Scottish Sheriff Court Decisions

 

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT FALKIRK 2015SCFAL12

PF Ref: ST13001036       NOTE   by   SHERIFF JOHN K MUNDY   in relation to minute by the accused in terms of section71 of the Criminal Procedure (Scotland) Act 1995   in causa   HER MAJESTY’S ADVOCATE   against   THOMAS ROBERTSON ___________

 

Falkirk, 12 March 2014

 

 

Introduction

 

[1]        This case called before me on 5 March 2014 as a continued first diet with the purpose of disposing of a minute at the instance of the accused (“the minuter”) under section 71 of the Criminal Procedure (Scotland) Act 1995.  The case is due to proceed to trial in the sitting in this court commencing 10 March 2014. 

[2]        The indictment contains three charges but we are only concerned with charges 2 and 3. Charge 1 is no longer before the court as a result of procedure on 5 February 2014.  The minuter challenges the relevancy of both charges 2 and 3 and also the admissibility of evidence in support of those charges on the basis that it was unfairly obtained.  The charges are as follows:

(002) on 11 March 2013 at 19 Arloch Crescent, Dunblane you THOMAS   ROBERTSON did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did state that you were going to kill Police Officers by setting fire to them and stabbing them;

          CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland)   Act 2010

          (003) on 3 April 2013 at Dunblane Health Centre, Well Place, Dunblane you THOMAS ROBERTSON did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did state that you had a firearm and were going to kill several people with it and place the lieges in a state of fear and alarm;

          CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland)    Act 2010

 

[3]        The relevant statutory provision is section 38 of the 2010 Act which is in the following terms:

38 Threatening or abusive behaviourS

This sectionnoteType=Explanatory Notes has no associated

(1 )A person (“A”) commits an offence if—

(a) A behaves in a threatening or abusive manner,

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c )A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

 

Factual Background

{4}        For the purposes of the debate on the minute the parties entered into a joint minute of agreement in relation to the evidence of the relevant witnesses.  The background of this matter is that on 11 March 2013 the minuter’s GP, Dr Watson, met with him.  This was following a letter from the local out of hours GP service.  That service had made contact with the minuter on 8 March 2013.  It was noted from that information that the minuter had threatened to set fire to a police officer and to set a police station on fire.  He appeared to be frustrated and anxious.  There was no indication at that time that the minuter was going to follow through with his threats.  The doctor suggested that the minuter be referred to mental health services for further assessment and prescribed diazepam to reduce feelings of anxiety.  The minuter contacted Dr Watson’s practice on 11 March and obtained an emergency standby appointment.  At that time Dr Watson was of the opinion that the minuter was angry about perceived police harassment.  He did not make any specific threats to Dr Watson.  Dr Watson formed the opinion that further mental health assessment was required.  Following contact with a psychiatrist of the community mental health team, an urgent referral to the Intensive Home Treatment Team was made that day. 

[5]        As a result of the referral, two witnesses, a Mr Captain, charge nurse within the Intensive Home Treatment Team with long experience of working in the field of mental health, and a Mr Massey, community staff nurse with the same team who had experience of working in acute psychiatric wards, both visited the minuter.  The criteria for referral to the service is stated by Mr Captain as being that the referrer is concerned that the patient may be suffering from a psychiatric condition which may require inpatient psychiatric treatment. 

[6]        Both witnesses were advised on 11 March that the minuter had homicidal and suicidal thoughts; that he was claiming to have hallucinations and was being commanded to carry out these thoughts. 

[7]        At approximately 7pm on 11 March the witnesses attended at the minuter’s address.  The interview and assessment was based on a “pro forma” with questions covering the patient’s mental and physical health history.  In this situation the patient is asked about any thoughts that he may have of suicide, self-harm or harming others.  The process normally takes about an hour but on this occasion it took almost two hours as the minuter spoke at length. 

