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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Graham v. Her Majesty's Advocate [2005] ScotHC HCJAC_75 (15 June 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_75.html
Cite as: [2005] HCJAC 75, [2005] ScotHC HCJAC_75
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Graham v. Her Majesty's Advocate [2005] ScotHC HCJAC_75 (15 June 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lady Cosgrove Lord Eassie
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[2005HCJAC75] Appeal No: XC769/03 OPINION OF THE COURT delivered by LADY COSGROVE in APPEAL AGAINST SENTENCE by WILLIAM GRAHAM Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: V. Stacey, Q.C.; McKennas, Glenrothes
Respondent:
S. Di Rollo, Q.C., A.D.; Crown Agent15 June 2005
[1] The appellant was charged in May 1993 with the murder of a male recluse at his home in Glasgow in January of that year. An attempt had been made to set the victim's house on fire. The appellant who was then 20 years old was remanded to Longriggend Young Offenders' Institution. His behaviour there, including an attempt to strangle himself with a shoelace, gave cause for concern as to his mental state and in June 1993 he was transferred to the State Hospital at Carstairs under section 70 of the Mental Health (Scotland) Act 1984. It was noted that there was a long psychiatric history with a pattern of disturbed behaviour going back to early childhood. In February 1992 he had attempted to gouge one of his eyes out. There had been a diagnosis of paranoid schizophrenia and a history of several hospital admissions, both in London and Glasgow. The appellant remained seriously unwell, and on 3 September 1993 he was found to be insane and unfit to plead in terms of section 174 of the Criminal Procedure (Scotland) Act 1975. At the State Hospital the appellant was treated with anti-psychotic medication in the form of long-acting injections and the mood stabilising drug, lithium. His condition gradually improved, and in February 1996 his illness was assessed to be in partial remission with the acute symptoms being well controlled by medication. He was considered at that time to be sane and fit to plead. [2] On 26 April 1996 the appellant was indicted for trial on a charge of murder and an ancillary charge of attempting to defeat the ends of justice. In the course of the trial a plea to culpable homicide, rather than murder, was accepted. The sentencing judge, Lord Marnoch, had before him numerous psychiatric reports and also heard oral evidence from Dr Black, a consultant forensic psychiatrist at the State Hospital. Lord Marnoch was satisfied on the basis of the reports and evidence that there was a long history of severe mental disturbance and that the appellant's responsibility at the relevant time was substantially diminished. The evidence before the court as to the appellant's mental state at the time of sentence was unanimously to the effect that although he continued to suffer from the mental illness, schizophrenia, his condition had improved with medication and his illness was not currently of a nature or degree as to warrant his detention in hospital for treatment in terms of the Mental Health(Scotland) Act 1984. In his Report to the Parole Board Lord Marnoch noted that, but for the psychiatrists' advice, a Hospital Order might have been thought appropriate. He was fully satisfied that, should the appellant not take his medication, he could be a serious danger to the public and that in order to secure proper supervision of the appellant's medical needs, the sentence imposed required to be one of life imprisonment. [3] The appellant was sentenced on 26 Apri11996. Very soon thereafter his mental state began to deteriorate, and on 4 December 1996 he required to be transferred from Shotts Prison back to the State Hospital. He was continuously a patient at the State Hospital from then until January 2003, when he was admitted to Leverndale Hospital. He remains within the low secure forensic psychiatry unit at that hospital as a detained patient in terms of sections 71 and 72 of the Mental Health (Scotland) Act 1984. [4] A Note of Appeal against sentence was presented on the appellant's behalf on 10 February 2003. It was not suggested in the grounds of appeal that the sentence imposed was inappropriate on the basis of the information before the court at the time of sentence. Rather, it was suggested that the opinions given by report and by evidence in court to the effect that the appellant did not at the time of sentence fulfil the conditions for detention in terms of the Mental Health(Scotland)Act 1984 were incorrect, as evidenced by his medical history since the date of sentence. [5] At the hearing before us, Mrs Stacey QC for the appellant submitted that new evidence was now available which would entitle the court to re-visit the decision as to disposal made in 1996. That evidence could not have been available at the time of sentence since it related to developments in the state of the appellant's mental health that had occurred since then. Evidence in this regard was led from three consultant forensic psychiatrists at the State Hospital, Dr William Black, Dr Jennifer Connaughton and Dr Colin Gray. [6] Dr Black was the appellant's Responsible Medical Officer between March 1994 and the date of his conviction in April 1996, when he provided a report and gave evidence in court as to his mental state. That evidence was to the effect that the symptoms of the appellant's schizophrenic illness were well controlled and had been so for over a year. Although he would require psychiatric follow up for the rest of his life, he did not meet the criteria that would justify the making of a Hospital Order. [7] Before us, Dr Black explained that the appellant's schizophrenia was of long standing and incurable but was amenable to treatment. By 1996 