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BILL OF ADVOCATION FOR ROSS PATRICK AGAINST HER MAJESTY'S ADVOCATE [2021] HCJAC 37 (17 January 2020)
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[2021] HCJAC 37
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 37
HCA/2019/000575/XC
Lord Brodie
Lord Drummond Young
Lord Malcolm
OPINION OF THE COURT
delivered by LORD BRODIE
in
BILL OF ADVOCATION
for
ROSS PATRICK
Complainer
against
HER MAJESTY'S ADVOCATE
Respondent
Complainer: M Jackson QC, Harvey; John Pryde & Co
Respondent: Edwards QC AD; Crown Agent
17 January 2020
Introduction
[1]
The complainer appeals by way of Bill of Advocation the decision by Lord Beckett on
3 October 2019 at the High Court in Glasgow to desert the indictment against the complainer
pro loco et tempore, with a view to the Crown immediately serving a new indictment with a
preliminary hearing for 4 November 2019. The decision to desert and the consequential
2
extensions of time limits were made at what was minuted as a continued hearing on
examination of facts, as is provided for by section 55 of the Criminal Procedure (Scotland)
Act 1995. In acting as he did, Lord Beckett relied on the terms of section 56(5) of the 1995
which provides:
"(5) The court may, on the motion of the prosecutor and after hearing the accused, at
any time desert the examination of facts pro loco et tempore as respects either the
whole indictment or, as the case may be, complaint or any charge therein"
[2]
On deserting the examination of the facts pro loco et tempore as respects the
indictment, Lord Beckett remanded the complainer, who had previously been admitted to
bail, in custody.
[3]
The procedure which preceded the decision was as follows.
Procedural history
[4]
The complainer was indicted to a preliminary hearing on 5 December 2018 on an
indictment which included seven charges, two of which libelled rape. Following the
discharge of that and three subsequent preliminary hearings, the complainer appeared at a
preliminary hearing on 11 April 2019 when a minute raising a plea in bar of trial was lodged
on behalf of the complainer averring that he was unfit for trial in terms of section 53F of the
1995 Act due to mental impairment. The preliminary hearing was accordingly continued to
10 June 2019 as an evidential hearing in respect of the preliminary plea. Evidence as to
fitness for trial was led on behalf of the complainer and the respondent before Lord Boyd on
10 and 11 June 2019. On 14 June 2019 Lord Boyd heard submissions from the parties and,
having done so, determined that he was satisfied, having regard to the medical reports
tendered and evidence led, that the complainer was unfit to stand trial in terms of
section 53F of the 1995 Act due to the nature and extent of his medical condition which
3
would prohibit his effective participation in a trial. Lord Boyd further ordered, in terms of
section 54(1)(b) of the Act, that a diet be held under section 55 for an examination of facts.
On 18 June 2019 the complainer was admitted to bail.
[5]
The examination of facts was heard on 6 and 7 August 2019 before Lord Beckett. At
the conclusion of the evidence the advocate depute moved and was granted authority to
make certain amendments to the indictment and withdrew the libel in respect of
charge (004). Lord Beckett acquitted the complainer of that charge in accordance with
section 95 of the Act. Having considered the evidence and being satisfied beyond
reasonable doubt, Lord Beckett found that the complainer had committed the offences
libelled in the remaining charges and that there were no grounds for acquitting him.
Lord Beckett continued the diet to 28 August 2019 for the appropriate disposal to be made.
[6]
On 28 August 2019 the reports which had been called for were not available and the
diet was further continued until 12 September 2019. On 12 September, a report dated
8 September 2019 from Dr Chandima Perera, a Consultant Psychiatrist in Learning Disability
addressed the issue of disposal and recommended the making of a compulsion order with a
further recommendation that the complainer:
"...be referred to a Forensic Learning Disability Inpatient Psychiatrist from the Local
Health Board to determine the level of inpatient security required to manage
Mr Patrick safely."
A second report was produced from Dr Alina Kopric, Consultant Learning Difficulty
Psychiatrist. Dr Kopric apparently had misunderstood the instruction and instead of
offering a view on disposal, her report dealt with the issue of fitness to stand trial.
