APPEAL COURT, HIGH COURT OF JUSTICIARY
 HCJAC 150
Appeal No: XC387/10
OPINION OF THE COURT
delivered by LADY PATON
REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in the case of
ALEXANDER LEWIS HUTCHISON REID
HER MAJESTY'S ADVOCATE
Appellant: Gilchrist, QC, Richardson; Paterson Bell (for McKennas Law Practice, Glenrothes)
Respondent: Brown QC, advocate depute; Crown Agent
27 November 2012
Fresh evidence appeal against sentence
 The appellant has been detained in Carstairs State Hospital since 1967 in terms of a hospital order and a restriction order (currently a compulsion order and a restriction order). However he contends that he does not suffer from, and never has suffered from, a mental disorder, and thus that the imposition of the orders in 1967 amounted to a miscarriage of justice. He seeks to have the orders quashed, and a discretionary life sentence of imprisonment substituted.
Circumstances of the appellant's offence in 1967
 In June 2010 the Scottish Criminal Cases Review Commission (SCCRC) referred the appellant's case to the High Court in the circumstances set out in paragraph  below. In their Statement of Reasons, the SCCRC summarise the circumstances of the appellant's offence as follows:
"4. On 8 September 1967, the [appellant] pled guilty to charge 4(a) of an indictment in the following terms:
' ... the charges against you are that you did (1) on 9th January 1967, break into the premises occupied by Bashir Ahmed at 127 Firhill Street, Glasgow, and there steal 6,000 cigarettes, a quantity of confectionery and £20 of money; (2) on 6th March 1967, in the common court at 616 Maryhill Road, Glasgow, assault Frank Ward, aged 6 years, 604 Maryhill Road aforesaid, and did seize him by the neck, compress his throat, strike his head against a wall and strike him on the face and head with your fists to his injury; (3) on 26th or 27th May 1967, in the premises occupied by Alexandra Transport Company Limited at Wilderness Sand Quarry, Balmuildy Road, Bishopbriggs, Lanarkshire, force open a lockfast cabinet and steal therefrom a low-bow and a knife; and (4) on 26th or 27th May 1967, in the house occupied by Gerald Brian McCabe at 20 Norfolk Crescent, Bishopbriggs aforesaid, (a) assault Angela Maria Pisacane or McCabe, residing there, and did stab her with a knife and kill her; and (b) steal a pair of scissors, a holder, driving licence, photographs, miscellaneous papers and a purse containing £15 of money."
5. His pleas of not guilty on charges 1, 2, 3, and 4(b) were accepted by the Crown ...
8. The following is based upon the papers available from the National Archives of Scotland and the various summaries of the case provided in the House of Lords' and appeal court decisions in the [appellant's] case.
9. The deceased, Angela McCabe, was found dead in her home at 3.30 am on 27 May 1967 by her husband when he returned from work. The couple's week-old daughter was found unharmed in another room. The deceased's jersey had been pulled up over her breasts, her skirt and clothes were ripped aside to reveal her pubis and a sanitary pad was still in place. A baby's cardigan was found covering her face. There were some bloodstains on the wall and fireplace in the living room and a smear of what appeared to be blood on the back of the living room door. Other than this the house was described as being 'in an orderly condition'. The deceased had been stabbed through the front of the chest. The wound involved her aorta and pulmonary artery. She bled to death as a result of the wound. There was no evidence of a sexual assault having taken place.
10. The [appellant] told police that he had gone to Glasgow after his parents were asleep. He had been in the deceased's house earlier on 26 May 1967. She had given him a cup of tea after he had sharpened some garden tools for her. She had invited him back. When he returned to her home she invited him in. She took his jacket off. He threatened her with a knife. He struck at her. He said:
'I did not mean to do any harm. She fell. I went home. I thought she had fainted. I saw a purse lying on top of the dresser. I lifted it.'
