Karl Anderson (ap) And Brian Doherty (ap) And Alexander Reid (ap) V. The Scottish Ministers And The Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lord President |
| Date | 16 June 2000 |
| Docket Number | XI70/00 |
| Court | Court of Session |
| Published date | 03 July 2000 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
| Lord President Lady Cosgrove Lord Philip
| XI70/00 OPINION OF THE LORD PRESIDENT in the references by the Sheriff at Lanark in the summary applications under the Mental Health (Scotland) Act 1984 by | |
| (1) | KARL ANDERSON (A.P.) | |
| (2) | BRIAN DOHERTY (A.P.) | |
| (3) | ALEXANDER REID (A.P.) | |
| Applicants; against THE SCOTTISH MINISTERS and THE ADVOCATE GENERAL FOR SCOTLAND Respondents: _______ |
Act.: Bell, Q.C., Collins, for the applicants Anderson and Reid; Fyfe Ireland, W.S.
(for Mackenna's, Glenrothes)
J.J. Mitchell, Q.C., J.M. Scott, for the applicant Doherty; Fyfe Ireland, W.S.
(for Frank Irvine, Glasgow)
Alt: Hodge, Q.C., McCreadie, for the Scottish Ministers; R. Henderson
Advocate General (Clark, Q.C.), Dewar; H. Macdiarmid
16 June 2000
[1]We have before us three references from the Sheriff Court at Lanark under paragraph 7 of Schedule 6 to the Scotland Act 1998 ("the Scotland Act"). All three references have been made in the context of appeals under Section 63 of the Mental Health (Scotland) Act 1984 ("the 1984 Act") by patients in the State Hospital at Carstairs who are subject to restriction orders. In all three cases the Sheriff has referred the same question to the court: is Section 1 of the Mental Health (Public Safety and Appeals)(Scotland) Act 1999 ("the 1999 Act") a provision which is, in whole or in part, outwith the legislative competence of the Scottish Parliament by virtue of Section 29(2)(d) of the Scotland Act 1998 and, accordingly, not law in terms of Section 29(1) thereof?
[2]More particularly, the question turns on whether Section 1 is compatible with the rights of restricted patients under Article 5(1)(e) and Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").
The Three Cases
[3]The relevant facts of the three cases are not in dispute.
[4]The applicant Karl Anderson was formerly known as Karl Tonner. Under that name in 1968 he pled guilty at Dundee Sheriff Court to an indictment containing a charge of culpable homicide and, more particularly, to assaulting a girl aged 12, seizing hold of her, forcing her to accompany him to a basement cellar, there compressing her throat with his hands, tying a piece of rope or other ligature around her neck and strangling and killing her. Tonner was charged with culpable homicide on the basis of diminished responsibility. In the High Court at Edinburgh on 6 December 1968 Lord Justice Clerk Grant, being satisfied on the evidence of two medical practitioners that Tonner was suffering from a mental disorder, by order authorised his admission to, and detention in, the State Hospital at Carstairs in terms of Section 55 of the Mental Health (Scotland) Act 1960 ("the 1960 Act"). It appears that Tonner was diagnosed as suffering from a serious personality disorder with schizoid features, which was considered to be treatable. The Lord Justice Clerk made a further order under Section 60 of that Act restricting the discharge of Tonner without limit of time. He has been continuously detained since then in the State Hospital.
[5]On 8 July 1999 Anderson appealed by way of summary application to the Sheriff at Lanark under Section 63 of the 1984 Act. He asked the sheriff to order his absolute discharge under Section 64. On 2 August 1999 judgment was given in the case of Ruddle v. The Secretary of State for Scotland 1999 G.W.D. 29-1395. Sheriff Allan directed the absolute discharge of Ruddle from the State Hospital and he was duly discharged. No hearing in relation to Anderson's appeal had taken place by 1 September 1999. Subsequently, in the context of that appeal the Sheriff made the present reference to this court.
[6]The applicant Brian Martin Doherty was convicted at Antrim Crown Court on 15 May 1995 of the kidnapping and manslaughter of a boy of 11. The trial judge, Mr. Justice Higgins, narrated the circumstances and commented that "A more cruel and macabre killing is difficult to imagine." He added that it was an offence of a kind not hitherto seen in the Northern Irish jurisdiction. The Crown accepted a plea of guilty to manslaughter on the basis of diminished responsibility. Doherty was sentenced to life imprisonment on the manslaughter charge and to ten years imprisonment on the kidnapping charge, the sentences to run concurrently. In imposing the life sentence, the trial judge observed that Doherty
"is highly dangerous and the public protection requires that he should be removed from society for a long period of time, and only after a lengthy period of time, if his condition be reversed, could he be considered for release if it be safe to do so."
