APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Bonomy Lord Drummond Young	[2012] HCJAC 18 Appeal No: XC387/10 OPINION OF THE COURT delivered by LORD BONOMY in Appeal by ALEXANDER LEWIS HUTCHISON REID Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Collins, Q.C.; McKennas Law Practice, Glenrothes

Respondent: A. Brown, Q.C., A.D.; Crown Agent

3 February 2012

Background

[1] On 8 September 1967, the appellant pled guilty to the following charge:

"... you did ... on 26^th or 27^th May 1967, in the house occupied by Gerald Brian McCabe at 20 Norfolk Crescent, Bishopbriggs ... assault Angela Maria Pisacane or McCabe, residing there, and did stab her with a knife and did kill her; ..."

On the same day, Lord Walker made an order under section 55 of the Mental Health (Scotland) Act 1960 ("1960 Act") that the appellant be admitted to and detained in the State Hospital at Carstairs and also made an order under section 60 restricting the appellant's discharge without limit of time. These orders were made after evidence had been led in conformity with the requirements of section 55(5) of the 1960 Act, concerning the mental condition of the appellant, from Dr J W Macpherson, Physician Superintendent, Gartloch Hospital, Glasgow and Dr John Campbell, Deputy Physician Superintendent, Lennox Castle Hospital, Lennoxtown, both Consultant Psychiatrists who had earlier prepared reports which were also before the Court. In light of their evidence, the appellant was found to be suffering from a mental disorder, namely "mental deficiency", and the foregoing orders were made. The court also had a report from Dr J Fairfull Smith, physician at HM Prison Barlinnie, which was consistent with their views.

[2] The evidence given and the order made were not the subject of challenge or appeal at the time. While the basis on which the original petition charge of murder was modified to one of culpable homicide was not minuted, Lord Eassie, who sat in a previous appeal referred to below, stated in paragraph 25 of his Opinion that the Advocate depute was able to tell the Court on that occasion, by reference to notes made by Crown counsel at the time, that the Crown's decision to indict for culpable homicide was taken in light of the reports of Drs Macpherson and Campbell and was on the basis of diminished responsibility. Although, as was pointed out in the course of the hearing before us, the plea of guilty to culpable homicide was consistent with the appellant's stated position that he did not intend to kill the deceased, the circumstances in which the deceased was killed render it highly unlikely that that was the basis on which the charge of culpable homicide was framed. However, nothing turns on that.

[3] In the period immediately following his admission to the State Hospital, the appellant was regarded as suffering from both mental deficiency and a personality disorder, with the latter being regarded as the main or primary constituent of the disorder from which he suffered. Indeed, following his admission to the State Hospital, Dr J M McAlpine, Scottish Home and Health Department Medical Officer, gave as his diagnosis: "Psychopathic personality. High grade mental deficiency".

[4] In the State Hospital his mental state was regularly reviewed. Part of that involved formal psychometric IQ testing. From 1970 these tests consistently produced results generally viewed as inconsistent with a diagnosis of mental deficiency. That has led to many consultant psychiatrists questioning the diagnosis of mental deficiency. There is universal agreement that, were the Court to deal with the appellant today in the knowledge of the results of these tests over the years, then a hospital disposal would not be appropriate.

[5] The aim of this appeal is to have the Court quash the hospital order and restriction order (the modern equivalent being a compulsion order and a restriction order under sections 57A and 59 of the Criminal Procedure (Scotland) Act 1995 ("1995 Act"), and substitute a sentence of imprisonment or detention for life with an appropriate punishment part. Whereas provisions exist for transferring mentally ill prisoners from prison to hospital, none exist permitting a transfer of patients subject to such orders from the State Hospital to prison. Although the appellant suffers from a dissocial or psychopathic personality disorder, and may have done at the time of the offence, it is not suggested in this appeal that that would have formed a basis for making a hospital order or should do so now.

[6] The section under which the hospital order was made, section 55 of the 1960 Act, is in the following terms:

"(1) Where a person is convicted in the High Court of Justiciary or the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the following conditions are satisfied, that is to say:

(a) the court is satisfied, on the written or oral evidence of two medical practitioners ... that the offender is suffering from mental disorder of a nature or degree which, in the case of a person under 21 years of age would warrant his admission to a hospital or his reception into guardianship under Part IV of this Act; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,

the court may by order authorise his admission to and detention in such hospital as may be specified in the order ..."

