Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 121

 

P716/14

OPINION OF LORD GLENNIE

In the Petition of

JOHN STUART JOHNSTONE

Petitioner;

for

Judicial Review of failures by the Scottish Ministers inter alia

to provide sufficient opportunities for the petitioner’s rehabilitation

Respondents:

Petitioner:  McCluskey, Aitken;  Drummond Miller LLP

Respondents:  Springham;  Scottish Government Legal Directorate

 

4 September 2015

Introduction
[1]        On 8 April 1998, on the fourth day of his trial for murder, the petitioner pled guilty to a charge of culpable homicide on the basis of diminished responsibility.  He had assaulted the deceased, raped her and thrown her from a window to her death. 

[2]        The plea was tendered on the basis that it provided him with his best chance of avoiding spending the remainder of his life in prison.  There were psychiatric reports to the effect that he was suffering from a mental disorder or impairment.  The plea was accepted by the Crown on condition that the petitioner would not oppose the making of a hospital order. 

[3]        After the plea was accepted, unchallenged evidence was led before the trial judge from two psychiatrists to the effect, as summarised in the trial judge’s report, that the petitioner was “of very low intelligence margining on mental deficiency, but also suffered from mental impairment sufficient to meet the requirements of diminished responsibility”.  Both psychiatrists were of the view that the petitioner “constituted a serious danger to society by reason of his mental state”.  The trial judge accepted that evidence.  Following the advice of both psychiatrists, he made a “hospital order” under section 58 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), ordering that the petitioner be detained in the State Hospital, and a “restriction order” under section 59 of the 1995 Act, restricting the petitioner’s discharge from Hospital without limit of time.  Pursuant to those orders the petitioner has been detained at the State Hospital since 8 April 1998.  There have since then been changes to the 1995 Act.  The petitioner is now to be treated as being subject to a “compulsion order” (in terms of section 57A of the 1995 Act) and a “restriction order” (together known as a “CORO”).

[4]        The opinion of psychiatrists as to the petitioner’s diagnosis has changed with the passage of time.  He is now diagnosed as having a dissocial personality disorder.  He accepts that that personality disorder is such that, if he were now to be released, he would pose a risk of serious harm to the public.  As a result, he is not presently eligible for release under the mental health regime.  He contends, however, there is no treatment for this condition in the State Hospital which could not equally be provided in prison. 

[5]        In those circumstances, the petitioner wishes to be transferred from the State Hospital to prison where, with a view to his eventual release, he would expect to be provided by the prison authorities with a reasonable opportunity of taking steps to rehabilitate himself and, in due course, to demonstrate to the Parole Board that he no longer presents an unacceptable danger to the public:  see R (Haney and others) v Secretary of State for Justice [2015] 2 WLR 76.

[6]        The respondents refuse to transfer him to the prison regime.  They say that they have no power to do so:  the relevant provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) provide for periodical reviews of the condition of a person detained in the State Hospital, which may in certain circumstances result in that person’s release, but they do not provide for the person to be transferred to prison.

[7]        One possible solution to this conundrum might have been for the petitioner to appeal out of time against sentence, ie against the hospital and restriction orders made by the trial judge back in 1998.  Were such an appeal to be successful, the appeal court could substitute a sentence of imprisonment, though there would be obvious difficulties in the court knowing on what basis it should proceed in determining the appropriate sentence – for example, should he be sentenced on the basis of his plea of culpable homicide if the evidence no longer supported the case that he was then suffering from diminished responsibility?  But I need not concern myself with this.  The petitioner did appeal out of time, with leave of the court, in 2007.  He contended that the trial judge should not have made either the hospital order or the restriction order because he was not at that time suffering from a mental disorder in terms of section 58 of the Criminal Procedure (Scotland) Act 1995, this notwithstanding the fact that at trial he expressly accepted that he was suffering from a mental disorder and that he would not oppose the making of a hospital order.  His appeal against sentence was refused in 2013:  [2013] HCJAC 92.  Distinguishing the case of Reid v HM Advocate 2013 SLT 65, which concerned a person in a substantially similar position to that of the petitioner, the court held that the orders made by the trial judge were appropriate at the time they were made, proceeding as they did upon expert opinion given to the court at that time.  There was no new evidence.  No miscarriage of justice had occurred.  His application for leave to appeal to the UK Supreme Court was also refused:  [2013] HCJAC 129.  So that route is closed to the petitioner, at least for now.

