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.

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.

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.

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.

5. At the hearing in 1967 those reports were however fenced by oral testimony, a record of which is no longer available.

6. Personality disorder is now a recognised mental disorder which can justify retention in the State Hospital.

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.

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 four 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 Court. I consider the Court is more concerned with the true status of the original order in 1967.

[12] Fourthly, quite apart from the medical evidence there remains the overall question of miscarriage of justice which I consider at the end of the day to be the test to be applied if the Court is intending to quash the order made in 1967.

[13] The submissions of counsel for the appellant were simple but stark. He submitted that upon the evidence the reports were wholly inadequate to base a finding of mental deficiency, there being no evidence that proper testing such as the text books required at the time had been carried out to make a proper assessment of the appellant's IQ which was the basic way of determining the existence of mental deficiency. Given that fact, he submitted, the original hospital order could not stand and must be quashed being in itself a miscarriage of justice because it was wrongly or inadequately based. The fact that at the time diminished responsibility was accepted by everybody to be relevant and indeed the driving force in the determination that was nothing to the point if it was again not adequately based upon the evidence. The appellant never had suffered from mental deficiency as properly understood which had to be a condition emanating from birth and never disappearing, even if it to some extent improved symptomatically.

[14] Counsel accepted that, if looked at at the present time against the present statutory background and the relevant facts, the appellant would not be committed to the State Hospital for the reasons I have already found, namely that such treatment as he may require while falling within the definitions in the relevant legislation is equally available in prison and that defeats the word "only" as regards committal to the State Hospital. If the same circumstances included diminished responsibility existed at the present time in this hypothetical situation counsel accepted that the inevitable result would be not a compulsion order to the State Hospital but rather a prison sentence. He accepted in view of the fact that the appellant was a danger to the public that at this time the only realistic sentence as such was a discretionary life sentence. He maintained, however, that the appellant was entitled to this order, ie. commitment to prison because that opened different lines of review, namely the Parole Board, particularly from that which is available in the State Hospital. He accordingly invited us to make such an order, namely a quashing of the hospital order and the substitution of an indeterminate life sentence in prison.

[15] The Advocate Depute in his submissions relied upon Dr Bell at least to the extent that she, being an expert in learning disability, evinced the possibility that the appellant had met the test of mental deficiency in 1967. More importantly he maintained that the original determination depended on a three stage process only one of which was evinced by the reports. The first stage would be an original assessment by both doctors and would have to be borne in mind that Dr Campbell was a then recognised expert in mental deficiency and learning disabilities. Thereafter the preparation of reports for the court which he maintained reflected the style and content of such in 1967 and did not necessarily reflect all the available evidence as they probably would do now. Thirdly, and most importantly, he pointed out and emphasised strongly the fact that the trial judge had heard all evidence now not capable of being determined as to content which formed a material part if not the major part of his determination to make a hospital order. It was accordingly wholly inappropriate for this Court at this stage of the process 40 years on, to determine that effectively both doctors and the trial judge were in dereliction of duty as regards both the assessment of mental deficiency and as far as the judge is concerned, the making of the order. The presumption was precisely to the opposite effect and the benefit of hindsight did not make this process any less determinative at this stage. The appropriate time to measure the issue was at the time of the hearing in 1967. It was not a fresh evidence case but simply a question of whether or not that decision could then be supported, which he submitted for the reasons he had given it was capable of being so.

[16] In any event against the background at the Bar of agreed diminished responsibility for an agreed ground as accepted by the defence, it could not be said there was a miscarriage of justice. Incarceration in the State Hospital would have been the inevitable result, he submitted, in any event.

