Reid v Secretary of State for Scotland

JurisdictionEngland & Wales
JudgeLORD SLYNN OF HADLEY,LORD LLOYD OF BERWICK,LORD HOPE OF CRAIGHEAD,LORD CLYDE,LORD HUTTON
Judgment Date03 December 1998
Judgment citation (vLex)[1998] UKHL J1203-2
Date03 December 1998
CourtHouse of Lords
Hutchison Reid
(Respondent)
and
Secretary of State for Scotland
(Appellant)

And Another

(Scotland)

[1998] UKHL J1203-2

Lord Slynn of Hadley

Lord Lloyd of Berwick

Lord Hope of Craighead

Lord Clyde

Lord Hutton

Type names here

HOUSE OF LORDS

LORD SLYNN OF HADLEY

My Lords,

1

I have had the advantage of reading a draft of the speech prepared by my noble and learned friend Lord Clyde. For the reasons he gives, I too would allow the appeal and restore the interlocutor of the Lord Ordinary. I also agree with the guidance given by my noble and learned friend Lord Hope of Craighead as to the application of the statutory provisions.

LORD LLOYD OF BERWICK

My Lords,

2

On 8 September 1967 the respondent Alexander Lewis Hutchison Reid, then aged 17, was convicted of culpable homicide. He was made the subject of a hospital order under what is now section 58 of the Criminal Procedure (Scotland) Act 1995. He was also made subject to a restriction order under section 59 of the Act, without limit of time. A restriction order may only be made if it appears to the court that it is necessary for the protection of the public from serious harm.

3

The medical evidence at the trial was to the effect that Mr. Reid was suffering from what was then known in Scotland as mental deficiency, but is now known as mental handicap. It is common ground (and the sheriff has so found) that he is not mentally handicapped. Instead he is suffering from a "persistent and permanent mental disorder" characterised by "abnormally aggressive and seriously irresponsible behaviour." In other words he is a psychopath. In July 1994 he made an application for his discharge (not for the first time) under section 64 of the Mental Health (Scotland) Act 1984. But Sheriff Reeves refused to make an order. He found that if Mr. Reid were to be released now, there would be a very high risk of his re-offending, and his offending would be likely to have a sexual connotation. He reached his conclusion after hearing conflicting evidence from seven psychiatrists.

4

Mr. Reid presented a petition for judicial review of the sheriff's decision. The Lord Ordinary (Rodger) 1995 S.L.T. 555 dismissed the petition. He based himself on the decision of the Divisional Court in England in Reg. v. Mersey Mental Health Review Tribunal, Ex parte Dillon ( unreported 19 March 1986) and the subsequent decision of the Court of Appeal in Reg. v. Canons Park Mental Health Review Tribunal, Ex parte A [1995] Q.B. 60. The Inner House 1997 S.L.T. 162 allowed a reclaiming motion, and granted a decree of reduction of the sheriff's decision. There is now an appeal to your Lordships.

5

Although the appeal is nominally and in substance an appeal by the Secretary of State for Scotland, it is also in reality an appeal against the decision of the Court of Appeal in the Canons Park case. Regrettably their Lordships in the Inner House regarded the Canons Park case as irrelevant on the ground that the "terminology" of the English Mental Health Act of 1983 differs from that of the Scottish Act. Mr. Bell Q.C. for the Secretary of State was unable to sustain that ground. It is now common ground that the relevant provisions of the two Acts are essentially the same. Consistently your Lordships in allowing the appeal have held that the Canons Park case was wrongly decided. Since the Canons Park case and the previous decision in Ex parte Dillon have been treated as guiding authority in numerous decisions in the Sheriff's Court in Scotland (see Reg. v. Secretary of State for Scotland 1989 S.C.L.R. 784) and in Mental Health Review Tribunals throughout England (see Reg. v. Mental Health Review Tribunal, Ex parte Macdonald [1998] C.O.D. 205) it is clear that your Lordships' decision will have wide repercussions. It is not known how many cases where psychopaths are currently being detained under Part II of the Act of 1983 (England and Wales) or Part V of the Act of 1984 (Scotland) will have to be reconsidered.

6

But the consequences are even more serious in the criminal field. Take the case of a dangerous psychopath who has been convicted of a grave sexual offence. Instead of being sentenced to life imprisonment, he may quite properly have been made subject to a hospital order under section 58 of the Act of 1995, and a restriction order under section 59. For that purpose it would have been necessary for the court to be satisfied on the evidence of two psychiatrists not only that he was suffering from a psychopathic disorder, but also that medical treatment was "likely to alleviate or prevent a deterioration of his condition": (see section 17(1)(a)(i) of the Act of 1984). Now suppose that the psychiatrists turn out to be wrong. Suppose that the current of psychiatric opinion has changed, and it is now the better view that treatment never could have had the desired effect. Or suppose, more simply, that the treatment has run its course, and that it has done for the patient all that it was ever likely to do by way of alleviating his condition or preventing any further deterioration. His condition is stable, but he is still suffering from the same psychopathic disorder, and is still dangerous. If their Lordships of the Inner House are correct, the sheriff would be bound to order his discharge. Conditional discharge under section 64(1)(c) and (2) would not be appropriate, since, ex hypothesi, further treatment would serve no purpose. So the sheriff would be bound to order an absolute discharge.

7

That might not in itself be cause for alarm if the patient could be brought back into the prison system. But it was common ground that until section 6 of the Criminal Procedure (Scotland) Act 1997 (and section 46 of the Crime (Sentences) Act 1997 in England) there was no way of bringing such a man back into the prison system so as to serve the sentence of life imprisonment which would otherwise have been imposed on him; and section 6 of the Scottish Act and section 46 of the English Act are not retrospective. It is not known how many psychopathic offenders are currently detained in hospital under restriction orders whose cases will now have to be reconsidered, and who may, as a result, have to be released back into the community. The seriousness of these possible consequences does not need to be underlined. The consequences cannot, of course, control the construction of the Act of 1984, if the meaning is clear. But it does lead one to wonder whether a construction which produces such consequences can be correct.

