Kinloch v HM Advocate

LORD JUSTICE CLERK LORD DRUMMOND YOUNG LORD EASSIE   OPINION OF THE COURT DELIVERED BY LORD CARLOWAY, THE LORD JUSTICE CLERK IN APPEALS AGAINST SENTENCE BY (FIRST) ANDREW KINLOCH AND (SECOND) JAMES QUINN APPELLANTS; AGAINST HER MAJESTY’S ADVOCATE RESPONDENT; FIRST APPELLANT: JACKSON QC, DR MACLEOD; PATERSON BELL (FOR DOUGLAS WRIGHT, KILMARNOCK) SECOND APPELLANT: L EWING, SOLICITOR ADVOCATE; TURNBULL MCCARRON, GLASGOW RESPONDENT: A PRENTICE AD; THE CROWN AGENT 21 OCTOBER 2015 INTRODUCTION [1]        ON 14 NOVEMBER 2013, AT THE HIGH COURT IN EDINBURGH, THE APPELLANTS PLED GUILTY, UNDER THE PROCEDURE SET OUT IN SECTION 76 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995, TO THE FOLLOWING CHARGE: “ON 12 JUNE 2013 AT HMP EDINBURGH, STENHOUSE ROAD, EDINBURGH YOU … DID ASSAULT J MCL, A PRISONER THERE, PLACE YOUR ARM AROUND HIS NECK, REPEATEDLY PLACE KNIVES AT HIS THROAT, REPEATEDLY PRESENT … KNIVES AT HIM, UTTER THREATS AGAINST HIM AND DID ABDUCT [HIM], MAKE DEMANDS FOR FOOD, TOBACCO AND AN IMMEDIATE TRANSFER TO ANOTHER PRISON, CONFINE [HIM] WITHIN A CELL FOR A PERIOD OF APPROXIMATELY FIVE HOURS, REPEATEDLY REFUSE TO RELEASE HIM UNLESS YOUR DEMANDS WERE MET AND DETAIN HIM AGAINST HIS WILL.”   [2]        THIS CASE THEREAFTER HAD A LENGTHY PROCEDURAL HISTORY.  THE COURT APPOINTED DR LISA CAMERON, CLINICAL FORENSIC PSYCHOLOGIST, AND DR RAJAN DARJEE, CONSULTANT FORENSIC PSYCHIATRIST, TO PREPARE RISK ASSESSMENT REPORTS IN RESPECT OF EACH APPELLANT IN TERMS OF SECTION 210B OF THE 1995 ACT.  IN DUE COURSE THE RARS WERE PRODUCED.  MR QUINN LODGED A NOTE OF OBJECTIONS TO HIS ASSESSMENT, SUPPORTED BY A REPORT FROM DR LORRAINE JOHNSTONE, CONSULTANT CLINICAL AND FORENSIC PSYCHOLOGIST.  ON 26 MAY 2014 A NOTE OF OBJECTIONS FOR MR KINLOCH AND AN “UPDATED” NOTE OF OBJECTIONS FOR MR QUINN WERE LODGED.   A HEARING, WHICH INCLUDED TESTIMONY FROM THE DOCTORS, TOOK PLACE ON 29 AND 30 SEPTEMBER 2014 AND 12 JANUARY 2015.  THE CASE WAS THEN ADJOURNED TO ALLOW MR KINLOCH’S REPORT TO BE UPDATED.  ON 3 MARCH 2015 MR KINLOCH SOUGHT A LENGTHY ADJOURNMENT TO ALLOW HIM TO BE TREATED FOR ADULT ADHD.  [3]        IT WAS ONLY ON 25 MAY THAT THE COURT PROCEEDED TO SENTENCE.  BOTH APPELLANTS WERE MADE SUBJECT TO ORDERS FOR LIFELONG RESTRICTION, WITH A PUNISHMENT PART, IN MR KINLOCH’S CASE, OF 2 YEARS AND 7 MONTHS AND, IN MR QUINN’S CASE, OF 3 YEARS AND 4 MONTHS.    CIRCUMSTANCES OF THE OFFENCE [4]        THE APPELLANTS WERE INCARCERATED IN SAUGHTON PRISON.  THEY SHARED A CELL.  ON 12 JUNE 2013 THEY ENTERED THE COMPLAINER’S CELL, PRETENDING THAT THEY HAD SOMETHING TO TELL HIM.  