[17] In seeking to resolve this matter I consider that the submissions of the Advocate Depute are to be preferred. I accept that on the face of it the reports may not be themselves sufficient to justify a finding of mental deficiency in 1967. I do not however consider that that is anything to the point. Given Dr Bell's position that mental deficiency was at least a possibility I agree with the submissions of the Advocate Depute with regard particularly to what must have been the context of the oral evidence. In the end, the decision of the Court rested not on facts objectively ascertained but on opinion evidence of expert witnesses. To find otherwise as he submitted would severely criticise both the doctors' and the judge's approaches to the matter. I consider it is to be presumed that at the time the matter was properly considered. Whatever may be the mental state of the appellant now, that is nothing to the point. As I have indicated, hindsight may cause some reflections to be made on the adequacies of the review processes in the 1970s and 1980s but that again does not affect the issue. Nor do I consider it material that at the present time if the matter was considered completely de novo it is likely if not inevitable, given the relevant Statutes and the nature of treatment required that the appellant would be sent to prison. That is not what the Court is required to consider.

[18] In any event, looking at the matter realistically it is clear that in 1967 everybody involved in this case was agreed not only that it was in the interests of this then young man to go to the State Hospital but also that it was appropriate that he should do so. I cannot see any circumstances in this case which resulted in fact in a finding of culpable homicide for diminished responsibility would achieve a prison sentence at that time. It cannot therefore be said that there was a miscarriage of justice in this case in the sense that a wrong result was achieved which requires to be rectified. I cannot perceive of any circumstances which would not have resulted in this young man going to Carstairs in 1967 and I are therefore firmly of the view that realistically no miscarriage of justice has occurred.

[19] In these circumstances I would move your Lordships that this appeal must be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Eassie

Lord Marnoch

[2007] HCJAC70

Appeal No: XC486/05

OPINION OF LORD EASSIE

APPEAL

ALEXANDER LEWIS REID

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Bell, QC; Logan; Purdie & Co

Respondent: Ogg, QC; Crown Agent

11 December 2007

[20] I agree with your Lordship in the chair that the court should refuse this appeal against sentence brought as respects a hospital order and a restriction order respectively made by the court more than 40 years ago.

[21] As your Lordship in the chair has indicated, the appellant was originally charged, on petition, with murder. While in remand in custody in HMP Barlinnie he was seen and examined by two psychiatrists, namely Dr James W Macpherson, the Physician Superintendent at Gartloch Hospital, Glasgow and Dr John Campbell, the then Deputy Physician Superintendent at Lennox Castle, Lennoxtown, which was accepted before us to have been an establishment with expertise in what is now described as "learning disability" but was then usually described as "mental deficiency" (and, in terms of section 6 of the Mental Health (Scotland) Act 1960, constituted "mental disorder").

[22] Dr Macpherson's report is dated 12 June 1967. By today's standards the report is relatively brief, extending to two pages of typescript but under that short narrative of his examination it expresses the opinion that the then accused suffered from mental subnormality and could be detained under Part IV of the 1960 Act. Dr Macpherson further opined that the then accused should be detained in a mental hospital and that that hospital should be the State Hospital.

[23] Dr Campbell's report is dated 20 June 1967. By today's standards it is also brief. Dr Campbell expressed the opinion that the then accused suffered from mental deficiency to a degree which led to his being suitable to be dealt with as a mental defective under the 1960 Act and that in his own interest, and in the interests of others, he required supervision which could only be obtained in a State Hospital for Mental Defectives.

[24] For completeness at this stage in the history, I regard it appropriate to mention that there is also extant within the Crown Office papers a report to the Procurator Fiscal from Dr Fairfull Smith, the physician to HMP Barlinnie, who, having examined the accused on several occasions, expressed the opinion that he was "a mental defective who came under the scope of the Mental Health (Scotland) Act 1960." Dr Fairfull Smith went on to observe that the then accused had a personality disorder; and that the only place for him was the State Hospital at Carstairs.

