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| This study was undertaken to monitor and assess the operation and impact of the provisions contained within Part VI of the Criminal Procedure (Scotland) Act 1995, (the 1995 Act), relating to unfitness to plead, examination of facts and the insanity defence. |
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| Main Findings |
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- The legislation was invoked in 52 cases during the research period. Three quarters of the cases (n=39) were heard in Sheriff Courts; 9 (23%) were on indictment and 30 (77%) were summary complaints. The remaining 13 cases were heard in the High Court.
- 37 (71%), of the cases involved a plea in bar of trial. The accused was found unfit to plead in 29 cases. In 5 cases the accused was found sane and fit to plead, and 2 cases were deserted by the Crown before the fitness of the accused was determined. In one case the plea was withdrawn by the defence.
- 3 cases (6%) involved both a plea in bar of trial and an insanity defence and in all 3 cases the accused was found unfit to plead.
- 12 cases (23%) involved an insanity defence. The accused was successful in establishing the defence and acquitted on the grounds of insanity in 10 cases.
- In all but 3 of the 37 plea in bar of trial cases the issue of the accused's unfitness to stand trial was identified and raised by the defence solicitor at an early stage, normally before the first court diet.
- A total of 30 examination of the facts (E.O.F.) hearings were conducted during the research period. The facts were held to be established in 22 cases; in 3 cases the facts were held to be established but on the balance of probabilities the accused was insane at the time of the offence and in the remaining 5 cases the facts were held not to be established.
- Hospital orders were imposed in a total of 26 cases (9 had restriction orders attached); Supervision and Treatment orders were made in 5 cases, a Guardianship order in one case, and in 3 cases no order was made.
- Five cases involved appeal proceedings. All of the appeals focused on the issue of fitness to plead. No appeals arose against disposal during the research period.
- Both legal and medical personnel largely welcomed the new provisions.
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| Introduction |
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| The main aim of the research was to assess the operation and impact of the provisions contained within the 1995 Act relating to unfitness to plead, examination of facts and the insanity defence. |
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The key objectives of the research were to: - review the pattern of use of the legislation;
- examine the stages at which the accused's mental state was determined to merit a plea in bar of trial;
- examine the use of the disposal options and investigate any problems arising from their use;
- ascertain the views of both legal and medical practitioners on the interpretation and use of the legislation; and
- assess the impact of the reforms, particularly in relation to defence submissions of unfitness to plead and the use of the insanity defence in solemn and summary proceedings.
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| The research period was from 1 April 1996, when the provisions of the 1995 Act came into force, until August 1998. A notification procedure in respect of all cases invoking the legislation was established with the Sheriff Clerks in all Sheriff Courts across Scotland and with the Justiciary Office of the High Court. Researchers attended courts throughout Scotland to observe cases involving a plea in bar of trial and recorded the proceedings, beginning with the proof dealing with the issue of fitness to plead, following each case through the E.O.F. (where this took place), up until the disposal of the case. The insanity defence cases were followed up by telephone or in writing to obtain information on the success of the defence and the disposal chosen by the court. The use of the appeal provisions contained within the 1995 Act were also monitored as part of the study. Formal Interviews were carried out with Judges, Sheriffs, Advocates Depute, Procurators Fiscal and defence agents. In addition, psychiatrists and psychologists were interviewed. In all cases the individuals had experience of the 1995 Act provisions and some had experience of the previous provisions contained within the Criminal Procedure (Scotland) Act 1975. The individuals interviewed were involved in cases which raised issues particularly relevant and of interest to the research and were located across Scotland. In addition to these formal interviews, informal discussions with court personnel took place while attending court hearings, providing further insight into the operation of the legislation. |
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| The pattern of the use of legislation and the impact of the reforms |
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| A total of 52 cases in which the legislation was invoked were notified to the researchers. Three quarters of these cases (n=39) were heard at the Sheriff Court level and of these 9 (23%) were on indictment and 30 (77%) were summary complaints. The remaining 13 cases were heard at High Court level. It was originally estimated that the 1995 legislation would be invoked in approximately 12 cases per annum. |