THEY CLOSED THE CELL DOOR.  MR QUINN PUT A BLADED WEAPON TO THE COMPLAINER’S NECK WHILE MR KINLOCH STOOD NEARBY.  THEY USED THE CELL INTERCOM TO CONTACT STAFF TO SAY THAT THEY HAD A HOSTAGE.  THEY HELD THE COMPLAINER HOSTAGE WITH THE USE OF TWO HOMEMADE WEAPONS.  DEMANDS WERE MADE FOR KENTUCKY FRIED CHICKEN, CHINESE FOOD, A POUCH OF TOBACCO AND A BUS TO BARLINNIE PRISON.  THE MOTIVATION BEHIND THE INCIDENT WAS A DESIRE ON BEHALF OF BOTH APPELLANTS TO BE TRANSFERRED TO THE WEST.  THE INCIDENT LASTED SIX HOURS, AFTER WHICH IT WAS RESOLVED PEACEFULLY.    PERSONAL CIRCUMSTANCES MR KINLOCH [5]        MR KINLOCH WAS AGED 25 AT THE TIME OF THE OFFENCE.  HE HAD BEEN RAISED AS AN ONLY CHILD IN PAISLEY AND STEWARTON BY HIS MOTHER.  HIS MOTHER HAD MENTAL HEALTH PROBLEMS.  SHE WAS ALSO THE SUBJECT OF DOMESTIC ABUSE; SOMETHING WHICH MR KINLOCH SAW.  HE ATTENDED MAINSTREAM SCHOOLING AND DISPLAYED “EARLY OPPOSITIONAL DEFIANT BEHAVIOURS” AT HOME AND AT SCHOOL.  HE WAS EVENTUALLY DIAGNOSED WITH ATTENTION DEFICIT HYPERACTIVITY DISORDER (ADHD) AT THE AGE OF 8.  HE WAS DISPLAYING FEATURES OF A CONDUCT DISORDER IN CHILDHOOD AND JUVENILE DELINQUENCY BY THE AGE OF 17.  HE ENGAGED IN TRUANCY, SUBSTANCE ABUSE AND OFFENDING.  GENERALLY HE ASSOCIATED WITH AN ANTI-SOCIAL GROUP.  HE HAS NEVER HAD ANY SUBSTANTIAL PERIOD OF EMPLOYMENT.  HE DID HAVE ONE RELATIONSHIP AND HAS TWO CHILDREN.  HE HAS A LONG-STANDING HISTORY OF DRUG AND ALCOHOL ABUSE AND DEPENDENCE.  HE HAS A BACKGROUND INVOLVING ANXIETY, PARANOIA, SUICIDAL AND VIOLENT IDEATION.  HE IS PRESCRIBED ANTI-PSYCHOTIC MEDICATION.  HE MEETS THE DIAGNOSTIC CRITERIA FOR DISSOCIAL (ANTISOCIAL) PERSONALITY DISORDER WITH TRAITS OF PARANOID AND EMOTIONALLY UNSTABLE PERSONALITY DISORDER.  HE IS NOT PSYCHOPATHIC. [6]        DR CAMERON’S RAR RECORDED THAT HE HAD “A PERVASIVE HISTORY OF VIOLENCE/AGGRESSION DATING FROM CHILDHOOD”.  HE HAD A NUMBER OF APPEARANCES BEFORE THE CHILDREN’S HEARING.  HIS FIRST ADULT CONVICTION, IN 2006, WAS FOR “CULPABLE AND RECKLESS FIRE-RAISING”, WHICH ATTRACTED A COMMUNITY SERVICE ORDER.  SHORTLY AFTER THAT, HE WAS PUT ON PROBATION FOR A YEAR FOR A BREACH OF THE PEACE.  IN THE LATTER PART OF THE YEAR, AND INTO 2007, SENTENCE WAS DEFERRED ON SEVERAL OCCASIONS IN RESPECT OF OFFENCES OF DISHONESTY (FRAUD), BREACH OF BAIL CONDITIONS, AND VIOLENCE (ASSAULT WITH A BOTTLE).  SHORT CUSTODIAL SENTENCES FOLLOWED. [7]        IN JUNE 2007 MR KINLOCH WAS SENTENCED TO 12 MONTHS DETENTION FOR ASSAULT AND ROBBERY.  