The relevant provision in Part IV is section 23 which is as follows:

"(1) A person who is suffering from any mental disorder that requires or is susceptible to medical treatment may be admitted to a hospital or received into guardianship in pursuance of the appropriate application under the following provisions of this Act; but, without prejudice to the said provisions so far as relating to emergency admission, no person over the age of twenty-one years shall be so admitted or received except where the mental disorder from which he suffers -

(a) is mental deficiency such that he is incapable of living an independent life or guarding himself against serious exploitation; or

(b) is a mental illness other than a persistent disorder which is manifested only by abnormally aggressive or seriously irresponsible conduct."

The term "mental deficiency" was replaced in the Mental Health (Scotland) Act 1984 ("1984 Act") with "mental handicap" (section 1(2)) and thereafter in the Mental Health (Care and Treatment) (Scotland) Act 2003, section 328(1), with "learning disability".

[7] In 1985 the appellant was moved to Sunnyside Hospital in Montrose on the basis that the main constituent of his condition was a personality disorder. While enjoying a measure of freedom from that hospital on 6 August 1986, the appellant was arrested and charged on summary complaint with the assault and attempted abduction of an 8 year old child. He was found to be sane and fit to plead and, on conviction of assault and attempted abduction, was on 26 September 1986 sentenced to 3 months imprisonment. On completion of that sentence, he was recalled to the State Hospital by the Secretary of State on the basis of the 1967 hospital and restriction orders, under section 68(3) of the 1984 Act which then applied. However, by that stage he was no longer considered to be suffering from mental deficiency.

[8] Thereafter the appellant made four unsuccessful applications to the sheriff at Lanark challenging decisions not to order his release. He applied to the Outer House of the Court of Session for judicial review and reduction of the final decision. His petition was dismissed on 29 May 1996 (1997 SLT 555). However, his appeal to the Inner House against that decision was successful. It was held that he must be discharged in the absence of evidence that treatment in hospital was likely to alleviate or prevent a deterioration in his condition. The Court considered there was no such evidence and reduced the decision of the sheriff (1998 SC 49). The Secretary of State appealed to the House of Lords. The House of Lords agreed that the determining factor was the treatability of the appellant, but reversed the Inner House decision on the ground that, although the sheriff had misconstrued the legislation, he had before him material which entitled him to make the decision he did (1999 SC(HL) 17)

[9] Following that decision the sheriff at Lanark ordered the release of another patient who suffered from a psychopathic disorder in a case where the treatability test was not satisfied. Amid growing public concern, the Scottish Parliament passed the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 requiring refusal of an application for discharge by a patient with a mental disorder where, as a result of the mental disorder, it is necessary for the protection of the public from serious harm for the patient to be detained in hospital, whether or not for medical treatment. The legislation also extended the definition of "mental disorder" to include personality disorder. The relevant provisions can now be found in section 193 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

[10] A challenge to the 1999 legislation as ultra vires the Scottish Parliament on account of its incompatibility with article 5 of the European Convention on Human Rights was unsuccessful (A v The Scottish Ministers 2002 SC(PC) 63, 2001 SC 1), as was an application to the European Court of Human Rights for a finding of wrongful detention, also based on article 5 (Reid v The United Kingdom (2003) 37 EHRR 211). In the face of that barrier to his discharge from the State Hospital the appellant resorted belatedly to an appeal against the hospital order and restriction order in terms of section 60 of the 1995 Act. He first applied for leave to appeal in 2005. His appeal was dismissed on 11 December 2007 (Reid v HM Advocate [2007] HCJAC 70, 2008 SLT 293).

[11] On 13 February 2009, the appellant submitted an application for review of sentence to the Scottish Criminal Cases Review Commission. In August 2009 the Commission initially decided not to refer the case to this Court. In light of further submissions made to them on behalf of the appellant, the Commission reviewed the case and reached a different view, deciding in May 2010 to refer the case to this Court for determination in terms of section 194B of the 1995 Act.

Comparison of the Grounds of Both Appeals

[12] Recognising that the appellant's case had been considered by this Court fairly recently, Mr Collins, counsel for the appellant, was anxious to stress that the grounds which were addressed and determined in the 2007 appeal formed no part of this appeal. He submitted that the current appeal, unlike the previous one, was based on fresh evidence. He founded particularly on evidence which indicated that, if a person has regularly scored 70 or more in an IQ test, as the appellant has, he has not at any stage of his life suffered from mental deficiency/learning disability. What is perceived on behalf of the appellant as the difference between what was decided in the previous appeal and the argument presented to this Court is neatly summarised in parts of the current Note of Appeal as follows:

"3. On 11 December 2007 the High Court refused the appellant's appeal against this sentence: Reid v HMA 2008 SLT 293. In summary, the appellant argued (a) that the quality of the psychiatric material before the High Court in 1967 was such that a hospital order could not have been made, and (b) that subsequent testing and examination had in any event demonstrated that the appellant had never suffered from mental deficiency. Both arguments were rejected. The appellant did not argue that the said subsequent testing and examination should be regarded as fresh evidence in terms of section 106(3)(a) CPSA.