[8]        The minuter advised the witnesses of a certain allegation made against him and that he felt this might be linked to the fact that he was being victimised by a named police officer.  He had been stopped a few times by the police.  He felt he was being “bullied” and told the witness Captain that he could not tolerate bullies or being bullied.  He did mention hearing voices.  In the opinion of witness Captain the accused did not seem to be suffering from a psychotic illness.  Specific threats were made about the named police officer.  The minuter spoke about chucking petrol over him and setting him on fire.  He indicated how he would go about doing this.  He was aware of the consequences and that he would face jail.  He indicated that if he was going to do time for one then he would kill a further three people.  He named three other people including one who he said had abused him.  He mentioned that on a previous occasion he had tried to procure a gun. 

[9]        Prior to leaving the witness Captain advised the minuter that he would be informing the police of the comments made by him.  The accused then advised “Any police coming to my door will face what they get”.  He then referred to police officers being stabbed.  He referred to voices telling him this.  During the interview the minuter presented as being aware and lucid.  Mr Captain’s practice is to make clear that the information provided by a patient will be shared with some other professionals involved in the patient’s care.

[10]      Witness Captain did not feel threatened by the minuter but did want to leave the property.  He was not alarmed or fearful and did not feel that he was at risk.  However, he formed the opinion that as a result of the threats made by the minuter in relation to specific individuals, there was a sufficient risk to members of the public to make it necessary to report these threats to the police.  This was, in his experience, a rare situation.  He could not recall another time where he had taken the decision to contact the police in relation to risk to another person while he had been a member of the Intensive Home Treatment Team.  He had on other occasions reported patients to the police where they had become physically hostile towards him during interview. 

[11]      The agreed evidence of Mr Massey is similar in its terms to that of Mr Captain.  He would not normally raise with a patient whether threats would be reported to other services.  However due to comments and threats made by the minuter during the course of the interview he was advised that nurses were under an obligation to report the threats that had been made.  The minuter was told this when he made threats.  He was not given a general warning at the start of the interview akin to a caution. 

[12]      During the assessment the witness indicated that the minuter made direct threats against a named police officer, that he felt bullied by that particular officer and that he wanted to get some petrol and set him on fire and kill him.  Later on the minuter stated how he would go about doing this.  He indicated that he would not go down for just killing one person and he made mention of killing an abuser who had previously abused him and two other males.  The witness was concerned by this as it, in his view, indicated a degree of thought into the threats.  The minuter also stated that he would do time in jail for the killings and thereafter said he would also kill himself.  He made reference to having tried to source a gun unsuccessfully.  According to the agreed evidence of Massey the minuter was advised that the police would be informed of what the minuter had said and the minuter responded “if any police were to come to my door they will get what is coming to them” and “if I’m going to get arrested I will make it worth my while”.  He also said “a cop will leave with a knife in his back.”  The minuter then spoke of killing himself after he had done this.  Witness Massey was also of the opinion that the minuter was not suffering from any mental illness and that the comments could not be attributed to a psychotic episode or mood disorder.  When the minuter was advised of this he told witness Massey that he did have mental health problems.  Witness Massey advised the minuter that he was of the view that his problems related to his personality and his past. 

[13]      Witness Massey felt uncomfortable that the accused was making specific threats but he did not feel threatened by him.  The minuter was calm and cooperative throughout the interview.  He was not angry or aggressive.  The minuter became irritable when witness Massey advised him that he would not be admitted to hospital.  This witness was alarmed by the comments that the minuter made in relation to what he wanted to do to specific individuals, but the minuter’s comments did not cause him fear.  He did not feel that there was any risk towards him or witness Captain.  In his experience it was very rare for a patient undergoing that type of interview process to make clear and well developed threats against named persons.  Occasionally vague threats are made in frustration and anger by patients who later “back down” and made clear that the threats will not be carried out. 

[14]      Witness Massey arranged for the minuter to be examined by a consultant forensic psychiatrist in order to establish a care plan and risk assessment.  A further meeting with the minuter was arranged to enable that examination to take place.

