Scottish High Court of Justiciary Decisons

NIALL FERGUSON THOMSON v. HER MAJESTY'S ADVOCATE [1999] ScotHC 170 (25th June, 1999)

This is the appeal of Niall Ferguson Thomson who was found not guilty by reason of insanity on a charge of contravening section 1 of the Road Traffic Act 1988. The Sheriff made an order under section 57(2)(a) of the Criminal Procedure (Scotland) Act 1995 which is equivalent to a hospital order under section 58(1) of the Act, and that part of this disposal is not appealed against. He also made an order under section 57(2)(b) imposing special restrictions, and it is that order which is now appealed.

We should note at this stage that the Sheriff at the end of his report makes the point that this appeal was originally stated to be under section 110 of the 1995 Act and the Sheriff queries the competency of that. In fact, there is a right of appeal against such an order under section 62(1)(c), and as the nature of the grounds of appeal are precisely the same in both, while technically the application is incorrect we shall nevertheless deal with it as if it was an appeal under section 62(1)(c).

The circumstances of this matter are that the appellant was engaged in what the Sheriff calls a frightening degree of dangerous driving. That fact was a matter of admission at the trial and the issue for the jury was whether the appellant was insane at the time. Evidence was given by two psychiatrists, Dr Corrigan and Dr Ferguson, and the jury by a majority found that the appellant was insane at the time.

The Sheriff tells us that from the evidence of the psychiatrists it emerged that the appellant was on leave of absence from the Argyll & Bute Hospital when the dangerous driving occurred. It seems that he was released 5 days before the commission of this offence, and he was released because he said that he felt better. He confirmed by telephone after his release that he continued to feel better. It seems also that the application for early discharge on 6 March was against medical advice although, in fact, it led him to being granted leave of absence. Dr Corrigan agreed in his evidence that if a patient is in the manic phase of manic depression, which is the form of mental illness from which the appellant suffers, he is less likely to know that he is ill. What happened was that on release from hospital the appellant seems to have stopped his necessary medication and then borrowed his mother's car which he drove, as the Sheriff puts it, while manic to the extent of insanity.

It was in these circumstances that the Sheriff thought it appropriate to make a restriction order. Under section 57(4) of the 1995 Act, section 59 has effect in relation to the making of a section 57(2)(b) order as it has effect in making a restriction order. Section 59(1) provides that where a hospital order is made in respect of a person and it appears to the Court (a) having regard to the nature of the offence with which he is charged, (b) the antecedents of that person and (c) the risk that as a result of his mental disorder he would commit offences if set at large that it is necessary for the protection of the public from serious harm so to do, the Court may order that the person will be subject to the special restrictions set out in section 62(1) of the Mental Health (Scotland) Act 1984 without limit of time.

The Sheriff tells us his reasons for making such an order in this case. He says that he was concerned to do what he could to prevent the appellant being at risk of doing the same thing again by having as many checks as possible on his discharge. Such restrictions, he thought, would help to prevent the compromising of the safety of the general public. The evidence before him disclosed that the appellant had been ill with a manic depressive type illness since at least 1994, and probably earlier, and has on a number of occasions been in hospital under a hospital order. The Sheriff says that he was told by Dr Corrigan that a restriction order would not be necessary because Dr Corrigan's view was that a restriction order imposed an unnecessary bureaucratic interference with what Dr Corrigan would regard as the appropriate therapeutic course. He says Dr Corrigan's view was that by the use of the appropriate drugs the doctors were able to make appropriate decisions on leave of absence and discharge without any interference from the Secretary of State. The Sheriff says that he realises that it is not possible to eliminate all risk when deciding whether to allow those with mental health problems back into the community, but where a system has not been effective on one occasion in relation to a patient, with death of an innocent party as the consequence, it was his opinion, and despite the reluctance of experts, necessary for the Court to do all in its power to prevent a reoccurrence. The only way in which he could achieve that end in his view was to make an order under section 57(2)(b).

Counsel on the appellant's behalf today has argued that the Sheriff should not have made this restriction order. He accepted that what the Sheriff did was competent and accepted that on the evidence before him the Sheriff could make such an order, despite the fact that the two psychiatrists who gave evidence and another psychiatrist whose report was before the Sheriff did not recommend the making of a restriction order. Counsel pointed out that when the appellant was in hospital immediately before this offence he was there as a voluntary patient and he was only mildly manic. He had a valid driving licence at the time. Accordingly, this was not a situation where the hospital had released him from compulsory detention in hospital and had made an error in that regard. Counsel said that the Sheriff accordingly did not properly assess the nature of the offence, which is one of the criteria under section 59(1)(a). He submitted that a hospital order which itself imposed various restrictions of the liberty of the patient would be quite sufficient to protect the public. He accepted that the Sheriff had to have regard to the protection of the public from the risk of serious harm, whereas perhaps, as far as the psychiatrists were concerned, their primary concern was the maintenance of the appropriate regime for their patient. Finally, he accepted that he would have to show that no reasonable Sheriff would be entitled to come to the conclusion that such an order was necessary for the protection of the public.

In our view, the nature of the offence, the circumstances in which it occurred, namely the release from hospital on leave and then the almost immediate cessation of taking the necessary medication by the appellant and the consequent relapse into a manic phase, and the risk that on future release precisely the same thing might occur to the grave danger of the public, combine to satisfy us that the necessary criteria under section 59(1) had been made out. Having regard to the circumstances which we have set out we are quite unable to say that no reasonable Sheriff could have come to such a conclusion. Indeed the conclusion to which he came, in our view, was fully understandable in the circumstances of this particular offence.

On the whole matter, therefore, we are satisfied that no ground has been made out for saying that the Sheriff erred in the imposition of an order under section 57(2)(b), and this appeal is accordingly refused.