[8]        Accordingly, the petitioner continues to be detained at the State Hospital.  He complains that the lack of any means by which he can be transferred to prison breaches his convention rights:  cf the European Convention on Human Rights and Fundamental Freedoms (“ECHR” or “the Convention”).

 

The issues
[9]        In his petition the petitioner seeks the following relief:

(1)        declarator that the relevant provisions of the 2003 Act are incompatible with his convention rights and therefore “are not law”;

(2)        declarator that his convention rights have been breached by the Scottish Ministers’ failure to provide him with a real opportunity at rehabilitation;

(3)        declarator that his convention rights have been breached by the Scottish Ministers’ subjecting him to degrading treatment in terms of article 3 ECHR;

(4)        declarator that his convention rights in terms of articles 3 and 5 ECHR have been breached by the Scottish Ministers due to the absence of a statutory regime for the transfer of persons from hospital to prison;

(5)        an order ordaining the Scottish Ministers to make an order to transfer him to a prison, this being the only lawful decision available to the respondents;

(6)        declarator that his convention rights have been breached by the Scottish Ministers by detaining him in a hospital without any power to do so; 

(7)        damages of £10,000

[10]      At the first hearing, Mr McCluskey, who appeared for the petitioner, did not insist on the declarator sought under para (2) above.  I understood that to be because he recognised that the now established duty to take reasonable steps to provide an opportunity for rehabilitation arose, at least on the case law to date, only in the context of a prisoner serving a sentence of imprisonment of indefinite duration:  R (Haney and others) v Secretary of State for Justice (above). 

[11]      Mr McCluskey did, however, insist on the order sought in para (5).  It is clear in my opinion that the court could not possibly make such an order.  The petitioner has never been sentenced to prison for this offence.  Since, as the petitioner accepts – and indeed it is at the core of his complaint – the 2003 Act contains no provision for bringing about a transfer from the State Hospital to prison, the respondents have no power to transfer the petitioner to prison even if they were minded to do so.  Nor could this court compel them to do it.  If he were to be transferred, he would immediately be entitled to be released, since his detention in prison would not be in accordance with the law.  It could not be justified by reference to any sentence of the court.

[12]      Those two points having fallen away, the issues in this petition as argued before me seem to me to resolve themselves into these two questions: 

(a)        Is the petitioner’s continued detention in the state hospital in breach of articles 3 and/or 5 ECHR? 

(b)        Is the relevant legislation non-ECHR compliant because of the absence of any provision allowing the transfer of persons from the State Hospital to prison?

There is, inevitably, considerable overlap between the two.

 

Articles 3 and 5 ECHR
[13]      Article 3 provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. 

[14]      Article 5(1) provides that “everyone has the right to liberty and security of person” and that “no one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law”.  The cases relied upon here are (a) “the lawful detention of a person after conviction by a competent court” and (e) “the lawful detention … of persons of unsound mind …”. 

 

The relevant legislation
[15]      “Mental disorder” is defined in s328(1) of the 2003 Act as meaning any “(a) mental illness;  (b) personality disorder;  or (c) learning disability”.  The exceptions listed in sub-s(2) are not relevant for present purposes.

[16]      S136 of the 2003 Act, read short, permits the transfer to a State Hospital of prisoners serving a period of imprisonment if they have a mental disorder requiring medical treatment to prevent it getting worse or to alleviate its symptoms or effects;  and if, without such treatment, there would be a significant risk to the health, safety and welfare of the prisoner or to the safety of any other person.  However, there is no reciprocal provision, permitting the transfer to prisons of those who are detained in a State Hospital by order of the court and have not been given a sentence of imprisonment.  Although this is common ground between the parties, I should explain this in more detail. 

[17]      Part 10 of the 2003 Act contains provisions dealing with compulsion orders and restriction orders.  Chapter 2 deals with review of such orders.  The relevant sections are 182, 184, 188 and 193.  It is not necessary to set them all out in full.  They lay down a scheme for periodical review of compulsion and restriction orders by the responsible medical officer (sometimes abbreviated to “RMO”), by the Scottish Ministers and, ultimately, by the independent Mental Health Tribunal. 

