Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. S [1999] ScotHC 183 (9th July, 1999)

The accused is charged at the High Court on Indictment with murder. He is aged thirteen and it is alleged that he murdered a nine year old boy by setting fire to petrol near him knowing that there was petrol on his clothing. It is accepted that the accused has a degree of learning difficulty and on his behalf a Minute has been presented to the court claiming that because of his mental difficulties he cannot have the mens rea capable of committing the crime of murder and that, in any event, he was not fit to plead to the charge or to stand trial. A preliminary diet was held at the High Court, Glasgow on 8 July 1999 for the purpose of proof in respect of the unfit to plead plea. This took place over 8 and 9 July.

The first witness for the accused was Dr Isobel Campbell, a consultant forensic psychiatrist. Dr Campbell is aged 44. She qualified in 1982 and became a consultant in 1986. Most of her experience has been in forensic psychiatry and her present post at Dykebar Hospital is in this speciality. She has also worked for six years at Carstairs State Hospital and with disturbed youths at a List D School. She is recognised in terms of section 20 of the Mental Health ( Scotland ) Act 1984 as having appropriate experience and has no previous knowledge of the accused. She examined the accused at his home on 4 July 1999 and the relevant reports from the other experts were made available to her. She accordingly issued her own report on 5 July and she spoke to this in her evidence. She commented on the information given to her by the mother of the accused. The accused was born prematurely and by Caesarean section, He was a twin. Dr Campbell thought that some of his subsequent difficulties are probably attributable to the difficult circumstances of his birth. It was noted from an early date that he was backward.

When the accused attended primary school, a distinct inability to concentrate was noted and he was put on a Special Needs Register. When he was transferred to secondary school he continued to operate below an adequate standard but his mother thought that he had benefited from his Special Needs Teacher. His mother reported that his reading age at school was estimated at eight years four months. She also reported that he had had some trouble at school because of inappropriate behaviour but had never been seriously aggressive. He was periodically put out of class and she thought that this was because he was struggling with lessons. It is appropriate to record that all the witnesses praised the mother of the accused as being attentive and conscientious in respect of his needs.

When Dr Campbell examined the accused she found that he was apprehensive and reluctant to be interviewed. She further found that his comprehension was limited and that he had difficulty in comprehending abstract concepts. She did conclude that, with appropriate explanation, he would have been capable of understanding that the charge of murder involves an attribution of blame He could also understand the difference between guilty and not guilty. She had read the findings of the psychologist, Ms Munro, and she accepted that the accused had extremely poor abstract reasoning skills (these being at the level of a child of eight years three months). He cannot understand analogies nor hypothetical concepts. She accepted that the full I.Q. score of the accused fell within the borderline range of learning disability.

In conclusion Dr Campbell was of the view that at interview the accused had shown a lack of comprehension of court proceedings and demonstrated extremely limited verbal expression and comprehension. She seemed to have no doubt in expressing the view that, because of his effectively young age and limited intellect, the accused would be incapable of following court proceedings. She emphasised that this problem in understanding was of a different order from the normal adult who, if of low intelligence, may not understand all that was happening, but would have a general understanding of the outline of the proceedings. She accordingly had concluded that he was unfit to plead.

Dr Campbell had considered the view of other experts that it may be possible to devise arrangements in court that would perhaps enable the accused to follow what was going on but, while these would mitigate the problem, she did not think that they would resolve it. She did not think that the accused would have the concentration to attend sufficiently. She was sure that, if he did not understand something, he would simply stop attending and she expected that this would happen. This was a device he employed so that he appeared to be coping but was not in fact doing so. She also thought that the court proceeding themselves would significantly increase his anxiety, and that this would make it even more difficult for him to follow the proceedings. In fact she thought that he would be "overwhelmed" by the trial. He would have difficulty in retaining information in his head which would hamper the giving of instructions, and the efforts of others to check if he was understanding. She accepted that the accused might not fall technically within the category of "mental handicap" but thought that his mental and social behaviour had been sufficiently disturbed just to qualify him for the category "mental impairment". The Mental Health Act categories were largely to define the state's power to interfere in other people's lives. She had no doubt that in terms of verbal understanding the accused was significantly impaired.

