Section 10. The 2003 Act and the Criminal Justice System
Entrance into the criminal sections of the 2003 Act occurs after an individual is charged with an offence punishable by imprisonment and is thought to be suffering from a mental disorder.
A brief overview of the criminal justice system in Scotland and provisions for people with mental order within it is set out below.
Criminal justice system in Scotland
Summary Procedure applies to the Sheriff and District courts, where less serious offences are prosecuted. These cases must be heard within 40 days (or be dropped), and the prosecution has a duty to alert the Court to a suspicion that the alleged offender may be mentally unwell. At the conclusion of the evidence, the sheriff is required to reach a verdict of guilty, not guilty, or not proven.
Solemn Procedure applies to more serious cases. Here, cases must be heard within 110 days. After the evidence, the jury must determine whether guilty, not guilty, or not proven.
Provision for people with mental disorder within the criminal justice system
While the Tribunal is the forum for determining applications under the civil procedures of the 2003 Act, the Courts (Sheriff Court and High Court) remain the locus for such matters in relation to criminal procedures.
The responsible medical officer is the main witness with regard to mental disorder in the Courts, and has a new statutory role when the final disposals of a compulsion order and a hospital direction are being considered by the Court.
The system may be divided into the following stages:
- Pre-conviction, in which the person accused of an offence makes a plea of guilty or not guilty, assuming he or she is fit to plead.
- Post-conviction, pre-sentencing, in which, unless acquitted, reports may be requested to facilitate the Court's final decision in sentencing the person.
- Sentencing, in which the Court determines the disposal, having had regard for all the circumstances of the offence.
Under the Criminal Procedure (Scotland) Act 1995, there are various pre-existing mental health options available to the Court, such as probation with a treatment requirement. These remain largely unaltered by the 2003 Act. Setting these aside, the new orders that the 2003 Act inserts into the 1995 Act are arranged in this sequence of pre-conviction, post-conviction and sentencing.
Aims of the new legislation
The 2003 Act inserts amendments (Box 4) in the Criminal Procedure (Scotland) Act 1995 with the intention of:
- Creating greater flexibility in the process of assessing and treating mentally disordered people before they face trial and before they are sentenced, in parallel with civil proceedings for emergency and
- Introducing greater flexibility of disposals available to the Court in line with the CTO potential for community-based compulsion and hospital detention.
- Accommodating the changes imposed by the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, whereby issues of public safety have to be taken into account in the assessment and disposal of those who have committed serious offences.
Box 4. Insertions into the Criminal Procedure (Scotland) Act 1995 from the 2003 Act
Insertions in the 1995 Act are denoted by the placement of capital letters after the original Section number. For instance, Section 130 of the 2003 Act inserts sections 52A to Q into the 1995 Act. This also explains irregularities in paragraph numbering in the 2003 Act.
While the 2003 Act repeals the 1984 Act in its entirety, it preserves the relationship between criminal procedures legislation, which contains the authority to make disposals, and mental health legislation, which deals with the way in which these matters are managed by mental health professionals and systems. Since the narrow, pre-existing disposals in the Criminal Procedure (Scotland) Act 1995 did not meet the requirements of the broad redesign of mental health law, Part 8 of the 2003 Act inserts new mental health disposals into the 1995 Act and Parts 9 to 13 set out the consequences of these changes in terms of reviews, extensions and variations of orders.
The period before conviction may be divided into the period before trial and the trial period up to the point of conviction.
The pre-trial period begins when a person has been arrested and charged. In this period, during which the accused may be in custody or awaiting trial on bail in the community, anyone may alert the prosecutor to the potential presence of mental disorder.
The assessment order allows a person awaiting trial or sentence to be examined by an AMP (Box 5). It is therefore not exclusive to the pre-trial/pre-conviction period, but can be actioned within any of the three defined legal stages of:
- Post-conviction, pre-sentencing
- Transfer of sentenced prisoners.
The prosecutor and Scottish Ministers (through the prison governor) have authority to apply to the Court for an assessment order or a treatment order. Alternatively, where it appears to the Court that the accused has a mental disorder, the Court has authority to make such orders on its own initiative.
While the key focus is on assessment, the order also authorises the administration of treatment in accordance with Part 16 of the 2003 Act. Treatment may be given under an assessment order even if the patient does not consent, provided a favourable second opinion from an independent AMP is obtained.
Box 5. Conditions for granting an assessment order
The assessment order can only be granted under specified conditions, which are:
That there are reasonable grounds for believing:
That, if an assessment order were made by a registered medical practitioner, the person could be admitted to a suitable hospital before the expiry of the period of seven days beginning with the day on which the order is made.
That it would not be reasonably practicable to carry out the assessment mentioned above unless an order were made.
There is a duty on the responsible medical officer to provide a psychiatric report to the Court before the expiry of the assessment order to address the question of whether a treatment order should be made. The responsible medical officer should consult with the designated MHO on this issue.
Duration of the order is for the period of remand or committal. The order is terminated when the Court has made its disposal.
A treatment order can be made at any stage of the process prior to sentencing where the accused has an evident mental disorder that requires medical treatment.