5. The appellant submits that having regard to all the circumstances, including the existence and significance of evidence not heard at the original proceedings, a different sentence should have been passed: Criminal Procedure (Scotland) Act 1995, sections 118(4), 106(3)(a). The appellant accordingly moves the court to quash the sentence.

6. Repeated intelligence testing and psychiatric examination of the appellant since 1967 have demonstrated that, even if he met the criteria for a finding of mental deficiency at time of sentence, he no longer does so, and has not done so for many years. Innate intelligence is fixed and not capable of extension ... and this is fresh evidence not heard at the original proceedings. Had it been, the Court would not have determined that the appellant suffered from mental deficiency, and could not have made a hospital order on that basis.

7. There is a reasonable explanation why this evidence was not heard at the original proceedings: ...

8. In the circumstances, and notwithstanding whether or not the trial judge was entitled on the information before him to impose a hospital order on the appellant on the basis of mental deficiency, it is clear in the light of the said fresh evidence that he should not have dealt with him on that basis. There has accordingly been a miscarriage of justice, and this court can and should quash the sentence: Jackson v HMA 1990 SCCR 539; Baikie v HMA 2000 SCCR 119; Graham v HMA 2005 SCCR 544; R v Hempston (David John) [2006] EWCA Crim 2869."

The question which immediately arises is whether that distinction is borne out by what was actually argued and decided, no matter how it was characterised.

The Earlier Appeal to this Court

[13] As Mr Collins rightly submitted, Lord Johnston, presiding in the previous appeal, stated at paragraph 11:

"... it is not in my view entirely appropriate to regard this case as a fresh evidence case applying the principles that apply to such an application to this court. I consider the court is more concerned with the true status of the original order in 1967."

Lord Johnston went on to note the Advocate depute's submission that it was not a fresh evidence case but simply a question of whether or not the decision made could be supported by the material available to the Court at the time of the hearing in 1967. He concluded that, whatever the mental state of the appellant at the hearing of the appeal, the material available to the original Court, including the opinion evidence of the doctors was an adequate basis for the decision. He did not consider it material that, if the matter was considered completely de novo as at the hearing of the appeal, it was likely that the appellant would be sent to prison, given the relevant statutes and the nature of treatment required. In the course of arriving at his decision however, he made a number of findings in fact, the first of which was:

"1. Opinions differed whether the appellant met or might have met the test of mental deficiency in 1967. Dr Chiswick described the case as borderline but the IQ testing from the initial stages of the process rated the appellant at above 70 which was normally the level for mental deficiency. Dr Bell was of the view that it was possible that the test for mental deficiency was met in 1967 but she could not say for certain since she was not in possession of all the evidence that was probably available at that time."

We pause to observe that fresh evidence does not cease to be fresh evidence simply because it does not actually result in a determination that there has been a miscarriage of justice.

[14] Lord Eassie considered that there were two distinct strands to the appeal. The first was that the nature of the reports before the Court at sentencing was inadequate. Lord Eassie rejected that ground on the basis that the evidence at the appeal did not justify the inference that the reports exhaustively described the enquiries and assessments carried out by the doctors.

[15] Lord Eassie set out the second strand in paragraph 34 of his opinion as follows:

"In essence the submission proceeds with the benefit of hindsight and, particularly, the carrying out of intelligence tests of the appellant in 1975 in the State Hospital which, it was said, demonstrated that the appellant did not then fall within the category of mental handicap. Since the appellant could not then be categorised as suffering from mental deficiency, it was submitted that it must be the case, as a matter of objective fact, that the appellant was not suffering from mental deficiency in 1967 so, with that hindsight, there was in reality no factual basis for the making of the order."

He went on to note in the following paragraph that the argument proceeded on the view that a person's innate intelligence is settled at birth, but also explained his understanding of the evidence as being that, while the innate nature of intelligence may be settled at birth, it is generally accepted that the instruments available to measure such "intelligence" are of necessity imperfect. There can be apparent improvements in IQ depending on the circumstances in which the test is carried out, additional training or education in intellectual activity, and the acquisition of familiarity with such testing. This strand of the submissions was described by Lord Eassie as the "absolute strand". He expressed his final conclusion in paragraph 43 as follows:

"I do not consider that the evidence presented to this court enables one to say that the appellant could not properly have been diagnosed as suffering from mental deficiency in 1967 and that the opinions to that effect were unsound."

