Scottish Sheriff Court Decisions

AW 116/11

 

Opinion of Sheriff J A Baird Sheriff of Glasgow and Strathkelvin at Glasgow

 

Variation and Renewal of Orders for Guardianship made under the Provisions of the Criminal Procedure (Scotland) Act 1995 - Minute to Vary in respect of J.M.

 

 

Glasgow : 8 June 2011

 

 

Guardianship Orders made by Courts exercising Criminal Jurisdiction

1.      The present civil practice whereby the Sheriff Court may make an order appointing an individual or office holder to be the guardian in relation to the property, financial affairs or personal welfare of an adult who is incapable in relation to decisions about, or of acting to safeguard or promote his/her interests in his/her property, financial affairs or personal welfare and is likely to continue to be so incapable, was introduced and is regulated by the Adults with Incapacity (Scotland) Act 2000, (hereafter "AWI").

2.      Proceedings under that Act are civil in character and the orders are regulated by the Sheriff Court exercising powers which are civil in character.

3.      However, it was recognised by Parliament that an order for Guardianship might be an appropriate disposal in certain cases which come before the courts when exercising their criminal jurisdiction, and so it gave the Sheriff Court and the High Court of Justiciary the power, in appropriate circumstances, to deal with such cases by the imposition of a guardianship order. The provisions regulating the making of such orders have been amended into and are to be found in the Criminal Procedure (Scotland) Act 1995, hereafter "CPSA".

4.      The power of courts to make such orders when exercising their criminal jurisdiction have been exercised only sparingly. Figures supplied by sheriff clerks, Justiciary Office and the Office of the Public Guardian show that no more than 14 such orders have been made by Sheriff Courts and only one has been made in the High Court of Justiciary.

5.      Orders granted by the sheriff under the AWI are subject to a statutory scheme, provided by that Act, which includes provisions regarding the length of time for which the order should be granted (S58(4)), for renewal (where the order has been made subject to a time limit) (S60), and for variation of the powers originally granted (S74).

6.      The questions which have arisen in the present case are the procedure which must be adopted, and the appropriate forum, where an order for guardianship has been made by a court exercising its criminal jurisdiction, and it is desired to vary or renew such an order. The case also raises issues of the duration of such orders, forms of process, determination without a hearing and intimation.

7.      The order in question in this case was made by the High Court of Justiciary, apparently the only one ever so made to date, and it is therefore critical in this case to identify the appropriate forum where any such application should be made. The application before me sought variation of the powers granted by the High Court, which had placed the adult under the guardianship of the local authority, namely Glasgow City Council.

8.      I understand that this is the first time these issues have required to be considered.

The making of guardianship orders under the CPSA

9.      In what follows, I have attempted to make a clear distinction between the relevant sections of the CPSA and of the AWI, and to use (hopefully) obvious abbreviated shorthand, but that has been made more complicated than it should be by virtue of the fact that many of the provisions relating to Mentally Disordered Offenders which appear in the CPSA require extensive cross-referring to other provisions both of that statute and others before they can be understood, and also because, confusingly, the actual numbers of the sections in the CPSA relating to these matters are exactly the same as the numbers of the relevant sections of the AWI.

10. There are two routes by which a Guardianship Order can be made by a court exercising criminal jurisdiction in terms of the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 (hereafter "MHCTSA") which were amended into the CPSA, and the mechanism is broadly the same for both.

11. Where a person (1) is found to be insane (S57(2)(c) CPSA), or (2) is convicted of an offence punishable by imprisonment (S58(1A) CPSA), and in either case the court is satisfied that the offender is an adult who is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his property, financial affairs or personal welfare, and is likely to continue to be so incapable (these being the grounds set out in S58(1)(a) AWI and incorporated by reference in both S57(2)(c) and 58(1A(a) CPSA) and that no other means provided by the CPSA would be sufficient to enable his interests in his personal welfare to be safeguarded or promoted (S58(1A(b) CPSA), the court may place him under the guardianship of the local authority (or another approved person) - it can also make an Intervention Order - for 3 years or other period including indefinitely on cause shown.

12. In a case where the person is convicted in the Sheriff Court and remitted to the High Court for sentence, the High Court is specifically given the power to make an order an order under S58 (S58(2) CPSA).

13. There are other conditions which must be satisfied before the Order is made, and these are to be found in S58(6) to (8) CPSA, but I have not set these out here as for present purposes I am considering Orders which have already been made, presumably competently.

14. S57(6) CPSA provides that section 58A of the CPSA shall have effect as regards guardianship orders made under S57(2)(c) of the CPSA and S58(11) of the CPSA provides that section 58A of the CPSA shall have effect as regards guardianship orders made under section 58 of the CPSA. I cannot see any provision in the CPSA which indicates that the issues of renewal or variation of such orders, the forum in which to bring any application for renewal or variation, or the appropriate forms of process are to be regulated in the context of criminal procedure and under the auspices of the CPSA.