[15]      Following the interview on 11 March the comments made by the minuter in the course of interview were reported to the police on that day.  As a result the minuter was arrested on 12 March 2013 and appeared from custody at Stirling Sheriff Court on 13 March 2013 charged with a contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, in essence charge 2 on the indictment.

[16]      The background to charge 3 revolves around the evidence of two witnesses, Dr Rhona Morrison, a  consultant forensic psychiatrist, and Yvonne Harrison, a forensic staff nurse at Falkirk Community Hospital. 

[17]      Dr Morrison’s work requires her to assess and treat mentally disordered offenders and prepare psychiatric reports in relation to them.  Such reports are for the court and for the court liaison scheme in which she will see offenders before they are prosecuted.  On 3 April 2013 she attended at Dunblane Health Centre to meet with the minuter.  She attended along with witness Harrison.  The appointment was made after the minuter had been seen on 11 March as outlined above.  Dr Morrison was advised by the Intensive Home Treatment Team that the minuter would benefit from a forensic assessment.  She had been asked to carry out a full psychiatric assessment of the minuter as there were concerns about the risk to others because of his mental health.  She had been asked to suggest how the risks could be managed and handled.

[18]      At the meeting the minuter was advised by Dr Morrison of the purpose of the meeting.  He was advised that she would take notes.  In her work preparing reports for use in court proceedings, she advises patients that she has a duty to include all information given to her in the course of the interview in the report.  She advises patients that they should be honest with her and not lie to cover up anything.  She cannot be sure if she set out the same “privacy parameters” with the minuter on 3 April 2013. 

[19]      During the course of the interview the minuter made certain disclosures of abuse towards him and mentioned a family member.  He stated to Dr Morrison that “he is living as long as my mum’s alive” and advised Dr Morrison that he wanted to kill this man once his mum was dead.  His plan was to shoot him and he had acquired a pistol and a small amount of ammunition and that he had buried these items until he needed them.  He did not disclose any imminent risk or intent to harm anyone.  He stated that the gun was not in his house and that he had no desire to shoot anyone else.  The gun was “just for him”.  Dr Morrison suggested that the minuter should disclose the whereabouts of the gun and that she could request the police to remove the gun safely to protect the public.  He declined.  He offered to return the firearm to the people he had obtained it from.  Dr Morrison advised the minuter that she would still require to report this matter to the police as she had been advised of an unlicensed firearm in circulation.  She warned the minuter that she would have to report the comments as he had made a specific threat against a member of the public. 

[20]      The minuter made no threat to Dr Morrison.  She did not feel that his behaviour placed her in a state of fear and alarm personally.  He did not present any risk to her.  However, she was fearful and alarmed in relation to the safety of others because of the potential risk to them from the threats. 

[21]      The assessment on 3 April 2013 lasted about an hour and a half.  The minuter agreed to a further assessment being undertaken by Dr Morrison.  When the minuter was made aware that Dr Morrison would require to disclose the information provided to her to the police, he advised her that he may not go home as he was afraid the police would try to arrest him.  She explained to him that she wanted to work with him and to help him and that he had come to her for help and her intention was to prevent him from committing a crime.  The minuter advised that he had tried to strangle himself recently in police custody.  The interview on 3 April 2013 was incomplete and as a result Dr Morrison was of the view that further assessments would be required.  He attended further assessments in spite of the reporting his comments to the police following the first meeting.  In her experience as a doctor of psychiatry she had only reported four patients including the minuter to the police for making threats of this kind.  It was a rare situation to occur.

