Lord Eassie

Lord Mackay of Drumadoon

Lord Hodge

[2010] CSIH 31



delivered by LORD EASSIE

in the appeal


M J J A B (AP)






Appellant: L Dunlop, Q.C.; Collins; Drummond Miller LLP

Respondents: R Crawford, Q.C.; S Smith; The Office of the Solicitor to the Scottish Government

8 April 2010


[1] On 10 May 1996, following his having pled guilty in Kilmarnock Sheriff Court to a charge of assault and robbery and a charge of assault, the appellant was made the subject of a hospital order under section 58 of the Criminal Procedure (Scotland) Act 1995 - "the 1995 Act" - requiring his compulsory detention in the State Hospital at Carstairs. The sheriff at Kilmarnock also made a restriction order under section 59 of the 1995 Act restricting his discharge from hospital. While on remand prior to sentence in respect of those two charges the appellant had been transferred to the State Hospital for assessment and had been diagnosed as suffering from schizophrenia, that condition being the basis for the making of the hospital order. He had a previous history of involvement with the psychiatric services and of drug misuse.

[2] The assault and robbery to which the appellant pled guilty occurred in January 1996. The circumstances appear to have involved the presentation of a knife to two persons and robbery of certain of their personal property, including a mobile telephone. The assault in question occurred a few days later when the police sought to apprehend the appellant; he struck one of the officers on the shoulder with a wooden fence stob.

[3] On 8 December 1997 the appellant was transferred from the State Hospital to Ailsa Hospital, Ayr, where he remained until 19 July 1998 when he absconded to Blackpool. In due course he was detected and returned to Ailsa Hospital, whereupon the appellant was then transferred back to the State Hospital at Carstairs. He remained in detention in the State Hospital until 4 April 2005 when he was again transferred to Ailsa Hospital, in which hospital he continued to be detained in terms of the hospital order when, on 14 September 2005, he made a summary application to the sheriff at Ayr under section 64 of the Mental Health (Scotland) Act 1984 - "the 1984 Act". This appeal is concerned with that summary application, in which the appellant craves either absolute discharge, or alternatively his conditional discharge, from the hospital order pronounced on 10 May 1996.

[4] The proceedings in the sheriff court at Ayr appear to have proceeded at a relatively slow pace, with sists for reports; continuations for discussions and negotiations; and fixing of various diets of proof which were later discharged.

[5] A contributing factor to the delay in disposing of the application was no doubt the facts that, roughly seven months into the process, on 2 or 3 May 2006 the appellant absconded from Ailsa Hospital and was at liberty for some five days until he was detained on 7 May 2006. On 31 August 2006 he was convicted in the sheriff court of possession of diamorphine and an attempt to pervert the course of justice and was sentenced to a backdated sentence of seven months' imprisonment. In the event he was returned to Ailsa Hospital. But then, on 26 September 2006, the appellant again absconded from Ailsa Hospital along with a female inmate in the hospital, MH, with whom he had formed a liaison during his earlier stay in Ailsa in 1998. The appellant and Ms H, assisted by the appellant's mother, went first to Blackpool and thereafter to Kilmarnock where the appellant was eventually detected and detained on 16 October 2006. After a period in HMP Barlinnie he was returned to the State Hospital on 29 December 2006.

[6] So far as the appeal to the sheriff was concerned, the parties' representatives had agreed on 10 August 2006 that a proof was appropriate. The position adopted by the respondents, the Scottish Ministers, in their answers to the application was that the appellant required to be detained in hospital for treatment and that a "package" required to be put in place before any conditional discharge could be contemplated. The proof which had been thus agreed commenced on 22 January 2007. It continued on various isolated dates in the early part of 2007 and was finally concluded on 22 March 2007. No attempt was made to amend the original pleadings to focus any of the issues arising by reason of the events which had taken place after 10 August 2006. The sheriff gave judgment on 5 April 2007 refusing the application. A crucial part of his interlocutor of that date, against which this appeal is taken, is his single finding in fact and law which reads:

"...that the Applicant being a restricted patient subject to a Restriction Order is suffering from a mental disorder, the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital whether for medical treatment or not".

[7] As will become more evident from the later discussions of the issues arising in this appeal, the sheriff's decision to refuse discharge proceeded on his assessment of the evidence (led without any basis in the pleadings) as to what the respondents contended occurred in the relationship between the appellant and Ms H while they were both on abscond from Ailsa Hospital between 26 September 2006 and 16 October 2006. Among the findings in fact made by the sheriff respecting that relationship was, in particular, finding in fact 43 which is in these terms:

"While MB and MH were in Blackpool MB had sexual intercourse on several occasions with MH against her will without her consent, she refusing consent because of his moods, he carrying on to proceed to sexual intercourse in spite of her expressed wishes to the contrary". ["MB" is a reference to the appellant]

Counsel for the appellant submitted that this was a finding that the appellant had committed the crime of rape and that this was a crucial finding, central to the sheriff's decision. For her part, counsel for the respondents disputed the centrality of the finding. She was also reluctant to categorise it as a finding of rape. For our part we consider that it is clear from the terms of the sheriff's note that he considered that he had made a finding that the appellant had committed the crime of rape. The sheriff says (p 54 of the appeal print):

"[the appellant], according to our current law, carried out the crime of rape upon MH in that he proceeded against her will to have sexual intercourse with her".