11. At the time of the offence, the [appellant] was 17 years old. According to the medical report by Dr J Fairfull Smith at HMP Barlinnie, the applicant had been sent to St Mary's Approved School at Bishopbriggs at the age of 15 for breaking the windows of a pub. He told Dr Macpherson that he had been helping his father to park the car near to a shop with a broken window. To prevent damage to the tyres he moved broken glass from the gutter. As a result, his fingerprints were found on the glass. In relation to charge (2) of the indictment, he told Dr Macpherson that he had stopped a youth assaulting a 6-year old child, and while subsequently comforting the child was seen by a woman who assumed that he had been the culprit. The child apparently concurred, but the [appellant] could not explain why.
12. The [appellant] has given a number of conflicting accounts of the offence to various doctors over the years since he was detained ..."
Sentencing in 1967
 The relevant statute was The Mental Health (Scotland) Act 1960 ("the 1960 Act"), which provided inter alia as follows:
"6. - In this Act 'mental disorder' means mental illness or mental deficiency however caused or manifested ...
55. - (1) Where a person is convicted in the High Court of Justiciary or the sheriff court of an offence ... punishable by that court with imprisonment, and the following conditions are satisfied, that is to say -
(a) the court is satisfied, on the written or oral evidence of two medical practitioners ... that the offender is suffering from a mental disorder of a nature or degree which, in the case of a person under twenty-one years of age would warrant his admission to a hospital or his reception into guardianship under Part IV of this Act; and
(b) the court is of opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,
the court may by order authorise his admission to and detention in such hospital as may be specified in the order ...
60. - (1) Where a hospital order is made in respect of a person and it appears to the court, having regard to the nature of the offence with which he is charged, the antecedents of the person and the 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 so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order ..."
 In 1967 psychiatric assessments, including IQ tests, concluded that the appellant was suffering from a mental disorder within the meaning of the 1960 Act, namely mental deficiency (currently classified as a learning disability in terms of section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003). On the basis of reports, the Crown decided not to libel murder but rather culpable homicide on the basis of diminished responsibility, all as set out in charge 4(b). As noted in the SCCRC's Statement of Reasons, on 8 September 1967 the appellant (aged 17), having been advised by his lawyers, pled guilty to that charge before Lord Walker in the High Court in Glasgow. The judge then heard oral evidence from two psychiatrists (Dr Macpherson and Dr Campbell) to the effect that the appellant was suffering from that mental disorder. On the basis of that evidence, the judge imposed a hospital order in terms of section 55 of the 1960 Act, detaining the appellant in the state hospital at Carstairs. He also made a restriction order in terms of section 60, restricting the appellant's discharge without limit of time. The orders currently applying to the appellant are a compulsion order and a restriction order in terms of section 57A and 59 of the Criminal Procedure (Scotland) Act 1995.
Developments since 1967
The introduction of fresh evidence appeals
 The possibility of appealing against a sentence on the basis of fresh evidence was introduced by the Criminal Justice (Scotland) Act 1980, Schedule 2. Further legislative changes were made by the Criminal Procedure (Scotland) Act 1995 and the Crime and Punishment (Scotland) Act 1997. The current provisions relevant to the present case are to be found in sections 106(3) and 118(4) of the 1995 Act.
A growing appreciation that the appellant is not suffering from a mental disorder
 In the years following 1967, the appellant's psychiatrists came to the view that he was not in fact suffering from a mental disorder (namely mental deficiency) but rather from an untreatable dissocial personality disorder. We refer to the history of psychiatric assessments contained in the Statement of Reasons by the SCCRC dated May 2010, and the opinions of the appeal court in Reid v HM Advocate, 2008 SLT 293, and Reid v HM Advocate  HCJAC 18.
The appellant's applications to be released from Carstairs
 Over the years, the appellant has made many applications to be released into the community. In 1994 he applied to the sheriff at Lanark. His application was refused. In 1996 he sought judicial review of the sheriff's decision (1997 SLT 555). The petition was ultimately rejected in the House of Lords (R v Secretary of State for Scotland 1999 SC (HL) 17), and the appellant remained in Carstairs. The Mental Health (Public Safety and Appeals (Scotland) Act 1999 was enacted to prevent any further review in civil proceedings of cases such as the appellant's, where the patient is regarded as a danger to the public. The appellant challenged the legality of the 1999 Act (A v The Scottish Ministers 2001 SC 1, 2000 SLT 873) and ultimately appealed to the Privy Council (2002 SC (PC) 63). On 15 October 2001, the Privy Council dismissed the appellant's appeal. The appellant then took his case to the European Court of Human Rights (Hutchison Reid v United Kingdom 50272/99 (2003) 37 EHRR 9). The court concluded that the appellant's detention was justified, although he was awarded pecuniary damages in respect of certain procedural breaches.
