Gursel Duzgun v. Her Majesty’s Advocate [2020] HCJAC 13

Note of appeal against conviction:- On 29 July 2014, at Edinburgh Sheriff Court, the appellant pled guilty at a first diet on indictment to a charge of assault which was aggravated by being religiously prejudiced in terms of section 74 of the Criminal Justice (Scotland) Act 2003. The plea tendered by the appellant’s solicitor had deleted from the original charge an averment of permanent disfigurement. The circumstances were that following the incident forming the subject matter of the charge the appellant was observed by the police to be in a manic state and ranting wildly. He was taken to a police station where he started shouting about being a “God particle” and that he would judge everyone. The appellant was deemed medically unfit for interview and appeared on petition on 30 April 2014. Due to his mental state, the Crown instructed a psychiatric report, and a report dated 6 May 2014 by Dr Craig Morrow was produced which concluded with the opinion that the appellant had a number of active psychotic symptoms consistent with a diagnosis of schizophrenia and he was not fit to stand trial at that time, partly because he considered the court to be part of a wider conspiracy. Dr Morrow’s recommendation was to subject the appellant to an assessment under section 52D of the Criminal Procedure (Scotland) Act 1995 which was done by the court. A further report from Dr Morrow, dated 2 June 2014, following a further assessment of the appellant concluded that:- “After a period of treatment the appellant’s mental state would be likely to respond to treatment sufficiently that he could be considered to meet the relevant criteria for fitness for trial over the coming months”. No further assessments/reports were obtained prior to the appellant pleading ‘guilty’ on 29 June 2014. The appellant’s solicitor at that time indicated that there had been several meetings between the agent and the appellant in the State Hospital, Carstairs following which the solicitor had noted that the appellant was “doing fine under treatment” and “seems to be better”. A note of appeal was lodged 4 years after the plea of ‘guilty’ had been tendered and alleged defective representation in the appellant’s then solicitor tendering the plea. In particular, it was contended that the appellant’s solicitor had not instructed an independent psychiatric report to consider either fitness to plead or whether the appellant had been criminally responsible for his actions at the time of the alleged offence in terms of section 51A of the 1995 Act. It was contended that in failing to instruct such a report the solicitor breached his professional duty and deprived the appellant of information which may have been of relevance in relation to whether he was fit to plead and/or criminally responsible under section 51A and the absence of such information caused him prejudice in that his defence had not been properly prepared and presented depriving him of a fair trial and resulting in a miscarriage of justice occurring. Following the tendering of the plea on 1 9 August 2014, the court made an interim compulsion order and assigned 6 November as a review hearing. The appellant was detained at the State Hospital. The appellant’s case was continued until 9 December. An up-to-date psychiatric report was requested and there were further postponements during 2015. On 10 April 2015, the court made compulsion and restriction orders in terms of section 57(a) and 59 of the 1995 Act and the appellant was to be detained in the State Hospital without limit of time and subject to the special restrictions set out in Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003. Further psychiatric reports concluded that the appellant had a mental disorder, but that medical treatment (in the form of oral antipsychotic medication in addition to nursing occupational therapy and psychological input) was likely to alleviate the symptoms and effects of that disorder and that treatment there was a significant risk to his own health and to the safety and welfare of others. Here it was submitted on behalf of the appellant that:- (1) the evidence demonstrated he was not criminally responsible for his conduct by reason of mental disorder in terms of section 51A of the 1995 Act in that he had been unable to appreciate the nature or wrongfulness of his conduct. It was submitted on behalf of the appellant that for the purposes of the appeal it was only necessary for the appellant to show that this had been a live issue which required investigation and had been necessary for the proper preparation of the defence; and (2) the appellant’s solicitor had failed in his duty in terms of section 51A of the 1995 Act to investigate the defence, in particular, there had been a failure to instruct a psychiatric report to consider whether the appellant was fit to stand trial and/or whether the appellant had been criminally responsible for the conduct alleged. It was further submitted that there were present “exceptional circumstances” present under reference to Kalyanjee v HMA 2014 JC 233 which entitled the court to allow the appellant to withdraw his plea of ‘guilty’. It was submitted that the test was whether the plea had been tendered under some real error or misconception or in circumstances which were clearly prejudicial to the appellant and that test had been met in the present case as he was unaware as to the potential defence available to him. In the absence of a proper investigation in to the issue of his psychiatric health the appellant was under a real error or misconception and even if he had not been it was submitted that the court could take the view that there had been a miscarriage of justice. The Crown had intimated by letter to the court that they did not support the conviction as it was accepted that in terms of section 51A the appellant had a defence available to him which was neither investigated nor advanced on his behalf by his solicitor and, further, that on the balance of probabilities it was likely that that defence would have been established. It was submitted on behalf of the Crown that given the tendering of the plea had been prejudicial to the appellant and a miscarriage of justice had occurred the appeal should be allowed and the court could then use section 118(5) of the 1995 Act to set aside the verdict and to re-impose the compulsion and restriction orders on the basis of a finding that the appellant’s defence under section 51A had been made out. Here the court refused the appeal. The court reiterated that an accused person is entitled to plead ‘guilty’ to a charge against him and need not advance a defence which may be open to him. The various examples of exceptional circumstances described in Reedie v HMA 2005 SCCR 407 for withdrawing such a plea of ‘guilty’ did not apply in the present case as the plea was not tendered by mistake or without the authority of the appellant, indeed the appellant had provided clear instructions to his solicitor which wholly satisfied his solicitor of the appropriateness of tendering the plea on the appellant’s behalf and the issue of a defence under section 51A had been specifically discussed with the appellant. The court makes clear here that there was no information available to contradict that the appellant was fit to plead and that he had given clear instructions not to pursue the issue of his psychiatric state any further. The court considered that it would have amounted to a breach of the solicitor’s obligations to his client if he had pursued a line which he had been given direct instructions not to. As such it could not be said that the appellant’s instructions were not presented in court. The court went on to note that even if it had determined that a miscarriage of justice had occurred it was not open to the court to simply substitute a verdict of acquittal under section 118(5) of the 1995 Act as there has been no special defence lodged in the first place. The court stated that if it had allowed the appeal it would have quashed the conviction entitling the Crown to seek authority to bring a new prosecution under section 118(1)(c) of the 1995 Act allowing the Crown to accept a plea of ‘not guilty’ by reason of the special defence under section 51A if it was considered appropriate.