[25] The Advocate Depute was able to tell us, by reference to notes made by Crown counsel at the time, that the Crown's decision to indict the then accused not with murder but with culpable homicide (on the basis of diminished responsibility) was taken in light of the foregoing reports. The reports by Drs Macpherson and Campbell were in due course listed as documentary productions on the annex to the indictment. The appellant pled guilty to the charge of culpable homicide and his plea of not guilty to such other charges as were contained in the indictment was accepted. According to the order of the court made following the plea, oral evidence was led from Drs Campbell and Macpherson which satisfied the presiding judge that the panel was suffering from a mental disorder, namely mental deficiency, and should be detained in the State Hospital. The shorthand record of the proceedings is no longer available and accordingly we do not now know what was said in that oral evidence or indeed in discussion before the sentencing judge.

[26] The opinions held by Drs Macpherson and Campbell (and also Dr Fairfull Smith) were evidently shared by the practitioners at the State Hospital when they examined the appellant in the period immediately following his admission. Thus, Dr J M McAlpine, the Scottish Home and Health Department Medical Officer who examined the appellant on 30 October 1967 and whose notes of the examination extend to some twelve pages, summarised his findings by stating inter alia -

"The patient is of sub-normal intelligence and has attended school so irregularly that his educational attainments are far below his level of intelligence. He is simple and childish in manner. He is plausible in speech, minimises his shortcomings, but so lacking in judgement and reasoning ability that his explanations are patently false ... He does not show any psychotic features - his outlook on life is that of the typical high grade defective and his psychopathy would appear to owe as much to nurture as to nature".

Dr McAlpine commented further -

"The patient is a high grade mental defective who has suffered from irregular attendances at school so that he appears to be of lower intelligence than he is. He is simple and childish in manner, completely irresponsible in his outlook in life and his moral sentiments are rudimentary."

Dr McAlpine gave as his diagnosis - "Psychopathic personality. High grade mental deficiency."

[27] The references to Dr McAlpine's views and the quotations given above are taken from the excerpts from Dr McAlpine's notes set out in Dr Chiswick's report of 26 August 2004 which was placed before this court and to which Dr Chiswick spoke in his evidence. (The full records of the State Hospital are not before us, but they have been made available to the experts instructed on behalf of the appellant and also on behalf of the Crown). Such further passages from the State Hospital records excerpted by Dr Chiswick, and others referred to by the other experts, indicate in broad terms that in the years following his admission the appellant was regarded as suffering from both mental deficiency and a personality disorder. As part of the régime to which he was subject in the State Hospital the appellant underwent periodic psychometric intellectual assessment. From Dr Chiswick's excerpts it appears that testing on the Wechsler Adult Intelligence Scale (WAIS) in 1975 produced the classification, on that scale of IQ testing, of "borderline defective". Testing in 1980 again placed the appellant on "the borderline mentally retarded category". An excerpt from part of the yearly report on the appellant for the year to 7 September 1978 notes, in the words of its author, Dr C B Whittaker, that "the main constituent of [the appellant's] disorder is that he has a personality disorder."

[28] Given the emerging view that, notwithstanding his having been committed to the State Hospital on the ground of mental deficiency, the appellant was suffering at least primarily from personality disorder, which in view of some practitioners was not susceptible of treatment, the appellant undertook the various unsuccessful applications to the sheriff at Lanark which your Lordship in the chair has mentioned. As your Lordship in the chair has also described, from his standpoint the success which the present appellant had in the appellate courts was rendered largely nugatory by the enactment of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. The material effect of that Act for present purposes is that it provided that the power to discharge a restricted patient (such as the appellant) should not be exercised if he is suffering from a mental disorder (amended to include personality disorder) the effect of which is such that it is necessary for the protection of the public from serious harm that the patient continue to be detained in hospital whether for medical treatment or not. It was accepted by the experts who gave evidence before us, and consonantly with that evidence also by counsel for the appellant, that the appellant presents such danger to the public by reason of his personality disorder. On that account he remains within the State Hospital notwithstanding that, insofar as his condition might be susceptible of treatment, there is no overriding requirement for it to be provided in the State Hospital. That enactment (later carried into the 2003 Act) thus presenting an obstacle to the release of the appellant from the State Hospital, the present appeal has been brought impugning the validity of the original hospital order made in 1967.

