Act: IM Paterson, Fyffe, solicitor advocates; Paterson Bell

Alt: Bain QC, AD; Crown Agent

4 May 2012

[1] Section 52(1) of the Criminal Procedure (Scotland) Act 1995 provides that:

"Where it appears to the prosecutor in any court before which a person is charged with an offence that the person may be suffering from mental disorder, it shall be the duty of the prosecutor to bring before the court such evidence as may be available of the mental condition of that person".

The purpose of this is to enable the court, in an appropriate case, to commit a person to hospital rather than remanding him in prison.

[2] It is the practice of the Crown to instruct psychiatric examinations of vulnerable persons accused of murder and, if mental disorder is uncovered, to bring that to the attention of the court at the stage of full committal. The standard letter of instruction requests the psychiatrist to report upon whether the person suffers from such a disorder and whether it is necessary for him, or the public, that he be detained in hospital. It also asks the psychiatrist to address the questions of: whether there is evidence of the person having been insane, or suffering from diminished responsibility, at the time of the offence; whether he is presently sane and fit to plead; and, more generally, whether there is any matter in the person's medical or psychiatric history which is relevant to the circumstances of the alleged offence.

[3] On 26 April 2011, the appellant appeared on petition charged with murder by stabbing. The Crown instructed that he be psychiatrically examined. By this time, the appellant would, of course, have had the opportunity of having access to a lawyer. He had availed himself of that opportunity. He was advised by a solicitor of the likely prospect of a psychiatric examination. He was counselled not to discuss the circumstances of the alleged offence with any psychiatrist.

[4] The appellant was interviewed by two psychiatrists. The trial judge reports that each psychiatrist made it clear to the appellant that the interview was conducted on the instructions of the prosecution. He did not have to participate. Any resultant report would be disclosed to the prosecutor and might be read out in court. The appellant was told that the normal rules of medical confidentiality did not apply.

[5] In a report dated 28 April 2011, Dr Andrea Friel, consultant forensic psychiatrist, described her meeting with the appellant. She states that the appellant had been aware of the nature of the interview and had agreed to it proceeding. The report narrates the personal history of the appellant, including his extensive use of illicitly acquired drugs, including diazepam. It records that the appellant "last took" diazepam "on the night of the index offence". In particular, when dealing with the day of the offence, it gives the following account:

"...[H]e had won approximately £60 on a bet and with this money he bought varying drugs including diazepam, 30 x 10mg tablets, 15 of which he gave to Natalie and 15 he took himself. ...[H]e had never taken 15 diazepam tablets in one go before and felt intoxicated. ...He also bought £5 worth of cannabis which he split between himself and Natalie. He bought 3 x 0.2gm bags of heroin, he gave two to Natalie and took one himself".

The appellant described feeling "very tired and 'zombie-fied'" at the time of the offence. The conclusion was that the appellant was sane and fit to plead and that there was no evidence that he had been suffering from a "severe and enduring mental illness" or any "significant abnormality of mind" at the time of the offence.

[6] The appellant was interviewed by Dr Pujit Gandhi, a specialist registrar in forensic psychiatry, on 28 April 2011. His report records the appellant stating that he was not willing to discuss the offence on the "directions" of his solicitors. He did, however, repeat that he had bought 15 diazepam tablets on the day of the offence and had consumed them some 3 to 4 hours beforehand. He had gone on to describe some of the events leading up to the offence, albeit stating that he had no clear recollection of what had happened. On being asked specifically if he wanted to tell Dr Gandhi anything about the offence, the appellant is reported as replying: "I should never have taken the knife from Natalie". Dr Gandhi reached similar conclusions to those of Dr Friel.

[7] In due course, the appellant lodged a special defence of involuntary "automatism". Reports from a forensic pharmacologist and a chartered psychologist were obtained with a view to establishing that the appellant had been seized with "paradoxical aggression" as a result of his ingestion of the diazepam. The appellant appears to be advancing a defence based upon his eating of a curry which had been laced with diazepam by his girlfriend, Natalie. It will be immediately obvious that, were the appellant's statements to the psychiatrists to be admitted in evidence, they would effectively foreclose any prospect of the appellant's defence being established since they amount to an admission that the drugs producing any automatism had been voluntarily ingested (Brennan v HM Advocate 1977 JC 38).

[8] The appellant was indicted to a Preliminary Hearing in or about September 2011. It was said that parties were ready for trial and a diet was fixed for 12 December 2011. However, the special defence was only lodged in advance of a continued Preliminary Hearing on 31 October 2011. The case called for trial as scheduled, at which time no preliminary issue had been taken relative to the admissibility of the psychiatrists' evidence. Such an issue was only tabled on the following day. The trial judge heard argument in support of the appellant's objection to the evidence on the basis of unfairness at common law and under Article 6 of the European Convention. The diet of trial was discharged, but the court heard evidence from the psychiatrists over the succeeding days. On 19 December 2011, the trial judge repelled the objection.