15. On the contrary, S58A(1) of the CPSA Act states that subject to the provisions of that section, the provisions of Parts 1, 5, 6 and 7 of the AWI apply to a guardian appointed by order of the court under S57(2)(c) or 58(1A) of the CPSA as they apply to a guardian with welfare powers appointed under S58 of the AWI (which helps to illustrate the point I made about similar section numbers of different statutes). Those Parts of the AWI also apply to Interveners in the same way.

16. Part 1 of the AWI contains the statements of general principle which apply to all applications for guardianship, and Part 6 of the AWI is of course the Part of that Act which regulates Intervention Orders and Guardianship Orders, including renewals, which are dealt with by S60 and variations, which are dealt with by S74.

17. The tenor of S58A of the CPSA is therefore that once a court exercising its criminal jurisdiction has made a guardianship order, subsequent regulation of it falls to be performed by the sheriff court exercising its civil function, and that includes orders made by the High Court.

Renewals and Variations

18. As to renewals, "at any time before the end of a period in respect of which a guardianship order has been made or renewed, an application may be made to the sheriff [my emphasis] under this section by the guardian for renewal of such order..." (S60(1) AWI). For variations, S74(1) AWI provides that "the sheriff, [again, my emphasis] on an application by any person (including the adult himself) claiming an interest in the .....personal welfare of the adult, may vary the powers conferred by the guardianship order and may vary any existing ancillary order".

19. It would therefore appear that the person who was appointed welfare guardian under the order of a court exercising its criminal jurisdiction, and who will usually be the Chief Social Worker or another nominated employee of the local authority, has the power to seek renewal or variation of the powers or conditions granted by the criminal court. Indeed, the local authority may in certain circumstances be under a duty to seek renewal (S60(2) AWI).

Appropriate Forum

20. Next, it would appear that the application must be made to the sheriff, and in terms of the general provisions of the AWI and not the CPSA. In terms of the AWI, only the sheriff has the power to make, renew or vary an order. Neither the Court of Session nor the High Court of Justiciary is given such a power by the AWI. Further, although the High Court is specifically empowered to make such an Order under the terms of the CPSA, it appears not to have been given the power to renew or vary one which it has made. The choice of which sheriff court to apply to will depend on the normal jurisdictional rules contained in the AWI.

21. Then, when considering the making of an application for Renewal, there are the issues of Form of Process, Intimation, and determination without a hearing.

Form of Process

22. Rule 3.16.8 of the Act of Sederunt (Summary Applications etc. Rules) (SI 1999/929) provides that unless otherwise prescribed, and I do not think it is otherwise prescribed, "any application or proceedings subsequent to an initial application or proceeding considered by the sheriff, including an application to renew an existing order, shall take the form of a minute lodged in the process".

23. In ordinary civil circumstances, there is an existing process under the AWI and the applicant complies with that rule by lodging a minute. However, where the original order was made by a court, and possibly the High Court, exercising its criminal jurisdiction, there will not be an existing civil process. So, how does the applicant proceed ?

24. If the application for renewal is made before the expiry of the original order, then I can see no option but to do so by using Form 23 (Rule 3.16.7(1)), but since in this case this is truly an application for renewal of an existing order, it may well be sufficient to comply thereafter with the abbreviated requirements of renewals generally and as prescribed by S60(3) AWI, namely one medical report and a report from the MHO as to the general appropriateness of continuing the guardianship. In this situation the order continues in force until the renewal application is determined (S60(1) AWI).

25. If the guardian appointed by the court exercising its criminal jurisdiction omitted to seek renewal before the expiry of the original order, then the application has to be brought as if it was an original, fresh, application under the AWI, in which case not only must it be on Form 23, but the more stringent requirements of S57(3) must be satisfied, which of course means lodging two medical reports and a report from the MHO as to the general appropriateness of the order sought. Such MHO reports are much more detailed than those submitted for renewals, and of course, in this situation, the original order will have lapsed.

Intimation

26. If the application brought before the sheriff is truly one for renewal of an order originally granted by a court exercising its criminal jurisdiction, then presumably the provisions of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) Amendment (Adult Support and Protection (Scotland) Act 2007) 2008 (SSI 2008/111) will apply to it, (now Rule 3.16.8(5))

27. That appears to provide that it is not necessary to intimate the making of an application for renewal to the adult, his nearest relatives, primary carer, or the Public Guardian.

28. I have previously expressed the view that that refraining from intimating to the adult in such circumstances is not ECHR compliant (cf G's Guardian Applicant 2009 SLT (Sh Ct) 153 @ paras 10-17 and "The Law of Unintended Consequences" 2010 JLSS 18). I am aware that that view is shared by the Equality and Human Rights Commission, who are concerned that non-intimation to the adult may breach Articles 6, 8 and 14 of the Convention and further deprives the court of the opportunity to obtain the present wishes of the adult, which is of course compulsory under section 1(4)(a) of the AWI. Further, not seeking the views of the nearest relatives or primary carer deprives the court of potential input from informed and interested sources, and is also a breach of section 1(4)(b) of the AWI. Section 1 of the AWI is of course in Part 1 which is made to apply to guardianship orders made under the CPSA by virtue of S58A(1) CPSA.