[16] Lord Eassie, like Lord Johnston, proceeded on the basis of determinations made upon the evidence presented which consisted principally of evidence of post‑1967 assessments of the mental state of the appellant. That was, in our opinion, fresh evidence, the presentation of which was aimed at demonstrating that the sentencing judge proceeded on the erroneous basis that the appellant suffered from mental deficiency. Even if it could be argued that somehow Lord Johnston did not proceed on the basis of fresh evidence but Lord Eassie did, and they were not at one on the matter, Lord Marnoch stated his agreement with the reasoning of both judges. In our opinion, that appeal was clearly one in which this Court took account of, and made determinations about, fresh evidence presented by the appellant. The efforts of Mr Collins to distinguish that appeal from the present were not assisted by the similarities between the two hearings, in particular the presentation of evidence about the mental state history of the appellant since 1967.

[17] Having said that, there are a number of differences between this appeal and the previous one. The Crown resisted the previous one, but no longer does so. Before the hearing, the Court received a "Written Response" from the Crown to the appellant's Note of Argument in which an indication was given that the Crown have no objection to the practical result of transfer to prison sought by the appellant. Paragraph 8(a) of the Written Response was as follows:

"If the process of transfer from State Hospital to prison could be done administratively in this case, and the Crown had locus to be consulted, it is unlikely that there would be any objection from the Crown. Currently, the process of the transfer of prisoners to the State Hospital takes place administratively."

At the hearing of this appeal, the Advocate depute explained that the Crown did not propose to lead Dr Bell, the one witness led by the Advocate depute at the original appeal. That was because, although it was her evidence that the diagnosis made in 1967 could be supported in accordance with the standards of the time, her position on the current condition of the appellant was consistent with that presented on the appellant's behalf, i.e. that a diagnosis of learning disability is no longer appropriate and that the appellant has a dissocial personality disorder. Her evidence had been the foundation for the views expressed by Lord Eassie in paragraphs 42 and 43 in relation to the situation in 1967. The Advocate depute understood the present appeal to depend on fresh evidence relating to post sentence events warranting the conclusion that it can now be said that the hospital order constituted a miscarriage of justice. We note the other minor distinction between the two appeals that in 2007, apart from Dr Bell, the witnesses were Drs Chiswick, Crichton and Gray, while in this appeal the witnesses were Drs Natasha Billcliff, Isobel Campbell, Tom White and (alone of the witnesses at the first appeal) John Crichton.

[18] Much was made in the evidence at this hearing of the futility of detaining the appellant in hospital. All that that was achieving in practice was protection of the public by isolating the appellant from the public; there was no scope for treatment of any disorder from which he suffers.

The Significance of the Fresh Evidence

[19] Section 60 of the 1995 Act provides that the appellant may appeal against the orders to which he is subject "in the same manner as against sentence". Section 106(3)(a) of the 1995 Act provides:

"By an appeal under sub-section (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -

(a) subject to sub-sections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings ..."

Sub-section 106(3A) provides:

"Evidence such as is mentioned in sub-section (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard."

Section 118(4) of the 1995 Act provides:

"The High Court may ... dispose of an appeal against sentence by -

(a) affirming such sentence; or

(b) if the Court thinks that, having regard to all the circumstances, including any evidence such as is mentioned in section 106(3) of the this Act, a different sentence should have been imposed, quashing the sentence and passing another sentence whether more or less severe and substitution therefore ..."

[20] Mr Collins founded upon the opinion of the Lord Justice Clerk in Fraser v HM Advocate [2008] 8 HCJAC 26, 2008 SCCR 407 at paragraphs 131 to 133 as an authoritative summary of the principles which must be satisfied before evidence which was not heard at the original trial can be considered by the Court. We are content to accept the analysis that the principles identified apply to the circumstances of this case. Mr Collins referred to four principles. Strictly speaking only the first three apply to the question whether the evidence can be considered by the Court. All three were clearly established in the evidence led before us: namely (a) that there was a reasonable explanation why the evidence was not heard in 1967, being evidence relating to investigations which had been carried out subsequent to 1967: (b) that the evidence was credible and reliable: and (c) that the evidence was cogent, important evidence of a kind and quality which would have been of material assistance to the Court in 1967 (on the hypothesis that it could then have been available) in determining the mental state of the appellant for disposal of the case.