The defence witness, Dr Norman Clarke, is a consultant forensic psychiatrist. He too had the relevant Mental Health Act qualifications and he had been provided with the reports of the other experts. He is the Director of the Douglas Inch Centre in Glasgow and he had extensive experience of dealing with delinquent and disturbed adolescent children as well as adults. He saw the accused, at the home of the accused, on 6 July 1999. He later issued a report dated 7 July which he supported in his evidence. Essentially he supports and agrees with the views of Dr Campbell.

On interview he found the accused to be restless and "notably fidgety". When spoken to he rapidly lost interest. He had a low level of verbal comprehension. For example he did not know what "conversation" meant. When Dr Clark spoke to the accused, in simple language, he gave the appearance of understanding, but on further exploration it was apparent that the conversation had passed completely over his head. In any event, Dr Clark concluded that the accused has a fairly short attention span. In his conclusion Dr Clark stated that the length and complexity of a court case would be beyond the accused's capacity to follow and understand, and that he was unfit to plead.

Dr Clark also interviewed the mother of the accused and was informed that, for him, school had always been a considerable struggle. Although he sometimes seems "to get by" this is often misleading and he did not understand. Video films which other children can follow quite readily, have to be viewed by him three times before he can follow them.

The witness also concluded that the accused is performing at a borderline level of mental handicap. This amounts to "mental impairment". His level of vocabulary puts him at the level of a child of eight years nine months. He has a short memory for abstract concepts. While at school he has had a number of behavioural problems which, while not particularly serious, cannot be taken lightly. He confirmed the fact that the accused could not cope with sentences more than about ten words long. He had a clear opinion that the accused would not succeed in following the court proceedings, and on no view could it be said that there would be any margin for error.

The first Crown witness was Dr Dorothy Taylor. Dr Taylor is an experienced consultant child and adolescent psychiatrist. She holds a post at Stratheden Hospital, and is experienced in working with adolescent children, including those charged with serious offences. She issued reports on the accused on 1 July and 2 October 1998. She has the relevant Mental Health Act qualifications and spoke to her reports in evidence.

In her first report she indicates that the information that she had been supplied with in relation to previous history, did not suggest to her that the accused had had any serious behaviour problems in the past. She accepted that the accused had a significant history of learning difficulties. She thought, from the history given by his mother, that he functioned educationally more at the level of a nine or ten year old. She also thought, at the time of interview, that the accused was beginning to suffer from Post Traumatic Stress Disorder. Although she took the position that he was sane and fit to plead, she thought that he would require "significant help in understanding the legal process". By the time she had presented her second report she had had the benefit of the report of Ms Munro. She accepted from that report that the accused would have the level of understanding of an average nine year old child. Indeed in relation to a test for general knowledge and verbal ability his level would be that of a six to seven year old child. His verbal functioning would be extremely concrete with an inability to handle abstract concepts. She thought that 95% of the population would have a higher I.Q. than the accused. She too described the accused as having a mild learning difficulty although, in the particular area of verbal skill, she thought that he was functioning at a level of moderate learning difficulty. The witness considered that the accused would be able to follow court proceedings with appropriate help. However she accepted that proceedings in court were not her field at all, and that she could give little informed opinion as to what specific measures might be practicable. She thought that any person there to check the level of understanding of the accused as the trial progressed, might have to check on a sentence by sentence basis. It would not be sufficient just to ask the accused if he was understanding. This would have to be checked and tested. She considered that the difficulty would be with words and that he would understand more readily if the proceedings could be translated into visual images. If his verbal skills were viewed in isolation he would be well into mental impairment. At its highest her evidence was to the effect that understanding of the proceedings would be probable if things were explained very simply.

