports
[5] Although there was no express reference to any psychiatric reports in the oral testimony adduced at the trial, there was an inventory of productions, which had been lodged by the appellant, containing four such reports: one from Dr Isobel Campbell, who was then a consultant forensic psychiatrist at Hartwoodhill Hospital, Shotts, dated 9 July 1997; and three from Dr John Baird, dated 23 November 1990, 25 January 1991 and 4 November 1997. Dr Baird was the physician superintendent at the State Hospital, Carstairs, and later consultant forensic psychiatrist at Leverndale Hospital, Glasgow. The appellant would also have had sight of reports from Drs Campbell and Baird, instructed on his behalf, dated respectively 3 and 6 April 1998. There were two psychiatrists on the list of witnesses appended to the indictment. One of these was Dr Raymond Antebi, consultant at Parkhead Hospital, Glasgow. He produced a report, dated 24 July 1997, which was presumably available to both the Crown and the defence, although it is not clear that it was formally lodged as a production. Finally, it is highly likely (see infra) that the appellant would also have had sight of a pre-trial report, dated 2 February 1998, from Dr Colin Gray, consultant forensic psychiatrist at the State Hospital, which had been instructed by the Crown. Drs Campbell, Baird and Gray all gave evidence at the appeal hearing and it is therefore of some significance to ascertain their views as expressed prior to sentencing.
[6] Dr Campbell's report (Appendix 1/5) was supplementary to one, which is not before the court, dated 12 December 1996. The report (App 1/5) was instructed by the appellant's former agents in respect of earlier crimes involving possession of cannabis and a breach of the peace. It is dated only a few days before the homicide which is the subject of the current proceedings (infra). It refers to the appellant's past psychiatric history and comments that:
"In general he has been regarded as suffering from borderline mental handicap and as having problems with alcohol abuse".
The report continues:
"Cognitive function: he functions in the borderline handicap range of intelligence. He interprets things in a rather naive way and is reluctant to ask for an explanation when he does not understand what has been said which obviously can lead to problems".
In her report of 3 April 1998 (App 1/7), Dr Campbell, who was by then at Dykebar Hospital, Paisley, wrote:
"The principal diagnosis throughout his contact with psychiatric services had been that he suffers from borderline mental handicap. Some people have regarded him as having sufficient criteria to meet the definition of mental impairment within the Mental Health (Scotland) Act 1984. Few consultants have considered him to meet the criteria for detention".
An IQ on the WAIS-R (Weschler Adult Intelligence Scale) scale of 74 was recorded, along with details of his cognitive function, which accorded with that in previous reports. Dr Campbell stated that: "The notional 'cut-off' for mental handicap is a score of 70 ...". Nevertheless, she considered that he met the criteria for mental impairment. However, she took the view that treatment in hospital was not likely to alleviate his condition or prevent deterioration and on that basis did not regard him as detainable under the mental health regime.
[7] Dr Baird's first report, in 1990 (App 1/18), related to a murder charge (infra) which the appellant then faced and which, after being reduced to one of culpable homicide, was found not proven. The appellant had initially been committed to HM Prison, Barlinnie where he was seen by Dr Baird. The records relating to the appellant's past psychiatric care had not at that time been made available. However, Dr Baird was able to ascertain that the appellant had considerable difficulty adding simple figures (eg 2 + 3 = 4), could barely read and had difficulty with counting money. He was unable to name any towns in Scotland, apart from Glasgow. It was Dr Baird's view that the appellant was suffering from a "mental disorder" in terms of the 1984 Act, although the nature of the disorder was not specified. He recommended that the appellant be remanded at the State Hospital. In due course this was what occurred, following a petition, at the appellant's instance, to the nobile officium.
[8] Dr Baird's 1991 report (App 1/20) was made after he had been able to examine the appellant's psychiatric history. He noted the following:
"Testing his intellectual functioning he is virtually illiterate being able only to read a few simple words and to print his address. In general conversation it is apparent that his knowledge of the world around him is very limited and his attitudes generally are rather superficial and childlike".
Dr Baird concluded that the appellant:
"suffers from a mental illness and also from mental handicap and that the mental handicap comprises mental impairment".
Dr Baird described the mental impairment as a lifelong and enduring condition, although the mental illness varied in severity. He was firmly of the opinion that the appellant was mentally disordered at the time of the offence and that his responsibility for his actions was diminished. He took the view that, in the event of the appellant being convicted, he ought to be made the subject of a Hospital Order.
[9] In...
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