THE NEXT HIGHLIGHT WAS IN JANUARY 2010, WHEN HE WAS IMPRISONED FOR 15 MONTHS FOR POSSESSION OF AN AXE.  THERE WERE FURTHER SENTENCES FOR SUMMARY MATTERS, INCLUDING PUBLIC ORDER OFFENCES.  IN 2011 HE ACQUIRED 3 STATUTORY BREACH OF THE PEACE CONVICTIONS, WHICH ATTRACTED SENTENCES OF 4, 6 AND 9 MONTHS.  FINALLY, IN 2013 HE WAS SENTENCED TO 33 MONTHS WITH A SUPERVISED RELEASE ORDER FOR THE ASSAULT AND ROBBERY OF CHILDREN.  THE RAR COMMENTS THAT MR KINLOCH HAS HAD NO SIGNIFICANT PERIODS OF DESISTENCE FROM OFFENDING AND HIS RECORD INCLUDES A “PERVASIVE PROPENSITY TOWARDS NON-COMPLIANCE IN TERMS OF SUPERVISION REQUIREMENTS”.  HE HAS BREACHED BAIL, PROBATION AND CSOS.  THIS IS A CRITICAL FEATURE IN THE RAR. [8]        THE “SUMMARY FORMULATION” IN THE RAR HIGHLIGHTED THESE FACTORS, NOTING THAT MR KINLOCH HAS A: “PROPENSITY TO UTILISE THREATS AND COERCION ALONGSIDE PHYSICAL VIOLENCE IN ORDER TO ACHIEVE HIS AIMS.  HIS ACTIONS ARE UNDERPINNED BY VIOLENT IDEATION AND INTENT, USE OF AGGRESSION IN ORDER TO MAINTAIN HIS SELF-ESTEEM AND FEELINGS OF CONTROL AND ASSESSED PERSONALITY DISORDER/PSYCHOPATHIC TRAITS THAT AFFECT HIS ATTITUDES, PERCEPTIONS AND BEHAVIOURS.”   OVERALL, THE RAR CONCLUDED THAT MR KINLOCH FELL WITHIN THE “HIGH-RISK” CATEGORY.  HE WAS NOT LIKELY TO BE AMENABLE TO CHANGE.  TREATMENT WAS NOT LIKELY “TO MITIGATE THE NEED FOR SUPERVISION OR CLOSE MONITORING OVER THE LONG-TERM AND WHILST AT LIBERTY”. [9]        THE RAR HAD SUGGESTED A PSYCHIATRIC ASSESSMENT. THE SENTENCING JUDGE OBTAINED A REPORT FROM DR JOHN CRICHTON, CONSULTANT PSYCHIATRIST, DATED 22 APRIL 2014.  HE HAD BEEN ASKED WHETHER MR KINLOCH WAS SUFFERING NOT JUST FROM A PERSONALITY DISORDER BUT A PARANOID ILLNESS, SUCH AS SCHIZOPHRENIA.  DR CRICHTON DID NOT CONSIDER THAT TO BE LIKELY.  [10]      MR KINLOCH PRODUCED A REPORT FROM DR CR STEER, CONSULTANT PAEDIATRICIAN, DATED 31 DECEMBER 2014.  DR STEER HAD SEEN MR KINLOCH IN HIS CHILDHOOD AND HAD RECOMMENDED RITALIN.  HE HAD LAST SEEN HIM IN 2005, WHEN MR KINLOCH HAD BEEN ENGAGING IN ALCOHOL BINGES AND THE ABUSE OF CANNABIS AND ECSTASY, AMONGST OTHER PURSUITS.  A QUESTION AROSE AS TO WHETHER MR KINLOCH WAS SUFFERING FROM ADULT ADHD.  DR CAMERON WAS ASKED WHETHER THAT MIGHT ALTER HER VIEW ON RISK.  SHE SAID THAT IT WOULD NOT.  ULTIMATELY, THE SENTENCING JUDGE HEARD EVIDENCE ON THE MATTER FROM DRS CAMERON, CRICHTON AND PREMAL SHAH, AN EXPERT IN ADULT ADHD.  DR SHAH, IN A REPORT DATED 28 FEBRUARY 2015, STATED THAT MR KINLOCH DID HAVE FEATURES OF ADULT ADHD, AS WELL AS THE SECONDARY EFFECTS OF SUBSTANCE MISUSE AND ANTISOCIAL TRAITS.  