Scottish Court of Session Decisions

On 29 September 1974, after trial on indictment in the High Court of Justiciary at Dundee, the petitioner was convicted of (1) lewd, indecent and libidinous practices and behaviour, contrary to the Criminal Law Amendment Act 1922, section 4(1), and (2) the culpable homicide of a six year old girl. Oral evidence was then adduced from Hector Chalmers Fowlie and James Fleming McHarg, registered medical practitioners approved for the purpose by Tayside Hospital Board, that the petitioner was suffering from a mental disorder within the meaning of the Mental Health (Scotland) Act 1960. On the basis of that medical evidence, the court ordered the petitioner to be admitted to and detained in the State Hospital, Carstairs Junction forthwith, under and in terms of the provisions of section 55 of the said 1960 Act. The court also made an order restricting the petitioner's discharge from hospital without limit of time under and in terms of section 60 of the said Act. The petitioner

has been continuously detained in the said State Hospital since the making of the order on 29 September 1974. The interlocutor of the court narrates that "the mental disorder from which the said Pannel is suffering is mental illness". The petition now before this court refers to the relevant statutory provisions in force at the material times. These include sections 63-67 of the Mental Health (Scotland) Act 1984 ("the 1984 Act"), which accord to patients subject to a hospital order with an order restricting discharge ("restriction order") a right of appeal by way of summary application to a sheriff of the sheriffdom within which the hospital in which the restricted patient is liable to be detained is situated. The petitioner exercised his statutory right of appeal in 1986 and again in 1992. Both appeals were refused. The present petition is for judicial review of the refusal by Sheriff Keane, on 9 April 1996, of a third such application. Sheriff Keane determined that application after a full hearing of evidence. As is clear from the speech of Lord Clyde in Reid v. Secretary of State for Scotland [1999] 2 WLR 28 at page 54 the sheriff, in determining such an application, is acting in an administrative rather than a judicial capacity. If his decision is to be challenged, the challenge must therefore be by way of judicial review. In that context Lord Clyde added,

Although the sheriff in the present application was acting in an administrative capacity he appended to the interlocutor refusing the application substantial formal findings in fact and a careful and detailed note explaining the basis of his findings in fact, the reasons for preferring certain medical evidence to certain other medical evidence and the basis of his decision. This interlocutor, with its findings and note, has proved invaluable to this court in addressing the issues raised in this appeal. This petition for judicial review of Sheriff Keane's decision came before the Lord Ordinary (Lord Marnoch). On 21 October 1997 he dismissed the petition for reasons fully set forth in an opinion of that date. The matter comes before this court by way of appeal against the Lord Ordinary's determination of 21 October 1997.

The main issue in these proceedings arises from the fact that one of the established circumstances concerning the appellant is that he is, and has been since at least 1974, a paedophile. That is not, of course, the only fact which is or may be relevant to the case, but it is a central fact. In essence, what is argued in these proceedings on behalf of the appellant is that, although, as a paedophile, he falls to be regarded as a person exhibiting and affected by sexual deviancy within the meaning of section 1(3) of the 1984 Act, there is no other feature of his health or personality to warrant a conclusion that, at the date of the 1996 application to the sheriff, the appellant was suffering from a mental disorder within the meaning of section 1 of the Act. That issue must be determined in proceedings under sections 63 and 64 of the 1984 Act by applying section 1, subsections (1) and (3) of the Act to the facts as established before the sheriff by the evidence accepted by him.

Section 1(1) of the 1984 Act provides,

Section 1(2) defines "mental disorder", "mental impairment" and "severe mental impairment". The definition of "mental disorder" is in the following terms,

(In the present proceedings, no question of mental handicap arises). Section 1(3) is in the following terms,

It is common ground between the parties to this appeal that "treated" in this context is effectively synonymous with "dealt with" and has no reference to medical or therapeutic treatment.

Before turning to consider the application of these provisions to the facts in this case it is appropriate to set forth the findings in fact which both parties accept are of material importance in relation to the main issue. They are,

Counsel for the petitioner and reclaimer did not advance all the grounds of appeal specified in the Grounds of Appeal lodged for the purposes of the reclaiming motion. Counsel made submissions in support of the first Ground of Appeal, which is purely formal in character, and paragraphs (a), (b), (c) and (f) in the second Ground of Appeal. Those four paragraphs are in the following terms,

It will be seen that paragraphs (a) and (b) really raise the same question, namely whether or not, in the factual circumstances of this case, the petitioner was not suffering from "mental disorder", and that by reason of the provision in section 1(3) because all that could properly be said of him was that he was suffering from sexual deviancy and had a history of dependence many years earlier on alcohol. Counsel for the petitioner and reclaimer couched the main proposition for the reclaimer in the following terms:

In advancing their submissions for the petitioner and reclaimer, counsel referred very fully to the legislative history of the provision now found in section 1(3) of the 1984 Act and referred the court to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and to the case of Winterwerp v. The Netherlands, 1979 2 EHRR 387 to support the proposition that Article 5 could not be taken to permit the detention of a person simply because his views or lifestyle - characterised by, for example, sexual deviancy or drug dependency - deviated from the norms prevailing in a particular society. Reference was also made to the parliamentary proceedings mentioned by the Lord Ordinary when taking note of the annotations to the corresponding provision in section 5(2) of the Mental Health (Amendment)(Scotland) Act 1983, as noted in the 1983 Current Law Statutes.