29. Finally, it is wholly inconsistent with other provisions, including those relating to variations, to have a provision by which it is mandatory to intimate to the Public Guardian the making of a guardianship application by a court exercising its criminal jurisdiction, (S58A(4) CPSA), but not necessary to intimate to the Public Guardian the intention to seek a renewal of that order, thus depriving the court of any input the Office of the Public Guardian may have regarding the operation of the order of which renewal is sought.

30. In any event, in a situation where a renewal application for an Order which was granted by a court exercising its criminal jurisdiction proceeds without intimation of the intention to do so to the adult, his nearest relatives, or the Lord Advocate, the situation may result in the pronouncing of an order for guardianship which lasts for the rest of that adult's life (S58(4) AWI), notwithstanding the terms of Article 12(4) of the UN Convention of the Rights of Persons with Disabilities. I will return to that Convention later. Not only might that be seen to be a disproportionate disposal in a situation which had its origins in a criminal case, it also ignores the right of the adult, and the prosecutor, to appeal against the granting of a guardianship order of whatever length.

31. S60 of the CPSA provides that where a guardianship order has been made by a court in respect of a person charged or brought before it, that person may without prejudice to any other form of appeal under any rule of law appeal against that order in the same manner as against sentence. S60A(2) of the CPSA gives the prosecutor a right of appeal against the making of a guardianship order if it appears to him that the order was inappropriate, or on a point of law, and any such appeal is treated as an appeal against sentence under S108 CPSA. That right of appeal given to both the adult and the prosecutor must apply to an order renewing a guardianship order as it does to one making it originally, but if no intimation of the intention to apply for renewal is given to the adult, his nearest relatives, or the Lord Advocate, then no relevant party is alerted to the possibility of the making of the order for renewal and of any consequent right of appeal, which might therefore be lost.

32. Notwithstanding the terms of that Act of Sederunt, I would have thought that the court which receives such an application for renewal should insist on intimation to the adult, the nearest relatives if known, the primary carer, the Public Guardian, the solicitors representing the adult at the time of the disposal of the criminal case, the Lord Advocate for the Public Interest, and also the Clerk of Justiciary in the case of an order made by the High Court of Justiciary. The sheriff has the power to order such intimation by virtue of the terms of Rule 3.16.4(f).

33. If the guardian has omitted to bring a renewal application before the expiry of the order, and has to bring a new application as a result, then the rule for intimation and service is that provided by Rule 3.16.4.

Determination of the Application without Hearing the Parties

34. It is competent to determine any application for renewal without hearing the parties (S60(4A) AWI), but not without fixing a hearing (Rule 3.16.2(a)). It is within the discretion of the court considering the application for renewal to decide whether to renew an order without hearing the parties and even where that order was originally granted by a court exercising its criminal jurisdiction, but I would have thought it would be prudent to insist on hearing them, particularly if the original order was made by the High Court of Justiciary. It is not ordinarily competent or appropriate to determine an issue arising from a criminal case without hearing the parties. Indeed, since the court considering an application for variation or renewal of an order made by a court exercising its criminal jurisdiction is dealing with an order which is statutorily treated as being the imposition of a sentence, the idea that a court would proceed to vary or renew (which would have the effect of extending it) that order (sentence) in the certain knowledge that neither the adult (the original accused) or his lawyers, or his relatives, or the Crown, even knew that the case was about to be dealt with, is utterly inconceivable.

Variation of Existing Order

35. Where the application is for variation under S74 AWI, the rule governing intimation would appear still to be 3.16.8, but crucially, rule 3.16.8(5) applies only to renewals and not variations, which means the necessity of much fuller intimation, together with the additional parties I have suggested above, and with mandatory indication of intention to vary, and intimation of any variation approved, to the Public Guardian (Rule 3.16.4(1)(e) and S74(5)). In this connection also, rule 3.16.8(5) appears out of step with the rest of the rule into which it was added.

The Making of the Original Order in this Case

36. The order arose out of a prosecution in the High Court of Justiciary. I have seen the Indictment and all of the minutes of procedure. Regrettably, one of the matters I have had to consider is that the order ultimately recorded was not competently expressed, and neither were certain other critical Minutes in the process. I have no power to rule that an order of the High Court is incompetent, nor do I have the power to correct any errors in High Court Minutes which may be identified. I can point to the relevant Minutes and raise issues regarding them, but that is all.