The second psychiatrist led by the Crown was Dr David Coghill, who is aged 39. He is a Senior Lecturer in Psychiatry in the University of Dundee and for five years has been a consultant psychiatrist. For the last two years he had specialised in child and adolescent psychiatry. He saw the accused on 30 December 1998 and has seen the papers relating to the other experts. He compiled a report dated 22 January 1999 which he spoke to in evidence. He has the relevant Mental Health Act qualifications.

Dr Coghill received and acted on the basis of much the same background information as the other psychiatric experts. He interviewed the mother of the accused. She indicated that the accused had found lessons difficult to follow nearly all the time. During primary school he was often sent out of class because of this. At secondary school he has twice been excluded from school. It was reported at the time of Dr Coghill's interview that the accused did not seem any longer to have difficulty with attention or concentration. The doctor found upon questioning him that he had some understanding of the legal process but not complete understanding. He was not convinced that the difference between his verbal intelligence and his performance intelligence was quite as marked as other witnesses had described. Nevertheless he accepted that the accused had an impaired degree of verbal ability. There was also an impairment in verbal memory functioning. At one point in his report Dr Coghill seems to allow the accused a reasonable understanding of the court process, but in the concluding section of his report he writes "unless given a very high degree of support within the court proceedings he will find it very difficult for him to give informed and coherent instructions for the defence as the trial progressed". At best his opinion is "If the Court were able to ensure that (the accused) were given enough time and explanation of the Court Process and the progress of the case, then he would be considered fit to plead". However, even then, it is said he could experience difficulties in comprehending the process. Eventually in his report Dr Coghill accepts that his position is ambiguous and he effectively says that the only way to discover if the accused can understand the case, and give instructions, is to try it out.

Ms Munro was the third and final Crown witness. She is a chartered clinical psychologist employed at Stratheden Hospital. She examined the accused on 2 September 1998 and 26 May 1999 and issued reports dated 4 September and 27 May 1999 respectively. These reports formed the basis of her evidence. In her first report she had set out her conclusions, based on psychometric tests, that the accused had an I.Q. for verbal intelligence of 76 and a performance index of 80. This gave him a full scale I.Q. of 76. This had led her to the conclusion that the accused had what she described as a mild learning disability. He had not yet developed abstract reasoning skills and had particular problems with language development and tasks requiring sequencing and ordering. He also had impaired verbal memory function. In her second report she described her original findings as showing "a significant impairment in verbal intellect".

Describing the findings of the second series of her tests, she suggests that the accused presents a front which belies his poor vocabulary. She also observes that he finds it difficult to shift his line of thought from one concept to another without assistance. He can only retain and comprehend the meaning of short sentences (no longer than eleven words). Nor will he comprehend dialogue between others that involves complex vocabulary and abstract concepts. He will not follow dialogue during court proceedings if is not adjusted to levels normally understood by a nine year old child. She makes certain recommendations for the conduct of the trial to take account of the limitations of the accused. These include addressing all questions in a manner consistent with a nine year old and employing sentences no longer than ten words. Such sentences should contain no more than two concepts. Time will have to be allowed to ensure that the accused has understood proceedings. There would have to be a break every hour. Ms Munro observes that if the accused does not understand what is being said he will be unable to sustain his attention. It is also most likely that the ability of the accused to concentrate and attend to the proceedings will be affected by distress and anxiety (although he may attempt to disguise his emotions). The formality and unfamiliarity of court proceedings will increase his anxiety levels. In order to reduce the anxiety of the accused, the witness recommended that wigs and gowns be removed, that the accused should not be placed below the eye-level of other adults, that proceedings should be conducted in a small room and that they should be conducted in soft vocal tones.