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| Cases invoking the legislation involved a wide spread of crimes and offences, of varying levels of seriousness from breach of the peace to murder. All but 2 of the cases involved a single accused. In the majority of cases (81%) the accused was male and the majority of male accused were aged between 21 and 35 years. In 6 cases, the accused was from an ethnic minority and 3 cases involved an accused who was deaf and dumb. In 70% of cases, information regarding previous convictions was available and of these, 30% (11 cases) were first time offenders and 69% (25 cases) had a previous conviction. In 52% (27 cases), the accused had some form of documented history of psychiatric or psychological problems. |
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| Of the 52 cases, 37 (71%) involved a plea in bar of trial, 12 (23%) involved an insanity defence and 3 (6%) involved both a plea in bar of trial and an insanity defence. In most of the cases involving a plea in bar of trial, the plea was raised by the defence and unopposed by the Crown. In several cases a joint minute was lodged to this effect. |
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| In 29 of the 37 cases involving a plea in bar of trial, the accused was found unfit to plead. In 5 cases the accused was found sane and fit to plead, and in 2 cases the Crown deserted the cases pro loco et tempore before the fitness of the accused was determined. In one case the plea was withdrawn by the defence. In 10 of the 12 cases where an insanity defence was lodged, the accused was successful in establishing the defence and acquitted on the grounds of insanity. In all 3 cases involving both a plea in bar of trial and an insanity defence both pleas were successful. |
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| The examination of the facts |
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| E.O.F.s were conducted in 27 of the 29 cases where the accused successfully pled unfitness to plead. Of the 2 remaining cases, in one the Crown deserted the case prior to the E.O.F. and in the other the E.O.F. was still ongoing at the end of the research period. E.O.F.s also took place in the 3 cases where both a plea in bar of trial and an insanity defence were lodged. |
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| Of the 30 E.O.F.s which were conducted, the facts were held to be established in 22 cases, in a further 3 cases the facts were held to be established but on the balance of probabilities the accused was insane at the time of the offence and in the remaining 5 cases the facts were held not to be established. The reasons for this were due to insufficiency of evidence and problems of identification of the accused when his presence had been dispensed with by means of s.54(5) of the legislation. A key issue which arose in relation to the E.O.F. was the difficulties caused where there was a co-accused. |
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| The issue of mental impairment complicated plea in bar of trial cases. There was never any clear consensus from legal or medical personnel on mental impairment as a reason for unfitness to plead and these cases prompted much contention and debate. In almost all cases where mental impairment was involved, clinical psychologists were called upon to provide written or oral evidence, however, there was little consensus amongst judges and sheriffs as to the relevance of psychological evidence in relation to determining fitness to plead. |
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| Psychiatrists in all but a few instances appeared in court to speak to their written reports. Approximately a third of plea in bar of trial cases were characterised by problems concerning the interpretation of the legal tests determining fitness to plead. In a small number of cases there was the additional problem of the language used in reports, which was highly technical and largely inaccessible to the courts. In some instances the presiding judge or sheriff expressed extreme dissatisfaction with the psychiatric evidence that was presented, describing it as unhelpful or misleading. |
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| The stage at which the issue of the accused's mental state was raised |
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| In all but 3 of the 37 cases in which a plea in bar of trial was made, the issue of the accused's unfitness to stand trial was identified and raised by the defence solicitor at an early stage, normally before the first court diet. In 2 cases the issue of fitness to plead was raised by the Crown under s.52(1) of the legislation. In one case the presiding magistrate in the District Court detected something was wrong and remitted the case to the Sheriff Court. In most cases the accused was present for the plea in bar of trial diet. |
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| The use of disposals |
