NOTE OF APPEAL AGAINST CONVICTION BY SCOTT HENRY SNEDDON MACKAY AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 44
HCA/2016/493/XC
Lord Justice General
Lord Malcolm
Lord Woolman
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
SCOTT HENRY SNEDDON MACKAY
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: MacCall QC, Markie; Paterson Bell (for Black & Markie, Dunfermline)
Respondent: Edwards QC AD; the Crown Agent
20 June 2017
General
[1] On 27 April 2106, at Dunfermline Sheriff Court, the appellant was found guilty of two charges. The first libelled that, on 20 September 2015 at Queensferry Road, Rosyth, he behaved in a threatening or abusive manner, which was likely to cause a reasonable person to suffer fear or alarm in that he did, during the course of a telephone call to a call handler employed by the police, repeatedly swear, state that he was armed with a machete and utter threats of violence and death towards Muslims; contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The second was a contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 by having the machete with him in circumstances which were aggravated by religious prejudice. The appellant had pled guilty to another charge, involving the possession of flares and pyrotechnics contrary to sections 5 and 39 of the Explosives Act 1875, at the end of the Crown case.
[2] On 7 September 2016, the sheriff imposed a Community Payback Order involving three years supervision, conditions that the appellant obtain mental health treatment and abstain from alcohol and a twelve month Restriction of Liberty Order covering the hours between 7.00pm and 7.00am.
Evidence
[3] The appellant is a serving solider who has undertaken tours of duty in Afghanistan He has a history of mental health issues. There was no dispute that he had made a 999 call to the emergency services stating that he was a short distance away from Sizzlers Tandoori take-away shop in Rosyth. He said that he intended to behead the shop workers, whom he perceived to be Muslim, with a machete which he had with him. He stated that he had made the call in the hope that the police might intervene and stop him. He mentioned his psychiatric background and that he was regarded as dangerous. He described what he planned to do as a “murderous crime” and “mass murder”. The call ended when the appellant observed a police car drawing up alongside. He recognised that the police had arrived because of his conduct. He had disposed of the machete, but it was recovered nearby.
[4] The appellant had lodged a special defence of insanity in common law terms. This was repeated in his defence statement. However, the trial proceeded on the basis that, in terms of section 51A of the Criminal Procedure (Scotland) Act 1995, the nature of the defence is now that:
“(1) A person is not criminally responsible ... if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct”.
[5] It was not disputed that the appellant did suffer from a mental disorder, although there was an issue about its extent. The Crown called two psychiatrists, each of whom said that the appellant had post-traumatic stress and delusional disorders. The latter was that he believed that there was a Taliban cell based in Sizzlers. The psychiatrist called by the defence agreed. She also expressed the opinion that the appellant was psychotic. All the psychiatrists agreed that the appellant had appreciated the nature of his conduct. The Crown psychiatrists considered that he had at least some idea that what he was planning to do was wrong. The defence psychiatrist considered that he had not been able to determine that it was wrong.
[6] Looking at the matter in more detail, the first of the Crown psychiatrists considered that the appellant had been able to appreciate the wrongfulness of his actions. She noted that, prior to the incident, the appellant had consumed in excess of a bottle of vodka. He had called the police, partly because he thought that he might need assistance in carrying out the act, but also because he wanted the police to stop him. He had waited for the police, having put down the machete. Despite holding delusional beliefs, the appellant had known that his generalisations about Muslims had been wrong and that, had he carried out the attack, it would have been unlawful and would have had wide-ranging repercussions for the potential victims, their families, the local community and others. His act in contacting the police indicated that he knew that his threatened actions would be wrong.
[7] The second Crown psychiatrist gave evidence supportive of the first psychiatrist. She said that the appellant did have some understanding of the wrongfulness of his actions. He had acknowledged in the call that what he was planning to do was wrong and that he needed help. He had sought that help. Alcohol may have played a part in his behaviour. Whilst the appellant’s appreciation of the wrongfulness of his actions may have been impaired, it was not completely absent.