[8] So far as concerns the appellant's mental health, while the mental health diagnosis upon which he had been made the subject of the hospital order on 10 May 1996 was schizophrenia, at the time of his application to the sheriff at Ayr, and of the proof, it was not disputed that he no longer suffered from schizophrenia. Indeed a generally prevailing view was one of questioning the soundness of that initial diagnosis on the basis that, with hindsight, his mental state in May 1996 was more likely to have been a drug induced psychotic episode. But at all events, the position at the time of the sheriff's decision was that the appellant suffered from "antisocial personality disorder, otherwise dissocial personality order, these descriptions being products of two different diagnostic tools" (see finding in fact 66).

[9] Notwithstanding the terms of their answers to the summary application, it was not suggested to the sheriff by the respondents that continuing detention on a compulsory basis in the mental health system could be justified on the view that the appellant's condition was susceptible to treatment. It could only be justified on the view that the personality disorder from which he was now considered to suffer rendered it necessary, in order to protect the public from serious harm, that the appellant be detained indefinitely in a secure mental hospital, even though there was no treatment available for him which would alleviate, or prevent a deterioration in, his personality disorder.

[10] The statutory basis for compulsory, indefinite detention in a mental institution on grounds of public safety, notwithstanding the unavailability of treatment, is s.64(A1) of the 1984 Act. That provision, inserted by later amendment, has a history which it is appropriate now to mention.

The legislative history

[11] At the time at which the appellant was made the subject of the hospital order, the test for making such an order (so far as pertinent in the present case) was that the court be satisfied on the written or oral evidence of two medical practitioners that the grounds set out in section 17(1) of the 1984 Act applied to the offender and that the making of the hospital order was, put shortly, the most suitable method of disposing of his case. Section 59 of the 1995 Act enabled the court to make an order restricting discharge of an accused if the court considered that "(a) having regard to the nature of the offence with which he is charged; (b) the antecedents of the person; and (c) risk that as a result of his mental disorder he would commit offences if set at large, that it is necessary for the protection of the public from serious harm" to make such an order. The effect of a restriction order was to place a number of restrictions on the discharge of a patient, one of the principal effects being to transfer authority for deciding on discharge to the Scottish Ministers. However, a restriction order did not affect the basis for detention, which was section 17(1) of the 1984 Act.

[12] The terms of section 17(1) of the 1984 Act were as follows:

"A person may admitted to a hospital and there detained on the grounds that -

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(i) in the case where the mental disorder from which he suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition; or

(ii) in a case where the mental disorder from which he suffers is a mental handicap, the handicap comprises mental impairment (where such treatment is likely to alleviate or prevent a deterioration of his condition) or severe mental impairment; and

(b) it is necessary for the health and safety of that person or the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this part of this Act".

In ALHR v Secretary of State for Scotland 1999 SC(HL) 17 the House of Lords held, put shortly, that section 17(1) - and hence the basis for continuing detention under a hospital order under section 58 of the 1995 Act - involved a treatability test and that an offender suffering from psychopathic personality disorder was not liable to be detained unless the condition in section 17(1)(a) applied, namely that the medical treatment in the hospital was likely to alleviate or prevent a deterioration of his condition.

[13] As a consequence of that confirmation by the House of Lords of the proper interpretation of the legislation, the sheriff at Lanark (being the sheriff court territorially appropriate for those in the State Hospital) applying the correct legal test in July 1999 discharged an inmate of the State Hospital of some notoriety - a Mr Ruddles - on the view that it was accepted by all of the medical witnesses that the psychopathic personality disorder from which Mr Ruddles suffered could not meet the treatability test.

[14] Following that decision, the Scottish Parliament, as the first legislative measure of its existence, passed in some haste the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 - "the 1999 Act". Its principal effect was to remove the requirement, for the continuing detention of offenders subject to a hospital order and a restriction order, that the offender's condition be treatable. It brought about the amended form of the appeal provisions in section 64 of the 1984 Act with which the sheriff was concerned. In particular, the amendments included the insertion at the beginning of section 64 of a new subsection, subsection (A1) - in these terms:

"(A1) Where an appeal to the sheriff is made by a restricted patient who is subject to a restriction order, the sheriff shall refuse the appeal if satisfied that the patient is, at the time of the hearing of the appeal, suffering from a mental disorder the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital whether for medical treatment or not".

[15] The validity of this legislative measure by the Scottish Parliament was challenged as being outwith the devolved competence of the Scottish Parliament on various grounds in A v The Scottish Ministers 2001 SC 1; 2002 SC(PC) 63. The principal grounds of challenge were that the measure was incompatible with the European Convention on Human Rights and Fundamental Freedoms - "ECHR". Legislation passed by the Scottish Parliament requires, for its validity, to be ECHR compatible. The challenge failed. We shall require to return to the opinions delivered in that case later when considering the proper construction and application of the amended terms of section 64, particularly 64(A1). But before we come to that issue it is appropriate first to say something about the competency of this appeal which was discussed at the outset of the hearing.