[18]      The starting point is s182, which requires the patient’s responsible medical officer every 12 months to carry out a review in respect of both the compulsion order and restriction order, by carrying out a medical examination of the patient or arranging for an approved medical practitioner to do so.  He must then consider whether the conditions mentioned in s182(4) continue to apply in respect of the patient:  s182(3)(b)(i).  In effect, these are the same conditions as mentioned in para [16] above in connection with the transfer of a prisoner to the State Hospital:  ie does he have a mental disorder requiring medical treatment to prevent it getting worse or to alleviate its symptoms or effects and would there be a significant risk to the health, safety and welfare of the prisoner or to the safety of any other person without such treatment.  Then he must consider whether, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment:  s182(3)(b)(ii).  And finally he must consider whether it continues to be necessary to subject the patient to the compulsion and restriction orders:  s182(3)(b)(iii) and (iv).  In terms of s183 of the 2003 Act, he must to submit a report (sometimes referred to as his “annual report”) to the Scottish Ministers recording his views on these matters and then, depending upon whether he is or is not satisfied with each of the various matters referred to above, making a recommendation to Scottish Ministers to revoke or vary the compulsion or restriction order.  If he is satisfied of those matters to which I have referred then he makes no recommendation and the compulsion and restriction orders remain in force.

[19]      I can pass over s184 which simply imposes on the responsible medical officer a duty to keep compulsion and restriction orders under review by considering those same matters, deciding in the same way whether to make recommendations for revocation or variation of those orders and, if he does recommend revocation or variation, by submitting a report to Scottish Ministers.

[20]      If the responsible medical officer submits a report recommending revocation or variation of the compulsion and restriction orders, the Scottish Ministers are required to make a reference to the Mental Health Tribunal (“the Tribunal”) in respect of those orders:  s185.  Quite separately, the Scottish Ministers are under a duty to keep all compulsion and restriction orders under review, on much the same basis as the responsible medical officer is placed under a similar duty by s184, and, in cases where that review leaves them unsatisfied of some or all of the relevant matters, they must apply to the Tribunal for an order revoking or varying the orders as the case may be:  s188.  Other opportunities for a reference or application to the Tribunal are set out in ss189, 191 and 192.  On any such reference or application the Tribunal is required to go through substantially the same exercise and decide whether or not it is satisfied of certain matters therein set out:  s193.   In particular, in terms of s193(2):

“(2)      If the Tribunal is satisfied –

 

(a)        that the patient has a mental disorder;  and

 

(b)        that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment,

 

it shall make no order under this section.”

 

The words underlined are critical to the petitioner’s argument.  It has been held that the purpose of s193 is to provide a sequential list of tests to be applied to patients detained under the 2003 Act in order to allow for an ordered consideration and review of their circumstances:  Scottish Ministers v Mental Health Tribunal for Scotland 2009 SC 398.  The consequence of this is that if the Tribunal is satisfied that the patient has a mental disorder and that, as a result of that mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment, then the Tribunal makes no order and the compulsion and restriction orders remain in place unaltered.

[21]      There is a right of appeal to the Court of Session from a decision of the Tribunal making no order under s193:  see s323.  An appeal may be brought on the grounds that (a) the Tribunal’s decision was based on an error of law, (b) there was some procedural impropriety in the conduct of the hearing before the Tribunal, (c) the tribunal acted unreasonably in the exercise of its discretion;  and/or (d) the Tribunal’s decision was not supported by the facts which it found to be established:  s324.

 

The Tribunal’s decision in November 2013
[22]      The petitioner’s case came before the Tribunal as a reference by the Scottish Ministers under s189 of the 2003 Act.  On 26 November 2013 the Tribunal made a decision in terms of s193.  It considered the matter on documentary evidence.  The petitioner’s solicitors were made aware of the reference but did not ask to lead oral evidence or to make oral submissions.

[23]      The Tribunal found as a fact “that the patient [the petitioner] has a mental disorder, namely dissocial personality disorder” (para 15(v));  that he had a “lengthy forensic history of serious and violent sexual offending” (para 15(vi));  that he had been supervised in a hospital setting since his index offence, including periods of restraint due to his unpredictable and aggressive presentation (para 15(vii));  that the responsible medical officer had decided that referral to a medium secure care unit was not justifiable at present (para 15(viii));  that in the State Hospital he receives a multidisciplinary approach to his care and treatment, which needs to take place at present within a hospital setting due to the identified risks of him harming others (para 15(xii));  that the conditions mentioned in s182(4)(b) of the 2003 Act continued to apply to him, “as he is receiving care within the hospital setting, with input from both psychiatric nursing and social work, which prevents [his] mental disorder from worsening and can alleviate his condition” and “if he were not given such treatment, [he] would pose a significant risk to the safety of others and to his own safety and welfare” (para 15(xiii));  and that it was necessary for him to be subjected to the compulsion and restriction orders (para 15(xiv) and (xv)). 