[29] As I understand it, the challenge advanced by counsel for the appellant proceeds essentially on two strands. The first strand is largely directed to what is said to be the unsatisfactory nature of the reports by Drs Campbell and Macpherson and is thus directed towards the quality of the material said to have been put before the court. The second strand was perhaps more absolute or fundamental in its nature, involving the contention that with hindsight the appellant had never suffered from mental deficiency. As your Lordship in the chair has noted, the motion made on behalf of the appellant was to quash the hospital and restriction orders and substitute a non-mandatory sentence of life imprisonment.

[30] The unsatisfactory reports strand proceeds upon the view that, by present day practice and standards, the two extant reports to the Crown by Drs Macpherson and Campbell would not now be regarded as satisfactory since the reports do not describe or set out the assessment procedures and processes which should, even by the then prevailing standards, have been carried out prior to reaching an opinion that the appellant was suffering from mental deficiency. Reference was made to the standard textbook of the day, namely Henderson and Gillespie's "Textbook of Psychiatry" 9^th ed. as indicating the processes of assessment which were regarded as appropriate in 1967. It is, I think, accepted by all concerned that by today's deontological standards within the profession, a report to the court for the purposes of a mental health disposal would not be of the relative brevity of the reports provided to the prosecutor in June 1967 but would include, as a report to the court, much more of the assessment process than is to be found in the reports made to the Crown by the two doctors in June 1967.

[31] Without, I hope, doing injustice both to the witnesses called by counsel for the appellant and to counsel for the appellant, it appeared to me that this strand of the challenge to the 1967 disposal amounted in its essence to a contention that since the reports to the prosecutor do not detail the assessment process it is somehow to be inferred that no adequate assessment was ever carried out and that, by reason of that inadequacy, the reports are seriously wanting and could not serve as a basis justifying the hospital order made in 1967. However, as Dr Bell, who was adduced as a witness by the Advocate Depute, observed, the process of assessment and the process reporting are different. As she discovered in the records of the State Hospital there is indeed evidence that Dr Campbell had obtained information about the appellant's family circumstances from a report which he had commissioned from the social work authorities; and he also had obtained a report from the approved school attended by the appellant (which, because of the peripatetic nature of the family's way of living, was probably the only school that could ever provide a report of possible utility). Neither of these matters is mentioned in the report listed as a production on the indictment. Accordingly it is evident that the assessment of the appellant extended more widely than the relatively short account given in the report. As Dr Bell also mentioned, in the years since 1967 professional practice has come to include much more of the assessment results in a report, rather than reporting simply the result. In short, in 1967 it was not prevailing practice to include the details of the assessment process in a report; and from the fact that there is evidence of other reports having been considered by Dr Campbell in connection with his assessment of the appellant's condition, it should not be inferred that the assessment process was seriously lacking.

[32] For my part I find what was said by Dr Bell on this aspect to be persuasive. Further, as the Advocate Depute submitted, the reality is that we still have the reports to the Crown - conveying essentially a conclusion, albeit with general references to testing and the history given - but with the passage of time the notes and files compiled by Drs Campbell and Macpherson upon which those reports were based have been lost. The inference, which is sought to be drawn on behalf of the appellant, that such inquiries and assessments as were carried out by Drs Campbell and Macpherson are exhaustively described in the two reports to the prosecutor is incompatible with the evidence unearthed by Dr Bell, to which I have just referred. In my opinion that is an inference which should not be drawn.

[33] Importantly, in making the hospital order in 1967 the court did not rely simply on the reports to the prosecutor. It proceeded upon the oral evidence of the two experts, Drs Campbell and Macpherson. Again, as already mentioned, we now no longer know the content of that evidence. It should be said that Dr Chiswick, and indeed the others who were critical of the standard of testing as described - or perhaps more accurately not described - in the reports to the prosecutor, fairly recognised that one simply does not know the content or extent of the oral evidence.

