Reid v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 11 December 2007 |
| Date | 11 December 2007 |
| Court | High Court of Justiciary |
Court: High Court of Justiciary
Lords Johnston, Eassie and Marnoch
Representatives: Bell QC and Logan (instructed by Purdie & Co) for R; Ogg QC (instructed by N McFadyen, Crown Agent) for the Prosecution.
Whether a hospital disposal for culpable homicide should be replaced by an indeterminate sentence of imprisonment.
In 1967, R admitted a charge of culpable homicide on the basis of diminished responsibility, a plea which was offered by the prosecution and accepted by the defence. He was committed to Scotland's high secure hospital, the state hospital at Carstairs, pursuant to a hospital order with a restriction order under ss. 55 and 60 Mental Health (Scotland) Act 1960; this was on the basis of 2 medical reports prepared whilst he was on remand in prison concluding that he had "mental deficiency". He was still detained at Carstairs. R appealed the sentence, arguing that an indeterminate prison sentence should have been imposed rather than a hospital disposal because be could not have been found to have mental deficiency without a proper assessment of his IQ, which had not been done; and the diagnosis required a finding of a condition emanating from birth and never disappearing, which could not be so because tests done whilst he was in hospital showed that he did not then suffer from mental deficiency.
Evidence at the appeal hearing indicated that (i) there were differences of view as to whether R met the test for mental deficiency in 1967, though his IQ was probably above the normal cut-off point; the written reports available to the court in 1967 did not support a clear finding of mental deficiency, though it was not known what oral evidence had been given; that had been the basis for his detention throughout; (ii) he suffered from a personality disorder, though that would have been difficult to diagnose in 1967 because he was under 18 then; this emerged as R's primary diagnosis; it is now a recognised mental disorder, though it is treatable in prison and so not only treatable in the state hospital, a pre-condition for detention there; (iii) had the matter been considered de novo, an indeterminate sentence was the likely sentence.
[1] On 8 September 1967 the appellant pleaded guilty to a charge of culpable homicide against a background of an original charge of murder which was reduced by the Crown and accepted by the defence, to that charge on the basis of diminished responsibility. The trial judge had before him 2 reports by respectively James Watson Macpherson and John Campbell ("the reports"). He also heard oral testimony from those doctors and without opposition pronounced a hospital order and order restricting discharge under the Mental Health (Scotland) Act 1960, ss. 55 and 60. The stated mental disorder from which the appellant was said to be suffering was mental deficiency. The appellant was accordingly committed to the state hospital at Carstairs where he has resided ever since.
[2] Over the years quite apart from his case being reviewed internally by the hospital doctors, the appellant, once it became possible for him to do so, made a number of applications to the sheriff at Lanark to obtain his release, all of which were unsuccessful. He then had recourse to the civil courts by way of judicial review which was initially successful in the Second Division. However, that decision was to some extent overturned by the House of Lords. The House affirmed the decision of the Second Division that the approach of the sheriff at Lanark had been wrong but reversed their decision to the extent of ordering that the matter be reverted back to the sheriff for further consideration. However, before that could happen the Scottish Parliament intervened with legislation preventing such a review if the applicant was regarded as a danger to the public. This was the case as regards the appellant and his review process in the civil courts accordingly came to an end by operation of statute, now incorporated in the Mental Health (Care and Treatment) (Scotland) Act 2003.
[3] The appellant thereafter resorted to the criminal courts and lodged an application for leave to appeal against the hospital order granted in 1967, under s. 60 of the Criminal Procedure (Scotland) Act 1995. It is to be noted that this amended legislation now refers to a compulsion order rather than a hospital order but that is pure terminology. The application was made in 2005 and leave was granted.
[4] The basis of the application which was to be supported by further medical evidence was that the original hospital order was not based on adequate or indeed any appropriate evidence.
[5] After sundry procedure the case duly called before this court which heard evidence from a total of 4 psychiatrists, Drs Chiswick, Crichton and Gray on behalf the appellant and Dr Bell on behalf the respondent. The Lord Advocate appeared in the public interest, subjected the witnesses to cross examination and adopted the position quite appropriately of contradictor in the public interest.
[6] Only Dr Chiswick in the course of the history of the appellant had treated the appellant when the doctor was working in the state hospital in the mid-1970s. All 4 doctors had made a recent examination of the appellant and presented reports together with their oral evidence.
[7] Having heard the evidence I make the following findings in fact.
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1. Opinions differed whether the appellant met or might have met the test of mental deficiency in 1967. Dr Chiswick described the case as borderline but the IQ testing from the initial stages of the process rated the appellant at above 70 which was normally the level for mental deficiency. Dr Bell was of the view that it was possible that the test for mental deficiency was met in 1967 but she could not say for certain since she was not in possession of all the evidence that was probably available at that time.
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2. The appellant is now and probably always has suffered from a personality disorder although the doctors were of the view that such would be difficult to diagnose in view of his age, ie, under 18, in 1967. His condition shows social dysfunction and manifest examples of aggressive behaviour.
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3. Throughout his time in the state hospital, the appellant was subjected to an annual review by the doctors and there are repeated entries in the medical records spoken to particularly by Dr Chiswick that from year to year no doctor considered that he should not be retained in the state hospital. Although there is some mention of personality disorder, the basis for that continued detention appeared to remain mental deficiency.
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4. The reports presented at the time did not extrinsically reflect sufficient testing had been carried out on the appellant to support a clear finding of mental deficiency.
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5. At the hearing in 1967 those reports were however fenced by oral testimony, a record of which is no longer available.
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6. Personality disorder is now a recognised mental disorder which can justify retention in the state hospital.
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7. Personality disorder, however, is susceptible to treatment both in prison and in hospital and accordingly it is not the case that the condition from which the appellant suffers is now "only" treatable in the state hospital, now a necessary statutory requisite for detention in that institution. At the present time therefore, he does not qualify for detention in the state hospital on that ground.
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8. If the matter was being considered de novo as if the offence had been committed at the present time, the likely outcome would have been a prison sentence probably for an indeterminate period.
[8] Having made those findings it is important to emphasise 4 factors.
[9] In the first place, in 1967 both sides of the bar recognised that diminished responsibility was relevant and established and this was accepted by the court inevitably when faced with a disposal. No challenge was therefore made at the time to the findings of mental disorder which led to the hospital order. Indeed it has to be said that at the time everybody involved was clearly of the view that it was in the interests of this vulnerable young man not to go to prison. Therefore the starting point for the court was a disposal which involved diminished responsibility reflecting a mental disorder recognised at that time by the law.
[10] Secondly, much of the diagnosis and discussion from the doctors who gave evidence to us was achieved with hindsight going back over the records. While this was a perfectly legitimate exercise, it is not necessarily conclusive or even relevant to the original finding made by the trial judge in 1967. I consider the proper relevance of the issue of hindsight is whether or not the medical review process was properly carried out, particularly in the 1970s and 80s.
[11] Thirdly, it is not in my view entirely appropriate to regard this case as a fresh evidence case applying the principles that apply to such an application to this...
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