The witness accepted that in terms of accepted professional standards an I.Q. of 70 or less represents the normal technical bench-mark of mental handicap. However her opinion was that the accused was significantly below normal. She accepted that the court room in which the preliminary diet was conducted was less intimidating than some courts she had seen, and would possibly be a tolerable location for the trial. However, her preference would be that no more than about four people should be present. She thought that say twenty five persons around the accused could confuse him. She considered that every important point made in the trial would need to be checked with the accused to see if he had understood. This monitoring would need to be carried out by a properly qualified person. Her recommendations were designed to improve the prospect that the accused would follow the trial, but there was no guarantee that they would work. At the end of her evidence she observed that her views were not to be taken as indicating that the accused would himself be equipped to give evidence, and that was so even if he was questioned in simple form. Indeed she thought that a need to give evidence would put the accused in some difficulty. The witness thought that the accused would have substantially improved perception if the proceedings at the trial could be reduced to visual images rather than verbal ones.

Mr Jackson, Q.C., senior counsel for the accused said that the European Human Rights Convention position and the pre-European rights position had to be viewed separately. In respect of the latter the legal test had been set out properly by Lord Wark in H.M.A. v Wilson 1942 J.C. 75 at 79. His Lordship there had observed, in charging a jury, that a plea of insanity in bar of trial could be sustained if the condition of an accused was such that from mental or physical defect, or a combination of both, he could not instruct his counsel, or understand and follow the proceedings at trial. In deciding the issues posed by Lord Wark, I was asked to prefer the evidence of Dr Campbell and Dr Clark. These were both experienced forensic psychologists and therefore had more experience of the requirements of a court trial than either Dr Taylor or Dr Coghill. Dr Taylor had frankly conceded that she had little experience of the trial process. Dr Coghill was saying effectively that he did not know if the procedures suggested by Ms Munro would work and this could only be ascertained by trying them out at a trial. Moreover, even taking Ms Munro's evidence at its highest, she did not think that the accused would be able to give evidence. Mr Jackson referred to the case of T. v The U.K. (known as the Bulger case) which is at present before the European Court of Human Rights. He contended that the standards for a fair trial imposed by the Convention could not be fulfilled in the present case because the accused did not have sufficient capacity to participate in the trial process in his own defence. However he acknowledged that it had been agreed with the Crown that the Human Rights question would not be argued before me at the present preliminary diet. He accordingly requested that, if I was against him in respect of the pre-Convention view of fitness to plead, he should be allowed an opportunity to discuss the Convention issue, before I made a final determination of the fitness to plead point.

The Advocate Depute, for the Crown, submitted that the plea of insanity in bar of trial arises from section 54(1) of the Criminal Procedure ( Scotland) Act 1995. It was pointed out that a finding of unfitness to plead because of insanity requires to be supported by the evidence of two medical practitioners. The necessary degree of insanity could not be proved by the evidence of psychologists alone, but the medical experts giving the requisite evidence could take the evidence of a psychologist into account. I was referred on this point to McLachlan v Brown 1997 J.C. 222. The onus of proof of unfitness to plead rested on the accused and the standard of proof required was the balance of probabilities; (Lindsay v H.M.A. 1997 J.C. 19). I was referred to Russell v H.M.A. 1946 J.C. 37 as authority for the proposition that diminished capacity to recollect the incident charged, as a result of amnesia, is not a defence. In Stewart v H.M.A. 1997 J.C. 183 the trial judge had not been persuaded to sustain a plea of unfitness to plead simply because the condition of the accused would make the conduct of the trial more difficult.

In relation to the evidence, the Advocate Depute invited me to hold that the accused had failed to prove that he had met the criteria critical to his the plea he was advancing. The accused had an I.Q. of 76 and was not mentally impaired in respect of any of the recognised diagnostic tests. He had managed to cope with the day to day routine of his schools. He was merely suffering from a borderline degree of mental deficiency. In reality he was at the bottom end of the spectrum of normal ability. The psychiatrists Dr Coghill and Dr Taylor were specialists in the management of adolescent children and their evidence should be preferred.

In reply Mr Jackson pointed out that when considered on a second occasion, (following upon Stewart v H.M.A. No.2 1997 J.C 217), the plea in bar of trial in the Stewart case had been sustained.