[34] I turn now to what I see as the second strand in the submissions for the appellant. In essence the submission proceeds with the benefit of hindsight and, particularly, the carrying out of intelligence tests of the appellant in 1975 in the State Hospital which, it was said, demonstrated that the appellant did not then fall within the category of mental handicap. Since the appellant could not then be categorised as suffering from mental deficiency, it was submitted that it must be the case, as a matter of objective fact, that the appellant was not suffering from mental deficiency in 1967. So, with that hindsight, there was in reality no factual basis for the making of the order.

[35] Counsel's submissions on this strand proceeded, I think, on the view that it was not disputed among the experts that a person's innate "intelligence" is settled at birth. And accordingly, so ran the argument, psychometric testing which produced results indicating that the appellant did not suffer from mental deficiency in the late 1970s necessarily meant that he did not suffer from that condition in 1967. However, as I understood the evidence, while the innate nature of "intelligence" may be settled at birth, it is generally accepted that the instruments available to measure such intelligence are of necessity imperfect. They can result in an apparent improvement in IQ depending on matters such as the circumstances in which the instrument is used; additional training or education in intellectual activity; and also, the acquisition of familiarity with such testing.

[36] Subject to those observations, I understood the basis for the second strand of counsel's submission to stem from the results of psychological testing carried out at the State Hospital by a clinical psychologist, Mr Mason, in October 1975; similar testing carried out in June 1980 by another clinical psychologist, Mr Gentry; and in a neuropsychological report carried out in 1994. The results are briefly noted by Dr Chiswick in his report of 26 August 2004. Mr Mason concluded that the appellant had a full scale IQ of 79, placing him at the top of the classification "borderline defective". Mr Gentry considered that the tests of the appellant's intellectual functioning indicated that he was functioning in the category "borderline mentally retarded". The 1994 assessment indicated a WAIS full scale IQ of 81, higher than in 1975, placing the appellant in the low average range.

[37] Noting those results Dr Chiswick, while recognising that within a structured régime and education, the results of tests of the intelligence of a person such as the appellant who had received little regular schooling prior to Carstairs could show improvement in IQ scores, was of the opinion that had such tests been carried out in 1967 (he assumed the contrary) it was unlikely that mental deficiency would have been diagnosed. He acknowledged however that it was "difficult to say" whether that would have been the outcome. I would add that it was accepted that following his admission to the State Hospital the appellant did receive the benefit of a structured régime with schooling and education.

[38] In his report of 4 April 2003, Dr Crichton notes the October 1975 psychometric testing and its IQ results, particularly the full scale IQ of 79. He comments that this "would just put [the appellant] in the borderline learning disability category but the normal cut off for learning disability would be 70. An IQ of 79 would not be unusual in the prison population". Dr Crichton also agreed in his oral evidence that the appellant's IQ scoring would have improved over the years as he overcame his childhood educational disadvantage.

[39] In his report of 14 February 2006, Dr Gray, having been supplied with copies of the reports of Drs Chiswick and Crichton, repeats their notes of the psychometric testing by Mason and Gentry and states somewhat baldly that -

"The assessments of [the appellant's] intelligence that were made in 1967 appear to be inadequate. Subsequent formal testing has proved that they were inaccurate."

However, in his oral evidence, Dr Gray largely departed from the starkness of that statement by acknowledging the effects of education and a changed and structured environment and conceded the possibility that in 1967 the appellant would have tested a WAIS IQ under 70.