[22]      The agreed evidence of witness Harrison is similar to that of Dr Morrison.  In her role, she deals with “high tariff” offenders.  It is rare for her to feel the need to report things said during assessment to the police.  The witness was aware prior to the interview that a previous assessment had been carried out and that the minuter had a history of violent assaults and had made threats against people.  During the course of the interview the minuter referred to historical abuse by a family member and that he wished revenge against this person.  He advised that he had acquired a pistol and that it had been buried until needed.  Dr Morrison had asked the accused if he had access to ammunition and he said he had “just enough”.  He advised, however, that he could not kill this person at the moment because his mother was alive.  In the opinion of witness Harrison the minuter did not appear to be delusional and appeared to express a genuine wish.  Given the severity of the threats a further meeting required to be arranged with the minuter, and given the nature of the threat made against a named person the minuter was advised by witness Harrison that the police would be informed.  The accused thereafter asked the witness if that would happen every time he told the mental health team the truth about his intentions.  He was advised by the witness, however, that she would require to pass on her concerns.  The minuter then advised that he would not be at home for the police to find him.  Witness Harrison left the meeting while the minuter was still discussing matters with Dr Morrison.

[23]      Witness Harrison’s evidence is that the minuter was non-confrontational, was not agitated or aggressive and was fully cooperative.  He presented as being confused as to why there was a necessity for police involvement as his view was that he had not done anything.  His behaviour at interview did not cause witness Harrison fear and alarm.  She was surprised that he had attended for a further appointment and he went on to engage fully with a process of assessment.  He was calm and did not appear to bear any ill feeling towards either Dr Morrison or Nurse Harrison for reporting threats to the police.  Witness Harrison was of the opinion that the minuter seemed to be genuinely looking for help with feelings of anger.  He seemed to see these feelings as a cry for help and he seemed to be engaging in order to find a solution to this. 

[24]      As a result of the meeting on 3 April the matter was reported to the police by Dr Morrison and witness Harrison.  The minuter was arrested for contravention of section 38 of the 2010 Act and he subsequently appeared from custody on petition at Stirling Sheriff Court on 5 April 2014 in connection with the charge.  This is in essence charge 3 on the indictment.

[25]      I have found the foregoing explanation of the evidence in some detail to be necessary in light of the submissions that were made both in terms of relevancy and admissibility of evidence. 

Submissions for Minuter

[26]      In his submissions on behalf of the minuter, Mr Crawford submitted that charges 2 and 3 were not relevantly stated and separately that, if the charges were relevant, the the evidence the Crown intended to lead in support of those charges had been unfairly obtained and was therefore inadmissible. 

[27]      Reference was made to the background of the matter including the referral of the minuter for assessment.  The evidence was that he was someone who had experienced certain thoughts and feelings and was seeking medical help through his GP.  That was the background to the visits.  Firstly, from the Intensive Home Treatment Team, witnesses Captain and Massey on 11 March 2013, the evidence from those witnesses forming the basis of charge 2; and subsequently the referral leading to the meeting on 3 April 2013 with witnesses Dr Morrison and Nurse Harrison, forming the basis of charge 3 on the indictment.

[28]      It was pointed in relation to those witnesses that none of them were actually placed in a state of fear or alarm and did not feel at risk from the minuter.  That much was clear from the agreed evidence.  Any alarm expressed was in relation to the potential consequences for others who were not present. 

[29]      It was submitted that, for the purposes of an offence under section 38 of the 2010 Act, witnesses present have to in fact have suffered fear or alarm.  The submission was made in the context of there being no evidence or proposed evidence that witnesses actually suffered fear or alarm but was presented as a relevancy argument.  It was developed so as to suggest that the charge required to specify persons who had been placed in a state of fear and alarm by the conduct complained of. 

