John Stuart Johnston For Judicial Review Of Failures By The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2015] CSOH 121 |
| Year | 2015 |
| Published date | 04 September 2015 |
| Date | 04 September 2015 |
| Court | Court of Session |
| Docket Number | P716/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 121
P716/14
OPINION OF LORD GLENNIE
In the Petition of
JOHN STUART JOHNSTONE
Petitioner;
for
Judicial Review of failures by the Scottish Ministers inter alia
to provide sufficient opportunities for the petitioner’s rehabilitation
Respondents:
Petitioner: McCluskey, Aitken; Drummond Miller LLP
Respondents: Springham; Scottish Government Legal Directorate
4 September 2015
Introduction
[1] On 8 April 1998, on the fourth day of his trial for murder, the petitioner pled guilty to a charge of culpable homicide on the basis of diminished responsibility. He had assaulted the deceased, raped her and thrown her from a window to her death.
[2] The plea was tendered on the basis that it provided him with his best chance of avoiding spending the remainder of his life in prison. There were psychiatric reports to the effect that he was suffering from a mental disorder or impairment. The plea was accepted by the Crown on condition that the petitioner would not oppose the making of a hospital order.
[3] After the plea was accepted, unchallenged evidence was led before the trial judge from two psychiatrists to the effect, as summarised in the trial judge’s report, that the petitioner was “of very low intelligence margining on mental deficiency, but also suffered from mental impairment sufficient to meet the requirements of diminished responsibility”. Both psychiatrists were of the view that the petitioner “constituted a serious danger to society by reason of his mental state”. The trial judge accepted that evidence. Following the advice of both psychiatrists, he made a “hospital order” under section 58 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), ordering that the petitioner be detained in the State Hospital, and a “restriction order” under section 59 of the 1995 Act, restricting the petitioner’s discharge from Hospital without limit of time. Pursuant to those orders the petitioner has been detained at the State Hospital since 8 April 1998. There have since then been changes to the 1995 Act. The petitioner is now to be treated as being subject to a “compulsion order” (in terms of section 57A of the 1995 Act) and a “restriction order” (together known as a “CORO”).
[4] The opinion of psychiatrists as to the petitioner’s diagnosis has changed with the passage of time. He is now diagnosed as having a dissocial personality disorder. He accepts that that personality disorder is such that, if he were now to be released, he would pose a risk of serious harm to the public. As a result, he is not presently eligible for release under the mental health regime. He contends, however, there is no treatment for this condition in the State Hospital which could not equally be provided in prison.
[5] In those circumstances, the petitioner wishes to be transferred from the State Hospital to prison where, with a view to his eventual release, he would expect to be provided by the prison authorities with a reasonable opportunity of taking steps to rehabilitate himself and, in due course, to demonstrate to the Parole Board that he no longer presents an unacceptable danger to the public: see R (Haney and others) v Secretary of State for Justice [2015] 2 WLR 76.
[6] The respondents refuse to transfer him to the prison regime. They say that they have no power to do so: the relevant provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) provide for periodical reviews of the condition of a person detained in the State Hospital, which may in certain circumstances result in that person’s release, but they do not provide for the person to be transferred to prison.
[7] One possible solution to this conundrum might have been for the petitioner to appeal out of time against sentence, ie against the hospital and restriction orders made by the trial judge back in 1998. Were such an appeal to be successful, the appeal court could substitute a sentence of imprisonment, though there would be obvious difficulties in the court knowing on what basis it should proceed in determining the appropriate sentence – for example, should he be sentenced on the basis of his plea of culpable homicide if the evidence no longer supported the case that he was then suffering from diminished responsibility? But I need not concern myself with this. The petitioner did appeal out of time, with leave of the court, in 2007. He contended that the trial judge should not have made either the hospital order or the restriction order because he was not at that time suffering from a mental disorder in terms of section 58 of the Criminal Procedure (Scotland) Act 1995, this notwithstanding the fact that at trial he expressly accepted that he was suffering from a mental disorder and that he would not oppose the making of a hospital order. His appeal against sentence was refused in 2013: [2013] HCJAC 92. Distinguishing the case of Reid v HM Advocate 2013 SLT 65, which concerned a person in a substantially similar position to that of the petitioner, the court held that the orders made by the trial judge were appropriate at the time they were made, proceeding as they did upon expert opinion given to the court at that time. There was no new evidence. No miscarriage of justice had occurred. His application for leave to appeal to the UK Supreme Court was also refused: [2013] HCJAC 129. So that route is closed to the petitioner, at least for now.