[40] Against the invocation of the psychometric tests carried out in 1975 and subsequent years, it is also necessary to record that in her perusal of the archive material Dr Bell took notice of a report of a WAIS assessment carried out in February 1970 which resulted in a score for full scale IQ of 76; and on the Millhill VSPM, an IQ of 73. Dr Bell explained that because of changes in the tests in today's terms the 1970 results would be yet lower on the modern scale. Formal testing in 1967 would have produced yet lower scores than those obtained in 1970, following the reception of education and a structured environment within the State Hospital. Anxiety, youth and poor coping skills would perhaps further have depressed the appellant's scores. This archival material appears not to have been noticed in the reports by the expert witnesses adduced by counsel for the appellant.

[41] While one can understand the prima facie reasoning flowing from the fact that, after 1975, the psychometric tests put in issue whether the appellant was then scoring results which would militate against a diagnosis of mental deficiency/learning disability, in my view it does not follow that the professional opinion that the appellant was suffering from mental deficiency could not competently and appropriately have been reached in 1967. It is no doubt accurate to say that innate intelligence is fixed and not capable of extension; but a person's ability, with the education and training received in childhood, and thereafter, to improve on the measurement of that intellectual functioning is evident. As I understood matters, that was accepted by all the expert witnesses.

[42] Moreover, according to Dr Bell, with whose evidence on this aspect I understood there to be no real dispute, the assessment of mental deficiency (as it was termed in 1967) is not simply a matter of IQ scores on formal testing. Mental deficiency should originate in childhood. But in addition to an assessment of the patient's cognitive deficiencies, the diagnosis also requires an assessment of impairment of social function, and, for detention, serious misbehaviour. In her evidence Dr Bell further observed that not only did the reports of Drs Campbell and Macpherson narrate instances of impairment of social function, but the records of the State Hospital disclosed many instances of such impairment of social function. She indicated that in reaching an opinion whether an individual suffered from mental deficiency (or learning disability) the practitioner might legitimately consider that in the overall ponderation the evidence or indication of serious social behaviour impairment was sufficiently grave as to outweigh the borderline nature of the cognitive deficiency assessment. As Dr Bell said, if Drs Macpherson and Campbell found serious impairment of social function they might not look very closely at the IQ figures. Dr Bell did not agree with the proposition that it was evident that the appellant had never suffered from mental deficiency. She also noted the likelihood that there was a co-morbidity of mental deficiency and personality disorder (as indeed is indicated in the report of Dr Fairfull Smith and Dr McAlpine's notes).

[43] In these circumstances I am not persuaded by the absolute strand of the submissions for the appellant. It respectfully appears to me that whether a person may be diagnosed as suffering from mental deficiency is a matter of expert opinion, rather than some objectively ascertainable fact. It is not simply a matter of scores on tests of intellectual functioning. The opinion evidence given to the court on 8 September 1967 was presented by eminent practitioners. (Dr Campbell was accepted as being Physician Superintendent at an institution specialising in learning disability or mental deficiency). It is also important to note that the basis upon which the hospital order and the restriction order were made, and the evidence evidently given in support of its making, were not put in question when the appellant was admitted to the State Hospital. As I have already set out, the Scottish Home and Health Department Medical Officer, Dr McAlpine, was of the opinion that the appellant was "a high grade mental defective". I do not consider that the evidence presented to this court enables one to say that the appellant could not properly have been diagnosed as suffering from mental deficiency in 1967 and that the opinions to that effect were unsound.

[44] For all of these reasons, and taking both strands together, I have come to the conclusion that I am unable to uphold the submissions advanced on behalf of the appellant.