[24]      In explaining its reasons for its findings, the Tribunal referred in para 16(i) to the fact that the various reports before it, which it found to be consistent and reliable, established that the petitioner “has a mental disorder, namely dissocial personality disorder”, which “can only be managed through the compulsion order and restriction order which are in place and based in a hospital setting”.  No contrary evidence had been presented.  There was no dispute with regard to his mental disorder, albeit that his diagnosis had changed over time from mental impairment to dissocial personality disorder.  Further, the Tribunal was satisfied that the serious harm test was met:  para 16(ii).  The petitioner had been for some time in a highly structured environment and any thought of his being “stepped down from the high secure State Hospital to a medium secure unit” had been abandoned by the responsible medical officer after incidents in which he had become unreasonably angry and aggressive in response to relatively minor stressors.  The evidence established that there was a risk of serious harm to others if the petitioner were not subject to detention in hospital.  There was no evidence to contradict this.

[25]      The Tribunal concluded its decision in para 17 as follows:

“… it appears to the tribunal that the tests which must be followed in this reference are as follows:

 

(i)         Does the patient have a mental disorder?

 

The patient has a mental disorder, namely dissocial personality disorder.  The tribunal was satisfied of this diagnosis on the basis of the uncontradicted medical evidence, in particular the Annual Report, and subsequent update, of the RMO.

 

(ii)        As a result of the patient’s mental disorder, is it necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment?

 

            The tribunal was satisfied that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from harm, for the patient to be detained in hospital, whether or not for medical treatment.  The tribunal was so satisfied on the basis of the documentary evidence before it, in particular the annual report of the RMO, the RMO’s subsequent update, the HCR-20 Risk Assessment and the Worksheet for risk for Sexual violence Protocol.”

 

The latest report from the responsible medical officer
[26]      This conclusion is consistent with the reports of the responsible medical officers dealing with the petitioner’s case on a regular basis.  The most recent annual report from the responsible medical officer, Dr Natasha Billcliff, a consultant forensic psychiatrist, is dated 16 March 2015.  That report concludes, again, that the petitioner has “a mental disorder in the form of dissocial personality disorder”.  He fulfilled most of the criteria for that diagnosis, including:  lack of concern for the feelings of others;  gross and persistent attitudes of irresponsibility and disregard for social norms, rules and obligations;  incapacity to maintain enduring relationships though having no difficulty in establishing them;  very low tolerance to frustration and a low threshold for the discharge of aggression and violence;  incapacity to experience guilt or to profit from experience, particularly punishment;  and a tendency to blame others or to offer plausible rationalisations for the behaviours which brought him into conflict with society.  Dr Billcliff’s opinion was that it was necessary in order to protect other people from serious harm for the petitioner to be detained in hospital whether or not for medical treatment.  Under reference to his history of offending, she was clear in her view that he would potentially represent a high risk of serious harm to members of the public were he to be at liberty.  Although currently (and for many years) not being prescribed any psychiatric medication, “he does broadly benefit from medical treatment such as nursing care and psychological therapies”.  That treatment is likely to prevent his mental disorder worsening and to alleviate some of the symptoms and effects of the disorder.  Were he not to be provided with such treatment there would be a significant risk to the safety of other people.  He should continue to be subject to a compulsion order.  He continues to struggle with anger management problems and a propensity to misinterpret minor day-to-day matters.  He benefits from care within a protective environment and could not be cared for safely within the community.  He should also continue to be subject to a restriction order since he continues to present a high risk to public safety and his management requires the additional scrutiny and safeguards inherent in a restriction order.  It remains necessary for him to be detained in hospital until further testing with reduced security and on escorted passes into the community have been successful.

 

Arguments
[27]      Referring to article 5(1)(e) ECHR, the petitioner argues that though he may have a personality disorder he is not of unsound mind.  In his petition he refers to evidence heard by the appeal court during the course of his unsuccessful appeal, and the court’s apparent acceptance (at para [60] of the opinion) that “were the question of [his] mental impairment to be analysed now, it is unlikely that modern psychiatric opinion would regard him as [mentally] impaired”.  His mental disorder, such as it is, does not require treatment in an institution.  The definition of “mental disorder” in section 328 of the 2003 Act was much wider than that given to “unsound mind” for the purposes of article 5.  In order for him to be classified as being of “unsound mind”, as that expression is used in article 5(1)(e), any mental disorder must be such that it requires treatment in an institution.  Insofar as the 2003 Act permits detention in the State Hospital even though there is no necessity for treatment requiring such detention (“whether or not for medical treatment”), that is not compliant with article 5.  There had to be some link between the conditions of restraint and the purpose for which he was placed there.  Detention in the State Hospital was detention in the “wrong environment” and was arbitrary.  It was also degrading contrary to article 3 that he continue to be held in the State Hospital – and therefore limited to the company of others with whom he could communicate effectively and form meaningful friendships – when his mental condition did not justify it.