Dr Kopric considered the condition of the complainer against the criteria contained in
section 53F and concluded that he met the criteria for diagnosis of mild learning disability
but did not demonstrate evidence of any other mental health illness. She concluded that
4
despite his mild learning disability, he demonstrated good understanding of trial
proceedings and the role of those involved and that he was fit to stand trial. She made
recommendations as to appropriate adjustments to assist him to participate effectively in a
trial. She did not address the question of disposal under section 57(2). The advocate depute
proposed a further continuation in which the Crown would investigate both disposal and
fitness. In the light of the information before him Lord Beckett further continued the diet
until 3 October 2019 in order that the necessary second psychiatric report addressing the
issue of disposal might be instructed and prepared. Counsel for the complainer advised that
he had become aware that the complainer had a history of involvement with a psychiatrist,
Dr Marjorie Macfie, and that consideration would be given to obtaining a report from her.
The advocate depute and counsel for the respondent indicated that they would liaise in
order to ensure that an appropriate report on disposal was before the court on 3 October.
[7]
On 3 October no report was produced from Dr Macfie. However, the respondent
produced a supplementary report from Dr Perera, dated 26 September 2019, expressing the
conclusion that the complainer was fit for trial. The respondent also produced a report from
a Dr Rona Gow, Consultant Forensic Psychiatrist, dated 1 October 2019 concluding that the
complainer was fit for trial.
[8]
Against that background, on 3 October the advocate depute moved to desert the
indictment in respect of the examination of facts pro loco et tempore under section 56(5) of the
Act with a view to recommencing proceedings on a new indictment under section 56(6)(a)
with a preliminary hearing fixed for 4 November 2019.
[9]
The Crown's motion was opposed by counsel for the complainer. He submitted that
if the Crown had wanted to adduce psychiatric evidence they ought to have don e so at the
hearing before Lord Boyd. The effect of the motion to desert being granted would be to
5
circumvent the finding made by Lord Boyd that the complainer was unfit for trial. It would
be wrong to do so. The complainer had a learning disability and nothing about his
condition had changed since it had been considered by Lord Boyd. Counsel accepted that if
a person had a fluctuating psychiatric illness then it might be appropriate to proceed under
section 56(6). He also accepted that it had been held in Stewart v HM Advocate (No 2) 1997 JC
217 that it was open to an accused, served with a second indictment in relation to a
particular matter, to submit a plea of insanity in bar of trial at a preliminary diet
notwithstanding the fact that the same plea had been unsuccessful in respect of the previous
indictment. However, counsel submitted that in the present case it was simply unfair to the
complainer to desert pro loco et tempore. He had already spent a considerable period on
remand.
Lord Beckett's reasoning
[10]
In his report to this court Lord Beckett explains that he accepted that the situation in
the present case appeared to be different from that in Stewart. However, nothing in the
court's reasoning in that case suggested to Lord Beckett that it would be wrong to desert
under section 56 simply because the complainer had a mild learning disability rather than a
potentially fluctuating psychiatric illness. Indeed it appeared from Stewart that alterations in
the available clinical insights into an accused's fitness to stand trial might lead to a different
decision being taken in relation to a second indictment than that which had been taken in
respect of a first indictment, irrespective of the precise nature of an accused's disabilities.
[11]
In Lord Beckett's opinion, it was to be kept in view that the court was simply being
asked to desert pro loco et tempore and to permit a new indictment to be raised. He would not
be making any decision as to the fitness of the complainer for trial on the new indictment.
6
That was an issue which the complainer would be entitled to raise at the preliminary
hearing on 4 November 2019. It was significant that the court had before it three reports
from psychiatrists, of whom at least two had a speciality in psychiatry associated with
learning difficulties. Each of those clinicians had met with the complainer and reviewed his
case and considered that he was fit to stand trial. The court did not have sufficient
information to make a compulsion order, as counsel for the complainer recognised, albeit
that the course that he would have favoured by this stage was for the court to make no
order. Counsel had not asked Lord Beckett to continue for a further report to be obtained
and counsel had not himself furnished any report.