Competency of the appeal

[16] The competency in general of an appeal to the Court of Session from a decision of a sheriff on an application for discharge made in terms of section 64 of the 1984 Act is not in any doubt. However, in the present case, subsequent to the taking of this appeal from the sheriff's decision, the appellant was transferred on 21 March 2009 to a hospital in England by virtue of a warrant for that removal issued by the Scottish Ministers under regulation 10 of the Mental Health (Cross border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005, [SSI 467/2005]. In terms of regulation 23 of those Regulations, on such a removal "...the measure which authorised the patient's detention in hospital in Scotland shall cease to have effect when the patient becomes subject to relevant measures in the country or territory to which the patient is removed". Section 80B(2) and (3) of the Mental Health Act 1983 (as amended by section 39(2) of and Schedule 5 to the Mental Health Act 2007) provides, as respects a patient so removed to England and Wales:

"(2) [The patient] shall be treated as if, on the date of his admission to the hospital, he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the enactment in force in England and Wales which most closely corresponds to the enactment by virtue of which is detention in hospital was authorised immediately before his removal.

(3) If immediately before his removal, he was subject to a measure under any enactment in force in restricting his discharge, he shall be treated as if he were subject to an order or direction under the enactment in force in England and Wales which most closely corresponds to that enactment".

[17] In view of those provisions and the appellant's removal to England, counsel for the respondents submitted at the outset of the hearing that the appeal had now become incompetent in the respect that this court lacked jurisdiction. The orders made in the sheriff court in Kilmarnock on 10 May 1996 respecting the appellant ceased to have effect on his transfer to England on 21 March 2009; the appellant was now subject to the corresponding provisions of English law and the jurisdiction of the administrative and judicial authorities in England and Wales; and therefore a Scottish court could not make any competent order discharging the appellant.

[18] For her part, counsel for the appellant accepted that this court could not now make any order for the discharge of the appellant. She also accepted that success in this appeal would have no retroactive effect on the validity of the procedures whereby the appellant had been removed to England. But, she submitted, since this court plainly had jurisdiction when the appeal was taken, the essence of the point now taken by the Scottish Ministers was that subsequent events had rendered this appeal academic. However, in her submission, in a very practical sense the appeal was not at all academic, since the sheriff's decision, including in particular the finding of rape, would form part of the appellant's mental health records and would affect how he was viewed in the mental health system in England and Wales. It could not be right that the appellant had no remedy against the sheriff's decision which he claimed was erroneous, simply because he had been removed to England. The court should therefore hear the appeal.

[19] We were persuaded by the submissions of counsel for the appellant that, while there might be technical issues respecting the wording of the interlocutor to be pronounced were the appeal to be successful on its merits, the appeal could not be said to be wholly academic. The appellant had a continuing practical interest in challenging the sheriff's decision albeit that in the event of success in that challenge, the Scottish court no longer had the power to order his discharge. We considered it right to proceed to hear the merits of the appeal.

Section 64(A1): the serious harm test

[20] Counsel presented differing approaches to section 64(A1) of the 1984 Act, reflecting in some measure the importance placed by counsel for the appellant on finding in fact 43 - the rape finding - and the emphasis placed by counsel for the respondents on what might shortly be termed an overall assessment of the facts.

[21] Counsel for the appellant submitted, in summary, that given that one was concerned with the indefinite preventive detention of a person, a very high threshold was required. Such detention could only be based, at least, on the prior commission of a very serious offence. That was evident from the opinions delivered in the Privy Council in A v The Scottish Ministers. Counsel referred, among others, to paragraph [44] of the opinion of Lord Hope in which his Lordship said of the legislative measure under challenge:

"...The purpose of the 1999 Act was to protect the public, including the section of it which is relevant in D's case, from lethal attacks by mentally disordered persons with a prior history of committing homicide whose mental disorder was regarded as untreatable. A gap in the legislation relating to such persons was identified in R v Secretary of State for Scotland, and its practical consequences had been demonstrated by the sheriff's decision in Ruddle's case...."

To broadly similar effect were the observations of Lord Clyde in paragraph [73]:

"...The legislation was aimed not just at the two appellants A and D, but at all those who, like them, had committed crimes of the most serious kind, including in particular homicide, and had a history of mental disorder which might be held to be untreatable. As the law stood these persons would be entitled to be discharged into the society of others giving rise to a potentially serious danger for those who came into contact with them. The risk was an imminent one and if the remedy was to be provided it was necessary to provide it speedily. Furthermore it should be noticed in this context that the new provision is so worded as to impose a fairly high test for a continuation of detention....".

Counsel also referred to the fact that at the time at which the legislation was enacted, it was thought by the Scottish Ministers that only about twelve individuals would be affected by it (cf opinion of Lord President, paragraph 32 in the proceedings in the case in the Inner House).