[28]      In the course of submissions I was referred to a large number of authorities.  Those decided by the Strasbourg Court included:  Winterwerp v The Netherlands (1979) 2 EHRR 387;  Ashingdane v United Kingdom (1985) EHRR 528;  Aerts v Belgium (1998) 29 EHRR 50;  Reid v United Kingdom (2003) 37 EHHR 9;  Ilascu v Moldova and Russia (2004) 40 EHRR 1030;  Drew v United Kingdom (2006) 43 EHRR SE2;  Glien v Germany (2013) ECHR;  and James v United Kingdom (2013) 56 EHRR 12.  Cases decided in Scottish or other UK courts included:  A v Scottish Ministers 2002 SC (PC) 63;  R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin);  Scottish Ministers v MHTS (JK) [2009] SC 398;  R (Unison) v Secretary of State for Health [2010] EWHC 2655 (Admin);  G v Scottish Ministers 2014 SC (UKSC) 84;  and R (Haney and others) v Secretary of State for Justice [2015] 2 WLR 76.  I was also referred to the Canadian case of R v Goltz [1991] 3 RCS 485. 

[29]      It is not necessary to summarise the submissions made on behalf of the respondents.  These are picked up in the discussion which follows.

 

Discussion
[30]      The question of how to deal with convicted offenders, who are confined in a mental institution but whose mental impairment (such as dissocial personality disorder) is not susceptible to medical treatment, when their release would present a risk to the public, is not new.  It was considered by the Scottish Parliament in 1999 when it passed the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 and has since then been considered by the MacLean Committee, report on Serious Violent and Sexual Offenders (SE/2000/68), chapter 12, and the Millan Committee, Report on the Review of the Mental Health (Scotland) Act 1984.  Those reports informed the discussions leading to the 2003 Act.  The problem, and its history, is summarised in paras [10]-[16] of the speech of Lord Hope in A v Scottish Ministers 2002 SC (PC) 63.  The problem arises in cases where a person convicted of a lesser offence (eg culpable homicide rather than murder) on the grounds of diminished responsibility is dealt with by the imposition of a hospital (or compulsion) order combined with a restriction order, without any sentence of imprisonment being imposed at the same time.   It was suggested in A v Scottish Ministers that there were only about 12 individuals in this position.  One of those was Mr Reid.  The present petitioner, Mr Johnstone, is another.  The problem is this.  If there comes a point when it is recognised that the mental impairment from which they are suffering is not treatable, what is the justification for their continued detention in a mental institution.  From the point of view of prevention of danger to the public, they could as easily be detained in prison.  But there is no mechanism for transferring them to prison.  They have not been sentenced to any period of imprisonment, and any attempt to revisit the matter by imposing a sentence of imprisonment at a later date – otherwise than by way of appeal against sentence as in Mr Reid’s case – would be susceptible to challenge on Convention grounds as retrospective and arbitrary.  The solution adopted by the Scottish Parliament in 1999, and again in 2003, was to legislate for the continued detention of such a person in the mental institution if he would present a danger to the public were he to be released, whether or not his detention in the institution was necessary for medical purposes.  It is this which has given rise to this and other challenges based on Convention rights.

[31]      It is instructive to compare this case with those concerning Mr Reid (see para [7] above).  Mr Reid’s situation was in many ways similar to that of Mr Johnstone.  He too pled guilty to a charge of culpable homicide on the basis of diminished responsibility and was committed to the State Hospital.   Before his successful appeal against sentence, he unsuccessfully challenged the lawfulness of his continued detention in the State Hospital, taking much the same points as are now taken by Mr Johnstone, albeit the legislation was different at the time.  It is only recently that their paths have diverged.  After an unsuccessful appeal, Mr Reid’s case was referred again to the High Court in 2010 by the Scottish Criminal Cases Review Commission.  On that reference the court held that there had been a miscarriage of justice.  It quashed the hospital and restriction orders and in their place imposed a sentence of life imprisonment with a punishment part of 10 years:  see Reid v HM Advocate 2013 SLT 65.  That has resulted in his being transferred from the State Hospital to the prison regime.  From there he has been able to bring a petition complaining (so far unsuccessfully) that he has not been afforded a reasonable opportunity of rehabilitation:  Reid v Scottish Ministers [2015] CSOH 84.  That is the position Mr Johnstone wishes to be in.  His problem is that his path diverged from that of Mr Reid when the criminal appeal court refused his appeal out of time against the hospital and restriction orders imposed on him at his trial.  So he now takes many of the points taken unsuccessfully by Mr Reid before his successful appeal against sentence;  and the outcome of Mr Reid’s forensic struggles are directly in point as regards the issues raised in this petition.