ADHD TREATMENT “MAY ATTENUATE” HIS RISK PROFILE BY REDUCING THE CORE SYMPTOMS OF ADHD AND POTENTIALLY AMELIORATING HIS SUBSTANCE MISUSE AND SOME ASPECTS OF HIS ANTISOCIAL BEHAVIOUR.   MR QUINN [11]      MR QUINN WAS AGED 28 AT THE TIME OF THE OFFENCE.  HE HAD GROWN UP IN GLASGOW.  THE RAR REPORTED THAT HE TOO HAD BEEN THE SUBJECT OF, AND HAD PERPETRATED, VIOLENT AND ANTI-SOCIAL CONDUCT AS A CHILD AND ADOLESCENT.  HE HAD BEEN IN CARE IN HIS TEENS AND HAD NOT DEVELOPED ANY SECURE ATTACHMENT TO ANY PARENTAL FIGURE.  HIS PARENTS HAD SEPARATED WHEN HE WAS 9 OR 10.  HIS FATHER HAD BEEN HEAVILY ENGAGED IN CRIME.  HIS MOTHER SUFFERED FROM DEPRESSION AND WAS PRONE TO SELF-HARM.   HIS PRIMARY EDUCATION INVOLVED HIM IN FIGHTING AND FIRE RAISING.  HE DID ACHIEVE SEVERAL STANDARD GRADES AT SECONDARY.  HE HAS NEVER HAD PERMANENT ACCOMMODATION.  HE HAS NO HISTORY OF EMPLOYMENT.  HE HAS ABUSED ALCOHOL AND DRUGS.  HE HAS HAD ONE LONG TERM RELATIONSHIP AND HAS TWO SONS.  [12]      MR QUINN’S CRIMINAL RECORD IS WORSE THAN THAT OF MR KINLOCH. IT STARTED IN 2003 WITH THE POSSESSION OF A KNIFE, FOR WHICH HE WAS FINED.  IN THE SAME YEAR HE WAS, AMONGST OTHER THINGS, DETAINED FOR 3 MONTHS FOR ASSAULT.  A FURTHER PERIOD OF 3 MONTHS WAS IMPOSED FOR ANOTHER ASSAULT IN THE FOLLOWING YEAR.  HE WAS PUT ON PROBATION FOR 18 MONTHS, BUT SOON BREACHED THAT AND WAS THE SUBJECT TO FURTHER PERIODS OF DETENTION.  IN NOVEMBER 2004 HE WAS SENTENCED TO 18 MONTHS FOR ASSAULT TO SEVERE INJURY AND PERMANENT DISFIGUREMENT BY STABBING HIS MOTHER’S PARTNER.  FURTHER SUMMARY PENALTIES FOLLOWED FOR OFFENCES OF VIOLENCE, PUBLIC DISORDER AND DISHONESTY.  IN NOVEMBER 2008, HE WAS SENTENCED TO 4 YEARS FOR AN ASSAULT TO SEVERE INJURY ON HIS INFANT CHILD, WITH A FURTHER 4 YEAR EXTENDED PERIOD OF SUPERVISION.  IN 2010 HE RECEIVED A FURTHER 9 MONTHS FOR ANOTHER BREACH OF THE PEACE.  IN AUGUST 2013 A SENTENCE OF 16 MONTHS WAS IMPOSED FOR POSSESSION OF AN OFFENSIVE PIECE OF WOOD. [13]      THE RAR REPORTED MR QUINN AS HAVING “A PERSONALITY DISORDER CHARACTERISED BY PERSISTENT AND PERVASIVE SELF CENTREDNESS, LACK OF CONCERN FOR OTHERS, IMPULSIVITY, AGGRESSIVE AND ANTISOCIAL ATTITUDES, POOR ANGER CONTROL, LACK OF TRUST AND STUBBORNNESS”.  THE ASSESSOR, DR DARJEE, CONSIDERED THAT HE POSED AN ONGOING RISK OF VIOLENCE INCLUDING SERIOUSLY HARMFUL VIOLENCE.  HE WAS ASSESSED AS FALLING INTO THE HIGH RISK CATEGORY BECAUSE OF THE MANY RISK FACTORS FOR VIOLENCE AND THE LACK OF PROTECTIVE FACTORS. TREATMENT WOULD BE VERY DIFFICULT. [14]      DR JOHNSTONE PROVIDED A COMMENTARY ON THE RAR IN HER REPORT OF 3 MAY 2014.  