As with an assessment order, it is initiated by prosecutors' or the Scottish Ministers' application to Court, or at the Court's own initiative. It requires the evidence of two medical practitioners, one of whom must be an AMP (Box 6).
Box 6. Evidence for granting a treatment order
The evidence must persuade the Court that the conditions for the treatment order are met. These are:
Note that, unlike an assessment order, there is no stipulation of the need only for 'reasonable grounds for believing' that the conditions of the treatment order are met. In their evidence to the Court, the two medical practitioners must be sure that the conditions are met.
Potential outcomes of the trial process
Acquittal of the offence
The Code of Practice to the Criminal Procedure (Scotland) Act 1995 states that a mentally disordered person acquitted of any offence may still require treatment, if necessary by compulsion using any of the civil routes - emergency or short-term detention, or by application for a CTO.
A new emergency measure has been introduced in the 2003 Act for insertion in the 1995 Act under Section 60C. This is a new power that gives Courts the authority to cover the loophole of a high-risk mentally disordered person walking free if a trial collapses. It meets the contingency of such an individual being acquitted from Court and being free to leave while still requiring treatment and manifesting risk to self or others.
Under Section 60C, and upon evidence from two medical practitioners, the Court may authorise the removal of the acquitted person to a place of safety and detention for up to six hours for the purpose of securing a medical examination. The order ceases before expiry of this six-hour period if the patient is subsequently detained under either emergency or short-term detention.
Insanity in bar of trial
This implies that the accused has a mental disorder that renders him or her:
- Unfit to plead
- Unable to instruct a legal defence
- Unable to participate in the trial process.
Criteria for a judgement of insanity in bar of trial and considerations regarding 'sane and fit to plead' status have to be met (Boxes 7 and 8).
Box 7. Criteria for a judgement of insanity in bar of trial
Criteria for insanity in bar of trial are not based on statute but were set out recently in Stewart v HMA:
The question [for the trial judge] was whether the appellant, by reason of his material handicap, would be unable to instruct his legal representatives as to his defence or to follow what went on at his trial. Without such ability he could not receive a fair trial.
A requirement of a previous judgement ( HMA v Brown) that the accused be able to tell the truth and remember events accurately has been overturned. The test excludes amnesia for the circumstances of the alleged offence in itself ( Russel v HMA), and inability to give instruction due to physical defects, such as deaf mutism, are probably excluded ( HMA v Wilson).
It should be noted that unlike England and Wales, fitness to plead does not encompass the ability to challenge a juror.
Box 8. Considerations regarding 'sane and fit to plead' status
From a practical perspective, the following questions may be useful in determining the 'sane and fit to plead' status of an individual:
Features of an individual's mental state due to his or her disorder to be taken into consideration include the individual's:
Pre-verdict psychiatric reports to the Court need to address the issue of fitness to plead and insanity in bar of trial (see Appendix 3 for a suggested model report).
If, after a period of (in-patient) assessment, a finding of insanity in bar of trial is made, two medical practitioners (one of whom must be an AMP) must provide evidence under Section 54 (a temporary compulsion order).
The prosecutor may drop proceedings for minor offences and pass the case over for informal treatment or compulsory treatment under civil procedure. For more serious offences, an Examination of the Facts (Section 55) occurs.
Determination of insanity at the time of the offence (Box 9) and diminished responsibility (Box 10) are also important issues that need consideration.
Box 9. Determination of insanity at the time of the offence
Matters to be considered here are whether 'reason was alienated', and whether the mental disorder 'played an overwhelming role' in the commission of the offence.
As a guide, the psychiatrist should consider:
If the psychiatric evidence is challenged in Court, the issue of insanity is determined by the judge or sheriff in summary cases and the jury in solemn cases.
If the defence is successful, the individual is acquitted on the grounds of insanity. The finding appears on his or her criminal record, albeit without a conviction.
Box 10. Diminished responsibility
This defence was narrowly defined in Scotland, but this changed after the recent case of Galbraith v HMA. Adapted from that case:
In essence, the judge must decide whether there is evidence that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts...that is, that his state of mind should have bordered on insanity. The abnormality of mind may take various forms. It may mean that the individual perceives physical acts and matters differently from a normal person. Or else it may affect his ability to form a rational judgment as to whether a particular act is right or wrong or to decide whether to perform it. In a given case, any or all of these effects may be operating.
The plea can only be used in charges of murder, and if successful the individual is convicted of culpable homicide. The statutory test does allow 'substantial impairment' secondary to the mental abnormality of personality disorder. It is for the Court to determine whether any particular abnormality can lead to a plea of diminished responsibility. No mental abnormality (short of insanity) brought on by the accused taking alcohol or controlled drugs or sniffing glue will lead to a plea of diminished responsibility.
If a person who has had no previous symptoms has been convicted of an offence, but he or she appears to have a mental disorder, the Court may arrange for assessment and treatment before sentencing occurs by making either:
- An assessment order (Section 52D), or
- A treatment order (if the need is to secure a period of treatment before sentencing, as per Section 53D).