[30]      In support of this submission reference was made to the case of Jolly v HMA 2013 SLT 1100 (also reported at 2013 SCCR 511).  This was a decision of three judges on an appeal from the Sheriff Court to the High Court of Justiciary.  The charge involved an alleged contravention of section 38 arising from threats made in the course of interviews with social workers connected with the operation of a supervised release order. The opinion of the court was delivered by Lady Smith.  The Crown had no intention of seeking a trial to show that the accused intended to harm anyone present at interviews with social workers or that the social workers were themselves placed under apprehension of personal harm.  Reference was made to paragraph [28] where Lady Smith set out the requirements of an offence under section 38 of the 2010 Act.  A prerequisite was that there be fear or alarm in fact suffered by those to whom the threatening or abusive behaviour was directed.  It was acknowledged that there was a contrary opinion, again in a court of three judges, in the case of Rooney v Brown 2013 SCCR 334.  In that case, it was held that the section imposed an objective test and the court had to consider matters from the stand point of the reasonable man rather than from a consideration of whether actual fear and alarm were experienced.  However, it was submitted that this case could be distinguished from Jolly and indeed the court in Jolly had done so at paragraph [30]. 

[31]      It was submitted in this case the behaviour consisted of threats against other people who were not present and that this was not a situation which was covered by section 38.  I took it that it was being suggested that it was not a legitimate use of section 38 where threats were directed at a person or persons not present.  In any event, no persons had suffered actual fear or alarm and therefore in line with the case of Jolly, the charges should be dismissed. 

[32]      As regards admissibility, it was submitted, in line with the minute, that the evidence led in support of charges 2 and 3 had been unfairly obtained and was therefore inadmissible.  The witnesses from whom the Crown intended to lead evidence in relation to those charges, the medical staff, were engaging with the minuter in their professional capacity, undertaking medical and mental health assessments in relation to him and were persons in relation to whom the minuter would be entitled to an expectation of confidentiality in relation to the matters discussed by him.

[33]      Reference was again made to the case of Jolly at paragraph [35] where the court dealt with the question of admissibility.  It was held in that case, upholding the sheriff on the point, that to allow evidence of social work interviews would be contrary to all principles of fairness.  While that was a different case, in that the process was devised in the public interest with a view to preparing the accused for release and to enable social workers to prepare for the performance of their statutory duties during the period of a supervised release order, the principle was essentially the same.  My attention was drawn to the evidence of Dr Morrison to the effect that patients required to be honest with her and not to lie or cover anything up.  This was a case where the minuter had expressed inter alia homicidal thoughts.  There would be a full expectation that the professionals would investigate such matters for the purpose of assessment.  Reference was also made to the evidence of witness Harrison where the minuter was informed that the police would be advised of his comments.  The minuter thereafter asked the witness if this would happen every time he told the mental health team the truth about his intentions.  Clearly, therefore, there was an expectation on the part of the minuter of confidentiality.  While the facts were different from the case of Jolly, there was a public interest in eliciting information from the minuter having regard to the nature and purpose of the interviews.  One of the objectives was to assess his mental state with a view to assessing any risk to the public.  This would clearly be relevant given the remit of the mental health team which was to consider inter alia the necessity of inpatient psychiatric treatment.  It is in judicial knowledge that such measures may include either voluntary or compulsory measures of treatment.  It was not in the public interest that someone in the position of the minuter should be inhibited from giving a full account of his thoughts. 

[34]      Reference was also made to the case of Tole v HMA 2013 SLT 1227.  That was a case where a psychiatric examination of an accused was carried out at the instigation of the Crown in terms of section 52(1) of the Criminal Procedure (Scotland) Act 1995 and certain disclosures had been made.  The evidence of disclosures was held to be unfairly obtained where the accused had stated matters in the course of his psychiatric examination which were relevant to the issue of his mental state, the very matter that the psychiatrists were instructed to investigate. 

[35]      I was asked to dismiss the indictment on the basis of the relevancy argument, and that even if I did so, to rule on the question of admissibility.