It was not disputed that the broad considerations stated by Lord Wark, in his Jury Charge in H.M.A. v Wilson, as being applicable to a plea in bar of trial on the grounds of insanity, expressed the law correctly. One paramount factor is that an accused should get a fair trial. Unless the accused can understand what is happening at the trial, and unless he can consult and instruct his legal representative as required for the effective conduct of his defence, then it is difficult to say that he has had a proper opportunity to defend himself. Of course a proper balance has to be struck between the need to provide that the accused has had a fair trial, and the important interest of the public to see that any serious misdeeds are brought home to a delinquent. Even without any reference to the European Convention on Human Rights, I can see no reason why a child, if held accountable to the law, should not enjoy the same rights to assemble a proper defence as an adult. In particular he should not be expected to sit passively, like an object, while adults take exclusive control of his defence. Obviously the intellect and experience of a fairly young child may not equal that of an adult, but the participation in the trial process which could normally be expected from a child should be available to him. I conceive this to be perfectly consistent with Wilson. It is not every disadvantage which an accused may have in the conduct of the trial which the law will acknowledge. This is made plain in Russell. However, when an accused is unable to instruct his defence through some defect or handicap attributable to an abnormal mental condition for which he cannot be held responsible, then the law recognises that he is entitled to protection from having to undergo a trial with which he cannot effectively cope. The first question should be whether the accused is able to instruct his advisers, and take any decisions, as required for the proper management of his defence. This, of course, necessarily assumes that he is able to understand what would happen at the trial. The next question is whether any problem the accused would have in conducting his defence is, as I have indicated, attributable to a medical origin. Section 54(1) prescribes no particular category of mental inadequacy as justifying the plea in bar of trial, but the fact that such inadequacy must have a medical source is made clear by the prescription that it has to be established by medical evidence. The practical consideration should be that the medical inadequacy should be serious enough to preclude reasonable participation by the accused in his own trial. This I should expect to be a question of fact in each case.

In relation to this case there are many facts that are not in issue. The accused though having a chronological age of thirteen years has the effective age of a child of little more than eight years, if not younger. Moreover (and this is important) the retardation in his development seems to be attributable to difficulties at his birth. He was a twin and born by Caesarean section. Only a small percentage of children of his age are as mentally impaired as he is, so that his condition can be described as abnormal. He is not suffering from any mental illness. However, he suffers from significantly impaired verbal comprehension. He has little capacity for abstract thought and cannot understand sentences of more than about ten words. Nor can he understand any long, or moderately complicated, words because his vocabulary is very limited. He has had some behaviour problems at school but in general he has not formerly proved particularly aggressive nor dangerous. He has struggled at school and has required special needs tuition particularly at secondary school. It is not disputed that with help he could enter a plea. The critical issue is whether or not he would be capable of understanding the proceedings at his trial and giving his counsel any necessary instructions.

The witness, Dr Campbell, was in my view an excellent witness. She is an experienced forensic psychiatrist. She had seen the accused only a few days before the proof before me. She had a clear point of view in relation to the capacities of the accused and she was effective at defending this. She seemed to have an informed understanding of the nature of trial proceedings. She was clear that if the matter was put to the test the accused would not be able to follow the proceedings. For practical purpose he suffered from what she could describe as a significant degree of mental impairment. He would be overwhelmed by the trial proceedings. He would be excited by the trial and his usual degree of disability would be aggravated. Dr Clark was also a very experienced forensic psychiatrist and he confirmed Dr Campbell's opinion that the accused, in practice, would be unable to understand what was happening at the trial. At best there would be no margin for error.

Dr Taylor is experienced with adolescents. However she had very little experience of the court process (as indeed she frankly conceded). Her lack of court background is important because she had concluded that the accused would be able to follow court proceedings "with appropriate help". She was not able to convince me how such help could be made available. Dr Coghill was also an adolescence psychiatrist although, when he formed his view of the accused, he had only been doing this specialist work for about two years. It may be noticed that his experience is much less than that of Dr Campbell and Dr Clark, although he had had some court experience. He found it difficult to form a positive view of the case and the conclusion he arrived at was that one would have to proceed to a jury trial to see how the accused would cope with the position.