[22] Counsel for the respondents adopted a different approach. The term "serious harm to the public" was used in other statutory provisions envisaging the protection of the public from suffering harm by reason of criminal actings. In particular, the same phraseology was used as the test for the making of a restriction order in terms of section 59 of the 1995 Act. So, the amendment made by the 1999 Act to the terms of s.64 of the 1984 Act simply married the entry requirement for a section 59 restriction order with an exit requirement of a similar nature. Counsel referred at some length to the reports of the debates in the Scottish Parliament during which the promoting minister informed the legislature that the term "serious harm to the public" was extant in existing legislation in a number of provisions and would thus be readily understood by the judiciary. Counsel thereafter submitted that while the 1999 Act amended only the 1984 Act, the reality was that the pertinent provisions of the amended 1984 Act and the pertinent provisions of the 1995 Act form part of a single legislative collection and so, she submitted, the concept of protection of the public from serious harm should be given a single interpretation and application across the range of those various legislative provisions.

[23] Counsel for the respondents further submitted that the assessment of the need for protection of the public from serious harm was to be made having regard to all the circumstances. It was not necessary that the person concerned had previously committed homicide or another grave crime. That was not a requirement for the making of a restriction order. Nor was the harm envisaged only the commission of such a grave crime. In support of the submission thus summarised, counsel for the respondents referred to R v Birch (1989) 11 Cr.App.R(S) 202; R v Cox [1998] EWCA (Crim) 848; [1999] MHLR 30; and R v Golding [2006] EWCA Crim.1965; [2007] 1 Crim.App.R (S) 79.

[24] In approaching these competing submissions we recognise that the argument advanced by counsel for the respondents and based on the view that where a given phrase or term is used at different places in a body of legislative provisions the term is intended to have the same meaning has at first sight some attraction. There is no doubt an interpretative presumption that where the legislature has used a particular phrase or term in a single statute it was intended to have the same meaning throughout. And while section 64(A1) is contained in the 1984 Act, rather than the 1995 Act, we can see some force in the submission that the inter-mesh of the provisions of ss.58 and 59 of the 1995 Act and the provisions of the 1984 Act renders them something akin to a single statute, although one must yet be wary of an unqualified application of the single statute interpretative presumption. However, in the event, we have come to the conclusion that the argument that the legislature has simply married the entry and exit requirements and that thus the test applied in section 64(A1) of the 1984 Act is exactly the same as that deployed in the making of a restriction order under section 59 of the 1995 Act presents difficulties.

[25] The term, or notion of, "protection of the public from serious harm" is used as the test for, or the gateway to, a number of different measures open to a criminal court. In addition to its use in section 59 of the 1995 Act as the basis for the making of a restriction order, the term is also deployed, for example, as respects the making of a supervised release order under section 209 of that Act or the imposition of an extended sentence under section 210A of that Act. In each of these instances the nature of the measure for which the notion of protection of the public from serious harm is deployed as the gateway is different. The varying consequences for the individual concerned of the measures in question might suggest that the term requires to be viewed with a certain degree of flexibility.

[26] In our view the notion of necessity for the protection of the public from serious harm is itself imprecise or protean. Whether a particular measure is necessary (as opposed to desirable), involves in our view, an appreciation of the nature of the measure. The more restrictive the measure for the liberty of the person concerned, the more one has to test or weigh its necessity. And testing or weighing necessity, we think, has to lead to testing and weighing the counterpart in the overall ponderation, namely the degree of serious harm to the public. Put in other words, satisfaction of the serious harm test cannot be divorced from the protective measure under consideration. The extent of the seriousness of the harm relevant to the making of a restriction order may be different from that relevant for the making of a supervised release order which in turn may be different from that involved in imposing an extended sentence.

[27] In the case of section 64(A1) of the 1984 Act, the measure involved is indefinite, potentially lifelong, preventive detention in a mental hospital of a person whose condition is untreatable. The nature of that measure is such that it must, in the general equation, require significantly serious harm and a serious risk of future commission of a crime of that nature. That was, in our view, the basis upon which the Privy Council was persuaded in A v The Scottish Ministers of the validity of the legislation. We refer to the quotations from the opinions of the members of the Council which have already been set out. As put by Lord Clyde, the legislation was aimed at those who had "committed crimes of the most serious kind, particularly homicide" whose release would give "rise to a potentially very serious danger for those whom came into contact with them". Similarly, in the Inner House, both the Lord President's observation on the compelling public interest in the protection of the public from violent or lethal attacks (paragraph 100 of his Opinion) and also Lady Cosgrove's reference to the State's duty to protect the lives of its citizens and ECHR, article 2 ( paragraph 4 of her Opinion) are further indications of the nature of the risk of serious harm to which the amendments introduced by the 1999 Act were addressed. We would add that it also appears to us that the interpretation and application of the serious harm test must also be viewed from the perspective of the ECHR. The taking of the step of placing an individual in indefinite preventive detention requires a countervailing demonstration of a risk of serious harm of such earnest that it can be said that the step is proportionate. In our view the legislation has to be read and applied with that in mind.

[28] In these circumstances we have arrived at the conclusion that the approach of counsel for the appellant is to be preferred and it is thus necessary for the respondents to demonstrate that the appellant comes within what might be described broadly as the legislative target considered by the members of the Judicial Committee of the Privy Council in A v The Scottish Ministers. Counsel for the appellant did not submit that in order to come within that general target it was necessary that the person concerned had committed homicide or posed the risk of committing homicide; but it was necessary that the person concerned should have been found to have committed an offence of some considerable gravity and pose a risk of committing an offence of that nature. We think she was right to accept that the test might be made good by commission of a very serious crime falling short of homicide, which, when considered with the mental disorder in question, gave rise to a significant risk of future commission of very serious crime.

