Mc Lachlan v Brown
| Jurisdiction | Scotland |
| Judgment Date | 09 May 1997 |
| Neutral Citation | 1997 SCCR 457 |
| Date | 09 May 1997 |
| Docket Number | No 35 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Kirkwood and Lord Wylie
Procedure—Summary procedure—Evidence—Plea in bar of trial—Mental impairment—Whether plea competent at common law—Whether plea could be determined on evidence of persons other than medical practitioners—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 54(1)1
Section 54(1) of the Criminal Procedure (Scotland) Act 1995 enacts that where the court is satisfied on the written or oral evidence of two medical practitioners that the person charged with the commission of an offence is insane so that his trial cannot proceed or continue, it shall, inter alia, make a finding to that effect and discharge a trial diet.
The pannel appeared in the sheriff court on three summary complaints. In each of the proceedings a plea in bar of trial was taken on his behalf based on “mental disorder—accused handicapped”. The pannel had been examined by two psychiatrists on behalf of the Crown and was certified sane and fit to plead. The psychiatrists did, however, note that, although intellectually impaired, the pannel was capable of understanding the charges against him, the court process and the possible consequences of that process. The defence led evidence of a clinical psychologist to the effect that the pannel was unable to understand and deal properly with the legal process at each and every stage, from the administering of a common law caution by police officers to the conclusion of any subsequent trial. The sheriff repelled the plea as incompetent on the ground that it had no place of common law and should be dealt with as one of insanity under sec 54(1). In those circumstances the evidence of the psychologist could not be taken into account. The pannel appealed to the High Court of Justiciary.
Held (1) that sec 54(1) was intended to apply not only to cases where a person was unfit to plead due to mental illness, but also to cases, such as the present, where he was unfit to plead due to some mental impairment or handicap; and (2) that, accordingly, the court could sustain a plea of mental impairment only where it was satisfied that the person was insane on the evidence of two medical practitioners; and appeal refused.
Observed (1) that if a distinct plea based on mental impairment could be advanced at common law, then the result would be that the pannel would fall outside the statutory scheme which Parliament had laid down for dealing with such cases and would be released without the criminal justice system being able to make further provision for him; (2) that the psychiatrists' position was no different from that of other experts who might formulate their views by relying in part on the specialist knowledge of colleagues so that, if need be, the evidence of a psychologist might be led before the court and the psychiatrists asked to give their opinion in light of that evidence; and accordingly (3) that there was no reason to believe that medical practitioners should not be able to furnish the courts with the necessary opinions in cases of mental impairment albeit, should that not be the case and difficulties were...
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Brian Andrew Hughes V. Her Majesty's Advocate
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