 In 2005 the appellant commenced a late criminal appeal in terms of section 60 of the Criminal Procedure (Scotland) Act 1995. Fresh evidence was not the main focus of that appeal. Rather the focus was an attack upon the 1967 psychiatric reports as being inadequate to support a finding of mental deficiency, and a submission that the appellant had never suffered from mental deficiency. The appeal was heard in 2007. Evidence was led from four psychiatrists. No reference was made to authorities such as Jackson v HM Advocate 1998 SCCR 539; Baikie v HM Advocate 2000 SCCR 119; or Graham v HM Advocate 2005 SCCR 544. For the reasons given in their judgment in Reid v HM Advocate 2008 SLT 293, the court held that no miscarriage of justice had been made out, and refused the appeal.
 On 13 February 2009, the appellant submitted an application to the SCCRC. On 10 June 2010 the Commission referred the case to the High Court on the basis that there was fresh evidence indicating that the appellant did not have a mental disorder and might therefore have suffered a miscarriage of justice. The case came before Lords Reed, Bonomy and Drummond Young ( HCJAC 18). The court heard oral evidence from four psychiatrists, namely Dr Natasha Billcliff, Dr Isobel Campbell, Dr Tom White, and Dr John Crichton. There was also available to the court a report dated 9 November 2010 by Dr Chiswick, Consultant Forensic Psychiatrist.
 Paragraph  of the Opinion is in the following terms:
"The four consultant forensic psychiatrists who gave evidence were agreed that, were the appellant to be sentenced today for the offence of culpable homicide to which he pled guilty, they would have no psychiatric recommendation to make. They would equally have no hospital recommendation to make on the ground of his dissocial personality disorder, since none considered him treatable. We note also that the three consultant psychiatrists who examined the appellant at the time of his re-offending in 1985 made no psychiatric recommendation. All were also agreed that intelligence is, in general terms, innate, but the various tools that measure intelligence can produce varying results depending on factors such as education. All were also agreed that since admission to the State Hospital, the appellant's diagnosis has consistently been that of dissocial personality disorder. We note also that the appellant was not hospitalised when the mental assessments were made and that these were simply carried out while he was on remand at Barlinnie. He was not subject to any formal psychometric testing."
Each psychiatrist who gave evidence was of opinion that a reliable diagnosis of mental deficiency could not be made standing the consistent results on testing the appellant's IQ (with scores of 70 or more), and that the original diagnosis in 1967 was incorrect. Having heard evidence and submissions, the court issued their judgment on 3 February 2012. The court was satisfied that there was a reasonable explanation why the evidence relied upon had not been heard in 1967; that the evidence was credible and reliable; and that the evidence was cogent, important evidence of a kind and quality which would have been of material assistance to the sentencing judge in 1967. The court also concluded that, in face of a finding as a matter of fact that the appellant's IQ was 70 or more, it would not have been objectively correct for a forensic psychiatrist to diagnose the appellant in 1967 as suffering from mental deficiency. That approach being perceived to be inconsistent with the earlier appeal court's decision (2008 SLT 293) the case was remitted to a larger bench: see paragraphs  to  of Lord Bonomy's opinion.
