Alexander Lewis Hutchison Reid V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Bonomy,Lord Emslie,Lady Paton,Lady Dorrian |
| Judgment Date | 09 July 1999 |
| Neutral Citation | [2012] HCJAC 150 |
| Published date | 27 November 2012 |
| Docket Number | XC387/10 |
| Court | High Court of Justiciary |
| Date | 27 November 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Bonomy Lord Emslie Lord Brodie Lady Dorrian | [2012] HCJAC 150 Appeal No: XC387/10 OPINION OF THE COURT delivered by LADY PATON in REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the case of ALEXANDER LEWIS HUTCHISON REID Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Gilchrist, QC, Richardson; Paterson Bell (for McKennas Law Practice, Glenrothes)
Respondent: Brown QC, advocate depute; Crown Agent
27 November 2012
Fresh evidence appeal against sentence[1] The appellant has been detained in Carstairs State Hospital since 1967 in terms of a hospital order and a restriction order (currently a compulsion order and a restriction order). However he contends that he does not suffer from, and never has suffered from, a mental disorder, and thus that the imposition of the orders in 1967 amounted to a miscarriage of justice. He seeks to have the orders quashed, and a discretionary life sentence of imprisonment substituted.
Circumstances of the appellant's offence in 1967[2] In June 2010 the Scottish Criminal Cases Review Commission (SCCRC) referred the appellant's case to the High Court in the circumstances set out in paragraph [9] below. In their Statement of Reasons, the SCCRC summarise the circumstances of the appellant's offence as follows:
"4. On 8 September 1967, the [appellant] pled guilty to charge 4(a) of an indictment in the following terms:
' ... the charges against you are that you did (1) on 9th January 1967, break into the premises occupied by Bashir Ahmed at 127 Firhill Street, Glasgow, and there steal 6,000 cigarettes, a quantity of confectionery and £20 of money; (2) on 6th March 1967, in the common court at 616 Maryhill Road, Glasgow, assault Frank Ward, aged 6 years, 604 Maryhill Road aforesaid, and did seize him by the neck, compress his throat, strike his head against a wall and strike him on the face and head with your fists to his injury; (3) on 26th or 27th May 1967, in the premises occupied by Alexandra Transport Company Limited at Wilderness Sand Quarry, Balmuildy Road, Bishopbriggs, Lanarkshire, force open a lockfast cabinet and steal therefrom a low-bow and a knife; and (4) on 26th or 27th May 1967, in the house occupied by Gerald Brian McCabe at 20 Norfolk Crescent, Bishopbriggs aforesaid, (a) assault Angela Maria Pisacane or McCabe, residing there, and did stab her with a knife and kill her; and (b) steal a pair of scissors, a holder, driving licence, photographs, miscellaneous papers and a purse containing £15 of money."
5. His pleas of not guilty on charges 1, 2, 3, and 4(b) were accepted by the Crown ...
8. The following is based upon the papers available from the National Archives of Scotland and the various summaries of the case provided in the House of Lords' and appeal court decisions in the [appellant's] case.
9. The deceased, Angela McCabe, was found dead in her home at 3.30 am on 27 May 1967 by her husband when he returned from work. The couple's week-old daughter was found unharmed in another room. The deceased's jersey had been pulled up over her breasts, her skirt and clothes were ripped aside to reveal her pubis and a sanitary pad was still in place. A baby's cardigan was found covering her face. There were some bloodstains on the wall and fireplace in the living room and a smear of what appeared to be blood on the back of the living room door. Other than this the house was described as being 'in an orderly condition'. The deceased had been stabbed through the front of the chest. The wound involved her aorta and pulmonary artery. She bled to death as a result of the wound. There was no evidence of a sexual assault having taken place.
10. The [appellant] told police that he had gone to Glasgow after his parents were asleep. He had been in the deceased's house earlier on 26 May 1967. She had given him a cup of tea after he had sharpened some garden tools for her. She had invited him back. When he returned to her home she invited him in. She took his jacket off. He threatened her with a knife. He struck at her. He said:
'I did not mean to do any harm. She fell. I went home. I thought she had fainted. I saw a purse lying on top of the dresser. I lifted it.'
11. At the time of the offence, the [appellant] was 17 years old. According to the medical report by Dr J Fairfull Smith at HMP Barlinnie, the applicant had been sent to St Mary's Approved School at Bishopbriggs at the age of 15 for breaking the windows of a pub. He told Dr Macpherson that he had been helping his father to park the car near to a shop with a broken window. To prevent damage to the tyres he moved broken glass from the gutter. As a result, his fingerprints were found on the glass. In relation to charge (2) of the indictment, he told Dr Macpherson that he had stopped a youth assaulting a 6-year old child, and while subsequently comforting the child was seen by a woman who assumed that he had been the culprit. The child apparently concurred, but the [appellant] could not explain why.
12. The [appellant] has given a number of conflicting accounts of the offence to various doctors over the years since he was detained ..."
Sentencing in 1967[3] The relevant statute was The Mental Health (Scotland) Act 1960 ("the 1960 Act"), which provided inter alia as follows:
"6. - In this Act 'mental disorder' means mental illness or mental deficiency however caused or manifested ...
55. - (1) Where a person is convicted in the High Court of Justiciary or the sheriff court of an offence ... 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 a mental disorder of a nature or degree which, in the case of a person under twenty-one 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 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 ...
60. - (1) Where a hospital order is made in respect of a person and it appears to the court, having regard to the nature of the offence with which he is charged, the antecedents of the person and the risk that as a result of his mental disorder he would commit offences if set at large, that it is necessary for the protection of the public so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order ..."
[4] In 1967 psychiatric assessments, including IQ tests, concluded that the appellant was suffering from a mental disorder within the meaning of the 1960 Act, namely mental deficiency (currently classified as a learning disability in terms of section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003). On the basis of reports, the Crown decided not to libel murder but rather culpable homicide on the basis of diminished responsibility, all as set out in charge 4(b). As noted in the SCCRC's Statement of Reasons, on 8 September 1967 the appellant (aged 17), having been advised by his lawyers, pled guilty to that charge before Lord Walker in the High Court in Glasgow. The judge then heard oral evidence from two psychiatrists (Dr Macpherson and Dr Campbell) to the effect that the appellant was suffering from that mental disorder. On the basis of that evidence, the judge imposed a hospital order in terms of section 55 of the 1960 Act, detaining the appellant in the state hospital at Carstairs. He also made a restriction order in terms of section 60, restricting the appellant's discharge without limit of time. The orders currently applying to the appellant are a compulsion order and a restriction order in terms of section 57A and 59 of the Criminal Procedure (Scotland) Act 1995.
Developments since 1967The introduction of fresh evidence appeals
[5] The possibility of appealing against a sentence on the basis of fresh evidence was introduced by the Criminal Justice (Scotland) Act 1980, Schedule 2. Further legislative changes were made by the Criminal Procedure (Scotland) Act 1995 and the Crime and Punishment (Scotland) Act 1997. The current provisions relevant to the present case are to be found in sections 106(3) and 118(4) of the 1995 Act.
A growing appreciation that the appellant is not suffering from a mental disorder
[6] In the years following 1967, the appellant's psychiatrists came to the view that he was...
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