[32]      In 1996 Mr Reid challenged by judicial review the decision of the sheriff refusing to discharge him from the hospital and restriction orders imposed upon him at the time of his conviction.  That challenge failed in the House of Lords:  R v Secretary of State for Scotland 1999 SC (HL) 17.  It is unnecessary to consider those arguments in any detail.  They turned upon the meaning of “treatment” as used in s17(1) of the Mental Health (Scotland) Act 1984.  The Act was not in its present form and no ECHR arguments were deployed in the domestic proceedings.  Reversing the decision of the Inner House, the House of Lords held that treatment which might alleviate the symptoms and manifestations of the underlying medical disorder of a psychopath was sufficient.  Convention issues were, however, raised when Mr Reid took his case to the European Court of Human Rights in Strasbourg.  He argued, amongst other things, that his detention in a mental institution could not be justified under article 5(1)(e) unless his mental condition was amenable to medical treatment.  That argument was rejected by the Court:  Reid v United Kingdom (2003) 37 EHRR 9.  The court held that no such requirement was imposed by that provision in article 5(1)(e).  I quote from paras 46-48 of the judgment of the court:

“46       In order to comply with Art.5(1) of the Convention, the detention in issue must take place “in accordance with the procedure described by law” and be “unlawful”.  The Convention here refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the aim of Article 5, namely to protect the individual from arbitrariness.

 

47        For the purposes of Art.5(1)(e), an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied:  first, he must reliably be shown to be of unsound mind;  secondly, the mental disorder must be of a kind or degree warranting compulsory confinement;  thirdly, the validity of continued confinement depends upon the persistence of such a disorder.

 

48        Furthermore, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.  In principle, the “detention” of a person as a mental health patient will only be “lawful” for the purposes of sub-para.(e) of para.1 if effected in a hospital, clinic or other appropriate institution.”

 

The principles summarised in para 47 were taken from cases such as Winterwerp v The Netherlands.  Those summarised in para 48 were taken from cases such as Ashingdane v United Kingdom and AERTS v Belgium.

[33]      The court went on to apply those general principles to the case before it.  Having dealt in para 49 with the question of whether the continued detention was unlawful under domestic law, the court went on to deal with the Convention arguments as they applied to the case.  Because it is directly in point in this case, I quote from paras 50-54:

“50       The principal question which arises, in Convention terms, is whether the applicant’s detention offends the aim of protecting the individual from arbitrator tension, in particular whether his continued detention in hospital can be justified under Art.5(1)(e).  The applicant’s argument, essentially, is that he is now recognised as suffering from a psychopathic personality disorder that cannot be treated in hospital and that accordingly his detention in hospital is inappropriate and therefore arbitrary.  …

 

51        This argument however turns on the domestic law criterion applicable at the time, namely, that detention in a mental hospital was conditional on the illness or condition being of a nature or degree amenable to medical treatment.  There is no such requirement imposed by Art.5(1)(e) of the Convention.  The Court’s case law refers rather to the applicant being properly established as suffering from a mental disorder of a degree warranting compulsory confinement.  Such confinement may be necessary not only where a person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons.

 

52        …  In light of the Sheriff’s finding that there was a high risk of his re-offending if released, such offending being likely to have a sexual connotation, the decision not to release may be regarded as justified under Art.5(1)(e).

 

53        Furthermore, the Court does not consider that any issues of arbitrariness are disclosed by the fact that the grounds on which detention in hospital may be ordered in domestic law have altered over the period during which the applicant has been detained.  …  Most recently, the Court notes that the law has been amended to make it clear in cases such as the applicant’s that the fact that the mental disorder is not treatable in clinical terms does not require release where a risk to the public remains.

 

54        Nor does the Court consider that the detention of the applicant in a mental hospital offends the spirit of Art.5 of the Convention.  Generally, in fact, it would be prima facie unacceptable not to detain a mentally ill person in a suitable therapeutic environment.  It would note that, even if the applicant’s condition is not currently perceived as curable or susceptible to treatment, the Sheriff found on the basis of the evidence before him that he derived benefit from the hospital environment and that his symptoms became worse outside its supportive structure.  In the circumstances, there is a sufficient relationship between the grounds of the detention and the place and conditions of detention to satisfy Art.5(1) of the Convention.”