[21] The fourth principle relates to the question whether the evidence establishes a miscarriage of justice. In deciding that there had been no miscarriage of justice, the Court in the earlier appeal effectively concluded that the evidence before the Court, including fresh evidence, did not show that the finding of mental deficiency and the decision to make the orders had been unsound.

[22] The factual position, including the fresh evidence now relied upon by the appellant, is summarised at paragraphs 23 to 30 of the appellant's Note of Argument. The fresh evidence particularly founded upon is set out at paragraphs 27 and 28. It is submitted that the appellant's IQ was not measured by an appropriately qualified professional on a standardised scale prior to his being sentenced in 1967. Instead his IQ appears to have been tested by simple tests of numeracy, literacy and general knowledge which would have been particularly sensitive to his lack of formal education. There was evidence that prior to sentencing he manifested problems in social or personal adoptive functioning which may have arisen from emotional immaturity, or from cultural factors common to his peer group, or from a mild degree of mental impairment, from a combination of or all three. It is claimed that the comprehensive assessment suggested by the relevant textbook, Henderson & Gillespie, Textbook of Psychiatry (9^th ed) was not apparently carried out. Then in paragraphs 26 to 28 the following submissions are made:

"26. But on the other hand it is conceivable, even if assessment had been carried out prior to sentence including a standardised IQ test, that a diagnosis of mental deficiency might nevertheless have been made. In particular that could have been because the appellant's lack of education and social skills would have tended to depress his scores on an IQ test and might conceivably have put them below the 70 threshold on a test which relied on social and educational components. ...

27. Be that as it may, however, following his admission to the State Hospital the appellant was provided with education and training. Because his social and educational deficits were alleviated by education and training it became possible to better test his innate intelligence, and thereby to more accurately assess whether he suffered from mental deficiency than was possible when sentenced in 1967 ... In February 1970 his full scale IQ was measured on the Wechsler Adult Intelligence Scale (WAIS) at 76. On 17 October 1975 his full scale IQ on the same scale was measured at 79, with verbal IQ measured at 76 and performance IQ at 86. In 1980 testing on standard progressive matrices gave the appellant an IQ of 80. In June 1994 he was assessed as having a full scale IQ of 81 ... There is thus a consistent, longitudinal picture which clearly establishes that the appellant's innate intelligence is at a level significantly above that which would permit a diagnosis of mental deficiency to be made.

28. In the light of these tests there has been universal acceptance since no later than 1980, among the many psychiatrists who have either been directly involved in his care, or have provided reports on his case, that he now cannot be regarded as suffering from mental deficiency/mental handicap/learning disability: ... That fact has also been accepted by the Court at the highest level: R v Secretary of State for Scotland per Lord Hope of Craighead at 28F"

[23] It is recognised in that summary that included among the appellant's characteristics were social and educational deficits which had a bearing on the professional opinions ultimately formed that he suffered from mental deficiency. That summary of evidence also includes recognition that the alleviation of these deficits by education and training in the State Hospital could have produced results different from those that testing in 1967 would have produced. All of that evidence was before the Court in the earlier appeal and had an important bearing on the Opinion of Lord Eassie with which Lord Marnoch agreed.

[24] The following extracts from the opinion of Lord Eassie demonstrate that most clearly:

"[35] ... However, as I understood the evidence, while the innate nature of 'intelligence' may be settled at birth, it is generally accepted that the instruments available to measure such intelligence are of necessity imperfect. They can result in an apparent improvement in IQ depending on matters such as the circumstances in which the instrument is used; additional training or education in intellectual activity; and also, the acquisition of familiarity with such testing."

He then listed the results of tests in 1975, 1980 and 1994 before continuing:

"[37] Noting these results Dr Chiswick, while recognising that within a structured regime and education, the results of tests or the intelligence of a person such as the appellant who had received little regular schooling prior to Carstairs could show improvement in IQ scores, was of the opinion that had such tests been carried out in 1967 (he assumed the contrary) it was unlikely that mental deficiency would have been diagnosed. He acknowledged however that it was 'difficult to say' whether that would have been the outcome. I would add that it was accepted that following his admission to the State Hospital the appellant did receive the benefit of a structured regime with schooling and education."

Then having noted Dr Crichton's reference to the full scale IQ result of 79 in October 1975 he said:

"[38] ... Dr Crichton also agreed in his oral evidence that the appellant's IQ scoring would have improved over the years as he overcame his childhood educational disadvantage."