The psychologist Ms Munro was a helpful witness and her proposals for creating a favourable context for the trial were comprehensive, and certainly could have removed some of the problems hindering a fair trial. However, Ms Munro could only suggest that her proposals would improve the prospect of the accused being able to cope with the trial. She indicated that, for the accused to understand the proceedings, it would be necessary for a person with suitable training to check that the accused understood every important point raised by the evidence. She also made it clear that she was not suggesting that the accused himself would be able to give evidence. Indeed she opined that he would find it difficult to do this properly.

This is a sad and difficult case. However, there was unequivocal and satisfactory expert evidence from defence witnesses that the accused would not be able to follow the proceedings were he to go to trial. He cannot understand long sentences nor complicated concepts. He would be unable to concentrate and if he experienced difficulty he would simply stop listening. The excitement of the trial proceedings would increase the prospect of his becoming confused. It is likely in terms of the number of witnesses set out in the indictment that the trial would take some time and Dr Clark particularly observes that the length of a court case would be one of the factors that would make it beyond his capacity to follow it. Dr Clark, who interviewed the accused just before the present proof, also noted that the accused had a fairly short attention span, and that he frequently got up in an attempt to deflect the doctor from continuing the interview.

Ms Munro, in her evidence, dealt with the capacity of the accused to give evidence himself. The Advocate Depute complained that none of the medical witnesses had been specifically asked about the capacity of the accused to give evidence himself. Indeed it was claimed that such evidence would only have been useful if it had come from a medical witness. Certainly if the matter of the capacity of the accused to give evidence had been central to my decision, I should have wanted to hear medical evidence on the point. However, the significance of the evidence given by Ms Munro is that she makes it clear that her proposals for a more appropriate trial would not necessarily resolve all of the problems flowing from the disability of the accused, (assuming that it resolved any of them). There was evidence from a number of the experts that, given their view of the accused's level of understanding, he did not understand sufficient about the volatile properties of petrol to realise that he was placing the deceased at risk. The merits of this evidence has no place at this stage of the proceedings, (although I have been informed that if the present application was to fail there would be a motion made to allow argument about the relevancy of the charges). What is significant, however, is that this is a case where the state of mind, knowledge, and intention of the accused at the time of the alleged incident may be important issues so that his capacity to instruct his counsel adequately, and indeed to give evidence, may be crucial.

I should further say that I am not at all convinced that the tentative proposals to facilitate the capacity of the accused to participate in his trial would be practicable. Certainly the mere fact that a jury trial would be rendered more difficult is not by itself a barrier to the trial proceeding. Many trials create awkward problems which require to be overcome. However, the detailed proposals for the implementation of Ms Munro's proposals have not been fully articulated and it is difficult to test their practicability. There is also the fact, not fully explored, that a trial that was unduly prolonged, and involved the regular active participation of the accused, might place an increased, and unacceptable, burden on him. Moreover, the conduct of a fair trial needs not only that an accused understands what is happening, but also paying regard to the requirements of other participants such as the jury. For example, it was suggested that there might be an adjournment every hour so that the accused's understanding of the preceding spell of evidence could be tested. Delicate questions could arise if it was shown that he had not understood. Would the evidence require to be repeated? Furthermore, any serious protraction of proceedings might operate against the accused being able to concentrate and understand. In my view the rather extreme suggestions that have been advanced to detail what Dr Coghill described as "a very high degree of support" for the accused merely emphasises that to expect this accused to participate in a trial raises a fundamental problem. The question is not whether it would be possible to have the accused understand the case being made against him in ideal circumstances, but whether he could participate to the necessary degree in a trial which was conducted in accordance with the necessary forms and procedural rules. My conclusion is that the defence experts are right and that the accused is unfit to plead in terms of section 54(1). I shall accordingly find that the accused is unfit to plead and stand trial on the ground of insanity and that for the reasons which I have set out above. This may of course leave some of the other issues arising at the preliminary diet for decision before any examination of facts can take place.