Alexander Lewis Hutchison Reid V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Bonomy,Lord Drummond Young |
| Neutral Citation | [2012] HCJAC 18 |
| Date | 03 February 2012 |
| Year | 2012 |
| Docket Number | XC387/10 |
| Court | High Court of Justiciary |
| Published date | 03 February 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Reed Lord Bonomy Lord Drummond Young | [2012] HCJAC 18 Appeal No: XC387/10 OPINION OF THE COURT delivered by LORD BONOMY in Appeal by ALEXANDER LEWIS HUTCHISON REID Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Collins, Q.C.; McKennas Law Practice, Glenrothes
Respondent: A. Brown, Q.C., A.D.; Crown Agent
3 February 2012
Background
[1] On 8 September 1967, the appellant pled guilty to the following charge:
"... you did ... on 26th or 27th May 1967, in the house occupied by Gerald Brian McCabe at 20 Norfolk Crescent, Bishopbriggs ... assault Angela Maria Pisacane or McCabe, residing there, and did stab her with a knife and did kill her; ..."
On the same day, Lord Walker made an order under section 55 of the Mental Health (Scotland) Act 1960 ("1960 Act") that the appellant be admitted to and detained in the State Hospital at Carstairs and also made an order under section 60 restricting the appellant's discharge without limit of time. These orders were made after evidence had been led in conformity with the requirements of section 55(5) of the 1960 Act, concerning the mental condition of the appellant, from Dr J W Macpherson, Physician Superintendent, Gartloch Hospital, Glasgow and Dr John Campbell, Deputy Physician Superintendent, Lennox Castle Hospital, Lennoxtown, both Consultant Psychiatrists who had earlier prepared reports which were also before the Court. In light of their evidence, the appellant was found to be suffering from a mental disorder, namely "mental deficiency", and the foregoing orders were made. The court also had a report from Dr J Fairfull Smith, physician at HM Prison Barlinnie, which was consistent with their views.
[2] The evidence given and the order made were not the subject of challenge or appeal at the time. While the basis on which the original petition charge of murder was modified to one of culpable homicide was not minuted, Lord Eassie, who sat in a previous appeal referred to below, stated in paragraph 25 of his Opinion that the Advocate depute was able to tell the Court on that occasion, by reference to notes made by Crown counsel at the time, that the Crown's decision to indict for culpable homicide was taken in light of the reports of Drs Macpherson and Campbell and was on the basis of diminished responsibility. Although, as was pointed out in the course of the hearing before us, the plea of guilty to culpable homicide was consistent with the appellant's stated position that he did not intend to kill the deceased, the circumstances in which the deceased was killed render it highly unlikely that that was the basis on which the charge of culpable homicide was framed. However, nothing turns on that.
[3] In the period immediately following his admission to the State Hospital, the appellant was regarded as suffering from both mental deficiency and a personality disorder, with the latter being regarded as the main or primary constituent of the disorder from which he suffered. Indeed, following his admission to the State Hospital, Dr J M McAlpine, Scottish Home and Health Department Medical Officer, gave as his diagnosis: "Psychopathic personality. High grade mental deficiency".
[4] In the State Hospital his mental state was regularly reviewed. Part of that involved formal psychometric IQ testing. From 1970 these tests consistently produced results generally viewed as inconsistent with a diagnosis of mental deficiency. That has led to many consultant psychiatrists questioning the diagnosis of mental deficiency. There is universal agreement that, were the Court to deal with the appellant today in the knowledge of the results of these tests over the years, then a hospital disposal would not be appropriate.
[5] The aim of this appeal is to have the Court quash the hospital order and restriction order (the modern equivalent being a compulsion order and a restriction order under sections 57A and 59 of the Criminal Procedure (Scotland) Act 1995 ("1995 Act"), and substitute a sentence of imprisonment or detention for life with an appropriate punishment part. Whereas provisions exist for transferring mentally ill prisoners from prison to hospital, none exist permitting a transfer of patients subject to such orders from the State Hospital to prison. Although the appellant suffers from a dissocial or psychopathic personality disorder, and may have done at the time of the offence, it is not suggested in this appeal that that would have formed a basis for making a hospital order or should do so now.