37. Further, in accordance with the proper practice I suggested earlier about the necessity for full intimation to all relevant parties, I ordered intimation of the application to vary the order to be made upon the Lord Advocate and the Clerk of Justiciary, as well as on the adult and his former solicitors. It was also a clear case for the appointment of an experienced safeguarder, and I appointed Mr Frank Irvine, an experienced practitioner in Mental Health law.

38. Again regrettably, no response was received from either the Lord Advocate or the Clerk of Justiciary. They instructed no representation at the hearing, and indeed did not communicate at all either with the applicant, Glasgow City Council, or this court. Since I had to consider the competency of making the application to vary in the sheriff court, and eventually aspects of the compliance of several parts of the proceedings in the High Court with the statutory provisions, and to consider the terms of the original order, and its effects and duration, the decision of the Lord Advocate to ignore the intimation and not to enter the process and assist the court was disappointing.

39. The adult who is the subject of the present application was charged with the commission of 14 offences of the most serious sexual nature, including rape, allegedly committed between 1973 and 1995, and against four different young girls and one young boy. The case first called in the High Court at a Preliminary Hearing on 13 December 2006 when the court was advised that there would likely be an issue of whether the accused was fit to stand trial. One psychiatrist was reported as giving the opinion that the accused was suffering from Alzheimer's Disease. He was then just 9 days away from his 79^th birthday. The case called on 4 more occasions before a plea in bar of trial was lodged, stating that the accused was suffering either from dementia or Alzheimer's and was unfit to stand trial.

40. Finally, on the 7^th calling of the case on 9 July 2007, a plea of insanity in bar of trial was stated and a motion made for "an order under Section 54 of the CPSA". S54 of the CPSA is the section which allows for the taking of a plea of insanity in bar of trial. There were two medical reports which supported that plea. The reports had been considered by the Crown, who had instructed further psychiatric investigation of the accused, and as a result, the Advocate Depute is recorded as having agreed with the submission for the accused.

41. Where a court is satisfied, on the written or oral evidence of two medical practitioners that a person charged with the commission of an offence is insane so that his trial cannot proceed, S54(1) of the CPSA provides that the court shall [my emphasis] (a) make a finding to that effect and state its reasons for that finding and (b) discharge the preliminary hearing (where the case is being held in the High Court, which it was) and order that an examination of facts be held under section 55 of the CPSA.

42. Unhappily, the minute does not record that any of these four steps was taken. There was no finding that the accused was insane so that his trial could not proceed, the reasons for the making of any such finding were not given, the preliminary hearing was not discharged and no order for an examination of facts was made.

43. The operative part of the minute reads, "The Court under the provisions of Section 54(1) of the Criminal Procedure (Scotland) Act 1995 the accused is insane [sic], continues the Preliminary Hearing until Monday 23 July 2007 at 9.30 a.m. within the High Court of Justiciary at Glasgow in order that parties can address the court on further procedure..."

44. On that continued date, the minute records that it was treated as a Preliminary Hearing, which was still not discharged, but on this occasion the court did fix Friday 5 October and Monday 8 October 2007 as a diet for an examination of facts.

45. The case did call on those dates, its 9^th calling in court, when evidence was led from a number of witnesses. Significantly however, the Crown deserted the diet pro loco et tempore in respect of 5 of the 14 charges, which includes a charge of rape, and which charges are therefore still live and in theory can be re-raised. That is one of the aspects which makes the decision of the Lord Advocate to ignore these present proceedings all the more unfortunate.

46. At the conclusion of the giving of evidence, various amendments were made to the wording of the remaining charges.

47. The procedure to be adopted for an examination of facts under S54 of the CPSA, and the consequences following such a hearing are set out in S55 and the subsequent sections of the CPSA. At such an Examination, the section provides that the court shall, on the basis of the evidence led, determine whether it is satisfied beyond reasonable doubt as respects any charge on the indictment that the accused did the act or made the omission constituting the offence and on the balance of probabilities that there are no grounds for acquitting him. If the court is so satisfied, it must make a finding to that effect. The minute shows that the court did make a finding to that effect.

48. That means that the case of the accused fell to be disposed of in accordance with the remaining provisions of the CPSA. As I said at the start, there are two routes under the CPSA by which a court can impose a guardianship order, and they are to be found in S57(1)(b) and (2)(c), and in S58(1A).

49. The opening words of S58(1A) CPSA are, "Where a person is convicted in the High Court or the sheriff court of an offence....punishable....with imprisonment" and goes on to provide that where the requirements of S57(3) of the AWI are complied with and the grounds set out in S58(1)(a) AWI apply [the confusion caused by similar section numbers of different Acts again], it may place the offender's personal welfare under the guardianship of a local authority.

50. Plainly, in the case here, the accused had not been convicted of an offence punishable by imprisonment, so no such order could be made under the terms of S58(1A) CPSA.