Of the report of Dr Gray, who stated that the assessments of the appellant's intelligence that were made in 1967 had been proved by subsequent formal testing to be inaccurate, he said:

"[39] ... Dr Gray largely departed from the starkness of that statement by acknowledging the effects of education and a changed and structured environment and conceded the possibility that in 1967 the appellant would have tested a WAIS IQ under 70."

Following discussion of the evidence of Dr Bell and reference to the original opinions, Lord Eassie concluded:

"[43] ... It respectfully appears to me that whether a person may be diagnosed as suffering from mental deficiency is a matter of expert opinion, rather than some objectively ascertainable fact. It is not simply a matter of scores on tests of intellectual functioning. The opinion evidence given to the court on 8 September 1967 was presented by eminent practitioners ... I do not consider that the evidence presented to this court enables one to say that the appellant could not properly have been diagnosed as suffering from mental deficiency in 1967 and that the opinions to that effect were unsound."

In the very last phrase there is a clear statement that the evidence of post-hospital order intellectual functioning tests did not show that the decision to make the original order was unsound.

The Test for a Miscarriage of Justice

[25] Lord Eassie also expressed the view (paragraph 46) that, in a matter such as this, the test whether a miscarriage of justice has occurred has essentially to be applied at the time of the decision under attack. He continued:

"Thus the fact that now, in 2007, the decision taken in 1967 has, in light of developing medical opinion and later legislation, arguably inconvenient consequences, does not mean that in making the order which it did in 1967 the court committed a miscarriage of justice."

That was said by Mr Collins to apply an unduly narrow interpretation to what might amount to a miscarriage of justice. The question that should be posed was whether in the whole context the orders made amounted to a miscarriage of justice. This was a situation in which it could be said as a matter of objective fact that at the time of sentence the appellant did not suffer from mental deficiency. To sentence him on the unfounded basis that he did amounted to a miscarriage of justice.

Authorities Relied Upon
[26] As support for that approach, he relied on a line of authority in Scotland and one case from each of England and Wales (R v Hempston (David John)) and Northern Ireland (The Queen v Patrick Francis Joseph McDonagh [2008] NICA 6). In the Note of Argument he presented the submission in these terms:

"44. Where an offender is sentenced to imprisonment, and fresh evidence later establishes that he was suffering from detainable mental disorder at the time of sentence, this Court has repeatedly accepted that it is proper to quash the original sentence and substitute a hospital order. This line of authority can and should be applied to the circumstances of the present case."

The Queen v Patrick Francis Joseph McDonagh is arguably the case most directly in point since it involves the quashing of hospital and restriction orders and the imposition of a prison sentence. There is plainly no reason in principle why it should not be possible for the Court to hold that the imposition of a hospital order amounted to a miscarriage of justice and quash the order and substitute a sentence of imprisonment, as occurred in The Queen v Patrick Francis Joseph McDonagh.

[27] In two Scottish cases, Jackson v HM Advocate and Baikie v HM Advocate, in which sentences of imprisonment were quashed and hospital orders substituted, it is clear that, although no reference was made to fresh evidence, these decisions proceeded on the basis that, in the light of evidence not available at the time of sentence because there was no reason to suspect mental illness, a hospital order rather than a prison sentence should have been imposed. Both appellants had been transferred from prison to hospital before their appeals were heard. The evidence plainly satisfied the requirements of fresh evidence in terms of section 106(3) of the 1995 Act. In Graham v HM Advocate a similar course of action was followed where section 106(3) of the 1995 Act was overtly applied. The circumstances were somewhat unusual in that the appellant was known at the time of sentence to have a history of mental illness, but the nature and degree of his disorder were not thought to be such as to warrant the making of a hospital order standing the medication which he was then receiving. The position changed dramatically when he stopped taking his medication. The Court was satisfied that, had the reporting doctors known at the time of sentence 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. The sentence of imprisonment was quashed and a hospital order substituted.

[28] In R v Hempston (David John) the English Court of Criminal Appeal quashed prison sentences and made a hospital order and a restriction order without limit of time where it was shown on the basis of fresh evidence that at the time the appellant was sentenced it was highly likely that he was mentally ill. Had that been appreciated, the appropriate sentence would have been a hospital order. That appeal was heard 28 years after the original sentence was imposed.