The importance of the finding of rape

[29] In the appeals under consideration in A v The Scottish Ministers, each of the appellants had been committed to the State Hospital having been convicted of homicide. Thus the index offence in each of those instances in itself demonstrated past capacity to commit heinous crime; and what was envisaged was an assessment, in light of the nature and extent of the mental disorder of the person concerned, of the risk of his committing serious harm in the form of the commission of some other crime, not necessarily identical, but of a like grave nature.

[30] The present case differs in that it is apparent, and we think not disputed, that the index offences - viz the assault and robbery and assault to which we referred in paragraph [2] above - for which the appellant was compulsorily committed to the care of the mental health system did not amount to an offence approaching the character indicated by the target described in A v The Scottish Ministers. Indeed, prior to the emergence of certain allegations by Ms H respecting events during the last absconsion, there was a common view amongst the psychiatrists dealing with the appellant's case that his case was one in which the serious harm test was not satisfied - see agreed minute of understanding of 10 November 2006 (item 19 in the appendix to the appeal).

[31] However the sheriff records in his note (page 53 of the appeal print) that there was a shared view among the psychiatrists giving evidence to him that from their point of view they would regard the serious harm test as being satisfied by the commission of a serious sexual offence. The sheriff immediately thereafter notes that the appellant committed rape. For present purposes, further exploration of the term "serious sexual offence" is unnecessary given the acceptance by counsel for the appellant that a conviction for rape would come within that notion; and that, depending on its circumstances, such a conviction could be an ingredient allowing satisfaction of the serious harm test for the purposes of section 64(A1) of the 1984 Act.

[32] Accordingly, while counsel for the respondents argued, on the basis of applying a wider holistic approach, to the contrary, we consider it correct to say that in the particular circumstances of this case an essential issue was whether it had been properly established that during the period of abscond in the autumn of 2006 the appellant had committed the crime of raping Ms H.

[33] In that respect we find it helpful to quote from the exchange between Dr Thomas White, the last witness in the proof, and the sheriff, which came at the end of the witness's testimony:

BY THE COURT: Essentially as I understand it, Dr White, the crunch in this case is in this allegation of non-consensual sex? - Yes

The absolute crunch as far as I understand it and I will be addressed on this in due course obviously but it is my understanding that [ it is] left with me to determine whether or not the balance of probability is he committed this act of non consensual sex and if it be taken as proved, if I find in fact that he did that, then what would the result for him be? - The result would be that his appeal would be refused and he would continue to be subject to a Compulsion Order and Restriction Order. It's likely that he would initially be managed in the State Hospital. There would be an endeavour to engage him in further group work to strive to achieve the aims which have not been aimed with the group work so far [,]I have to say for my own part with therapeutic pessimism[.] [In] the future he would presumably, the normal process has been move him through lesser conditions of security, his risk to be tested in this environment and then ultimately to be conditionally discharged into the community.

If on the other hand I hold these facts not proved on the balance of probabilities, if no determination is made in that respect, my understanding is that he would simply need to be released? - He would be released and any subsequent care that he receives would be on a voluntary basis.

You say absolute discharge - Yes?

Although I think there are various opinions, that there is a conditional discharge in which case presumably what would have to be a care package and all sort of treatment schemes set up before he could be conditionally discharged? - Yes.

So it comes down to this that if on the evidence I hold this allegation proved on the balance of probabilities he goes back to the State Hospital. If no conclusion is reached on that or I find that it's not proved in effect then he would need to be discharged? - Yes".

That passage no doubt finds some reflection in the third paragraph of the sheriff's note:

"...the crux of this case is the events which took place in September and October 2006 during the second abscond of that year by MB and his then fiancée or girlfriend MH, the history of their successive relationships being narrated in the findings in fact. Since the whole outcome of the case is predicated upon what I have found in fact relating to MB's actings during that period of abscond, I think I should first of all explain how I have come to these findings".

We would add that at the proof neither party took any issue with what had been said by Dr White in that interchange between him and the presiding sheriff although offered the opportunity to do so by the sheriff.

[34] However, before us, counsel for the respondents submitted that the essential question for the sheriff was not whether the appellant had committed the crime of raping Ms H while on abscond. Rather, the question which the sheriff had to determine was whether, viewing matters in what might be described as an "holistic" way, it had been shown that by reason of his mental condition the detention of the appellant was necessary for the protection of the public from serious harm.

[35] We accept that submission to the extent that the ultimate, overarching matter or fact which the Scottish Ministers required to establish was that the appellant suffered from a mental disorder and that there were grounds upon which his indefinite detention was required for the protection of the public from serious harm. However, in the particular and peculiar circumstances of this case it appears to us to be plain that establishing that the appellant had committed a serious sexual offence by raping Ms H became a clear and crucial factum probandum in that overall exercise. Thus we agree with counsel for the appellant that finding in fact 43 was an essential factual finding, central to the sheriff's decision.

Standard of proof

[36] On the basis, with which we agree, that establishing the appellant had committed the crime of rape was a crucial matter in the case, the next question raised in this appeal is the standard of proof applicable to that issue.