51. S57 CPSA, however, applies where following an examination of facts under S55 CPSA a court makes a finding that it was satisfied beyond reasonable doubt that the person (who is no longer referred to as "the accused") did the acts constituting the offences and that on the balance of probabilities there were no grounds for acquitting him (S57(1)(b) CPSA). That finding was made in this case. Since it was, it was then open to the High Court to make a guardianship order in respect of him as authorised by S57(2)(c) CPSA but in terms of S57 and not S58 CPSA. It is correct that S57(4C) CPSA then states that certain further provisions of S58 CPSA apply for the purpose of S57(2)(c), but those further provisions merely state the further steps which have to be taken, common to guardianship orders made under either section, by the court before it can actually make the order. The fact remains that it was open to the High Court to consider making a guardianship order in this case under the provisions of the CPSA, but in terms of S57 and not S58.

52. As a general point, it may be said that all of the sections found in that part of the CPSA which deal with mentally disordered offenders suffer from the need constantly to cross-refer to other sections and statutes in order to make then intelligible. I have been calling for years for it to be recognised that the appropriate criteria for each stage in the various processes should be set out in the provision which deals with that stage, and not somewhere else. Indeed, the entire process could and should be made more simple by abolishing the absurd business, which constantly confounds medical practitioners, of giving all of the pre and post trial orders different names. There is no need for a range of orders with different names: all the court needs is to have the power to make an order, which in every case will authorise removal, detention and treatment, and which will have varying effect depending on the stage in procedure at which it is made.

53. However, what happened thereafter in this case showed that the High Court has no better luck in actually securing the production of psychiatric reports than the sheriff court.

54. Remarkably, the case required to call on a further 13 occasions before the court was able to impose a sentence, for, as I have already pointed out, the imposition of a guardianship order is treated for appeal purposes as a sentence

55. The final minute is dated 26 August 2008, which is nearly 11 months after the examination of facts. The court did on that date make a guardianship order, but the terms of the minute give further cause for concern.

56. The power to make the order derives from S57(2)(c) CPSA, as already stated. The minute does not refer to that section. Instead, it states that it makes an order under S58 CPSA, which, for the reasons already stated, would not have been competent. It is correct that S58 sets out criteria to be satisfied, but by virtue of S57(4C) they apply to orders made under S57 and the order should have been made under reference to S57 and not S58.

57. Still more puzzling is the reference to the court being satisfied that the "accused" was suffering from a mental disorder within the meaning of the Mental Health (Scotland) Act 1984, in the form of Alzheimer's Disease. The Mental Health (Scotland) Act 1984 had been repealed in 2003. S58(7) CPSA, which specifically applies by virtue of S57(4C) CPSA, says in terms that the order must specify the type of mental disorder the person has by reference to the definition of "mental disorder" in section 328(1) of the MHCTSA, but it has no place in the formal matters which are required to be in the finding.

58. Next, before a court can make a guardianship order under S57 CPSA, it must, in terms of S58(1A), as applied to S57 by S57(4C), be satisfied on the written or oral evidence of two medical practitioners, one of whom must be approved by S22 of the MHCTSA (See S61(1)and (6) CPSA) that (a) the person is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his property, financial affairs or personal welfare and is likely to continue to be so incapable (these being the grounds set out in S58(1)(a) AWI), and (b) that no other means provided by or under the CPSA would be sufficient to enable the person's interests in his personal welfare to be safeguarded or promoted. The conjunctive word "and" which I have highlighted by italicising it in the test I have just set out does not actually appear in the section between the two legs of the test, but it does not make sense unless they are conjunctive.

59. Going back to the minute in question here, it does not satisfy either leg of the test just set out, in that it neither says that the court was satisfied that the criteria just mentioned and which are contained in S58(1)(a) of the AWI, are present, nor does it say that no other means provided under the CPSA would be sufficient to enable the interests of the person then being dealt with in his personal welfare to be safeguarded or promoted.

60. What the minute actually says is this : "The court, having considered the reports available and being satisfied on the written evidence of Dr Rona Gow and Dr Jonathan Woods that the accused is suffering from a mental disorder within the meaning of the Mental Health (Scotland) Act 1984, and that the mental disorder is Alzheimer's Disease, in terms of Section 58 of the Criminal Procedure (Scotland) Act 1995 ordered that the accused be placed under the Guardianship of the local authority, namely Glasgow City Council..." and then specifies the conditions attached to it, to which I also have to return later because the point of the application before me is they require now to be varied.

61. Further on the wording I have just set out, and as I have said, S58(7) CPSA states that the order shall specify the type of mental disorder that the person has, but it is no part of the test to state that the court is satisfied that the person is suffering from a specific type of mental disorder, which is all that this part of the minute actually says.

62. Leaving aside then the infelicities of the wording of the minute, that just leaves the question of whether the two reports which were specifically taken into account did comply with the provisions of S58(1A)(a) CPSA by asserting that the grounds set out in S58(1)(a) of the AWI applied. I have set those grounds out above in, by remarkable coincidence, paragraph 58 hereof.