In our view, it is unnecessary to do more than note firstly, that, at least for the purposes of the present proceedings, it is a matter of agreement that "sexual deviancy" in section 1(3) of the 1984 Act must be taken to include paedophilia. Secondly, there is no room for doubt, from the wording of the provision in section 1(3) itself, that if there is nothing established in relation to a person other than that he is sexually deviant in the sense of the subsection, it is illegitimate to hold that he is suffering from "mental disorder" for the purposes of the 1984 Act. Thus it is not, as we understand it, in dispute that if the sheriff were to be satisfied, upon the evidence, that the only reason why the doctors were describing the petitioner as "suffering from mental disorder" was that he was a paedophile, and therefore sexually deviant, then there would be no basis whatsoever for holding that he was suffering from "mental disorder" within the meaning of the Act. Accordingly, if it could properly be said on this basis that the petitioner was not a person suffering from "mental disorder" within the meaning of section 1(2), he would not be a person liable to be detained in hospital under section 17. It would follow that where an appeal was made by him to the sheriff under section 64(1) of the Act the sheriff would be bound, in terms of the statute, to direct his absolute discharge; that consequence clearly follows from the decision of the majority in Reid v. Secretary of State for Scotland, supra.

The dispute before the court therefore remains, as it was before the Lord Ordinary, a narrow one, given that we can not go behind the findings in fact made by the sheriff. It is abundantly clear from the sheriff's note that he had before him ample evidence to warrant the making of these findings. That evidence was given orally as well as in the form of reports and the sheriff had to resolve a conflict of medical opinion as to whether the petitioner fell to be regarded as a person with sexual deviancy and an historic dependence on alcohol and nothing more or to be diagnosed as suffering from mental disorder by reason of there being other elements in his condition as observed by the doctors. The resolution of that issue is made abundantly clear in the succinct statement in finding 16,

It may be noted that the words "persistent...manifested only by abnormally aggressive or seriously irresponsible conduct" are to be found both in section 17(1)(a)(i) and, in part, in section 1(2) in the definition of "severe mental impairment". In making finding in fact 16, the sheriff was, inter alia, determining the factual question arising under section 1, and under section 17(1)(a), namely whether or not the petitioner and reclaimer was, at the material time, "suffering from mental disorder". The sheriff's finding refers to "abnormally aggressive and seriously irresponsible conduct". It is thus clearly stated that the petitioner and reclaimer suffers from a mental illness, namely a psychopathic disorder (using the commonly accepted term), one feature of which is abnormal aggression. Thus it is clear that the sheriff was not regarding the petitioner and reclaimer as a person suffering from mental disorder by reason only of his sexual deviancy in the form of paedophilia, or his old history of alcohol abuse.

Counsel for the petitioner submitted that finding in fact 11 could not be justified, given that it appeared to be derived from the written report by the first witness, Dr. Duncan, dated 7 November 1995 and printed in the appendix to the reclaiming motion. That report, it was submitted, made it clear that the paedophilia and the history of alcohol dependence were not inextricably bound up with the mental disorder or its manifestations.

On one reading of finding in fact 11, the sheriff meant that the anti-social personality disorder is manifested by all the matters listed there, namely, "egocentricity, lack of feeling for others and lack of remorse for past offences, a history of alcohol dependence, paedophilia and epilepsy". The alternative reading of the finding, which is perhaps easier to reconcile with the terms of Dr. Duncan's said report, is that the appellant suffers from mental disorder characterised by anti-social personality disorder manifested by egocentricity, lack of feeling for others and lack of remorse for past offences, and also has a history of alcohol dependence, paedophilia and epilepsy; this reading might be supported by the use of the word "and" between "others" and "lack of remorse". It is, however, in our opinion, quite unnecessary to analyse the findings in fact in such a fashion, with a view to resolving the possible ambiguity. Whichever reading is to be preferred, it is plain that the sheriff was finding that the mental disorder, i.e. mental illness, was at least "characterised by anti-social personality disorder manifested by inter alia egocentricity, lack of feeling for others and lack of remorse for past offences". That is the matter which is put in other words in the first sentence of finding in fact 16. We are satisfied that the criticisms contained in Grounds of Appeal 2(a) and (b) are unsound.