[37] It appears that at the proof both parties were agreed that the standard of proof was balance of probability. However before us counsel for the appellant submitted that because of the gravity of the allegations and the consequences for the appellant the sheriff ought to have applied the criminal standard of proof beyond reasonable doubt. She further submitted that esto the civil standard of balance of probabilities fell to be applied, it was necessary to examine the evidence with particular rigour.

[38] For her part, counsel for Scottish Ministers submitted that there was no authority for the view that the criminal standard of proof applied in applications to the sheriff such as this. The procedure was unquestionably civil. The Scottish Parliament had been advised that the proof on the balance of probabilities would apply in such applications. Nor was it necessary, in her submission, to apply the criminal standard, since the civil standard retained within it sufficient flexibility to reflect the gravity of the allegation and its consequences.

[39] Counsel reviewed extensively the authorities in both Scotland and in England and Wales on this issue. In particular we were referred to: in England, In Re D [2008] 1 WLR 1499; In Re B [2009] 1 AC 11; R (on the application of AN) v Mental Health Review Tribunal (Northern Region) [2006] QB 468; R (McCann) v Crown Court at Manchester [2003] 1 AC 787; and, in Scotland: Mullan v Anderson 1993 SLT 835; Gribben v Gribben 1976 SLT 266; Byrne v Ross 1993 SLT 307; 1st Indian Cavalry Club Ltd v HM Commissioners for Customs & Excise 1998 SC 126; Scottish Daily Record & Sunday Mail Ltd v Thomson 2009 JC 175; Wilson, Petitioner 2008 SLT 753.

[40] It is no doubt the case, as counsel for the appellant pointed out, that in some proceedings, although technically civil proceedings, the criminal standard of proof may be applied. Thus, the criminal standard obtains in proceedings for breach of interdict - see Gribben v Gribben; Byrne v Ross. It also applies in proceedings for contempt of court - see Scottish Daily Record & Sunday Mail Ltd v Thomson. Such proceedings have as their object the imposition of a punishment and thus we consider that the application of the criminal standard is understandable. However, an application to the sheriff under section 64 of the 1984 Act is not punitive. Insofar as the sheriff may decline to order the applicant's discharge in circumstances such as the present, the proceedings may be seen as protective or preventive. None of the authorities to which we were referred supports the view that in such proceedings the criminal standard falls to be applied. Nor, in our view, does the making in civil proceedings of an averment of criminal conduct result in the criminal standard being applied to proof of that averment. Accordingly we reject the contention advanced on behalf of the appellant that the criminal standard of proof applied in the proceedings generally, or that in the making of finding in fact 43 the sheriff ought to have applied the criminal standard of proof beyond reasonable doubt.

[41] As respects the alternative contention for the appellant, it is no doubt true that at one time, at least in England and Wales, there was debate whether there might be an intermediate standard of proof somewhere between proof beyond reasonable doubt and balance of probabilities. In R (McCann) v Crown Court at Manchester reference is made by Lord Steyn and Lord Hope to "a heightened civil standard". In 1st Indian Cavalry Club Ltd v HM Commissioners of Customs & Excise, Lord Johnson observed at p.133E:

"The central starting point in this matter is to recognise that within the law of Scotland there are only two standards of proof to apply in civil and criminal proceedings, namely the balance of probabilities and beyond reasonable doubt respectively and there is no room for any suggestion that some form of intermediate standard between those two applies in certain circumstances. Whatever, therefore, may be the context of so called quasi criminal or penal proceedings, the standard to be applied must be one of these two. I am not satisfied that certain dicta in the English cases presented to us would suggest that the law of England is any different. Insofar as there are references to probabilities, I consider them to be dealing with the weight and quality of evidence which might be required in a certain context rather than defining the relevant standard of proof to be applied. The same can be said of certain observations in Mullan v Anderson. As to the evidence that might be required to reach a conclusion upon a standard of balance of probabilities in any particular case must depend upon the circumstances of that case and its subject matter, and I do not find it helpful to seek to define the matter any further".

It also appears to us that, if it ever properly existed, the notion of an intermediate standard has also been put to rest in English law - see In Re B; and In Re D per Lord Carswell, paragraph 23. At paragraph 27 of his speech in the case of In Re D, Lord Carswell sets out this passage from paragraph 62 of the judgment of Richards LJ in R (McCann) v Crown Court at Manchester:

"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious consequence if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus, the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities".

Lord Carswell then continues:

"In my opinion this paragraph effectively states in concise terms the proper state of the law on this topic. I would add one small qualification, which may be no more than an explanation of what Richards LJ meant about the seriousness of the consequences. That factor is relevant to the likelihood or unlikelihood of the allegation being founded as I explained below.

28. It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standards. The standard itself is, however, finite and unvarying. Situations which may make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffman's example of the animal seen in Regent's Park) the seriousness of the allegation to be proved, or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition...."

[42] On our reading of what Lord Carswell has to say, the view which he expresses appears to be in general harmony with the view expressed by Lord Johnson. Where an allegation of criminal conduct is made in civil proceedings, the standard of proof is the balance of probabilities; but the nature of the allegation may be such as to call for evidence of quality and weight and for that evidence to be carefully examined and scrutinised in the course of the forensic process.