[7]On 19 June 1995 the Secretary of State for Northern Ireland made a transfer direction in terms of Article 53 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986 No. 595) ("the 1986 Order"). In terms of the direction Doherty was transferred to Holywell Hospital in Northern Ireland. The Secretary of State also directed that he should be subjected to a restriction direction in terms of Article 47 of the 1986 Order. In making the order for Doherty's transfer the Secretary of State expressed himself as being satisfied on the basis of medical reports that he was suffering from a mental disorder of a nature or degree which warranted his detention in hospital for medical treatment. The medical reports indicated that Doherty suffered from mental handicap - borderline only, in the view of one of the experts - resulting in significant impairment in his social functioning and major behavioural disturbance. Then, on 27 July 1995, under Section 81 of the 1984 Act the Secretary of State for Northern Ireland authorised Doherty's removal to the State Hospital at Carstairs. In doing so, the Secretary of State indicated that it appeared to him that it was in the interests of Doherty to remove him to the State Hospital. There is no comparable facility in Northern Ireland. On 14 August 1995 Doherty's responsible medical officer furnished a report dated 11 August to the managers of the State Hospital, stating that in his opinion Doherty was suffering from mental handicap of a nature or degree which made it appropriate that he should be liable to be detained in hospital for medical treatment. Reports lodged in process indicate that in 1995 the view was taken either that Doherty suffered from severe mental handicap or that he suffered from mental handicap and the structured and psychiatrically-led approach to his care afforded by his being accommodated within the State Hospital prevented his behaviour from deteriorating.
[8]On 22 July 1999 Doherty appealed by summary application to the Sheriff at Lanark under Section 63 of the 1984 Act asking the Sheriff to notify the Scottish Ministers under Section 65(1) that, if he were subject to a restriction order, he would be entitled to be absolutely discharged. On being so notified, it would have been the duty of the Scottish Ministers under Section 65(2) to direct by warrant that Doherty be remitted to prison to complete his sentence. By 1 September 1999 no hearing had taken place in relation to Doherty's appeal. Subsequently, in the context of that appeal the Sheriff made the present reference to this court.
[9]The third applicant is Alexander Reid who pled guilty at the High Court at Glasgow on 8 September 1967 to a charge of culpable homicide. Having heard oral evidence from two practitioners that Reid was suffering from mental deficiency, Lord Walker ordered him to be admitted to, and detained in, the State Hospital at Carstairs under Section 55 of the 1960 Act. He also made an order under Section 60 restricting Reid's discharge from hospital without limit of time. It is a matter of agreement that, despite the evidence led before Lord Walker, Reid is not mentally handicapped and does not now suffer from mental deficiency. But he does suffer from a mental disorder manifested only by abnormally aggressive and seriously irresponsible behaviour. That disorder can conveniently be referred to as a "psychopathic personality disorder".
[10]In 1985 Reid was transferred to Sunnyside Hospital in Montrose but he still remained a restricted patient. In 1986 he was convicted of an assault on a girl of 8 and was sentenced to three months imprisonment. After his release from prison, Reid was recalled to the State Hospital where he has remained ever since. Reid has appealed repeatedly against his continued detention. In particular he appealed in 1994 and the Sheriff at Lanark refused his appeal on 19 July of that year. Reid then brought proceedings for judicial review of the Sheriff's decision. The Lord Ordinary's interlocutor dismissing the petition was reversed by the Second Division. On appeal to the House of Lords, the Lord Ordinary's interlocutor was restored, but their Lordships agreed with the interpretation of the legislation which the Inner House had adopted. The proceedings are reported as R. v. Secretary of State for Scotland 1997 S.L.T. 555; 1998 S.C. 49 and 1999 S.C. (H.L.) 17. Although Reid thus ultimately failed to have the Sheriff's decision reduced, the decision of the House of Lords was extremely important in clarifying certain aspects of the relevant law. Indeed that decision was the starting point for the events which led to the 1999 Act and to the present proceedings. In March 2000 Reid appealed by summary application under Section 63 of the 1984 Act asking the Sheriff at Lanark to order his absolute discharge under Section 64. In that appeal the Sheriff made the present reference to this court.
The Pre-1999 Position
[11]The common factor in all three cases is that the applicants are "restricted patients" within the terms of Section 63(1) of the 1984 Act. The only patients who can be so classified are patients who have been involved at some stage in proceedings before the criminal courts. As I have explained, in the case of the...
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