Submissions for the appellant
 Senior counsel submitted that in 1967, acting in good faith and on the basis of the information available, it had been the Crown's decision to indict the case as one of culpable homicide rather than murder. A plea had been tendered on that basis. The court's disposal was thereafter almost inevitable. However the appellant's contention was that the finding-in-fact reached in 1967, namely that the appellant was suffering from a mental disorder, had been demonstrated to be erroneous by the fresh evidence led in 2012. The appellant was in fact suffering from an untreatable dissocial personality disorder. No criticism was intended in respect of what had occurred in 1967 (cf Graham v HM Advocate 2005 SCCR 544, where hospital orders were substituted for a sentence of imprisonment as the psychiatric health of the appellant had not followed the path predicted by the psychiatrists at the time of the sentence; and cf also R v Hempston  EWCA Crim 2869). Even if account was taken of the practices and procedures adopted in the 1960s (cf Couborough v HM Advocate 2010 SCCR 473, paragraphs 34 and 35), the fresh evidence demonstrated that what had occurred in the sentencing procedure in 1967 amounted to a miscarriage of justice. The appeal court was fully entitled to take that fresh evidence into account, even if the outcome might seem harsh to the court below (Boncza-Tomaszewski v HM Advocate 2000 SCCR 657). It would be appropriate to apply the test in McInnes v HM Advocate 2010 SC (UKSC) 28 to fresh evidence appeals such as this (cf Fraser v HM Advocate 2011 SC (UKSC) 113 paragraphs 20 to 27; 29; 47). If that test were applied, there would have been a real possibility of a different outcome if the court in 1967 were to have had the information now available about the appellant's condition. Accordingly, in the light of the fresh evidence now available, the hospital orders should be quashed and a discretionary life sentence substituted. An appropriate punishment part should be calculated in accordance with Petch v HM Advocate 2011 SLT 391.
Submissions for the Crown
 In a significant departure from the approach taken by the Crown when the previous appeal was heard in 2007, the advocate depute accepted that, knowing what was now known, the disposal on sentencing could be seen to be wrong. There had therefore been a miscarriage of justice. There was no need to apply the McInnes test. The Crown did not now oppose the quashing of one sentence of lifetime confinement and the substitution of another sentence of lifetime confinement (a discretionary life sentence). The Crown anticipated that, while the appellant would make applications to the Parole Board, the likelihood was that he would continue to serve his life sentence in prison.
Section 106(3)(a): fresh evidence and the sentence imposed in 1967
 The question whether there is indeed fresh evidence in the present case in terms of section 106(3)(a) has been answered, correctly in our view, in the opinion of the court delivered by Lord Bonomy in Reid v HM Advocate  HCJAC 18. As explained in that opinion, there have been assessments of the appellant's IQ over the years since 1967. Those assessments have resulted in a consistent view amongst the psychiatrists concerned (whether instructed by the Crown or by the defence) that the appellant is not suffering from, and never has suffered from, a mental disorder such as mental deficiency, but that he has a dissocial personality disorder which is untreatable. Had that evidence been before the sentencing court in 1967, the court would not, in our view, have made a mental health disposal: cf Jackson v HM Advocate 1998 SCCR 539; Baikie v HM Advocate 2000 SCCR 119; Graham v HM Advocate 2005 SCCR 544; R v Hempston  EWCA Crim 2869; and The Queen v Patrick McDonagh  NICA 6.
 There is no need, in our opinion, to endeavour to apply the test outlined by the Supreme Court in McInnes v HM Advocate 2010 SC (UKSC) 28 to a case such as the present. The issue is one of the appropriateness of the disposal selected by the sentencing judge in 1967, and is therefore a matter for this court to assess on the basis of the fresh evidence. It is unnecessary to attempt to apply a test focusing on the likelihood that a jury would have reached a different verdict.
 Accordingly, in the light of the fresh evidence, we are satisfied that a miscarriage of justice occurred when the hospital order and restriction order were imposed in 1967. To that extent, we overrule any observations or conclusions to the contrary contained in the opinions in the earlier appeal (2008 SLT 293). Our decision does not mean that we are critical of the refusal of the earlier appeal (which was advanced on quite different grounds), or of the sentencing procedure in 1967. It is simply that, over the years, it has proved possible for professionals to assess the appellant's condition more accurately. As Lord Coulsfield put it in analogous circumstances in Jackson v HM Advocate 1998 SCCR 544:
" ... [First], a diagnosis of mental illness cannot always be made accurately on a single examination or a number of examinations within a short period of time. In addition, one of the factors which may point to mental illness rather than personality disorder is the extent to which a patient responds to treatment; and that can only be assessed over a period of time. Secondly there is no doubt that ... the appellant does suffer from a personality disorder and is of a low intelligence, and these factors could, particularly in the early stages of development of a mental illness, confuse and obscure the proper diagnosis. Thirdly, in 1984 [and perhaps a fortiori in 1967] the practice of forensic psychiatrists in dealing with cases of mental illness and personality disorder was somewhat different from that which has since developed ..."
