High Court permits desertion of indictment against mentally ill man in favour of raising new indictment
A man who suffered from a mental health condition and was charged with rape has failed in his challenge of a decision to desert the indictment against him under section 56(5) of the Criminal Procedure (Scotland) Act 1995 with a view to the Crown immediately serving a new one.
Counsel for Ross Patrick, who was originally indicted on seven charges including two libelling rape and was determined to be unfit to stand trial, argued that the decision to desert was irrational and had the effect of circumventing the earlier decision made by another judge on trial fitness.
The Bill of Advocation was heard in the High Court of Justiciary by Lord Brodie, Lord Drummond Young, and Lord Malcolm. The complainer was represented by M Jackson QC and the Crown by Edwards QC.
Misunderstood the instruction
The decision to desert the indictment was taken by Lord Beckett during what was minuted as a continued hearing on examination of facts on 3 October 2019. It had previously been determined in June 2019 that the complainer was unfit to stand trial due to the nature and extent of a medical condition he had.
Following the decision that the complainer was unfit to stand trial, an examination of facts was held in August 2019 before Lord Beckett. At the conclusion of evidence, the libel against the complainer in respect of the fourth charge was withdrawn. Lord Beckett found that the complainer had committed the offences in the remaining six charges. The complainer was then remanded in custody pending disposal.
Two psychiatric reports were subsequently prepared intended to guide the issue of disposal. However, the author of the second report, Dr Kopric, misunderstood the instruction and prepared a report on the complainer’s fitness to stand trial. In her report, she concluded that despite the complainer’s mild learning disability he demonstrated good understanding of trial proceedings and was fit to stand trial.
At the continued hearing on 3 October, other reports were produced which supported Dr Kopric’s findings on fitness to stand trial. The advocate depute then moved to desert the indictment in respect of the examination of facts with a view to recommencing trial proceedings under a new indictment. In allowing this, Lord Beckett considered that he was simply being asked to permit a new indictment, and that the complainer would be entitled to raise the issue of fitness to stand trial at a new preliminary hearing in respect of the fresh indictment.
It was averred by the complainer that the motion to desert had the effect of circumventing the earlier decision that he was unfit to stand trial, while his medical condition had not changed in that time. Counsel conceded that it was competent for Lord Beckett to desert the examination of facts, but submitted that his exercise of discretion per section 56(5) was irrational given there had been no change in the complainer’s circumstances.
Delivering the opinion of the court, Lord Brodie said of the effect of the relevant provisions of the 1995 Act: “On the court deserting pro loco et tempore, section 56(6) specifically provides that the Lord Advocate may raise and insist in a new indictment. The section 56(5) power may be exercised ‘at any time’ but that must mean at any time during the subsistence of the examination of facts; otherwise there would be no examination of facts to desert.”
He continued: “Section 55(7) provides that the examination of facts is only concluded when the court acquits the person before it, or makes an order for disposal or decides to make no order. Lord Beckett did not do any of these things. Thus, the examination of facts still subsisted when he exercised the power to desert conferred by section 56(5).”
Regarding Lord Beckett’s motivation, Lord Brodie explained: “It is true that Lord Beckett was motivated by a concern that the complainer might be fit to stand trial whereas Lord Boyd, after a hearing of evidence directed at that very issue, had recently determined that the complainer was unfit for trial. However, Lord Beckett’s concern was informed by reports from three psychiatrists, two of whom were specialists in the area of learning disability, to the effect that the complainer, who had been indicted on serious charges, was fit for trial.”
He went on to say: “It is important to keep in mind, as Lord Beckett did, that nothing in his decision prejudiced the status of the complainer or further consideration of what would be a fair way of proceeding having regard to the various relevant interests. Lord Beckett did not determine that the complainer was fit for trial. That is an issue which can be considered under reference to an appropriate plea in response to the new indictment.”
Examining the effect of the decision on the complainer, Lord Brodie said: “A finding of unfitness for trial, such as was made by Lord Boyd, followed by a finding in terms of section 55(2), such as was made by Lord Beckett, does not mean that the person in respect of whom these findings are made has tholed his assize, even once an order for disposal is made in terms of section 57(2).”
He concluded: “Had Lord Beckett made no order when faced with the circumstances before him on 3 October 2019 it would have been open to the Crown, on reconsidering matters on the basis of the three psychiatric reports, to re-indict. On one view Lord Beckett’s decision was of no real consequence. That said, it appears to us that it was a pragmatic and practical response which had the result of moving matters forward towards an expeditious and just resolution of the case.”
For these reasons, the Bill was refused.