his condition had improved and the acute symptoms were well controlled by medication. Medication was essential, and relapse was inevitable if that were ceased. The appellant was complying with medication at that stage and professed to be willing to take it on a voluntary basis. Dr Black said that his view at that time was that the risk that the appellant would stop taking his medication was relatively low, although he acknowledged that there was no way of testing this resolve within the highly structured confines of the State Hospital. He said that he took into account in making his assessment the appellant's strong preference for a prison sentence rather than a Hospital Order. In this connection, it appears that the appellant had hoped that a determinate sentence would be imposed. [8] The appellant began his sentence at The National Induction Centre at Shotts Prison. Within a short period he refused all medication and suffered a relapse of his illness. He became very unwell and on 4 December 1996 was transferred back to the State Hospital. Dr Black said that the appellant's illness has followed a rather more malignant course than might have been anticipated. He has remained unwell and was detained at the State Hospital until January 2003, when he was transferred to Leverndale Hospital. Dr Black very frankly conceded that, as events have turned out, his view of the appellant's illness, as reported to the court in 1996, was wrong. Had he known then that he would default from medication within a few weeks, he would have recommended that a Hospital Order be imposed. [9] In her evidence to the court Dr Connaughton said that even after his return to the State Hospital in December 1996, the appellant suffered several further relapses. He was eventually started on clozapine, a drug reserved for those with a treatment resistant form of schizophrenia. Bearing in mind that he had been sufficiently unwell to be insane in bar of trial for three years, that his symptoms had taken a long time to come under control and the stressful nature of the prison environment, it was perhaps not surprising that he had suffered a relapse. In her opinion, with the benefit of hindsight, there was certainly no doubt whatsoever that a Hospital Order should have been imposed at the time of sentence. [10] Dr Gray examined the appellant during his period on remand following conviction and prior to sentence. In his report to the court dated 25 April 1996 he expressed the opinion that the appellant's illness having responded well to treatment, it was not possible to recommend a hospital disposal. In evidence to this court he explained that, in the course of his discussion with him at that time, the appellant explicitly stated that he was happy to continue taking his medication in prison. There was a history of poor compliance but the fact that the appellant wanted to be in prison rather than hospital was a factor that he took into account. Dr Gray also said that he had in mind that the appellant would begin his sentence at the National Induction Centre, where there was more psychiatric input than in mainstream conditions. The subsequent deterioration in the appellant's condition was more rapid than he had anticipated. He too frankly conceded that, had he known then that the appellant would default from medication, he would have recommended the imposition of a hospital order. [11] The court also heard evidence from Dr John Baird who is currently the appellant's Responsible Medical Officer at Leverndale Hospital. Dr Baird expressed agreement with the opinions and conclusions contained in the report by Dr Melanie Baker, previously the appellant's Responsible Medical Officer at Leverndale, which was before the court. In particular, he concurred with the diagnosis of schizophrenia and the opinion that the appellant currently fulfils the criteria for compulsory detention in hospital. He is not floridly psychotic but remains unwell and is appropriately placed in the low secure forensic rehabilitation unit at Leverndale Hospital, where a bed is available for him. He also agreed with Dr Baker's view that the appellant's management would be facilitated were he no longer subject to frequent parole board hearings and the stress they induce. In this connection, he noted that the appellant had made a serious attempt at suicide in February 2004 on the day after a meeting with his solicitor to discuss an imminent parole board hearing. [12] The evidence led plainly satisfied the provisions of section 106 of the Criminal Procedure (Scotland) Act 1995. We were satisfied that the recommendations made by the doctors who examined the appellant at the time of sentence would not have been made had they known then the course his illness would take. They considered at that time that he would remain compliant with medication and that he would be free of active symptoms of his illness. That did not happen. Had they known then that the likely outcome would be that the appellant would default from medication and suffer a relapse of his illness, they would have made a recommendation that he be subject to a Hospital Order. We were also satisfied, on the basis of the oral evidence of Dr Baird and the written report from Dr Baker, that the relevant criteria of sections 58 and 59 of the Criminal Procedure (Scotland) Act 1995 were met for the imposition of a Hospital Order with restrictions, and that that is the appropriate disposal in this case. The effect of this will be that the appellant will remain at Leverndale Hospital as a detained patient and his future will be decided by the Scottish Ministers, on the basis of psychiatric advice. [13] In that situation, we have allowed this appeal and quashed the sentence of life imprisonment. In its place we have imposed a Hospital Order with restrictions. That order specifies Leverndale Hospital, Glasgow as the place of the appellant's detention.