THIS CRITICISED WHAT WERE SAID TO BE LIMITATIONS IN THE DATA SUPPORTING THE ASSESSMENT AND THE LACK OF ANALYSIS AND EXPLANATION.  A NUMBER OF SHORTCOMINGS WERE IDENTIFIED BY DR JOHNSTONE IN THE RAR WHICH, IN HER VIEW, FAILED TO MEET THE RMA GUIDELINES.  SHE CONCLUDED THAT THERE WERE SIGNIFICANT OMISSIONS IN THE EVIDENCE BASE.  SHE NOTED A LACK OF INFORMATION FROM SOURCES OTHER THAN THE COURT PROCEEDINGS IN WHICH THE RAR HAD BEEN INSTRUCTED.  FOR EXAMPLE, WHILE DR DARJEE HAD LISTED THE INDICTMENT, CROWN NARRATIVE, NOTICE OF PREVIOUS CONVICTIONS, JUDGE’S REPORT, PRISON SOCIAL WORK RECORDS AND PRISON RECORDS, HE HAD OMITTED TO ACCESS ADDITIONAL SOCIAL WORK RECORDS, AND GP OR MEDICAL RECORDS.  DR DARJEE HAD NOT HAD ACCESS TO HISTORICAL RECORDS SUCH AS THOSE HELD BY EDUCATION, CHILDREN AND FAMILIES AND/OR YOUTH JUSTICE SOCIAL WORK SERVICES, THE SCOTTISH CHILDREN’S REPORTERS ADMINISTRATION, AND THE CHILDREN’S HOMES WHERE MR QUINN HAD RESIDED.  [15]      DR DARJEE PROVIDED A SUPPLEMENTARY REPORT (UNDATED) IN WHICH HE RESPONDED TO DR JOHNSTONE’S CRITIQUE.  HE NOTED THAT HE ONLY INTERVIEWED MR QUINN FOR FIVE HOURS, BECAUSE MR QUINN HAD REFUSED FURTHER INTERVIEWS.  MR QUINN HAD REFUSED TO ALLOW HIM TO INTERVIEW HIS FAMILY MEMBERS.  ALTHOUGH HE DID NOT SPECIFICALLY ACCESS POLICE, GP OR CHILD RECORDS, DR DARJEE EXPLAINED THAT HE DID HAVE ACCESS TO COMPREHENSIVE SOCIAL WORK AND PRISON RECORDS COVERING MR QUINN’S TEENAGE YEARS ONWARDS.  DESPITE THE ACKNOWLEDGED OMISSIONS, DR DARJEE CONSIDERED THAT HE HAD HAD SUFFICIENT INFORMATION TO ASSESS RISK.   SUBMISSIONS MR KINLOCH

JUSTICE SOCIAL WORK REPORTS, THE COURT WILL SUBSTITUTE EXTENDED SENTENCES.  IN THE CASE OF MR KINLOCH, THIS WILL BE AN EXTENDED PERIOD OF 6 YEARS, WITH A CUSTODIAL TERM OF 4 YEARS AND AN EXTENSION PERIOD OF 2 YEARS.  IN THE CASE OF MR QUINN, IT WILL BE AN EXTENDED SENTENCE OF 8 YEARS AND 4 MONTHS, WITH A CUSTODIAL TERM OF 5 YEARS AND 4 MONTHS AND AN EXTENSION PERIOD OF 3 YEARS.  EACH SENTENCE REFLECTS A ONE-THIRD DISCOUNT FOR THE EARLY PLEA. [30]      IN THESE CIRCUMSTANCES, IT IS NOT NECESSARY TO EXPLORE IN DETAIL THE ISSUE OF WHETHER DR DARJEE’S RAR COMPLIED SUBSTANTIALLY WITH THE RMA STANDARDS AND GUIDELINES.  SUFFICE IT TO SAY, WHILST RECOGNISING THAT DR DARJEE MIGHT JUSTIFIABLY HAVE CONSIDERED THAT HE HAD INGATHERED SUFFICIENT INFORMATION UPON WHICH TO BASE AN ACCURATE RISK ASSESSMENT, THE ABSENCE OF ANY REFERENCE TO MR QUINN’S EDUCATION, SOCIAL WORK AND MEDICAL RECORDS CERTAINLY CALLS INTO QUESTION THE ISSUE OF WHETHER THE STATUTORY REQUIREMENTS FOR A RAR WERE MET.