63. The report from Dr Gow which was taken into account is dated 3 July 2008. It says that the subject of the report suffers from Alzheimer's dementia of mild to moderate severity. It says that he "fulfils the criteria as an Adult with Incapacity within the Adults with Incapacity (Scotland) Act 2007 [sic]." It suggests that he be made the subject of a Welfare Guardianship Order.

64. The report from Dr Woods is dated 20 August 2008. It offers the opinion that the subject suffers from an organic mental disorder, most probably a mild degree of Alzheimer's type dementia. It also offers the opinion that the subject "does fulfil the criteria as an Adult with incapacity within the Adults with Incapacity (Scotland) Act 2005 [sic], and supports Dr Gow's suggestion that the adult be made the subject of a welfare guardianship order.

65. As I have already said, I can do no more than point out that the various Minutes I have highlighted do not comply with the statutory provisions in the various ways I have mentioned, and have now to proceed on the basis that the operative order made by the High Court of Justiciary was competently made, notwithstanding the manner of its expression. Indeed, the remaining part of it is open to criticism also, and I now turn to deal with it.

The Powers Granted by the Order of the High Court and its Duration

66. I now have to turn my attention to these, because it is these, and the change in circumstances since the order was granted, which has led to the need to bring a Minute to Vary them.

67. The Minute of 26 August 2008 goes on to set out that the subject of it (still wrongly referred to throughout as "the accused") was to be placed under the Guardianship of the Local Authority, namely Glasgow City Council, "for an indefinite period of time in respect that it is necessary for the protection of the personal welfare of the accused and on the condition that the accused notifies the Guardian of any change of address; further confers upon the Guardian the following powers: i the power to gain access to the accused's home; ii the power to determine and provide appropriate social care services as and when required to meet the accused's identified needs; and iii the power to provide appropriate medical treatment to the accused as and when required."

68. There are a number of problems with that part of the Minute, which demonstrates an unfamiliarity with the usual civil processes and an uneasy crossover between criminal and civil procedure.

Duration

69. Any order for Guardianship must contain a clause stating the length of time for which the order is to remain in force (S58(4) AWI, applied by S58A(1) CPSA, and in any event substantially repeated in S58A(5) CPSA). The default period is 3 years, but the court may determine that the order should remain in force for any other period, including an indefinite period on cause shown. The usual cause which is shown in the ordinary civil process for making an order for an indefinite period is that the adult concerned will be very elderly, unwell, and often with a limited life expectancy and suffering from a progressive illness, such that it would be disproportionate to insist on the adult being subjected to the intrusion of repeat medical examinations which will be of no benefit and where it would involve the unnecessary incurring of repeat costs, particularly where those may require to be borne from the adult's estate.

70. All welfare Guardianship Orders are necessary for the protection of the personal welfare of the adult. If they were not, the court would not grant them, so to say, as the High Court Minute does here, that it was made for an indefinite period of time for that reason does not in fact amount to a cause for departing from the default period. Of course, by the time the Order was eventually made, the subject of it was 80 years of age.

71. However, when a court is making a Guardianship Order in the course of exercising its criminal jurisdiction, I would respectfully suggest for the future that there are very good reasons for not making it for an indefinite period of time, notwithstanding the age of the person involved.

72. The first of these is the effect of the United Nation Convention of the Rights of Persons with Disabilities, which I have already mentioned, and which was ratified by the UK Government on 8 June 2009. The operative part of clause 12(4), which obliges national governments to ensure that measures relating to the exercise of legal capacity by others on behalf of persons who may be incapable of exercising them themselves provides that any such measures should apply for the shortest time possible and be subject to regular review by a competent, independent and impartial authority or judicial body.

73. That would seem to point to a situation whereby the default period of 3 years provided by the CPSA (and the AWI) would be more consistent with the aim of the Convention than an indefinite order.

74. There is however another cogent factor to be considered, and which is especially applicable in this case, and that is the regard which must be paid to the litigation and the legislation which dealt with the situation whereby persons who became subject to the notification requirements of the Sexual Offences Act 2003 challenged the situation where as a result of the sentence which had been imposed in their cases, they became subject to the notification regime for an indefinite period, without the possibility of subjecting that requirement to review. In the present case of course, by virtue of the fact that at the Examination of Facts it was found that the subject of this order did the acts which constitute offences, the nature of which make him liable to the notification requirements of the Act of 2003, he is subject to those notification requirements for a period of 5 years from 8 October 2007.

75. For my own part, I have always had some difficulty in understanding how those provisions are meant to apply in the case of a person who has been found to be insane in bar of trial and then judicially declared to be an adult who is incapable in relation to decisions about his personal welfare, and where "incapable" means incapable of acting or making, communicating, understanding or retaining the memory of decisions by reason of mental disorder or inability to communicate (S1(6) AWI). Such persons may not be capable of complying with the requirements. The obligation is squarely on the person concerned to comply with the notification requirements (S83 Sexual Offences Act 2003); the court has no function as to that matter. The oft reported comment that a court "placed a person on the sex offenders' register" is completely erroneous, no court having the power to do any such thing.