The evidence and the sheriff's assessment of it

[43] We turn now to the evidence tendered by the respondents to establish which was, or came to be, the crucial question, whether the appellant had committed rape of Ms H. As we have already mentioned, there was no attempt by the respondents to articulate the allegation in their pleadings or to supply any specification or detail. The matter was introduced in the examination in chief of Ms H in this passage:

"Can I ask you during this period [scil. the autumn 2006 abscond] whether you were still in a sexual relationship with Mr [B]? - I don't really want to talk about it.

SHERIFF MILLER: Do you wish to pursue that Mr Smith?

MR SMITH: I wonder if I may.

BY THE COURT: Ms [H] you have to answer these questions which are put to you by Mr Smith, would you please do so? - Sorry?

You have to answer these questions which are put to you by Mr Smith, will you please do so and any questions that are put by Mr Smith, if I feel the questions are not appropriate I will stop them? - OK.

EXAMINATION CONTINUED: I am sorry Ms [H], I am not going to proceed with this in any great detail, just two or three brief questions. First of all, were you having a sexual relationship with Mr [B] at September? - I wouldn't say it was a sexual relationship, we didn't both want to.

Were you not a willing partner? - No.

Did he ever have sex with you without your consent during this period? - Yes

Was any force involved? - Yes

BY THE COURT: Would you like to have a break Ms [H]? - Yes

Very well, just go with the nurse, or carer and indicate when you are able to return".

The examiner, Mr Smith, did not return to the matter at any other point in his examination of the witness.

[44] The matter was treated equally tersely in the cross examination of Ms H. The cross- examiner elicited that between December 2005 and April 2006 the appellant and Ms H had had sexual relations on a number of occasions in each of their rooms in Ailsa Hospital. On being asked, in effect, whether the sexual relationship continued during the abscond in the autumn of 2006, Ms H replied:

"- I didn't really want to, I didn't want to have a sexual relationship because of his moods, because I couldn't do anything right, everything I did was wrong, everything I said was wrong, I couldn't move from room to room".

In a further passage (page 39-40):

"And according to you he force fed you drugs? - Yes.

And having sex with you against your will? - Yes.

On numerous occasions? - Not numerous occasions, the drugs was numerous occasions, the sex wasn't.

So was sex ever consensual with you? - No.

You never had sex with him willingly? - No".

The witness was later cross- examined in respect of a prior inconsistent police statement. The claimed inconsistencies were as respects the number of occasions upon which the witness had said that sexual intercourse took place at Ailsa Hospital and a passage capable of being construed as stating that on occasions during the autumn 2006 abscond she had had sexual intercourse with the appellant on a completely willing basis. A further line of cross examination pursued by the cross examiner concerned a series of letters or cards which had been written by the witness to the appellant subsequent to their having been respectively returned to hospital after the abscond. Those letters and cards were in very affectionate terms. There was no re-examination by Mr Smith.

[45] It is thus apparent that the respondents did not seek to present any detail at all of the alleged rapes. Quite apart from the fact that they had not troubled to articulate matters in the pleadings, there was no evidence led of any specific incident of rape; there was no indication of any particular location or locations; there was no exploration of any particular circumstances in which the appellant was said to have procured sexual intercourse without Ms H's consent; and there was no exploration of the means whereby it might be said that the appellant knew of the absence of consent, or was reckless as to its existence. It may be added that when the appellant came to give evidence his cross-examination was conducted in a similar, terse or frugal manner and he denied the generalised, inspecific allegation that he had had sexual relationships with Ms H without her consent.

[46] While recognising and accepting the well known constraints on the ability of an appeal court to interfere with findings in fact made by a court of first instance, counsel for the appellant submitted a number of criticisms of the sheriff's assessment of the evidence, particularly in so far as bearing upon the finding of rape which he made in finding in fact 43. One of the submissions in that chapter of counsel's argument centred on this paucity of detail in the evidence presented on what was a crucial matter. Counsel referred in this connection to the opinion delivered by Lord Hamilton in Hamilton v Allied Domecq plc 2006 SC 221 at paragraphs [84], [85] and, particularly [88], the final sentence of which, concerning the evidence of a crucial witness as to a crucial finding in fact, reads:

"However the vagueness of [the witness's] evidence about the place and date of the critical meeting called, in my view, for a particularly careful scrutiny, and reasoned analysis, of his testimony about the content of what was said at it".

Counsel submitted, in summary, that the vagueness and complete lack of detail in the evidence led from Ms H concerning the allegation of rape called for very careful consideration by the sheriff and raised serious issues as to the reliability of the evidence. But, she said, the sheriff had not addressed these matters.

[47] We have come to the conclusion that there is force in this submission. While accepting that Ms H impressed the sheriff favourably as a generally credible witness, the allegation that the appellant repeatedly committed rape was an allegation of the repeated commission of the serious offence, for which correspondingly focused, reliable and detailed evidence was necessary. That need was underscored by the central role which the finding of rape played in the sheriff's ultimate finding that the serious harm test was met and by the consequences for the appellant of that finding. The terse or perfunctory manner of the leading of the evidence on this issue and the absence of any evidential detail entailed that there was no real means whereby the sheriff could test the reliability of the generalised assertion, or, particularly, means whereby he could test whether all the ingredients necessary for the constitution of the crime of rape were properly present.