[12]
In Lord Beckett's opinion, the statute comprehended situations such as the one
before him. Whilst the motion came at a late stage after the facts had been determined, it
was nevertheless competent to desert pro loco et tempore at a stage when the court had not
made an order under section 57(2) and had not determined to make no order under
section 57(2)(e). The reason the motion was made by the Crown arose out of more
information having become available, albeit by chance, in the course of consideration of the
question of disposal. Lord Beckett had heard evidence at the examination of facts which
suggested that at least in some respects the complainer functioned quite effectively. Three
psychiatrists had expressed the view that the complainer was fit for trial. Lord Beckett did
not have a basis to make any of the orders available under section 57; if he refused the
motion to desert he would have been compelled to make no order. He considered that the
interests of justice and the whole circumstances of the case favoured his deserting pro loco et
tempore which he accordingly did.
7
The Bill of Advocation and the supporting note of argument
[13]
In his Bill of Advocation the complainer avers, inter alia:
"that the motion to desert the examination of facts had the effect of circumventing
the Hon Lord Boyd's finding of 14 June 2019, namely that the complainer was not
intellectually capable of participating in any trial process. The condition from which
he suffers had not changed and had certainly not improved in the time following the
finding of 14 June 2019. The Crown had elected not to lead any more evidence than
they did. They had chosen to rely on the evidence of a consultant forensic
psychologist. The Crown elected not to lead psychiatric evidence. Following the
Hon Lord Boyd's finding, they elected not to appeal and proceeded to the
examination of facts. The opinion of those psychiatrists relied upon by the Crown
suggesting that he was indeed fit to stand trial could have been ventilated at the
relevant proof."
When granting warrant for service of the Bill the administrative judge noted that a question
might arise as to the competence of deserting an examination of facts after the relevant
findings had been made.
[14]
Prior to the hearing before this court the complainer lodged a written note of
argument supplementing what appears in the Bill and adopting and developing the
suggestion which had been made by the administrative judge. The argument set out in the
note can be summarised as follows.
[15]
There had been a three-day hearing before Lord Boyd after which he had found the
complainer to be unfit for trial. This was a finding that Lord Boyd had been fully entitled to
make on the evidence that he had heard. The Crown had not appealed that finding
although it had been open for it to do so. The complainer's condition of impaired cognitive
functioning is not one that will change. The effect of Lord Beckett's decision was to
circumvent Lord Boyd's finding, not because of any change of circumstances but simply
because of different experts considering the issue and coming to a different conclusion. This
cannot have been contemplated by the relevant provisions of the statute as an appropriate
course to take. The statute provides for distinct stages in the procedure. The examination of
8
facts is not a means by which the earlier determination of fitness for trial may be set aside
when there has been no change of circumstances. It is not in the interests of justice to treat a
finding of unfitness to stand trial as provisional or contingent. To do so would be contrary
to the principle of finality. The power to desert pro loco et tempore is discretionary.
Lord Beckett exercised his discretion erroneously.
[16]
Moreover, the administrative judge had been correct to express concern; desertion at
an examination of facts after the court has made a finding in terms of section 55(2) is
incompetent. An examination of facts is the equivalent of a trial. Once a finding is made,
the "trial phase" has finished. The court has moved to a different stage in the proceedings:
the disposal of the case in terms of section 57. Consideration of the terms of sections 55(1)
and 57(1)(b) demonstrated that the statute envisaged that the examination of facts is
concluded once the evidence is led and the court has made findings on them. It followed
that any purported desertion pro loco et tempore which takes place after the court has made a
finding is incompetent. The express statutory power conferred by section 56(5) supersedes
any common law power that might otherwise exist. This is consistent with the rules that
would apply in a trial: a prosecutor may not make a motion for desertion pro loco et tempore
after the Crown has closed its case (see Parracho v HM Advocate 2011 SLT 600, also
Renton & Brown Criminal Procedure paras 9-08 to 9.12.1 and 18-21 to 18.23). In his report
Lord Beckett had referred to section 55(7) but the powers within that subsection are caveated
by reference to section 55(6) to the rules, procedures and power applicable in respect of a
trial; and by the ordinary meaning of section 55(1) and section 57(1)(b).