See too the observations of Lord Bonomy in paragraph  of Reid v HM Advocate  HCJAC 18.
 In the event that the hospital orders (currently a compulsion order and a restriction order) are quashed, this court has the power to substitute a different sentence in terms of section 118(4) of the Criminal Procedure (Scotland) Act 1995.
The substitution of a discretionary life sentence
 The crime committed by the appellant in 1967 was a horrific and appalling one. The appellant (then aged 17) brutally attacked and killed a young woman (then aged 26) who had earlier given him a cup of tea after he had sharpened gardening tools for her. The attack occurred in her own home, while her husband was at work and she had the care of their young child. It was a terrible and senseless crime, resulting in the loss of a young wife and mother, and inflicting lasting grief and suffering on her bereaved family. Bearing in mind the requirements of punishment, deterrence and protection of the public, the only appropriate sentence for this particular crime is, in our view, a life sentence. Accordingly we consider that the hospital order and restriction order should be quashed, and a discretionary life sentence substituted.
 In view of the appellant's untreatable dissocial personality disorder, which has been described as "a persistent and permanent psychopathic/anti-social personality disorder, manifested by abnormally aggressive and seriously irresponsible behaviour" (paragraph 36 of the Statement of Reasons by the SCCRC dated May 2010), we are in no doubt that the appellant presents a major continuing danger to the public: cf the consensus of medical opinion regarding the appellant's level of risk of harm to others referred to in paragraph 56 of the Statement of Reasons. We note that on a previous occasion in August 1986, after being moved to a more open regime at Sunnyside Hospital, Montrose, the appellant attempted to abduct a child aged 8. He was subsequently convicted of assault and attempted abduction and sentenced to 3 months imprisonment: see paragraph 30 of the Statement of Reasons, and paragraph  of the opinion in Reid v HM Advocate  HCJAC 18. As noted in paragraph 31 of the Statement of Reasons, that incident "raised grave doubts concerning the safety to other people of allowing [the appellant] to be released from institutional care". We are therefore receptive to the Crown's submission that, had the appellant in 1967 been sentenced to life imprisonment for either murder or culpable homicide, he would by now have made several unsuccessful applications to the Parole Board, and would still be serving his life sentence in prison. No doubt the Parole Board will, in the future, exercise extreme caution when dealing with any application made by the appellant. For our part, we see this present decision as substituting one system of confinement for life for another system of confinement for life, subject always to the Parole Board's discretion exercised with the protection of the public as the overriding factor in their considerations. It may well be that this particular appellant, suffering as he does from an untreatable dissocial psychopathic personality disorder which has already manifested itself in a horrific and unprovoked killing, should never be released.
 In any discretionary life sentence, it is necessary to fix a punishment part, taking into account the guidance given in Petch v HM Advocate cit sup, and Ansari v HM Advocate 2003 JC 105 (Lord Reed). In view of the nature and gravity of the crime, we take as our starting point 18 years. We deduct 6 years as representing the public protection element of the sentence, leaving 12 years. As this case is, in our view, one of the exceptional cases referred to by Lord Reed in paragraph 83 of Ansari - not least because, but for the psychiatric assessments in 1967, the appellant would in all likelihood have been charged with murder resulting in a mandatory life sentence - we in our discretion apply a fraction of five-sixths (cf HM Advocate v Boyle 2010 SCCR 103) to the 12 years, resulting in a punishment part of 10 years. The punishment part appropriate to a mandatory life sentence for murder would of course have been considerably higher.
 We shall accordingly quash the compulsion order and restriction order, and substitute therefor a discretionary life sentence of imprisonment with a punishment part of 10 years.