[8] The appellant did not give evidence.
[9] The defence psychiatrist observed that the appellant had contacted the police partly because he had been aware that what he was planning to do was wrong, and partly because he might need extra help to deal with the supposed terrorists. She noted the appellant’s alcohol consumption. She explained to the sheriff that psychiatrists were struggling with the new phrase, viz: “wrongfulness of the conduct”. When the sheriff read over his proposed directions to the jury to her, she confirmed her opinion that the appellant had been unable to appreciate the wrongfulness of the conduct to any extent.
Charge
[10] The sheriff, who largely followed the recommendations in the Jury Manual, directed the jury that, for the appellant to establish his special defence, he required to prove that, at the time of the conduct, he was:
“unable by reason of mental disorder to appreciate the wrongfulness of that conduct”.
He continued by stating that the following requirements had to be met:
“First of all the accused must have been suffering from a mental disorder ... and secondly, that as a result of that mental disorder at the time of the alleged criminal conduct in the charge the accused is unable to appreciate the nature or wrongfulness of that conduct”.
He went on to say that, although they may have little difficulty in finding that the appellant had a mental disorder, the question was whether he had been “unable to appreciate the nature or wrongfulness of that conduct”.
[11] After a short adjournment for technical reasons, the sheriff resumed, as follows:
“...the requirements for the special defence are firstly that the accused must have been suffering from a mental disorder ... and secondly, that he as a result of the mental disorder at the time of the alleged criminal conduct the accused is unable to appreciate the nature or wrongfulness of that conduct ...
If not withstanding a mental disorder the accused was able to any extent to appreciate the nature and wrongfulness of the conduct which constitutes a charge that falls short of the degree of loss of reason required to establish the special defence. The key is the inability to appreciate the nature of the wrongfulness of the conduct by reason of mental illness ... or that it was wrong ... (emphasis added)
Whether the accused was at the time of the alleged offence unable by reason of mental disorder to appreciate the nature and wrongfulness of that alleged conduct, it is a question of fact you have to decide ...” (emphasis added).
[12] The sheriff went on to describe the role of the expert witness and, in that context, he said:
“And you may think that the critical question which they can assist you upon is the question of whether he had any awareness of the nature of his actions or the wrongfulness of those actions ... (emphasis added)
It is for you to accept whether if this was all part of a delusion and that he didn’t recognise that what he was doing was wrong would he have told the call handler about the Taliban?” (emphasis added).
[13] The sheriff summarised the matter thus:
“So in the end of the day the question comes down to this, have the defence proved on a balance of probabilities at the time the crime was committed the accused was suffering from a mental disorder ... which resulted in his being unable by reason of that mental disorder to appreciate the nature or wrongfulness of the alleged conduct. The decision however in the end of the day is yours and yours alone.
So if the special defence has been established I have to direct you to find that the accused was at the time ... unable by reason of mental disorder to appreciate the nature and wrongfulness of the conduct and therefore the accused would be acquitted on the grounds of suffering from mental disorder at the time” (emphasis added).
In his report to the court, the sheriff explained that, in his view, the terms of section 51A do not “impinge on the previous common law test” set in Cardle v Mulrainey 1992 SCCR 658. If a wider test had been envisaged, he reasoned, the word “unable” would not have been used.
Grounds of Appeal and Submissions
[14] The grounds of appeal insisted upon were that the sheriff had misdirected the jury, first, by using the words “to any extent” in relation to the nature or wrongfulness of the conduct. This had defined the defence too narrowly. The amending legislation, which had introduced section 51A of the 1995 Act, had replaced the common law defence of insanity with a “cognitive concept of appreciation of conduct”. This involved something wider than knowledge and included a requirement for a level of rational understanding (Scottish Law Commission Report (2004 No. 195): Insanity and Diminished Responsibility, paras 2.42-51). It was no longer the law that awareness of conduct being wrong to any extent negated the defence. The concept of “total alienation of reason”, which had been developed in Brennan v HM Advocate 1977 JC 38, Ross v HM Advocate 1991 JC 210, and Cardle v Mulrainey (supra) from Hume: Commentaries (4th ed i.37), was no longer applicable. What was required was similar to directions in HM Advocate v Kidd 1960 JC 61 (Lord Strachan at 70-71) in which only “some alienation” of reason was regarded as sufficient to establish the defence.