Submissions for the Crown

[36]      For the Crown the procurator fiscal depute dealt with the admissibility issue first. She submitted that the case of Tole was decided on its own particular circumstances and in a different situation. Ultimately, the fiscal depute conceded that in relation to both interviews there was, at the outset, a reasonable expectation on the part of the minuter of confidentiality, but that following the warning in each case that the matter would be reported to the police, anything said after that was not confidential.  That was particularly relevant to the first interview forming the basis of charge 2 when the minuter had expressed certain threats following being advised that the comments he had made up to that point would be reported to the police.  It was accepted by the fiscal depute that the second interview involving Dr Morrison was for the purpose of a risk assessment.  The first interview was conducted on an urgent basis with a purpose of determining whether either voluntary or compulsory measures of treatment would be required.  It was accepted that the warnings given were not akin to a police caution.  It was submitted that no pressure was applied in the course of the interviews and that the evidence elicited was not unfairly obtained. 

[37]      In relation to the relevancy point it was submitted that the charges were relevantly stated and that there was no requirement to specify who the reasonable person was in relation to an offence under section 38.  There was no requirement to specify a person that had been alleged to have been put in a state of fear or alarm.  The fiscal recognised that the case of Jolly caused her difficulties given the specific dicta at paragraph [28] of that opinion.  However, she submitted that I should put weight on the case of Rooney referring to the requirement of an objective test and in particular paragraph [6] of the opinion of the court.

[38]      It was accepted that there would be no evidence that the witnesses were caused actual fear and alarm but the proper question was, having regard to the terms of the section, whether the conduct would be likely to cause a reasonable person fear or alarm. 

[39]      It was agreed that there was no necessity for any evidence to be led in order that I determine the issues before me.  It was indicated that if I found in favour of the minuter, then there would be likely to be a Crown appeal.  On the other hand, if I found in favour of the Crown, then there would be likely to be an appeal on behalf of the minuter.  Given that there are two separate issues in this case, there was the possibility of cross-appeals.  Whatever the situation following my decision, it was a matter of consensus that the trial would be most unlikely to proceed in a sitting because of the likelihood of appeal. I was advised by Mr Crawford that there were two pending cases before the appeal court in relation to the conflict between Jolly and Rooney but no dates had been fixed for a hearing in either case.   

[40]      Following the submissions, and in order to give proper consideration to the arguments, I decided to continue the matter to a further first diet on Wednesday 12 March 2014 on the third day of the sitting at which time I would advise my decision. 

 

 

Conclusions on Relevancy

[41]      The relevancy issue involves the interpretation of section 38 of the 2010 Act.  The provisions have already been noted.

[42]      In the case of Jolly it was held that an essential component of the provision was that a person suffers actual fear or alarm.  At paragraph [28] Lady Smith states:

            “Accordingly, where (i) a person behaves in a threatening or abusive manner which (ii) in fact causes another person to suffer fear or alarm, (iii) in those circumstances, a reasonable person would have suffered fear or alarm and (iv) causing that fear or alarm is either what the person intended or was a consequence in relation to which they were reckless, then but only then has an offence been committed. Subsection (c), which deals with mens rea, of itself plainly points to it being a requirement that fear or alarm has in fact been suffered by those to whom the threatening or abusive behaviour was directed.”

 

She went on at paragraph [29]:

“To put matters another way, it is not enough that someone present suffers fear or alarm; some people may, no doubt, suffer fear or alarm when a reasonable person in the same position would not do so. It must also be established that a reasonable person in that position would have suffered fear or alarm. That, essentially limiting, provision that a reasonable person would suffer fear or alarm does not, however, mean that if all that can be said is that the hypothetical - and thus absent - reasonable person would, had that person been present, have suffered fear or alarm, an offence has occurred. It would, we consider, be extraordinary for that to have been the parliamentary intention and we cannot find any basis on which it can properly be contended that it was. Rather, it is clear to us that what has been legislated for in terms of section 38(1) of the 2010 Act are circumstances where real fear or alarm has been suffered by a real complainer.”