76. In the case of R (on the application of F (by his litigation friend F)) and Thompson (FC) (Respondents) v Secretary of State for the Home Department [2010] UKSC 17, the Supreme Court ruled on 21 April 2010 that the notification requirements which require persons to be subject to them for an indefinite period constitute a disproportionate interference with the rights of those persons under Article 8 of the ECHR because they make no provision for individual review of the requirements to determine if there is a justification for their continuation.

77. A similar case had been progressing through the Court of Session. In A v Scottish Ministers 2008 SLT 412, the Lord Ordinary had refused the petition for Judicial Review brought to challenge the lack of a mechanism for challenging the continuation of such an indefinite order. The decision was appealed to the Inner House. Before it was heard, 3 years later, the Supreme Court issued its decision in the English case just mentioned. I understand that Counsel who had appeared for the Petitioner A in the Judicial Review in the Outer House appeared also, as an Intervener, in the argument before the Supreme Court. As a result of the decision of the Supreme Court, the Scottish Government passed emergency legislation in the form of a Scottish Statutory Instrument (SSI 2010/370) which came into force on 25 October 2010 and which takes the form of amending a UK statute. The Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010 inserts sections into the 2003 Act which provide a mechanism for review of orders requiring indefinite notification.

78. Following that, the case of A v Scottish Ministers was disposed of on 16 November 2010 by way of the Inner House giving effect to a Joint Minute tendered to them and declaring that "the application to the petitioner of the indefinite notification requirements in section 82(1) of the Sexual Offences Act 2003, as in force prior to the coming into force of the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010 (SSI 2010 No. 370) was incompatible with the petitioner's right to respect for private and family life under article 8 of the European Convention on Human Rights, so far as the legislation did not contain any provision for review of the justification for continuing the requirements in the petitioner's individual case", thus overturning the decision of the Lord Ordinary.

79. Curiously, the Court went on to note that "the parties" were in agreement that the incompatibility identified by the petitioner and declared by the Supreme Court in its order of 21 April 2010 in the case of R etc v Secretary of State for the Home Department (supra) has been cured in Scotland by the terms of the Remedial Order mentioned above as they were when it came into force on 25 October 2010. That however seems to me to stop short of saying that the Court accepted that that Remedial Order had cured the incompatibility, and that may still require a further decision.

80. There is however, another significant element in the interlocutor giving effect to all of this, and that is that an order was made decerning against Scottish Ministers for payment to the petitioner of the sum of £1000, apparently by way of compensation. He was also awarded the expenses.

81. So, for all of those reasons, I incline to the view that in a case where a court exercising its criminal jurisdiction makes a guardianship order, it should avoid doing so for an indefinite period.

The Powers Granted

82. There were only three of them and they are quite limited in scope. The subject of the order owned his own home, a top floor tenement flat. He continued to live there. The guardian was given the power to gain access to it and to determine and provide appropriate social care services as required to meet the subject's needs. The third power is however ineptly worded, since it gives the guardian, who is not named in the Order, the power to provide appropriate medical treatment to the subject of the order as and when required, but a local authority does not provide medical treatment nor have either the competency or the means to do so.

The Minute to Vary and the Reasons Therefor

83. On 21 April 2011, Glasgow City Council presented a Minute to Vary the Order of the High Court by adding 4 new powers. They are; the power to determine the most appropriate place of residence for the subject of the order and to transport him there as required, the power to return him to his residence should he abscond or wander, the power to assist him in all aspects of his personal care, and the power to escort him whilst in the community if deemed to be appropriate.

84. The Minute narrates that the subject, who is now 83, still lives in his own flat but has been suffering rapidly progressing cognitive impairment. The MHO was of the view that he had become unable to cope with his day to day personal needs and required full direction and support by way of 24 hour care. It was felt that he could no longer remain in the community, requiring care and support for all aspects of his daily living. It was said that his house had become uninhabitable and he required to move into a care setting. He had refused the support of care staff at his house, thus frustrating the operation of the existing second power. He needed to be in residential accommodation. Accompanying this Minute was a report from the same Dr Woods whose report had been before the High Court. He examined him on 19 April 2011 and opined that the subject of the order had a mental disorder in the form of cognitive impairment. He has threatened to sell his house and move, but did not say where, but of course he is subject to the aforesaid notification requirements. His flat was in an appalling state though he refused to recognise that.

85. There was also lodged a report from a MHO. This states clearly that the current powers are not sufficient to safeguard the subject of the order.

86. His flat was a fire risk. He could no longer move about it. It is dirty and every room is cluttered with boxes, furniture and ladders blocking them. He uses only a small electric heater but has rubbish and papers close to it. Only limited movement is possible, and only in the hall.

