Note Of Appeal Against Conviction By Scott Henry Sneddon Mackay Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Woolman,Lord Justice General |
| Judgment Date | 20 June 2017 |
| Neutral Citation | [2017] HCJAC 44 |
| Court | High Court of Justiciary |
| Date | 20 June 2017 |
| Published date | 20 June 2017 |
| Docket Number | HCA/2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 44
HCA/2016/493/XC
Lord Justice General
Lord Malcolm
Lord Woolman
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
SCOTT HENRY SNEDDON MACKAY
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: MacCall QC, Markie; Paterson Bell (for Black & Markie, Dunfermline)Respondent: Edwards QC AD; the Crown Agent
20 June 2017
General
[1] On 27 April 2106, at Dunfermline Sheriff Court, the appellant was found guilty of two charges. The first libelled that, on 20 September 2015 at Queensferry Road, Rosyth, he behaved in a threatening or abusive manner, which was likely to cause a reasonable person to suffer fear or alarm in that he did, during the course of a telephone call to a call handler employed by the police, repeatedly swear, state that he was armed with a machete and utter threats of violence and death towards Muslims; contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The second was a contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 by having the machete with him in circumstances which were aggravated by religious prejudice. The appellant had pled guilty to another charge, involving the possession of flares and pyrotechnics contrary to sections 5 and 39 of the Explosives Act 1875, at the end of the Crown case.
[2] On 7 September 2016, the sheriff imposed a Community Payback Order involving three years supervision, conditions that the appellant obtain mental health treatment and abstain from alcohol and a twelve month Restriction of Liberty Order covering the hours between 7.00pm and 7.00am.
Evidence
[3] The appellant is a serving solider who has undertaken tours of duty in Afghanistan He has a history of mental health issues. There was no dispute that he had made a 999 call to the emergency services stating that he was a short distance away from Sizzlers Tandoori take-away shop in Rosyth. He said that he intended to behead the shop workers, whom he perceived to be Muslim, with a machete which he had with him. He stated that he had made the call in the hope that the police might intervene and stop him. He mentioned his psychiatric background and that he was regarded as dangerous. He described what he planned to do as a “murderous crime” and “mass murder”. The call ended when the appellant observed a police car drawing up alongside. He recognised that the police had arrived because of his conduct. He had disposed of the machete, but it was recovered nearby.
[4] The appellant had lodged a special defence of insanity in common law terms. This was repeated in his defence statement. However, the trial proceeded on the basis that, in terms of section 51A of the Criminal Procedure (Scotland) Act 1995, the nature of the defence is now that:
“(1) A person is not criminally responsible ... 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”.
[5] It was not disputed that the appellant did suffer from a mental disorder, although there was an issue about its extent. The Crown called two psychiatrists, each of whom said that the appellant had post-traumatic stress and delusional disorders. The latter was that he believed that there was a Taliban cell based in Sizzlers. The psychiatrist called by the defence agreed. She also expressed the opinion that the appellant was psychotic. All the psychiatrists agreed that the appellant had appreciated the nature of his conduct. The Crown psychiatrists considered that he had at least some idea that what he was planning to do was wrong. The defence psychiatrist considered that he had not been able to determine that it was wrong.
[6] Looking at the matter in more detail, the first of the Crown psychiatrists considered that the appellant had been able to appreciate the wrongfulness of his actions. She noted that, prior to the incident, the appellant had consumed in excess of a bottle of vodka. He had called the police, partly because he thought that he might need assistance in carrying out the act, but also because he wanted the police to stop him. He had waited for the police, having put down the machete. Despite holding delusional beliefs, the appellant had known that his generalisations about Muslims had been wrong and that, had he carried out the attack, it would have been unlawful and would have had wide-ranging repercussions for the potential victims, their families, the local community and others. His act in contacting the police indicated that he knew that his threatened actions would be wrong.