 

[34]      The decision of the Strasbourg Court in Reid v United Kingdom is directly contrary to the arguments advanced on behalf of the petitioner in this case.  It makes it clear that a person may be regarded as of “unsound mind” for the purposes of article 5(1)(e) if he is suffering from a mental illness, such as a personality disorder, which is not curable by medical intervention.  Further, anticipating the change first introduced in 1999 and now found in the 2003 Act, it confirms that it is not contrary to article 5 if the continued detention of a person suffering from a mental illness is justified by reference to a risk to the public if he were to be released.

[35]      Between the decision of the House of Lords and that of the Strasbourg Court in Mr Reid’s case, the Privy Council considered the same question in A v Scottish Ministers 2002 SC (PC) 63.  Mr Reid was involved in that case too, as one of the three applicants.  It was held that it was not incompatible with a person’s rights under article 5(1)(e) for the Scottish Parliament to require the continued detention of restricted patients in a hospital where this was necessary on the grounds of public safety, whether or not their mental disorder was treatable:  see in particular per Lord Hope at paras [28]-[30] and per Lord Clyde at paras [57]-[64].

[36]      There is, therefore, binding authority in the Privy Council, consistent with the decision of the Strasbourg Court in Reid v United Kingdom, to the effect that continued detention in the State Hospital of a person, such as Mr Johnstone, with a mental impairment under provisions similar to those now contained within the 2003 Act does not infringe his Convention rights even in a case where his mental condition is not treatable and where his continued detention is on grounds of public safety.

[37]      Mr McCluskey argued that in Glien v Germany the Strasbourg Court had departed from its earlier interpretation of what constituted “unsound mind” for the purposes of article 5(1)(e).  For detention to be lawful, he submitted, the mental disorder must be so serious as to require treatment in an institution.  That was a case in which the applicant was convicted of numerous counts of sexual abuse of children.  He was sentenced to 4 years imprisonment and the court ordered his “preventive detention” thereafter.  That preventive detention was served within the prison system and was justified by the German courts, who regularly reviewed the execution of the sentence, on grounds that the applicant had a psychopathic dissocial personality.  The Strasbourg Court held, in effect, that his detention within the prison system could not be justified under article 5(1)(e), since any detention on the grounds that he was of “unsound mind” would have to be in an appropriate mental institution.

[38]      There are passages in the judgment of the court which, taken in isolation, might appear to support Mr McCluskey’s submission.  The best, from his point of view, is at para 85, where, having recapitulated the relevant principles and then sought to apply them to the instant case, the court said this:

“85       The Court would also recall, however, that the permissible grounds for deprivation of liberty listed in Article 5(1) are to be interpreted narrowly …  It therefore considers that a mental condition must be of a certain gravity in order to be considered as a ‘true’ mental disorder for the purposes of sub-paragraph (e) of Article 5(1).  Guidance in this respect may be obtained from the Court’s well-established case-law to the effect that the detention of a person as a mental health patient will only be covered by sub-para (e) of Article 5(1) if effected in a hospital, clinic or other appropriate institution …  This implies that the mental disorder must be so serious as to necessitate treatment in such an institution.”  (emphasis added)

 

The reference to well-established case law is a reference to cases such as Ashingdane v United Kingdom and AERTS v Belgium.  Mr McCluskey emphasised the word “treatment” in the last sentence.  He submits that the court in Glien specifically held that, for a person to be regarded as of “unsound mind” sufficient to justify detention under article 5(1)(e), his mental disorder has to be so serious as to necessitate “treatment” in a mental institution.  Mr Johnstone’s condition, he submits, is untreatable and therefore cannot justify detention under article 5(1)(e).

[39]      This submission goes further than the case of Glien warrants.  The passage which I have quoted has to be read in context.  That context was a complaint by the applicant that his mental condition was being used as a justification for his detention in prison.  The court upheld this aspect of the complaint.  It did not, however, go on to say that his mental impairment would not have been sufficient to justify his detention in a mental institution.  That question was not before the court.  Further, before considering the particular case before it, the court recapitulated the relevant principles applicable to article 5(1).  It reiterated, in para 71, that article 5(1) contained an exhaustive list of permissible grounds for deprivation of liberty, which had to be narrowly interpreted in order to ensure that no one was arbitrarily deprived of his liberty.  In para 72 it reiterated further that the term “persons of unsound mind” in article 5(1)(e) does not lend itself to precise definition, its meaning continually evolving as research and psychiatry progresses;  but it reiterated also the principles laid down in Winterwerp (which are the same as those set out in Reid v United Kingdom (above) at para 47).  In para 73 it specifically referred to its decision in Reid v United Kingdom as supporting the proposition that:

“A mental disorder may be considered as being of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary as the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons …” (Emphasis added).