 

[43]      On this point there is, however, a contrary opinion expressed by the court in Rooney.  That was the case involving abusive and threatening behaviour towards police officers at a time when the accused was confined in a cage in a police van having been arrested for another offence.  The officers were aware that the accused was intellectually challenged and were not fearful or alarmed.  The appellant appealed to the High Court on the ground that there was no likelihood that the words used would be likely to reach a person who might be placed in fear or alarm.  It was held in that case that the matter was not to be decided by the reaction of individual police officers but on an objective basis.  At paragraph [6] Lady Dorrian, delivering the opinion of the court, stated:

“The court has to consider matters from the stand point of the reasonable man placed in the shoes of these police officers.  We have to assume that the behaviour occurs in the presence of such a person… we do not require to consider the likelihood of the remarks actually reaching such a person.”

 

The court then went on to discuss the context of the behaviour, namely a previous incident of abusive and threatening behaviour to the police officers.

[44]      Rooney is authority for the proposition that actual fear and alarm are not necessary to establish an offence under section 38.  This is directly contrary to the opinion of the court in Jolly.  For my part, I am inclined to agree with the reasoning in Rooney and that for the purposes of the provision actual fear and alarm suffered by someone present does not require to be demonstrated.  I do not consider that subsection (c) of section 38, dealing with mens rea, assists in pointing to a requirement that fear or alarm has in fact to be suffered by those to whom the behaviour was directed.  The question is whether the behaviour would be likely to cause a reasonable person to suffer fear or alarm, whether or not actual fear or alarm was suffered by persons present.  I do not consider that alarm or fear held for others not present would be relevant in this context, although personal fear and alarm would be notwithstanding that threats are not made directly to the person or persons present.

[45]      The argument was mainly predicated on the fact that the Crown proposed to lead no evidence to show that one of the witnesses had suffered actual fear or alarm.  Considered in this way it is not, strictly speaking, a relevancy point, but the argument developed into a criticism of the libel for not specifying any person who suffered fear or alarm.  In light of my conclusion on the interpretation of section 38, I find that such specification would be unnecessary.  Further, I am not inclined to the view that it is necessary to specify the persons present.  The statute does not require that. 

[46]      I consider that I am supported in my interpretation of the section which refers to a person “A” committing an offence if the criteria set forth are met.  The criteria do not refer to an identified victim or a person “B”. 

[47]      In these circumstances, I have decided to repel the preliminary plea as to the relevancy of charges 2 and 3.

Conclusions on Admissibility

[48]      On the issue of admissibility, the question is simply one of fairness.  The facts in this case are different from those in Jolly and also Tole.  However, I consider that there is a thread which links those cases and this.  In this case, the minuter has self‑reported behaviour as a result of which investigations were instigated by his GP, taken up by a mental health team and thereafter by a consultant forensic psychiatrist.  The purpose of the meetings which followed was to assess the minuter’s mental state for the purpose inter alia of assessing risk, including risk to the community as a result of any behaviour.  That risk included, not only risk to the minuter himself but also to the public at large.  Given the purpose of the assessments it is clear that they were carried out with a view to determining inter alia whether or not compulsory or voluntary measures of treatment were necessary.  The minuter had expressed homicidal and suicidal thoughts.  The interviews, unsurprisingly, explored those thoughts.  It is not surprising that such thoughts were expressed in view of the earlier reports leading up to the referrals.  I do not consider that the minuter wandered outwith the scope of the assessment.  He did not, for example, threaten violence to the interviewers.  The Crown appeared to accept that there was a reasonable expectation of confidentiality, at least at the outset of the interviews.  This would appear to be so in light of the purpose of the examinations which was intended to elicit frank and full responses from the minuter in relation to his homicidal and suicidal thoughts, there being an expectation of honesty and truth.  Without honesty and truth, it seems to me that the assessments would have been pointless.  I do not agree with the proposition of the Crown that confidentiality had “flown off” after warnings had been given that comments would be reported to the police.  The warnings were not of a formal nature and did not resemble a police caution.  In this respect I would refer to the dicta of Lord Carloway delivering the opinion of the court in Tole at paragraph [14]. In any event, it would be hard to conclude that a vulnerable person in the shoes of the minuter should be judged to have made an informed decision to waive confidentiality, which would involve an appreciation of the nature and consequences of that. 