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| Of the 22 plea in bar of trial cases where the facts were held to be established at the E.O.F., a Hospital order was imposed in 16 cases (4 of these had restriction orders attached), a Supervision and Treatment order was made in 4 cases; a Guardianship order was made in one case, and in the remaining case no order was made. In the 3 cases which involved both a plea in bar of trial and an insanity defence, Hospital orders were imposed (one with a restriction order). In 7 of the 10 successful insanity defence cases a Hospital order was imposed (4 with a restriction order), in one case a Supervision and Treatment order was imposed and in 2 cases no order was made. In the vast majority of cases, resource issues did not affect the choice of disposal. |
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| A consistent pattern of disposal in relation to previous psychiatric history or offending was not evident. In many cases the disposal corresponded to the seriousness of the offence, however, there were exceptions to this where community based disposal were used for relatively serious offences and hospital disposals for less serious offences. |
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| Appeal Proceedings |
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| Five cases involved appeal proceedings. All of the appeals focused on the issue of fitness to plead; all were initiated by the defence and all but one were unsuccessful. One case involved two appeals. No appeals arose against disposal during the research period. |
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| Interviews with legal and medical personnel |
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| Interviews were carried out with legal personnel that focused on general views on the legislation, the drafting of the legislation and issues arising from the medico-legal interface. All interviewees welcomed the legislation. In particular the introduction of E.O.Fs and the subsequent establishment of the accused's liability for the offence, together with the wider range of disposals were welcomed. Psychiatric evidence was viewed positively for the most part, though there was some comment in relation to psychiatrist's knowledge of the legal tests of insanity and unfitness to plead. The treatment of accused suffering from mental impairment as opposed to mental illness and the lack of recognition of psychologists as the appropriate expert witness in such cases attracted mixed opinion. |
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| Formal interviews and informal discussions were carried out with 28 psychiatrists and 3 psychologists. All of the psychiatrists had experience of the new legislative provisions and the main issues which arose in these interviews included, the lack of notification of psychiatrists of the new legislation, the quality of instructions received by psychiatrists from solicitors, the relationship between legal and medical personnel, knowledge and understanding of the relevant legal tests, issues around mental impairment, giving evidence in court and general views on the workings of the legislation including the E.O.F. and disposals. Interviews with psychologists focused on their role in mental impairment cases, namely the assessment of the accused, giving oral evidence and their general views on the working of the legislation. |
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| The Need for Further Research |
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| The issue of trial upon recovery for those accused found unfit to plead requires to be monitored in future research. The issue of trial upon recovery did not arise during this study. Of particular interest would be the characteristics of cases where such trial upon recovery occurs, whether it only relates to accused who have been deemed to have feigned mental illness and the procedural difficulties encountered in pursuing such a prosecution. |
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| Resource implications of the new range of disposals requires future monitoring. The Crime and Punishment (Scotland) Act 1997 reduced the period within which a bed must be available before a hospital disposal can be made, from 28 to 7 days. This change came into effect on 1 January 1998. The effect of this change on hospital orders was not marked in the remaining period of the research project, however, changes in health board policy could affect the number of beds available and consequently resource implications could arise. |
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| Further free copies, or information about the Central Research Unit Programme, can be obtained by contacting: |
The Scottish Office Central Research Unit,
Room J1-0,
Saughton House,
Broomhouse Drive,
EDINBURGH EH11 3XA
Tel: 0131 244 2112 or Fax: 0131 244 2109 |
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| The report can also be ordered online from:www.thestationeryoffice.co.uk |
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| Copies of the full research report "Mentally Disordered Offenders and Criminal Proceedings: The Operation of s.54 of the Criminal Procedure (Scotland) Act 1995" by Michele Burman and Clare Connelly are also available, priced £7.50, from: |
The Stationery Office Bookshop,
71 Lothian Road,
EDINBURGH,
EH3 9AZ
Tel: 0131 228 4181 fax: 0131 622 7017. Quote ISBN No. 0748 07 669 |