[15] Secondly, the sheriff had erred in failing to define the “nature and wrongfulness of the conduct” by reference to the wider application of the defence. The statutory test had been intended to permit the defence to operate, even where there was knowledge or awareness both that something was legally and morally wrong in the general sense, if, in relation to the particular conduct, the accused did not “properly” appreciate that what he was doing was wrong. The sheriff ought to have explained the wider meaning of “appreciate” by either defining it in other language or by giving examples, such as those used by the SLC (supra).
[16] The Revised Explanatory Notes to the Bill had made it clear (para 695) that the intention of the new section was to provide that the defence would be made out if the mental disorder had resulted in a lack of appreciation of either the nature of the conduct or its wrongfulness. The defence would be available where the accused had known that his conduct was in breach of legal or moral norms, but believed that he was “nonetheless right to do what he did”. At the Justice Committee’s Stage 2 consideration of the Bill on 4 May 2010, a query had been raised (col 3100) about whether the section had properly defined the defence as had been intended, given the absence of any volitional element. An amendment was proposed, whereby the defence could be expressly available where a person had appreciated the nature and wrongfulness of the act, but had nevertheless been unable to control his or her actions because of the mental disorder. The Cabinet Secretary for Justice had explained (col 3103) that the “wider cognitive criterion of appreciation would cover any relevant volitional failing”. The amendment was withdrawn upon that basis.
[17] The Jury Manual was open to criticism. The discussion about the new law had made no mention of the SLC Report (supra). The new recommended directions (p 22.3) were inadequate. They had been used, although not entirely, by the sheriff. They suggested that the jury should be told that, if an accused was able “to any extent to appreciate the nature or wrongfulness of the conduct”, the defence would fall short of the “loss of reason” required. The key was “the inability to appreciate the nature of (sic) the wrongfulness”. The Manual continued by stating that, whether the accused appreciated “the nature and (sic) wrongfulness”, was a matter of fact for the jury to decide (emphases added).
[18] Thirdly, the use by the sheriff of the conjunctive “nature and wrongfulness” constituted a misdirection, even if the sheriff did rehearse the correct definition at other points in his charge. His directions were apt to confuse. The same applied to his use of words such as “awareness” and “recognise”. These did not assist in explaining that what was required was a rational understanding of the wrongfulness of the conduct. The use of these words and the conjunctive might not in themselves have led to a miscarriage of justice, but they were illustrative of the difficulty which the jury would have had.
[19] It was originally submitted that the court should quash the conviction and substitute a verdict of acquittal by reason of a lack of criminal responsibility. This would have led to a disposal in terms of section 57(2) of the Criminal Procedure (Scotland) Act 1995 (ie a hospital order). However, it was accepted, in the course of the appeal hearing, that, standing the conflict in the psychiatric evidence, this would not be possible in terms of section 118(5) of the 1995 Act. The only course would be to quash the conviction; leaving it to the Crown to seek a retrial if so advised.
[20] The advocate depute maintained that the directions given by the sheriff, which were largely those set out in the Jury Manual, directly reflected the wording of the section. The SLC report (supra) had sought to make a distinction between the concept of knowledge and that of appreciation. The reformulation of the test had resulted in a more focused and precise approach, but not a reduction in standard. The reformulation was intended to bring the test within current medical thinking and to assist psychiatrists in giving evidence. It was no longer the law that awareness to any extent of the wrongfulness of conduct would result in the defence inevitably failing. However, awareness was not the test. The sheriff had not generally used that word, but “appreciation”. His directions were entirely consistent with the terms of the test and the intention of Parliament.