8

It is convenient at this stage to set out the most relevant statutory provisions. The Criminal Procedure (Scotland) Act 1995 provides:

"58(1) Where a person is convicted in the High Court 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 (complying with section 61 of this Act) that the grounds set out in -

  • (i) section 17(1); or, as the case may be

  • (ii) section 36(a),

of the Mental Health (Scotland) Act 1984 apply in relation to the offender;

(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,

subject to subsection (2) below, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of such local authority or of such other person approved by a local authority as may be so specified.

"59(1) Where a hospital order is made in respect of a person, and it appears to the court -

  • (a) having regard to the nature of the offence with which he is charged;

  • (b) the antecedents of the person; and

  • (c) 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 from serious harm 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 section 62(1) of the Mental Health (Scotland) Act 1984, without limit of time."

9

The Mental Health (Scotland) Act 1984 provides:

"17(1) A person may, in pursuance of an application for admission under section 18(1) of this Act, be admitted to a hospital and there detained on the grounds that -

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(i) in the case where the mental disorder from which he suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition; or

(ii) in the case where the mental disorder from which he suffers is a mental handicap, the handicap comprises mental impairment (where such treatment is likely to alleviate or prevent a deterioration of his condition) or severe mental impairment; and

(b)it is necessary for the health or safety of that person or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this Part of this Act.

"64(1) Where an appeal to the sheriff is made by a restricted patient who is subject to a restriction order, the sheriff shall direct the absolute discharge of the patient if he is satisfied -

(a) that the patient is not, at the time of the hearing of the appeal, suffering from mental disorder of a nature or degree which makes it appropriate for him...

To continue reading

Request your trial
110 cases
  • Cohen v Minister for Immigration and Multicultural Affairs
    • Australia
    • Federal Court
    • Invalid date
  • R (M) v Ashworth Hospital Authority
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 16 d3 Julho d3 2003
    ...be likely to alleviate or prevent a deterioration in their condition (ss 3(2)(b) and 37(2)(a)(i)). The House of Lords held in Reid v Secretary of State for Scotland [1999] 2 AC 512 that medical treatment could include treatment which alleviates or prevents a deterioration of the symptoms o......
  • R (von Brandenburg) v East London and the City Mental Health NHS Trust
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 d3 Fevereiro d3 2001
    ...3 regime and the Tribunal's functions under sections 66 and 72(1). He submitted that the decision of the House of Lords in Reid v Secretary of State for Scotland [1999] 2 WLR 28, which relates to provisions of the Mental Health (Scotland) Act 1984 which are essentially identical to those o......
  • R (CS) v Mental Health Review Tribunal and Managers of Homerton Hospital
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 6 d1 Dezembro d1 2004
    ...that the patient any longer satisfies the conditions for detention under section 3, then the patient must be discharged. In Reid v Secretary of State for Scotland, HL [1999] 2 AC 512, the House was concerned with the Scottish equivalent of section 3 as it affected a convicted person admitt......
  • Request a trial to view additional results
5 books & journal articles
  • Cases
    • United Kingdom
    • Sage Journal of Criminal Law, The No. 63-6, December 1999
    • 1 d3 Dezembro d3 1999
    ...3 WLR 382 54RvYalman [1998] 2 Cr App R269121R vYoung(KennethPatrick)unreported,30April 1999456ReidvSecretaryofStateforScotland[1999]2 WLR 28 360RobertsvCheshireChiefConstable[1999] IWLR 662 424SecretaryofStateforTransportvRichards(1998) 162 JP 682 102StanleyvDPP[1998]3WLR 514 47Steelandothe......
  • Cases
    • United Kingdom
    • Sage Journal of Criminal Law, The No. 63-6, December 1999
    • 1 d3 Dezembro d3 1999
    ...3 WLR 382 54RvYalman [1998] 2 Cr App R269121R vYoung(KennethPatrick)unreported,30April 1999456ReidvSecretaryofStateforScotland[1999]2 WLR 28 360RobertsvCheshireChiefConstable[1999] IWLR 662 424SecretaryofStateforTransportvRichards(1998) 162 JP 682 102StanleyvDPP[1998]3WLR 514 47Steelandothe......
  • Cases
    • United Kingdom
    • Sage Journal of Criminal Law, The No. 63-5, October 1999
    • 1 d5 Outubro d5 1999
    ...3 WLR 382 54R v Yalman [1998] 2 Cr App R269121R vYoung(KennethPatrick)unreported,30April 1999456Reid vSecretaryofStateforScotland[1999]2 WLR 28 360RobertsvCheshireChiefConstable[1999] 1WLR 662424Secretaryof StateforTransportvRichards(1998) 162 JP 682 102StanleyvDPP[1998] 3 WLR 514 47Steelan......
  • Cases
    • United Kingdom
    • Sage Journal of Criminal Law, The No. 63-5, October 1999
    • 1 d5 Outubro d5 1999
    ...3 WLR 382 54R v Yalman [1998] 2 Cr App R269121R vYoung(KennethPatrick)unreported,30April 1999456Reid vSecretaryofStateforScotland[1999]2 WLR 28 360RobertsvCheshireChiefConstable[1999] 1WLR 662424Secretaryof StateforTransportvRichards(1998) 162 JP 682 102StanleyvDPP[1998] 3 WLR 514 47Steelan......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT