Scott Henry Sneddon MacKay v. Her Majesty’s Advocate [2017] HCJAC 44

Note of appeal against conviction:- On 27 April 2016, at Dunfermline Sheriff Court, the appellant was convicted after trial on indictment of two charges:- (1) a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 in that during the course of a telephone call to a police call handler, he repeatedly swore and stated that he was armed with a machete and he uttered threats of violence and death towards Muslims; and (2) having a machete with him in circumstances which were aggravated by religious prejudice contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. At the close of the Crown case the appellant had tendered a plea of guilty to a charge of possession of flares and pyrotechnics contrary to sections 5 and 39 of the Explosives Act 1875. On 7 September 2016, following the obtaining of a Criminal Justice Social Work Report, the trial sheriff sentenced the appellant to 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 between 1900 hours and 0700 hours. In advance of the trial the appellant had lodged a special defence of insanity in common law terms, however, the trial proceeded on the basis of section 51A of the Criminal Procedure (Scotland) Act 1995, which provides that the nature of the defence is now:- “(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”. At the trial it was not disputed that the appellant, who was a serving solider who had undertaken tours in Afghanistan and had a history of mental health issues, suffered from a mental disorder, the issue was to what extent. The Crown called two psychiatrists who both stated that the appellant had post-traumatic stress and delusional disorders and the psychiatrist called by the defence agreed and also considered that the appellant was psychotic. All three psychiatrists were of the opinion that the appellant had appreciated the nature of his conduct and the Crown psychiatrists considered that he knew what he was planning was wrong whereas the defence psychiatrist considered that he had not been able to determine that it was wrong. The sheriff directed the jury in relation to section 51A and the appellant was subsequently convicted. The appellant appealed against his conviction on the grounds that the sheriff had misdirected the jury by using the words “to any extent” in relation to the appellant’s ability to appreciate nature or wrongfulness of the conduct. It was contended that the direction defined the defence too narrowly as section 51A had replaced the common law defence of insanity with a “cognitive concept of appreciation of conduct” which required a level of rational understanding. It was further submitted that the sheriff had erred in not defining the “nature and wrongfulness of the conduct” by reference to the wider application of the defence and the sheriff should have explained the wider meaning of “appreciate” by defining it in language used in the Scottish Law Commission Report (2004 No. 195). It was further submitted that the sheriff had erred in the use of the conjunctive in “nature and wrongfulness” and was likely to confuse the jury when what was actually required was a rational understanding of the wrongfulness of the conduct. It was initially submitted on behalf of the appellant that in light of the alleged misdirections the conviction should be quashed and a verdict of acquittal by reason of a lack of criminal responsibility be substituted, however, ultimately, it was conceded on behalf of the appellant that, in light of the contradictory psychiatric evidence, the remedy would be for the conviction to be quashed leaving it open to the Crown to seek a retrial. On behalf of the Crown it was submitted that the sheriff had not misdirected the jury with the directions taken from the Jury Manual. It was further submitted that the use of the conjunctive was simply a slip of the tongue and any issue was remedied when the charge was read as a whole. Here the court refused the appeal. The court considered the statutory defence of lack of criminal responsibility under section 51A of the Criminal Procedure (Scotland) Act 1995 as introduced by section 168 of the Criminal Justice and Licensing (Scotland) Act 2010 and its common law predecessor of insanity as a defence. The court observed that the statutory defence makes no reference to any form of alienation of reason as previously required under the common law but rather refers to the person being “unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct”. The court considered that the words used in section 51A, namely, “appreciate” and “wrongfulness” are commonly used words and do not present difficulties in interpretation and ought to simply be given their ordinary meaning and, consequently, the words used in the Jury Manual and by the sheriff in his charge were correct to the extent that they reflected the statutory language of the section. Whilst the court considered that the sheriff’s use of the words “to any extent” qualifying “appreciate” was not ideal, when the charge was read as a whole the directions were sufficiently clear and accurate. In addition, whilst some of the other criticisms made of the sheriff’s use of language may have been justified, for example, the use of the conjunctive, such errors were unimportant in the particular circumstances of the case where it was only the appreciation of wrongfulness which was an issue. The court went on to give further general guidance to sheriffs and judges in relation to directions which would generally be acceptable in cases where this statutory defence was relied upon.