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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
short-term detention.
- 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. |
Pre-conviction provision
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.
Assessment orders
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:
- Pre-conviction
- 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 the person in respect of whom
the application is made has a mental
disorder
- that medical treatment would be
likely to prevent the mental disorder
worsening, or alleviate the symptoms or
effects of the mental disorder
- that if the assessment order were
not made there would be a significant
risk to the health, safety or welfare
of the person or a significant risk to
the safety of any other person.
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.
Treatment orders
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: - That a mental disorder exists.
- Available medical treatment would be
likely to alleviate or prevent
deterioration of the patient's
condition.
- There would be significant risk to the
health, safety or welfare of the person, or
the safety of others, without such
treatment.
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: - 'Do you know what the police have said
you have done?'
- 'When they ask you in Court if you did
it, do you know what your plea will
be?'
- 'What is the difference between saying
"guilty" and "not guilty"?'
- 'Can you tell your lawyer what you
think happened?'
- 'If a witness says something in Court
you don't agree with, who would you
tell?'
Features of an individual's mental state due
to his or her disorder to be taken into
consideration include the individual's: - Ability to communicate - schizophrenic
thought disorder, manic flight of ideas,
depressive poverty of speech, dysphasia or
dementia.
- Beliefs - for example, the individual
may have delusions that he or she has a
divine mission, and that the court process
is irrelevant. Psychosis per se does not
necessarily equate with insanity.
- Comprehension - may be impaired in
dementia, acute confusion or learning
disability.
- Attention and concentration - may be
impaired in any of the conditions listed
above.
- Memory - amnesia for the alleged
offence is irrelevant in law, but
short-term memory impairment due to organic
impairment may be sufficiently severe to
make it impossible for the individual to
follow proceedings in Court.
|
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: - Whether there was a manifest mental
disorder at the time of the alleged
offending, and
- Whether the alleged offender was
unaware of either the nature or the moral
wrongfulness of his or her behaviour as a
direct result of the mental disorder.
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. |
Conviction stage
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: - Detain the patient in a place of
safety.
- Convey him or her to a specified
hospital within seven days of the order
being made.
- Detain him or her in that
hospital.
- Give medical treatment in accordance
with Part 16 of the 2003 Act.
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: - Believing that the offender has a
mental disorder.
- Considering that available medical
treatment would alleviate or prevent
deterioration of the condition.
- Considering that the offender's health,
safety or welfare, or that of any other
person, would be at risk if such treatment
was not provided.
- Considering that a compulsion order or
hospital direction would be an appropriate
post-conviction disposal, and that a
suitable hospital placement is
available.
|
Post-conviction disposals
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: - Recommendations are required by two
medical practitioners (one of whom has to
be an
AMP) verifying the
conditions for the order.
- There must be evidence of mental
disorder.
- There must be availability of medical
treatment likely to alleviate or prevent
the disorder from worsening.
- There must be the presence of risk to
the health, safety or welfare of the
person, or risk to the safety of any other
person.
- There must be a demonstrable necessity
for making the order.
- A report from the
MHO is required.
It is also worth noting that: - The significant impairment of
decision-making test of civil orders does
not have to be met.
- The compulsion order endures for up to
six months, and is renewable for six months
in the first instance and annually
thereafter.
- The compulsion order may enforce
detention in hospital or compulsion in the
community; measures set out in Section 66
(1) of the 2003 Act apply to the
order.
- To warrant imposition of a compulsion
order, the offender must have been
convicted of an imprisonable offence other
than murder.
- Where detention in the State Hospital
is required by the compulsion order, the
Court must be satisfied that the offender
requires to be detained in conditions of
special security such as can only be
provided in a state hospital.
- Where a compulsion order requires
compulsion in the community, the local
authority must first of all agree to those
services being available (by way of
contrast, there is no such safeguard in
setting out the requirements of a
CTO in relation to
recorded matters).
|
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:
- 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 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.
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