We should note, however, that counsel for the petitioner and reclaimer repeated to this court a submission which the Lord Ordinary considered and rejected. This was the submission that the court should apply the observation made by Mann J. in R. v. Mental Health Review Tribunal, ex parte Clatworthy [1985] 3 All E.R. 699. Mann J., in which he stated at p. 201 (in relation to section 1(3) of the Mental Health Act 1983) - which is in the same terms as the equivalent section in the 1984 Act -

Counsel for the respondent, the Secretary of State, however, repeated the submission made to the Lord Ordinary, that a distinction could, and should, be drawn between, on the one hand, sexual deviancy unrelated to mental disorder and, on the other, sexual deviancy which was one manifestation, or even the only manifestation, of an anti-social personality disorder. He founded in particular upon the use of the word "only" in section 1(3). He drew attention to what was said by Stuart-Smith L.J. in R. v. Mental Health Act Commission, ex parte X 1988, 9 B.M.L.R. 77, at pages 84-85:

The present case was, on the facts found, a case of the inextricable linking of the sexual deviancy and a true mental disorder. On this matter we agree with the Lord Ordinary and with the submission for the respondent. In our view, it is clear that there may be people disposed to, affected by and exhibiting sexual deviancy, and even engaging in sexually deviant conduct, who could in no sense be regarded as suffering from "mental disorder" within the meaning of the Act. They could not be diagnosed as suffering from "mental disorder" within the meaning of the 1984 Act solely by reason of their disposition and conduct. It is, however, clear that a person who is suffering from mental disorder, for example because he is a psychopath who persistently engages in abnormally aggressive and seriously irresponsible conduct, may manifest that conduct in the field of his deviancy, for example in relation to his sexual contacts with young children. Such a person would be treated as suffering from mental disorder by reason of his psychopathic condition manifested by such conduct and not "only" by reason of the deviancy.

Under reference to Ground of Appeal 2(f) counsel for the appellant and reclaimer argued that it was an error in law for the sheriff not to make a finding as to whether or not the petitioner would have satisfied the criteria for detention in terms of section 17(1) of the 1984 Act if the index offence had been committed in or shortly before 1996. Apart altogether from the circumstance that the sheriff had no obligation when exercising his quasi administrative function to make any express finding on this matter, we are satisfied that, while it might have been a useful exercise for the purposes of testing the validity of his own approach to the matter and his conclusions about it, it was not necessary for him to make any express finding on what was necessarily a hypothetical situation. The sheriff could have had great difficulty in forming a confident view as to all the dimensions and features of that hypothetical situation. He would presumably have had to exclude the finding of temporal lobe epilepsy which was a feature of the petitioner's condition in 1974 but not in 1996. It would then have been necessary to find some other explanation - of a purely hypothetical character - to fill that gap in the explanation for the conduct manifesting itself in the offences for which the petitioner was convicted in 1974. We recognise that the medical evidence as to the petitioner's condition in 1996 differed from the evidence which was before the court when the original order was made on 29 September 1974, particularly in relation to the operative effects of temporal lobe epilepsy, but, in our opinion, it is clear that the duty of the sheriff was to come to a view, on the basis of all the evidence before him, as to whether or not the petitioner was in April 1996 suffering from "mental disorder" within the meaning of the Act. To introduce a hypothetical element by postulating that he committed the index offence at that time would be to introduce an unreal element. In point of fact, of course, the petitioner committed no such offence after 1974. The sheriff's task was simply to make his judgment in 1996 as to "mental disorder" on the basis of the evidence before him.

It is common ground among the parties that Sheriff Keane took a view of the law relating to the interplay between section 17 and section 64 which was subsequently held in Reid v. Secretary of State for Scotland, supra to be erroneous. Nonetheless this court is not able to hold that the sheriff's conclusion in relation to the relevant facts is vitiated by his mistaken view on the construction of section 64 and its relationship with section 17. In this respect we refer to the speech of Lord Clyde at page 55F. There his Lordship was considering whether or not the sheriff's approach to the evidence in that case was vitiated by his mistaken view on a matter of statutory construction. In that case, the sheriff was considering the issue of "treatability" rather than the meaning of "mental disorder". It is appropriate to adopt here the approach of Lord Clyde in that case which appears to us to apply exactly to the present circumstances,

In our view, in this case, it is also clear that the sheriff's approach to the issues of fact, which it was for him to resolve, is in no way vitiated by his erroneous view as to a separable matter of law, corrected in Reid v. Secretary of State for Scotland, supra after Sheriff Keane refused the petitioner's application.

In all the circumstances, we consider that the Lord Ordinary reached the correct conclusion upon all the issues raised in the petition. The appeal will therefore be refused.