[7] The second Crown psychiatrist gave evidence supportive of the first psychiatrist. She said that the appellant did have some understanding of the wrongfulness of his actions. He had acknowledged in the call that what he was planning to do was wrong and that he needed help. He had sought that help. Alcohol may have played a part in his behaviour. Whilst the appellant’s appreciation of the wrongfulness of his actions may have been impaired, it was not completely absent.
[8] The appellant did not give evidence.
[9] The defence psychiatrist observed that the appellant had contacted the police partly because he had been aware that what he was planning to do was wrong, and partly because he might need extra help to deal with the supposed terrorists. She noted the appellant’s alcohol consumption. She explained to the sheriff that psychiatrists were struggling with the new phrase, viz: “wrongfulness of the conduct”. When the sheriff read over his proposed directions to the jury to her, she confirmed her opinion that the appellant had been unable to appreciate the wrongfulness of the conduct to any extent.
Charge
[10] The sheriff, who largely followed the recommendations in the Jury Manual, directed the jury that, for the appellant to establish his special defence, he required to prove that, at the time of the conduct, he was:
“unable by reason of mental disorder to appreciate the wrongfulness of that conduct”.
He continued by stating that the following requirements had to be met:
“First of all the accused must have been suffering from a mental disorder ... and secondly, that as a result of that mental disorder at the time of the alleged criminal conduct in the charge the accused is unable to appreciate the nature or wrongfulness of that conduct”.
He went on to say that, although they may have little difficulty in finding that the appellant had a mental disorder, the question was whether he had been “unable to appreciate the nature or wrongfulness of that conduct”.
[11] After a short adjournment for technical reasons, the sheriff resumed, as follows:
“...the requirements for the special defence are firstly that the accused must have been suffering from a mental disorder ... and secondly, that he as a result of the mental disorder at the time of the alleged criminal conduct the accused is unable to appreciate the nature or wrongfulness of that conduct ...
If not withstanding a mental disorder the accused was able to any extent to appreciate the nature and wrongfulness of the conduct which constitutes a charge that falls short of the degree of loss of reason required to establish the special defence. The key is the inability to appreciate the nature of the wrongfulness of the conduct by reason of mental illness ... or that it was wrong ... (emphasis added)
Whether the accused was at the time of the alleged offence unable by reason of mental disorder to appreciate the nature and wrongfulness of that alleged conduct, it is a question of fact you have to decide ...” (emphasis added).
[12] The sheriff went on to describe the role of the expert witness and, in that context, he said:
“And you may think that the critical question which they can assist you upon is the question of whether he had any awareness of the nature of his actions or the wrongfulness of those actions ... (emphasis added)
It is for you to accept whether if this was all part of a delusion and that he didn’t recognise that what he was doing was wrong would he have told the call handler about the Taliban?” (emphasis added).
[13] The sheriff summarised the matter thus:
“So in the end of the day the question comes down to this, have the defence proved on a balance of probabilities at the time the crime was committed the accused was suffering from a mental disorder ... which resulted in his being unable by reason of that mental disorder to appreciate the nature or wrongfulness of the alleged conduct. The decision however in the end of the day is yours and yours alone.
So if the special defence has been established I have to direct you to find that the accused was at the time ... unable by reason of mental disorder to appreciate the nature and wrongfulness of the conduct and therefore the accused would be acquitted on the grounds of suffering from mental disorder at the time” (emphasis added).
In his report to the court, the sheriff explained that, in his view, the terms of section 51A do not “impinge on the previous common law test” set in Cardle v Mulrainey 1992 SCCR 658. If a wider test had been envisaged, he reasoned, the word “unable” would not have been used.
Grounds of Appeal and Submissions
[14] The grounds of appeal insisted upon were that the sheriff had misdirected the jury, first, by using the words “to any extent” in relation to the nature or wrongfulness of the conduct. This had defined the defence too narrowly. The amending legislation, which had introduced section 51A of the 1995 Act, had replaced the common law defence of insanity with a “cognitive concept of appreciation of conduct”. This involved something wider than knowledge and included a requirement for a level of rational understanding (Scottish Law Commission Report (2004 No. 195): Insanity and Diminished Responsibility, paras...
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