In either case, the responsible medical officer must make a psychiatric report to the Court with recommendations, especially if any mental health disposal is being considered. The responsible medical officer should consult with the designated MHO during the preparation of the report.
Alternatively, an interim compulsion order may be considered. This option allows for a prolonged period of in-patient assessment before the final disposal is made.
An interim compulsion order is distinguishable from an assessment order in that it is renewable, consequently allowing the lengthy assessment that may be required of people who have committed serious offences and/or appear to pose considerable risk. It would therefore be considered where more serious disposals of greater restriction were being considered and is now required (except in exceptional circumstances) where a hospital order with restriction is being considered as the final disposal.
On completion of the assessment process, whether or not it involves renewals of the interim compulsion order, the responsible medical officer must provide the Court with a written report to assist the Court in making the appropriate disposal.
Details and conditions of an interim compulsion are shown in Boxes 11 and 12.
Box 11. Details of an interim compulsion order
An interim compulsion order lasts for a period of 12 weeks and is renewable for consecutive periods of 12 weeks, adding up to one year in total.
The order gives authority to:
For the Court to consider an order of this length, the offender must have been convicted of an offence other than murder (punishable by imprisonment). The Court must also be satisfied that it is appropriate to make an interim compulsion order having regard to all the circumstances, including the nature of the offence and alternative disposals available.
The responsible medical officer should obtain a MHO's view of the suitability and availability of such alternative services. The responsible medical officer can advise the Court of the appropriateness of the interim compulsion order only once these options have been discounted.
Box 12. Conditions of an interim compulsion order
Requires two medical recommendations, one of which must be from an AMP.
Reasonable grounds for:
Following conviction for an offence and any proper assessment for mental disorder, the Court must determine what to do with the offender. There is a wide range of disposals available under the Criminal Procedure (Scotland) Act 1995:
- Imposition of any sentence, custodial or community-based.
- Interim compulsion order; this is an option available to the Court to enable it to make the most appropriate final disposal.
- Compulsion order (inserted into the 1995 Act by the 2003 Act) (see Box 13). Although the 2003 Act states that the criteria for a compulsion order and a hospital direction are the same, the Code of Practice to the 2003 Act recommends a hospital direction (as opposed to a compulsion order) be imposed where no link can be made between the offence and the presence of mental disorder.
- Compulsion order with a restriction order (inserted into the 1995 Act by the 2003 Act) (see Box 14).
- Hospital direction (inserted into the 1995 Act by the Crime and Punishment (Scotland) Act 1998).
- Section 200 (pre-dating the 2003 Act) for remand on bail, or in hospital for enquiry into the possibility of mental disorder; this order lasts three weeks, with the possibility of one three-week extension. This hospital remand is unlikely to be used in future because of the assessment and treatment orders.
- Guardianship or intervention order (not discussed in any detail in this booklet).
- Probation order with a requirement for treatment (Section 230 of the 1995 Act, pre-dating the 2003 Act). The doctor or psychologist providing the treatment must agree to this, as must the local authority providing the supervising (probation) officer. This order can last up to three years.
Box 13. Compulsion orders
Compulsion orders mirror the civil provision of a CTO.
Conditions of a compulsion order are:
It is also worth noting that:
Box 14. Compulsion order with a restriction order
A restriction order allows additional scrutiny of a mentally disordered offender who may pose a serious risk to others. The emphasis is therefore on protection of the public as the offender progresses through rehabilitation.
The criterion for a restriction order is that without it, there is a risk that the patient would commit offences as a result of his or her mental disorder if at large in the community.
It is granted without time limit and, while it is always made in conjunction with a compulsion order, it cannot be made in respect of compulsory measures in the community. In short, a restriction order made with a compulsion order has the effect of indefinite detention in a hospital setting and supervised follow up on discharge.
Conditions for restriction
The restriction order is made after oral evidence given to the Court by one of the medical practitioners (who must be an AMP) recommending the compulsion order.
The conditions that must be satisfied place emphasis on the level of risk posed, with particular emphasis on the protection of the public from serious harm, and the strength of relationship between the risk and the specified mental disorder.
This should be discussed in the context of the principle of least restriction in relation to the freedom of the offender, balanced against:
- Protection of the public
- Conditions of serious risk to the public
- The relationship between the risk and the mental disorder.
A restriction order is ordinarily made following an extensive period of assessment under an interim compulsion order. In the exceptional minority of cases where this has not happened, there must be clear reason for not having made an interim order and initial assessment. Risk assessment (see Appendix 4) is a crucial constituent of the early overall assessment.
At this time, there approximately 300 restriction orders in place in Scotland (one half of the patients affected reside in the State Hospital), with approximately ten new restriction orders imposed each year.
Patient safeguards and right of appeal
The major safeguards for individuals with mental disorder who are subject to criminal proceedings are:
- The Tribunal
- The named person
- The right to advocacy
- The ability to write advance statements
- The Mental Welfare Commission.
The right of appeal exists against the level of security imposed in a particular case, either under a compulsion order (with or without restriction), compulsory treatment order, a hospital direction or a transfer for treatment direction is to the Tribunal. This right of appeal will come into force no later than 1 May, 2006.