[21] It had not been necessary for the sheriff to define either nature or wrongfulness. The ordinary construction and common usage of these words was sufficient. The sheriff had not misdirected the jury. The errors in the use of the conjunctive were “lapsus linguae”, when the charge was read as a whole. The defence had proceeded on the basis that the appellant had appreciated the nature of his conduct, but not its wrongfulness.
Decision
[22] The extent to which it is necessary to analyse the common law is doubtful. The defence is now on a statutory footing and, in the absence of ambiguity, the words of the statute will alone instruct any determination of the modern law (see infra). In deference to the submissions, however, it may be worth delving into history at least some distance in order to see how far, if at all, the defence has changed.
[23] Insanity as a defence at common law required:
“absolute alienation of reason – such a disease as deprives the patient of the knowledge of the true aspect and position of things about him, hinders him from distinguishing friend or foe, and gives him up to the impulse of his own distempered fancy” (Hume: Commentaries (4th ed) i. 37; cf “utter alienation” at 42; ccf MacKenzie: Matters Criminal (2nd ed) 1.8a “absolute” furiosity).
Hume’s view was adopted in Brennan v HM Advocate 1977 JC 38 (LJG (Emslie), delivering the Opinion of the Full Bench, at 43) in which it was stressed that Hume was talking about absolute alienation of reason, not as a generality but in relation to the act charged (ibid). The law as stated by Hume had never been questioned. Rather it had “constantly been accepted and applied” (ibid at 44). Reference was made in Brennan, with approval, to Lord Strachan’s charge in HM Advocate v Kidd 1960 JC 61, albeit that Lord Strachan saw no need to qualify “alienation” with “absolute”. Macdonald (Criminal Law 5th ed at 9) referred to alienation of reason “such as misleads the judgment”. It had to be substantial (ibid at 10), but that was all. That “total” alienation was required was, however, repeated in Ross v HM Advocate 1991 JC 210 (LJG (Hope) at 218) and Cardle v Mulrainey 1992 SCCR 658 (LJG (Hope), delivering the Opinion of the Court, at 668-669). In Cardle, it was said (ibid) that if an accused:
“knew what he was doing and was aware of the nature and quality of his acts and that what he was doing was wrong, he cannot be said to be suffering from the total alienation of reason in regard to the crime”.
[24] Section 51A of the Criminal Procedure (Scotland) Act 1995, which was introduced by section 168 of the Criminal Justice and Licensing (Scotland) Act 2010, was a carefully considered piece of legislation. It followed the recommendations of the Scottish Law Commission (Report no 195 (2004)) on Insanity and Diminished Responsibility. The words, which were chosen to circumscribe the new defence of lack of criminal responsibility, were specially selected. They express the defence in quite different language from the common law concept of insanity. They make no mention of alienation of reason, whether substantial, total or absolute. They refer to the person being “unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct”. This is entirely new phraseology. Unless the SLC were merely trying to update Hume’s phraseology, which is at least a possible view of what was intended (Report at para 2.48), this fact alone must lead to an inevitable conclusion that, whatever the words may mean, they were, contrary to the sheriff’s view, intended to describe something different from insanity at common law as it had come to be restrictively defined in Ross v HM Advocate (supra) and Cardle v Mulrainey (supra).
[25] The task of the court is to search for the meaning of the words used; otherwise described as ascertaining the intention of Parliament expressed in the statutory language in the particular context (MacMillan v T Leith Developments 2017 SLT 415, LP (Carloway) at para [54] citing R (Spath Holme) v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 349, Lord Nicholls at 396-397 citing in turn Black-Clawson International v Papierwerke Waldhof-Aschaffenburg [1975] AC 591, Lord Reid at 613). Although the courts may employ certain accepted canons of construction, “an appropriate starting point is that language is to be taken to bear its ordinary meaning in the general context of the statute” (ibid Lord Nicholls at 397). It is only where there is an apparent ambiguity in the wording that reference can be had to aids to construction; some internal, some external, to the statute.