[9] The trial judge had considered MacDonald v Munro 1996 SCCR 595, in which the appellant had tendered a plea in bar of trial as a result of a psychiatric examination during which certain aspects of the defence had been revealed. The court followed the dictum of the Lord Justice General (Hope) in Sloan v Crowe 1996 SCCR 200 to the effect that it was undesirable that a psychiatrist should be restricted in the scope of any examination. It then agreed (LJ-C (Ross) at 599) with the view of the sheriff (Christie) that, in the context of a summary case, if the report from the psychiatrist did reveal any information relevant to the merits of the charge:

"I would expect any sheriff to ignore any matters contained in a report which might be prejudicial to the accused person...

...whatever information the prosecution had would not be used against the appellant and, indeed, if the prosecution attempted to do so, I would expect an objection from the defence which would in all probability be sustained by the sheriff hearing the trial".

[10] The trial judge, quite correctly, did not regard these remarks as binding upon him since the issue in that case had not involved "the question of the use to be made of mental state reports in situations where there is a mental state defence". He also rejected a contention that statements made to a psychiatrist ought to be excluded as a matter of legal policy. He considered the position in England and Wales, where no rule excluding such statements existed (R v MacDonald [1991] Crim LR 122; R v Gayle [1994] Crim LR 679; R v Cavill, unreported, Court of Appeal, 11 April 1995; R v Brown, unreported, Court of Appeal, 21 May 1999, and R v Elleray [2003] 2 Cr App Rep 11). Essentially, however, he took the view that the search for the truth in the criminal process remained something to be encouraged and that refusing to admit the evidence rendered the criminal law remedy ineffective, so far as victims were concerned (trial judge's Note, para [22]). The normal rule was that, if a statement against interest were made voluntarily and the circumstances were not unfair then, if its contents were relevant, it ought to be admitted (para [23]).

[11] The submission for the appellant was that the trial judge had erred in his approach and that, at common law or under Article 6, it was not fair to admit the evidence of what an accused had said to a psychiatrist in the context of a mental health examination. In particular, the trial judge had erred in failing to consider the use to which the content of the interview was to be put. It was not to demonstrate that the appellant had, or did not have, a mental disorder, but to prove that he was a liar. The Advocate Depute responded that the circumstances of the interviews had been set out by the trial judge. The appellant had been made aware that the psychiatrists were acting on the instructions of the prosecutor and that anything he said would be disclosed. The statements had been obtained as part of the process of discovering the appellant's mental state, rather than in the context of an investigation into the offence. The use of the statements was not unfair because they were relevant to refute a defence based upon the mental state of the accused. Reference was made to an article on "The Vexed Issue of Gaol Cell Confessions" by David Wolchover, Barrister, revised on 5 October 2006.

[12] As a generality, if evidence is relevant then it ought to be admitted. An admission by an accused person is, prima facie, relevant. However, if the evidence has been unfairly obtained then it ought, as a matter of legal policy, to be excluded. Prior to the incorporation of the European Convention, such unfairness tended to be based upon the need to control police, or executive, powers but, since that incorporation, the tendency has been to approach such matters from the perspective of protecting human rights, notably those under Article 6. When considering precedent, it may be of some consequence therefore to note whether a case was decided before or after incorporation of the Convention in terms of the Scotland Act 1998. However, the court is unaware of any jurisprudence from the European Court of Human Rights which would suggest that the admission of a statement made by an accused to a psychiatrist, after he has been advised of his right to silence and allowed a consultation with a lawyer, breaches the right to a fair trial enshrined in Article 6.

[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.

[14] At the time when the psychiatrist interviews the accused, he is in custody in prison. He may, or may not, feel that discussing what occurred with the psychiatrist may assist his cause, whether that is in connection with the merits of the charge or the presentation of any mitigation. Although the accused may have been warned that he does not have to co-operate with the psychiatrist and that what he says will be disclosed to the prosecution, that is some distance short of the terms of the normal caution given in advance of a police interview. It is also not without significance that a psychiatric interview will be conducted in a more relaxed atmosphere than one by the police. There is no formal requirement that there be any electronic recording of the conversation or what warnings preceded it. The precise words used by the accused may not be noted. These various features alert the court to the existence of certain 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.

[15] Ultimately, the court requires to decide whether remarks made during an interview of an accused by a psychiatrist, acting on the instructions of the prosecution for the purpose of determining the accused's mental state, are fairly obtained such that they can be used in the prosecution to prove the offence itself. The court considers that such statements, secured in a process to determine mental state, are not fairly obtained in so far as they may be used to prove fact beyond that of the accused's mental state. That appeared to be the position accepted by the Crown and the court considers that it is the correct one. The problem for the Crown in the appellant's case is that material parts of the statements, which the Crown wish to make use of, are not relevant to the appellant's mental state. His ingestion of diazepam per se may be so relevant, but whether that ingestion was voluntary or otherwise is not, nor is his reference to obtaining the knife from Natalie. For these reasons, which are supported by the dictum in MacDonald v Munro 1996 SCCR 595 (LJ-C (Ross) at 599), the court considers that the objection to the evidence of the psychiatrists, in so far as it relates to what the appellant may have said about the voluntary ingestion of drugs and the obtaining of the knife, is well founded. It will sustain that objection on the basis of the common law.