[49]       I consider that there was an element of public interest in this case for the reasons explained and that therefore the dicta in Jolly at paragraph [35] and following are relevant.  In that paragraph, Lady Smith stated:

“We agree that the context was very important. The accused was engaged in a social work process, devised in the public interest, with a view to preparing him for release and to enable the social workers to prepare for the performance of their statutory duties during the period of his supervised release order. Whilst attendance at the interviews was not compulsory, it was plainly encouraged and, on participating, the accused was, quite reasonably, expected to co-operate with the social workers fully and frankly. It is well known by judges and legal practitioners who practise in the criminal courts that, in the course of such interviews, it is not at all uncommon for the person concerned to express feelings of bitterness, anger and/or resentment towards any complainer who they see as responsible for them having been convicted and for the consequent loss of their liberty. It is, however, in the public interest that a person in the appellant's position co-operates in such circumstances both to enable there to be a proper assessment of risk and to enable that part of the social work process that is directed at assisting them to deal with such feelings to be as effective as possible.”

 

Again in Tole, Lord Carloway said at paragraph [13]:

“It is important to have firmly in mind that the need, in the public interest, for a psychiatrist to explore the detail of the inner workings of an accused's mind in terms of section 52(1) of the 1995 Act is in the context of that psychiatrist forming a view as to the appropriateness of committing him to hospital, rather than remanding him in custody in prison. If an accused states something in the course of his examination, which is relevant to the issue of his mental state, then such a statement will normally be admissible as part of the proof of that state. However, if it is not relevant to that state, but it bears upon the merits of the charge, different considerations will arise.”

 

[50]      Lord Carloway went on to deal with the various features of the case which alerted the court to the existence of dangers in admitting evidence of what an accused says to a psychiatrist who is making enquiries on behalf of the Crown, about events not directly relevant to the issue of that accused’s mental health.

[51]      These passages highlight the relevance of the public interest in exploring the inner workings of an accused’s mind given the purpose of the examinations in each case.  While these cases are different on their facts, I consider that there is a public interest in the present case which is an additional consideration to that of confidentiality. 

[52]       Ultimately, such issues should be considered in the overall context of fairness and I have come to the conclusion it would be unfair to admit the evidence of the witnesses mentioned in relation to the comments made by the minuter.  In summary, the principal points are:

1.   There was an expectation of confidentiality which was maintained throughout the interviews notwithstanding any warnings given.  I do not consider that the warnings given were sufficient to terminate the expectation of confidentiality.  In any event, it would be unfair to distinguish between responses given before and after the warnings in a situation where the minuter was a vulnerable person encouraged to give honest and open responses. 

2.   The purpose of the assessments, while not instigated by a public authority, included an assessment of the minuter’s mental state with a view to determining whether or not intervention measures such as compulsory measures of treatment were required.  This would include an assessment of whether there was a risk to the public.  There was therefore a public interest in full and frank disclosure. 

3.   That full and frank disclosure was positively encouraged by the interviewers. 

4.   The original reference was on the basis of self-reported homicidal and suicidal thoughts.  The expression of those thoughts was to be expected at the interviews. 

5.   The minuter did not step outside the parameters of the interviews in his responses. 

[53]      I have accordingly come to the conclusion that the minute in relation to the admissibility of evidence should be sustained and, accordingly, rule that the evidence of the witnesses in relation to the responses given which form the evidential basis of charges 2 and 3 should be excluded.

Note:

This case was the subject of an appeal which I understand did not proceed. Since my decision, the relevancy point has been decided by the High Court on appeal in Paterson v Harvie 2014 SLT 857; [2014] HCJAC 87; However, I think the case is still of general interest, particularly in relation to the admissibility point.