[26] The words in the section, notably “appreciate” and “wrongfulness”, do not pose any difficulty in interpretation. They are words in common usage. They mean what they mean in ordinary English. It is important, therefore, for the court not to put a spin or gloss on such words by using different words to explain, and thus potentially to distort, their plain meaning. This is especially so when directing a jury. Where Parliament has defined the defence in specific, but ordinary, language, the directions must take care to reflect that definition. It follows that the sheriff’s directions, and the Jury Manual, are correct in so far as they employ the statutory language.
[27] In the course of submissions, much was made of the terms of the Scottish Law Commission’s Report (supra); especially the discussion about the difference between knowledge, in the analysis of insanity in Cardle v Mulrainey 1992 SCCR 658 (at 668-669), and appreciation, as proposed by the SLC under reference (at para 2.46) to R v Porter (1936) 55 CLR 182 (Dixon J at 189-190) and (at para 2.47) the American Law Institute’s Model Penal Code (1985 draft s 4.01(1)), and R v Barnier (1980) 109 DLR (3d) 257. Appreciation was described as a wider concept than that of knowing, and involved a level of “rational understanding”. That is no doubt so and there may be benefit in directing a jury accordingly, even if it was not, in this case, necessary to do so, given the ordinary meaning of “appreciate”.
[28] It is important to look at the sheriff’s charge as a whole and not to scrutinise words in isolation. The overall thrust of the sheriff’s directions reflected the statutory wording. The jury would have been clear that they had to decide whether the appellant’s mental disorder resulted in him being unable to appreciate the wrongfulness of his conduct (it not being disputed that he did appreciate its nature). This is not a complex issue when expressed in these terms. Although it would have been preferable for the sheriff to have omitted the words “to any extent” as qualifying “appreciate”, since they are not contained in the section, any distortion of the true meaning of the defence would have been minimal in the context of the charge as a whole. The sheriff’s summary of the matter (supra) put the matter clearly, succinctly and accurately.
[29] Similar considerations apply to the other criticisms directed to the sheriff’s use of particular words such as “awareness”. His use of “recognise”, which falls within the common meaning of “appreciate”, is unexceptionable. The sheriff’s use of the conjunctive “and” as distinct from “or” was correct in their contexts and did not detract from the disjunctive nature of the statutory test. The use of the phrase “nature of the wrongfulness”, which is lifted from the Jury Manual, may have been an error, but it is not inaccurate where only appreciation of wrongfulness is in issue.
[30] For these reasons this appeal is refused. However, it may be helpful if some further guidance was given on an appropriate direction in a case such as this. Any charge should always be tailored to the particular circumstances of the case. In many cases the following would be an acceptable, although not the only acceptable, form of charge:
“A person is not to be found criminally responsible if, at the time, and because of a mental disorder, he was unable to appreciate the nature or wrongfulness of his conduct. That is the statutory test. It has two parts. First, there is the requirement that the person was suffering from a mental disorder at the time. You will have to consider all the evidence, including that of the psychiatrists on that matter. If you are satisfied that he was suffering from such a disorder, you require to consider, secondly, whether, because of that disorder he was unable to appreciate the nature or wrongfulness of his actions. The words of the statutory test speak for themselves. However, it may be of assistance if I explain that the phrase ‘appreciate the nature or wrongfulness of his conduct’ is not limited to a lack of knowledge of these matters. It can also cover an inability to conduct oneself in accordance with a rational and normal understanding of them. Bear in mind that this lack of reasoning must be caused by the mental disorder, and not some other factor, such as the voluntary consumption of an excessive amount of alcohol.
Personal responsibility for our actions is the norm. This is because we are all presumed to enjoy functioning reasoning faculties and a normal understanding of the world around us and how we should behave. But if the accused’s conduct is attributable to a mental disorder which deprived him of that kind of appreciation of the nature of what he did, or of its wrongfulness, or indeed both, that presumption is displaced, and our law says that he is not to be convicted of an offence arising out of that conduct.”