87. He was at risk of injury. There is only one light in the house, which is on top of a fridge. When carers attend, they have to ask him to switch it on, and he climbs up a ladder to switch on the mains first, and then the one light.

88. He was at risk from infection and disease. He keeps empty milk cartons and appears to use them to urinate into. The house is full of out of date food. No access can be gained to the bathroom or kitchen. The smell of urine permeates the building.

89. He had actually moved out of the house and taken up residence in the common landing of the third floor of the tenement. He had moved a table and two chairs there and sat there all day. He refused permission to anyone to enter the house and became very abusive to those who tried. It is not clear if there is in the house a bed which can be slept in.

90. There were obvious Environmental Health implications in all of this. The place was fly infested. The relevant department was on the point of seeking a warrant to enter and eject him but was awaiting the outcome of these proceedings. If they did that , he would be homeless.

91. The police and social workers cannot gain access.

92. He is resistant to accepting services.

93. He does not wash himself or clean his clothes.

94. He does not accept regular contact with his GP.

95. He continues to deny responsibility for the offences with which he was charged. He has a total lack of victim empathy and disregard for all authority, with particular disrespect for females. He was assessed at a MAPPA meeting in June 2010 as still being of medium risk notwithstanding his age. Once the period for which he is subject to the notification requirement ends, there will be no more joint police and social work visits. He appears to be capable of paying his bills.

96. He has lost weight. He cannot access the fridge or the cooker. He appears to go to a supermarket and petrol station and buy and eat food there. He looks unwell. He is aggressive and hostile and totally unwilling to regard his circumstances as hazardous. He appears paranoid, and this is confirmed by Dr Woods.

The Care Plan

97. It has been assessed that he is no longer capable of maintaining an independent home in the community and requires 24 hour residential care. A placement in a care home was identified, and surprisingly, he seemed enthusiastic about it on visiting it, which he agreed to do. He enjoyed the interaction with the staff and the meals. He has no family or friends in the community.

 

 

The Hearing

98. This took place on 8 June 2011. Only the solicitor for the Council, Miss Rhynd, and the Safeguarder, Mr Irvine, attended. I am grateful to both for their assistance. I was addressed on many of the matters already mentioned and asked to grant the Minute to Vary on the basis already set out in the Minute itself and the Report by the MHO. The straightforward position was that both the first and the second power granted by the Order of the High Court were being thwarted. The local authority could neither gain access not provide services. A place was available in a residential home, but clearly to move him there required the additional powers moved for.

99. The safeguarder reported that in his opinion the powers now sought were appropriate. The adult is delusional and has allowed himself to live in a hovel which the safeguarder described as an assault on the olfactory senses. He met the adult on the common landing outside the flat, and the flat is uninhabitable. He described the adult as being oblivious to what was going on around him. However, he did manage to persuade him to go to the placement identified, which the adult seemed well pleased with. He thought that would be of considerable benefit to the adult in terms of his wellbeing and diet etc. He had no hesitation in recommending that the Minute should be granted.

100.   The principles of the AWI have all been complied with. All efforts have been made to obtain relevant information. The adult himself seemed willing to go into residential accommodation. The safeguarder said that such a move would be "overwhelmingly" to his benefit. "Benefit", of course, is the test. I was satisfied that the proposed intervention would benefit the adult and that that benefit could not reasonably be achieved without the proposed intervention (S1(2) AWI).

The Order Pronounced

101.   This case has thrown up a large number of issues, and I took the view that it would not be sufficient merely to grant the proposed additional powers. Accordingly, I pronounced an order in terms of which I ordered the variation, ex proprio motu, of the Order of the High Court of Justiciary dated 26 August 2008 in three respects.

102.   Firstly, since an order for welfare guardianship must be in favour of an individual or office holder, and not just in favour of an organisation, (S57(4) AWI), and since the original Order had not specified an individual or office holder, I varied the original Order to the extent of appointing the Chief Social Worker of Glasgow City Council to be the office holder responsible for carrying out the functions imposed by the Order, in accordance with S59(1)(b) of the AWI.

103.   Secondly, I deleted the exiting third power which gave the power to provide appropriate medical treatment and ordered that there be substituted therefor the power to assist the adult in attending to his medical, dental and nursing needs and to make arrangements therefor.

104.   Finally, I deleted the reference in the original order that it should run for an indefinite period of time and ordered that it should run for a period of 3 years from the date of my order. I hope that I have made clear herein the reasons for making those three variations.

105.   Thereafter, on the motion of the Minuter, supported by the safeguarder, I added the four additional powers sought, having the power to do so by virtue of S74 of the AWI, so that the Chief Social Worker of the Minuters now has the power to determine the most appropriate place of residence for the adult, transport him there, return him if necessary, assist him in all aspects of his personal care, and escort him while in the community as appropriate.