[8] Accordingly, the petitioner continues to be detained at the State Hospital. He complains that the lack of any means by which he can be transferred to prison breaches his convention rights: cf the European Convention on Human Rights and Fundamental Freedoms (“ECHR” or “the Convention”).
The issues
[9] In his petition the petitioner seeks the following relief:
(1) declarator that the relevant provisions of the 2003 Act are incompatible with his convention rights and therefore “are not law”;
(2) declarator that his convention rights have been breached by the Scottish Ministers’ failure to provide him with a real opportunity at rehabilitation;
(3) declarator that his convention rights have been breached by the Scottish Ministers’ subjecting him to degrading treatment in terms of article 3 ECHR;
(4) declarator that his convention rights in terms of articles 3 and 5 ECHR have been breached by the Scottish Ministers due to the absence of a statutory regime for the transfer of persons from hospital to prison;
(5) an order ordaining the Scottish Ministers to make an order to transfer him to a prison, this being the only lawful decision available to the respondents;
(6) declarator that his convention rights have been breached by the Scottish Ministers by detaining him in a hospital without any power to do so;
(7) damages of £10,000
[10] At the first hearing, Mr McCluskey, who appeared for the petitioner, did not insist on the declarator sought under para (2) above. I understood that to be because he recognised that the now established duty to take reasonable steps to provide an opportunity for rehabilitation arose, at least on the case law to date, only in the context of a prisoner serving a sentence of imprisonment of indefinite duration: R (Haney and others) v Secretary of State for Justice (above).
[11] Mr McCluskey did, however, insist on the order sought in para (5). It is clear in my opinion that the court could not possibly make such an order. The petitioner has never been sentenced to prison for this offence. Since, as the petitioner accepts – and indeed it is at the core of his complaint – the 2003 Act contains no provision for bringing about a transfer from the State Hospital to prison, the respondents have no power to transfer the petitioner to prison even if they were minded to do so. Nor could this court compel them to do it. If he were to be transferred, he would immediately be entitled to be released, since his detention in prison would not be in accordance with the law. It could not be justified by reference to any sentence of the court.
[12] Those two points having fallen away, the issues in this petition as argued before me seem to me to resolve themselves into these two questions:
(a) Is the petitioner’s continued detention in the state hospital in breach of articles 3 and/or 5 ECHR?
(b) Is the relevant legislation non-ECHR compliant because of the absence of any provision allowing the transfer of persons from the State Hospital to prison?
There is, inevitably, considerable overlap between the two.
Articles 3 and 5 ECHR
[13] Article 3 provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
[14] Article 5(1) provides that “everyone has the right to liberty and security of person” and that “no one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law”. The cases relied upon here are (a) “the lawful detention of a person after conviction by a competent court” and (e) “the lawful detention … of persons of unsound mind …”.
The relevant legislation
[15] “Mental disorder” is defined in s328(1) of the 2003 Act as meaning any “(a) mental illness; (b) personality disorder; or (c) learning disability”. The exceptions listed in sub-s(2) are not relevant for present purposes.
[16] S136 of the 2003 Act, read short, permits the transfer to a State Hospital of prisoners serving a period of imprisonment if they have a mental disorder requiring medical treatment to prevent it getting worse or to alleviate its symptoms or effects; and if, without such treatment, there would be a significant risk to the health, safety and welfare of the prisoner or to the safety of any other person. However, there is no reciprocal provision, permitting the transfer to prisons of those who are detained in a State Hospital by order of the court and have not been given a sentence of imprisonment. Although this is common ground between the...
To continue reading
Request your trial