[29] In the Scottish and English cases, either an existing condition was not identified or its progression was not foreseen, and the Court on appeal made the order that the sentencing Court would have made, had it been aware of the true state of affairs. In each case the accused had been transferred to hospital prior to the appeal hearing. In The Queen v Patrick Francis Joseph McDonagh, the evidence established that the appellant did not satisfy the criteria for the imposition of hospital orders when they were made and sentences of imprisonment were substituted. None of these cases addresses the question whether the standards of today may be applied to fresh evidence of post-sentence events to test whether a decision made 44 years ago amounted to a miscarriage of justice. They are all based on the decision that would have been made had the full facts been known. They appear to be consistent with the test for establishing whether a miscarriage of justice has occurred explained by Lord Eassie at paragraph 46 of his Opinion in the earlier appeal, since it was concluded there that a finding of mental deficiency would not have been precluded had the information gathered subsequently been available: in particular knowledge of subsequent IQ test results of 70 or more did not entail that a diagnosis of mental deficiency would not have been made in 1967.

Is there a Basis for a Different Test

[30] In the absence of any support in the authorities cited for the submission of Mr Collins that this Court has in the past taken a different approach to what constitutes a miscarriage of justice in relation to sentencing, it would be inappropriate for this Court as presently constituted to depart from the Opinion of the Court in the earlier appeal. Nevertheless, it does appear to us to be arguable that there may be circumstances in which to apply the standards prevailing at the time at which the decision was made would perpetuate an injustice. In relation to conviction a good example is the effect of advances in forensic science techniques. An accused convicted many years ago on the basis of the results of fairly basic blood testing techniques available at the time may be exculpated by the results of much more sophisticated modern-day testing techniques applied to the same blood sample, by which the sample can be shown to derive from another and not from the accused. It is surely inconceivable that the Court would do other than conclude that there had been a miscarriage of justice. The Court might sentence an immature accused on the basis of such material as could be obtained as to the age of the accused, including opinion evidence, and impose an adult sentence; formal evidence recording the date of birth as later and thus establishing that at the time sentence was imposed the accused was not an adult might subsequently emerge. Other examples of the Court simply proceeding on the basis of inaccurate factual information, which has a significant impact on the sentence, can be envisaged, such as the inaccurate attribution of a previous conviction resulting in the imposition of a mandatory minimum sentence. These are cases where it might be said, in the language of section 118(4) of the 1995 Act, that "a different sentence should have been imposed". Similarly, in some areas of psychiatric and psychological assessment it may be possible to state certain matters with such a degree of scientific certainty that it can be said that a finding on which an opinion depended was wrong as a matter of objective fact, even though the finding was properly made in accordance with the practice and knowledge available at the time. Therefore, while it was no doubt correct for the Court in the earlier appeal to say that whether a person may be diagnosed as suffering from mental deficiency is a matter of expert opinion rather than an objectively ascertainable fact, there is a basis in the evidence before this Court for concluding that that opinion depends today, and would have depended even in 1967, upon the accused having an IQ of less than 70. One view of the evidence before this Court is that, in the face of a finding as a matter of fact that the IQ of the accused is 70 or more, it is not today, and would not have been in 1967, objectively correct for a forensic psychiatrist to diagnose mental deficiency.

[31] Since that approach to the question of how to determine whether there has been a miscarriage of justice would be inconsistent with the Opinion of the Court in the earlier appeal, it would in our view be inappropriate for this Court as presently constituted to approach the matter in that way. We have accordingly decided that further consideration should be given to this appeal by a larger bench. With a view to making proper arrangements for that, we shall appoint a procedural hearing before a quorum of the Court to enable counsel to address the Court on whether further written submissions are appropriate and what, if any, further arrangements should be made for the Full Bench hearing. We trust that the Crown will play an active part in the appeal hearing and to that end make appropriate submissions at the procedural hearing. We envisage the Full Bench taking account of the evidence presented in both appeals, including the evidence of Dr Bell. Counsel should address the Court on the question whether transcripts should be ordered. Our provisional view is that that should not be necessary in relation to this appeal. We have noted below a summary of the evidence presented to this Court. Counsel should indicate what, if any, further findings they consider should be reflected in that summary in the hope that there can be agreement about the material evidence in this appeal. In respect of the earlier appeal, we hope that counsel will endeavour to reach agreement on a similar summary.

The Evidence Presented at this Appeal

[32] The four consultant forensic psychiatrists who gave evidence were agreed that, were the appellant to be sentenced today for the offence of culpable homicide to which he pled guilty, they would have no psychiatric recommendation to make. They would equally have no hospital recommendation to make on the ground of his dissocial personality disorder, since none considered him treatable. We note also that the three consultant psychiatrists who examined the appellant at the time of his re-offending in 1985 made no psychiatric recommendation. All were also agreed that intelligence is, in general terms, innate, but the various tools that measure intelligence can produce varying results depending on factors such as education. All were also agreed that since admission to the State Hospital, the appellant's diagnosis has consistently been that of dissocial personality disorder. We note also that the appellant was not hospitalised when the mental assessments were made and that these were simply carried out while he was on remand at Barlinnie. He was not subject to any formal psychometric testing.