[17]
It was plain from the reports received by Lord Beckett that no hospital or other order
could competently be made. Accordingly he should have made no further order.
9
Oral submissions
[18]
Mr Matt Jackson QC appeared for the complainer. He adopted his written note of
argument but in the course of developing his submissions they became more focused. He
came to concede that it had been competent for Lord Beckett to desert the examination of
facts pro loco et tempore on the prosecutor's motion, in terms of section 56(5) of the 1995 Act.
However he submitted that Lord Beckett's exercise of the discretion conferred by
section 56(5), with the consequence that the Lord Advocate could raise a new indictment as
provided by section 56(6), had been irrational in that there had been no change of
circumstances since Lord Boyd's finding that the complainer was unfit to stand trial.
Desertion pro loco et tempore is an established and useful procedural disposal but it is a
course to be followed only in exceptional circumstances (see Parracho v HM Advocate supra at
para [9]). It was desirable that the court should achieve finality (see McAnea v HM Advocate
[19]
The motion of the advocate depute, on behalf of the respondent, was to refuse the
Bill. She took the court through a brief chronology of the case under reference to the
relevant provisions of the 1995 Act. Lord Beckett had made a finding, in terms of
section 55(2), that he was satisfied beyond reasonable doubt that the complainer had done
the acts constituting the offences which were before the court and that, on the balance of
probabilities there were no grounds for acquitting the complainer. That did not conclude
the examination of facts. In terms of section 55(7)(a) an examination of facts commences
when the indictment is called and concludes when the court does one of the three things set
out at section 55(7)(b): (i) acquits the person before it; (ii) makes an order under
section 57(2); or (iii) decides not to make an order. Lord Beckett had not done any of these
things when he deserted the examination of facts, which section 56(5) gave him power to do
10
"at any time" On that desertion the Lord Advocate was empowered to raise a new
indictment by virtue of section 56(6). There was no question of the complainer having
tholed his assize. As section 56(7) makes clear, even where, following a finding in terms of
55(2), an order is made in terms section 57(2), a further indictment may be served, in which
case any order made under section 57(2) will cease to have effect. Thus, as Mr Jackson had
conceded, what Lord Beckett had done was competent. It was also entirely reasonable in all
the circumstances.
Decision
[20]
Mr Jackson was correct to concede that Lord Beckett had the power to do what he
did. As we have already observed, section 56(5) provides:
"(5) The court may, on the motion of the prosecutor and after hearing the accused, at
any time desert the examination of facts pro loco et tempore as respects either the
whole indictment or, as the case may be, complaint or any charge therein"
On the court deserting pro loco et tempore, section 56(6) specifically provides that the
Lord Advocate may raise and insist in a new indictment. The section 56(5) power may be
exercised "at any time" but that must mean at any time during the subsistence of the
examination of facts; otherwise there would be no examination of facts to desert. We take it
that that was the point that concerned the administrative judge: Lord Beckett had made his
findings in terms of section 55(2) that he was satisfied that the complainer had done what
was alleged in the outstanding charges in the indictment and that there were no grounds for
acquitting him; the function of the examination of facts had therefore been exhausted.
Essentially that was the position taken on behalf of the complainer in his note of argument;
by the time Lord Beckett acceded to the Crown motion to desert, the court has moved on to
a different stage in the proceedings, namely disposal in terms of section 57.
11
[21]
As Mr Jackson recognised, that position does not survive scrutiny when one has
regard to the associated provisions of the Act. Section 55(7) provides that the examination of
facts is only concluded when the court acquits the person before it, or makes an order for
disposal or decides to make no order. Lord Beckett did not do any of these things. Thus, the
examination of facts still subsisted when he exercised the power to desert conferred by
section 56(5). The note of argument sought to contend that section 56(5) was qualified (or
"caveated") by section 55(6), and that by analogy with what would be the position at trial
where once an accused has been convicted, it is no longer competent for the Crown to move
to desert, once a finding has been made in terms of section 55(1) that the person has done the
act constituting the offence and that there are no grounds for acquitting him, it is too late for
the Crown to move to desert the examination of facts. It occurs to us that the position at trial
might be a little more complicated than that but be that as it may; section 55(6) cannot have
the effect attributed to it in the note of argument. The subsection is in these terms:
"(6) Subject to the provisions of this section, section 56 of this Act and any Act of
Adjournal the rules of evidence and procedure and the powers of the court shall, in
respect of an examination of facts, be as nearly as possible those applicable in respect
of a trial."