[48] The absence of any detailed evidence on this crucial matter also underlay a further criticism of the sheriff's decision advanced by counsel for the appellant to the effect that the sheriff had not addressed himself properly to whether the respondents had properly demonstrated that, on the occasions which sexual intercourse was alleged to have taken place without the consent of Ms H, the appellant had the necessary mens rea for the commission of that crime. The only passage wherein the sheriff came some way to considering that important question was in the passage in the section entitled "conclusions" in his note (pages 53-54 of the appeal print) in which the sheriff says:

"It seems to be a matter of agreement among all the psychiatrists who gave evidence that for their purposes they would regard the test [serious harm test] as being satisfied in this aspect by those who had committed serious sexual offences.

[The appellant], according to our current law, carried out the crime of rape upon MH in that he proceeded against her will to have sexual intercourse with her. It is not necessary that that be accompanied by violence or substantial violence as the law now stands. He overcame her by controlling her, by detaining her, by plying her with drugs, by striking her, by holding her by the throat and throwing her down and by dominating her in their relationship. He is a person who himself professes that he likes to control people and is prepared to do so if necessary by the carrying and use of weapons. This form of rape is an extension of his violent and domineering character particularly towards women with whom he associates, particularly when he or she or indeed both of them have taken drugs and more particularly where the recipient of his attentions is a vulnerable person".

Counsel pointed out, in short, that the narration of the commission of acts of assault are not - and cannot be - associated with the findings of rape since there is no evidence to link them to any act of sexual intercourse. Moreover finding in fact 43 does not purport to find rape effected by violent means. The same could be said respecting the evidence of the appellant's having plied the complainer with heroin. Nor was there any evidence of detention which was linked in the evidence to any act of sexual intercourse.

[49] Again, we have to say that we find much force in this submission on behalf of the appellant. The sheriff does not express matters other than as some inspecific generality. Given the presentation of the evidence on behalf of the respondents, it is no doubt the case that he had little choice to do otherwise. But in our view, a conclusion that the appellant was a domineering person and that in some respects he had abused Ms H in their volatile and ambivalent relationship cannot substitute for proper consideration whether the appellant had truly committed the serious crime of rape, that consideration necessarily involving a proper consideration of mens rea on the particular occasion or occasions of sexual intercourse.

[50] In these circumstances we have come to the conclusion that the sheriff's finding in fact 43 cannot be supported. While we agree that it was, of course, right for the sheriff in considering the serious harm test to have regard to the whole circumstances, nonetheless given the importance and centrality of finding in fact 43 in the sheriff's reasoning - which as already indicated reflected the psychiatric evidence - it follows that in principle the appeal should be allowed. Given that centrality, we reject the argument advanced by counsel for the respondents that, even if finding in fact 43 were to be removed, there was yet sufficient to justify the sheriff's decision and that we should uphold it upon that alternative basis.

[51] Apart from the central challenge to finding in fact 43, counsel for the appellant also questioned other of the findings in fact made by the sheriff. Counsel for the respondents was prepared - on what might be described as a "non-admission" of clear actual error - to consent to a number of these with a view to advancing matters. The court is appreciative of that helpful approach and we shall record those agreed amendments. In the event of our rejecting finding in fact 43 the other disputed alterations to the findings in fact were only lightly argued by counsel for the appellant and, as we understood her ultimate position, were of no great materiality. In these circumstances, and having regard to the terms of section 32(4) of the Court of Session Act 1988, we propose to incorporate into our interlocutor by reference to an appendix to that interlocutor, the sheriff's findings in fact amended as agreed or conceded and under deletion of finding in fact 43.

[52] There remains the question of the appropriate disposal of this appeal in the light of our decision on its merits and our discussion of its continuing competency. We think that in practical and procedural terms what we might do would be to recall that part of the sheriff's interlocutor of 5 April 2007 which - "finds in fact in law that the Applicant being a restricted patient subject to a Restriction Order is suffering from a mental disorder, the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital whether for medical treatment or not; Accordingly Dismisses the application; Repels the pleas-in-law for the Applicant and Sustains plea-in-law one for the Respondents subject to amendment of 'Section 64(1)(a)' to 'Section 64(A1)';". There was no suggestion of any issue arising concerning the sheriff's certification of the cause as suitable for the employment of junior counsel nor, we apprehend, any question as to his finding of no expenses due to or by either party. We would therefore propose that that part of the interlocutor stand. We would then, for textual completeness, allow of new the amendment of the respondents' first plea by substituting for "section 64(1)(A)" the words "section 64(A1)" and thereafter affirm the sheriff's findings in fact subject to the deletion of finding in fact 43 and the other alterations to which we have just referred by reference to the proposed appendix to the interlocutor. The ultimate disposal would be dismissal of the summary application on the basis that its necessity had been superseded by absence of vires to order the discharge of the appellant.

[53] But in view of these procedural complexities, we think it appropriate to put the case out By Order to allow parties an opportunity for a consideration of the terms of the interlocutor which we should pronounce.