 

In light of this, it is, to my mind, impossible to regard the decision in Glien as supporting the proposition that article 5(1)(e) can only be invoked as a justification for depriving a person of his liberty if the medical impairment from which he suffers is so serious as to necessitate treatment, by way of therapy, medication or other clinical treatment to cure or alleviate that condition.

[40]      I therefore reject the argument that the provisions of the 2003 Act, which permit the detention of a person with a mental impairment in a mental institution on grounds, amongst others, of public safety, and do not require a person suffering from a medical impairment to be transferred to the prison environment in circumstances where there is no effective treatment available within the mental institution, are non-compliant with the Convention.  I also reject the argument that the petitioner’s continued detention in the State Hospital is in breach of article 5.

[41]      At certain points in his argument, Mr McCluskey appeared to be contending that I should hold, on the evidence, that the petitioner was not mentally impaired, that he was not capable of being treated for that impairment within the State Hospital and that, in any event, his detention there could not be justified on grounds of public safety.  In my opinion it would not be open to this court to do that.  The 2003 Act contains within it a detailed set of provisions enabling the condition of someone detained within the State Hospital to be reviewed on a regular basis by an independent tribunal, with the opportunity of appealing the decision of that tribunal to the court.  The petitioner was offered the opportunity of producing evidence and being represented at the last hearing of the Tribunal.  He did not take up that opportunity.  He had the opportunity of appealing the Tribunal’s decision.  He has not done so.  The Tribunal reviews the position every two years, and there can be a review before that if one is requested.  Even if the decision of the Tribunal was open to doubt, and I have no reason to think that it is, it would be quite wrong for this court, in effect, to overturn that decision on a petition for judicial review when the petitioner has not availed himself of the opportunities open to him to influence or challenge it.

[42]      For the avoidance of doubt, I should make it clear that both the annual report of the RMO and the decision of the Tribunal appear to confirm that the petitioner continues to benefit from treatment – a multidisciplinary approach including nursing care and psychological therapies – which is only available to him within the State Hospital.  It follows, in my opinion, that even if the petitioner’s legal arguments were correct, and that he could not lawfully be detained in a mental institution when there was no treatment available there for his condition, the point has not yet come when he could on that account be released or transferred.  To that extent this petition would in any event fail on the facts.

[43]      Article 3 provides that no one shall be subjected to inhuman or degrading treatment.  In Ilascu v Moldova and Russia the Strasbourg Court reiterated the general principles applicable to cases of inhuman or degrading treatment.  In particular, it reiterated that the court has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them:  see para 425.  It explained further, however, at para 428, that the suffering and humiliation involved “must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.”

[44]      The detention of the petitioner in the State Hospital is lawful according to domestic law and is compliant with the petitioner’s Convention rights under article 5(1)(e).  Detention in a mental institution will inevitably give rise to the possibility that the person detained will succumb to feelings of anguish, inferiority and humiliation.  But unless it can be said either that the detention is illegitimate or that the treatment of the petitioner within the State Hospital goes beyond what is necessary, then there is no basis for a complaint under article 3.  I have already held that the detention is legitimate.  The petitioner does not aver any circumstances of his treatment taking his case beyond the inevitable element of suffering and humiliation inevitably involved in such detention.  The claim based upon article 3 must therefore fail.

 

Decision
[45]      For these reasons I am satisfied that there is no merit in the petition.  I do not find that the relevant provisions of the 2003 Act are incompatible with the European Convention on Human Rights.  I do not find that the petitioner has been subjected to degrading treatment in terms of article 3.  I do not find that the petitioner’s Convention rights have been breached due to the absence of a statutory regime for the transfer of persons from hospital to prison.  I refuse to ordain the Scottish Ministers to order the petitioner to be transferred to a prison.  I do not find the petitioner’s Convention rights to have been breached by the Scottish Ministers by detaining him in a hospital.  The question of damages does not arise.

[46]      I refuse the petition.  There is no need for a second hearing.  I shall reserve all questions of expenses.