[33] Dr Natasha Billcliff has been the responsible medical officer for the appellant since January 2010. She, like the other witnesses, acknowledged that measurement of IQ was simply one of the diagnostic elements in assessing mental deficiency. An IQ under 70 was an indicator to be considered along with evidence of social personal functioning, and is generally established before the age of 18 years. However, she was of the opinion that a reliable diagnosis of mental deficiency cannot be made in the face of an IQ of 70 or more. Social disadvantage and lack of education can lead to artificially low IQ results. The consistency of the results achieved on subsequent formal psychometric testing of the appellant removed any real doubt from her mind that in 1967 a diagnosis of mental deficiency was inappropriate. She was clear in her opinion that the appellant's dissocial personality disorder is not treatable in any meaningful way. Nothing done in the State Hospital was likely to ameliorate or prevent the condition. She explained that the appellant feels that he is in the wrong system and feels no need to conform. There has been no significant change in his behaviour in over 25 years. There are few sanctions available to encourage improvement. He does not engage with any psychological therapies to address his attitudes or offending behaviours. There is nothing that can be done in the State Hospital to help him move through the system. He has a disruptive impact on both staff and patients. A disproportionate percentage of staff time and that of the witness as responsible medical officer is spent on dealing with him, a greater amount than in the case of any other patient.

[34] Dr Isobel Campbell, who practised at the State Hospital between 1986 and 1992 and again between 2002 and 2010 and had previous knowledge of the appellant and had interviewed him before, was asked to review the State Hospital records and other documents and prepare a report. She identified an unusual degree of consensus in all the reports she considered, including those of Drs Billcliff, Chiswick and White. In light of her review of the documents, she considered the three psychiatric reports available at the time of sentencing. Her conclusion in light of the consistency of IQ test results since 1970 was that the original diagnosis of mental deficiency has been shown over time to be incorrect. She would have no psychiatric recommendation to make today. The appellant's particular personality disorder makes admission to hospital inappropriate. She considered that he would not be out of place in the prison system, that he would be unlikely to pose a significant risk to fellow prisoners, and that he would also be unlikely to be victimised by others.

[35] Dr Tom White was the responsible medical officer for the appellant between 1994 and 2000. He holds an honours degree in psychology in addition to his psychiatric qualifications. He also expressed the opinion that the appellant's IQ in 1967 was likely to be the same as was measured between 1970 and 2004. He did not know whether an IQ of 70 was the cut off point for a diagnosis of mental deficiency in 1967. He was very impressed by the stable nature of the IQ tests over time. He considered that, if the doctors in 1967 had known then what is known now, there would have been no question of a diagnosis of mental deficiency.

[36] Dr John Crichton expressed the view that assessments not available at the time of sentencing reveal the appellant's innate intelligence is at a level where he could not properly have been made the subject of a hospital order on the grounds of mental deficiency.

[37] Although Dr Chiswick, Consultant Forensic Psychiatrist, did not give evidence on this occasion, Mr Collins did rely upon parts of the reports he prepared. He founded on paragraphs 3, 4 and 10 of Dr Chiswick's report of 9 November 2010. After noting that the diagnosis of mental deficiency in 1967, and learning disability today, requires a combination of intellectual impairment, problems with social or personal adaptive functioning arising from intellectual impairment, and onset before the age of 18 years, he wrote as follows:

"4. In general, learning disability requires the person to have intellectual impairment measured at less than 70 on a standardised measure of Intelligence Quotient (IQ). ... No record of any such measure being carried out in 1967 is available. Mr Reid's IQ has however been assessed on standardised measure since 1967 and the results indicate that he does not have an IQ of less than 70. ..."

In a later opinion of 21 January 2011, he wrote that, given Mr Reid's circumstances in 1967 (i.e. a lack of education and inconsistent parenting), it is certainly possible that proper IQ testing, had it been carried out in 1967, would have shown a lower IQ score than those recorded from 1975 onwards. The view expressed in paragraph 4 of the earlier report that, although the appellant might have had some intellectual impairment in 1967, the requirement of intellectual impairment sufficient to satisfy a clinical or legal finding of learning disability was not met was held to be unfounded in the earlier appeal.