Thus, while the procedure and powers of the court in respect of an examination of facts shall
be as nearly as possible those applicable in respect of a trial, that is subject, inter alia, to
section 56, and therefore the express power to desert the examination of facts conferred by
section 56(5). On this matter drawing an analogy with what might be the position at trial is
simply not to the point.
[22]
Lord Beckett therefore had power to desert. We do not accept that it was
unreasonable for him to exercise that power in the circumstances with which he was
presented on 3 October 2019.
12
[23]
It is true that Lord Beckett was motivated by a concern that the complainer might be
fit to stand trial whereas Lord Boyd, after a hearing of evidence directed at that very issue,
had recently determined that the complainer was unfit for trial. However, Lord Beckett's
concern was informed by reports from three psychiatrists, two of whom were specialists in
the area of learning disability, to the effect that the complainer, who had been indicted on
serious charges, was fit for trial. Mr Jackson asserted that, in contrast to what might be the
case with other conditions bearing on a person's fitness for trial, the complainer's learning
disability was not a condition that is susceptible to change. That may or may not be so, but
that is not to say that the complainer's condition is not open to different interpretations or
different understandings, regard always having to be had to what adjustments to the
process might be available with a view to facilitating a fair trial. In his report Lord Beckett
drew attention to what had been said by the Lord Justice Clerk (Cullen) in Stewart at 220I to
221A:
"....that from time to time there may be alterations not merely in condition of an
accused but also in the extent to which insights into his fitness to stand trial are obtained.
These matters, which bear on the question of whether the accused can receive a fair
trial, provide support for the view which we have taken of the legislation."
[emphasis added]
[24]
Moreover, at the point when Lord Beckett made his decision he did not have
sufficient material to make an order in terms of section 57(2). As he observed in his report,
the statute does not provide for a procedure whereby the court can ensure it has the
information necessary for it to make an order. While counsel might have hoped to persuade
him that in these circumstances he should make no order (a course which could not be
avoided in the absence of power to desert or power to continue), that does not appear to us
to be a satisfactory way of proceeding when its implications are not capable of full
consideration.
13
[25]
It is important to keep in mind, as Lord Beckett did, that nothing in his decision
prejudiced the status of the complainer or further consideration of what would be a fair way
of proceeding having regard to the various relevant interests. Lord Beckett did not
determine that the complainer was fit for trial. That is an issue which can be considered
under reference to an appropriate plea in response to the new indictmen t. In any event a
finding of unfitness for trial, such as was made by Lord Boyd, followed by a finding in terms
of section 55(2), such as was made by Lord Beckett, does not mean that the person in respect
of whom these findings are made has tholed his assize, even once an order for disposal is
made in terms of section 57(2). The matter is made clear by section 56(7) and (8) which
provide:
"(7) If, in a case where a court has made a finding under subsection (2) of section 55
of this Act, a person is subsequently charged, whether on indictment or on a
complaint, with an offence arising out of the same act or omission as is referred to in
subsection (1) of that section, any order made under section 57(2) of this Act shall,
with effect from the commencement of the later proceedings, cease to have effect.
(8) For the purposes of subsection (7) above, the later proceedings are commenced
when the indictment ...is served."
Thus, had Lord Beckett made no order when faced with the circumstances before him on
3 October 2019 it would have been open to the Crown, on reconsidering matters on the basis
of the three psychiatric reports, to re-indict. On one view Lord Beckett's decision was of no
real consequence. That said, it appears to us that it was a pragmatic and practical response
which had the result of moving matters forward towards an expeditious and just resolution
of the case.
[26]
The Bill is accordingly refused.