[6] The section under which the hospital order was made, section 55 of the 1960 Act, is in the following terms:
"(1) Where a person is convicted in the High Court of Justiciary or the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the following conditions are satisfied, that is to say:
(a) the court is satisfied, on the written or oral evidence of two medical practitioners ... that the offender is suffering from mental disorder of a nature or degree which, in the case of a person under 21 years of age would warrant his admission to a hospital or his reception into guardianship under Part IV of this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,
the court may by order authorise his admission to and detention in such hospital as may be specified in the order ..."
The relevant provision in Part IV is section 23 which is as follows:
"(1) A person who is suffering from any mental disorder that requires or is susceptible to medical treatment may be admitted to a hospital or received into guardianship in pursuance of the appropriate application under the following provisions of this Act; but, without prejudice to the said provisions so far as relating to emergency admission, no person over the age of twenty-one years shall be so admitted or received except where the mental disorder from which he suffers -
(a) is mental deficiency such that he is incapable of living an independent life or guarding himself against serious exploitation; or
(b) is a mental illness other than a persistent disorder which is manifested only by abnormally aggressive or seriously irresponsible conduct."
The term "mental deficiency" was replaced in the Mental Health (Scotland) Act 1984 ("1984 Act") with "mental handicap" (section 1(2)) and thereafter in the Mental Health (Care and Treatment) (Scotland) Act 2003, section 328(1), with "learning disability".
[7] In 1985 the appellant was moved to Sunnyside Hospital in Montrose on the basis that the main constituent of his condition was a personality disorder. While enjoying a measure of freedom from that hospital on 6 August 1986, the appellant was arrested and charged on summary complaint with the assault and attempted abduction of an 8 year old child. He was found to be sane and fit to plead and, on conviction of assault and attempted abduction, was on 26 September 1986 sentenced to 3 months imprisonment. On completion of that sentence, he was recalled to the State Hospital by the Secretary of State on the basis of the 1967 hospital and restriction orders, under section 68(3) of the 1984 Act which then applied. However, by that stage he was no longer considered to be suffering from mental deficiency.
[8] Thereafter the appellant made four unsuccessful applications to the sheriff at Lanark challenging decisions not to order his release. He applied to the Outer House of the Court of Session for judicial review and reduction of the final decision. His petition was dismissed on 29 May 1996 (1997 SLT 555). However, his appeal to the Inner House against that decision was successful. It was held that he must be discharged in the absence of evidence that treatment in hospital was likely to alleviate or prevent a deterioration in his condition. The Court considered there was no such evidence and reduced the decision of the sheriff (1998 SC 49). The Secretary of State appealed to the House of Lords. The House of Lords agreed that the determining factor was the treatability of the appellant, but reversed the Inner House decision on the ground that, although the sheriff had misconstrued the legislation, he had before him material which entitled him to make the decision he did (1999 SC(HL) 17)
[9] Following that decision the sheriff at Lanark ordered the release of another patient who suffered from a psychopathic disorder in a case where the treatability test was not satisfied. Amid growing public concern, the Scottish Parliament passed the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 requiring refusal of an application for discharge by a patient with a mental disorder where, as a result of the mental disorder, it is necessary for the protection of the public from serious harm for the patient to be detained in hospital, whether or not for medical treatment. The legislation also extended the definition of "mental disorder" to include personality disorder. The relevant provisions can now be found in section 193 of the Mental Health (Care and Treatment) (Scotland) Act 2003.
[10] A challenge to the 1999 legislation as ultra vires the Scottish Parliament on account of its incompatibility with article 5 of the European Convention on Human Rights was unsuccessful (A v The Scottish Ministers 2002 SC(PC) 63, 2001 SC 1), as was an application to the European Court of Human Rights for a finding of wrongful detention, also based on article 5 (Reid v The United Kingdom (2003) 37 EHRR 211). In the face of that barrier to his discharge from the State Hospital the appellant resorted belatedly to an appeal against the hospital order...
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