[45] In reaching that conclusion I am very conscious of the views held by at least some of the professional witnesses that, with the emergence of psychopathic (now termed antisocial, or dissocial) personality disorder as the principal diagnosis in more recent times, the State Hospital is not the appropriate place in which the appellant should be detained. In so far as his personality disorder may be susceptible of treatment - a matter upon which there is a difference of view - it is said by these witnesses that it is not necessary that such treatment should be given in the State Hospital. Your Lordship in the chair has mentioned the steps taken by the appellant, through his advisors, over the years to have his position reviewed in accordance with the procedures put in place for such reviews and the legislative measures adopted by the Scottish Parliament which, while of course well intended in the interest of protecting the public, may have produced the consequence of retaining within the State Hospital individuals such as the appellant to whom little or no treatment may be available. That is no doubt at the cost of places for others to whom the State Hospital can offer genuine therapeutic benefits. I am also conscious of the appellant's standpoint that, if the motion advanced on his behalf by counsel were successful, transfer to the prison system, as opposed to the State Hospital, might afford him better prospects of eventual return to liberty through the operation of the Parole Board. (I express no view on the realism of that standpoint). While thus being understanding of the practical considerations apparently underlying this appeal, I nonetheless have to say that it respectfully seems to me that the invitation to the court to quash the hospital order and substitute a sentence of life imprisonment smacks of an invitation to commit a "détournement de pouvoir"; that is to say, to make use of the intra vires power to quash the 1967 order for the ulterior purpose of bringing about a result perceived as being desirable in the altered circumstances of today.

[46] The discussion in the foregoing paragraph leads immediately to the issue of the "miscarriage of justice" test which was the subject of debate in the hearing of the appeal. I have come to the view that in a matter such as the present case the test whether a miscarriage of justice has occurred has essentially to be applied at the time of the decision under attack. Thus the fact that now, in 2007, the decision taken in 1967 has, in light of developing medical opinion and later legislation, arguably inconvenient consequences, does not mean that in making the order which it did in 1967 the court committed a miscarriage of justice. As your Lordship in the chair has described, the Crown's decision to charge culpable homicide and the making of the hospital order was a result which was no doubt welcomed by all concerned in the handling of the appellant's case. It was then thought to be very much in the appellant's interest that he should go to Carstairs rather than to a prison. No appeal was taken at the time or in the many years prior to the enactment of the 1999 Act and the final outcome of an unsuccessful challenge to the validity of that Act.

[47] If one has to rewrite history, the contention for the appellant is, I think, that already in 1967 he was truly suffering from a psychopathic personality disorder and not mental deficiency. According to some of the evidence before us the fact that he was under the age of 18 might present formal difficulties in the identification of his having then been suffering from that condition. Nonetheless it was diagnosed as being part of the appellant's problems when he was assessed by Dr McAlpine, a view presciently foreshadowed by Dr Fairfull Smith. Although the evidence was not particularly clear, the view expressed by some of the expert witnesses on the basis of their historical understanding of matters was that in 1967 patients were admitted to the State Hospital on the basis of a psychopathic personality disorder. Accordingly, on that basis, there is ground for thinking that even if the appellant had been diagnosed as suffering from his current psychiatric diagnosis, and that such had been accepted by the Crown as constituting diminished responsibility, he would nonetheless have been sent to Carstairs. In that sense it is also not possible to say that a miscarriage of justice occurred in 1967.

[48] For these reasons I agree that this appeal must be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Eassie

Lord Marnoch

[2007] HCJAC70

Appeal No: XC486/05

OPINION OF LORD MARNOCH

APPEAL

ALEXANDER LEWIS REID

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Bell, QC; Logan; Purdie & Co

Respondent: Ogg, QC; Crown Agent

11 December 2007

[49] For the reasons given by your Lordships I agree that this appeal should be refused.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Reid v. Her Majesty's Advocate [2007] ScotHC HCJAC_70 (14 December 2007) URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_70.html Cite as: 2008 SLT 293, [2007] HCJAC 70, [2007] ScotHC HCJAC_70, 2008 GWD 1-14

Scottish High Court of Justiciary Decisons

Lord Johnston

Lord Eassie

Lord Marnoch

[2007] HCJAC70

Appeal No: XC486/05

Lord Johnston

Lord Eassie

Lord Marnoch

[2007] HCJAC70

Appeal No: XC486/05

Lord Johnston

Lord Eassie

Lord Marnoch

[2007] HCJAC70

Appeal No: XC486/05