Summary of Appellate Opinion

Factual and Procedural Background

This opinion concerns an appeal following a referral by Company A (the review commission) of the Appellant's convictions on two summary complaints. The Appellant pleaded guilty in December 2021 to multiple summary charges: two counts of sending grossly offensive, indecent, obscene or menacing electronic communications contrary to the Communications Act 2003, section 127(1)(a), and one count of failing to comply with a bail condition contrary to the Criminal Procedure (Scotland) Act 1995, section 27(1)(b). All charges were recorded as aggravated by virtue of abuse of a partner or ex-partner under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

The factual narrative in the original proceedings, as recorded, is that the Appellant sent threatening and abusive emails and messages to the Complainant (her ex-partner/husband) on multiple dates in 2021, including threats to set fire to their home and statements indicating she wished him dead. On 26 November 2021 the Appellant breached special bail conditions by approaching and contacting the Complainant and taking the child with her; the child was later found to be safe and the Appellant was arrested. The child was three years old at the time of the offending described in the first complaint.

Procedurally, the Appellant pleaded guilty at trial in Paisley Sheriff Court on 22 and 23 December 2021. Sentence was adjourned for reports and psychiatric information; a psychiatric report by Attorney Bett was available on 16 February 2022. The Appellant was sentenced on 9 March 2022 to concurrent terms of imprisonment (five months and 11 weeks). The Appellant later applied to the appellate court (on earlier dates) for extension of time to appeal against sentence, which was refused by the Sheriff Appeal Court. Company A subsequently referred the convictions to the appellate court, and the Appellant lodged notes of appeal relying principally on her mental state at the time of offending and at the time she tendered guilty pleas.

Medical and related procedural history relevant to the referral and appeal includes: initial assessment by a community psychiatric nurse at the time of arrest (no further evaluation recommended); repeated crisis assessments through 2020 with no mental health input deemed necessary at those times; a social work report noting weight loss, suicidal thoughts, lack of insight and concerns about ability to rationally analyse outcomes; a locum consultant psychiatric report by Attorney Bett dated 14 February 2022 concluding no evidence of psychosis and finding the Appellant fit to participate in the trial and without a section 51A defence (though Attorney Bett had limited records available to her when preparing that report).

After the Appellant's release from prison, there were significant post-trial developments: a letter from Attorney Thom dated 26 September 2023 confirming the Appellant had been detained and treated under a compulsory treatment order (detained from 9 November 2022 to 15 March 2023) and received antipsychotic medication (Olanzapine) with substantial nursing and therapeutic input. Company A commissioned a detailed forensic psychiatric report from Attorney Crichton who concluded, on the basis of a comprehensive review and later clinical assessment, that the Appellant had suffered from a psychotic delusional disorder at the time of the offending and during the first-instance proceedings, and that she had been unable to appreciate the nature or wrongfulness of her conduct.

The Tribunal made findings of fact on 6 January 2023 noting presentation consistent with delusional disorder, prominent delusional thinking over several years (believing that the Complainant and his family intended to harm her and their son), a pattern of abusive and threatening texts arising from those beliefs, absence of insight into any mental illness, and the necessity of compulsory treatment because previous community treatment attempts were unsuccessful.

Legal Issues Presented

1. Whether the Appellant's guilty pleas were tendered under an error or misconception as to the nature and legal implications of her mental disorder, such that she should be permitted to withdraw her pleas and the convictions set aside (with reference to the unfitness for trial test in section 53F of the Criminal Procedure (Scotland) Act 1995).
2. Whether there is fresh evidence not reasonably available at the time of the original proceedings (including post-trial clinical developments and the report by Attorney Crichton) that would have founded a defence of lack of criminal responsibility under section 51A of the 1995 Act, such that a miscarriage of justice has occurred within the meaning of section 106(3) and (3A) of the 1995 Act.
3. Having determined whether a miscarriage of justice occurred, what disposal (if any) the appellate court should make — quash convictions, substitute verdicts (e.g. acquittal by reason of section 51A), authorise new prosecution, or make an alternative dispositional order under the statutory provisions cited.

Arguments of the Parties

Crown's Arguments

• The Crown conceded that there had been a miscarriage of justice on each complaint and did not oppose the appeal.
• The Crown relied on fresh material and post-trial developments, including the Appellant's compulsory detention and response to antipsychotic treatment, and Attorney Crichton's forensic report, to explain why the psychiatric picture at the time of trial was incompletely understood by Attorney Bett.
• The Crown highlighted that Attorney Bett did not have access (when preparing her report) to the Appellant's GP records, social work records, criminal case productions (including the messages sent by the Appellant), and did not interview the Complainant; this limited information contributed to the original assessment that did not identify psychosis.
• The Crown submitted that the circumstances in which the Appellant pled guilty were exceptional and clearly prejudicial to her, and thus constituted a miscarriage of justice permitting appellate intervention.

Appellant's Arguments

• The Appellant relied primarily on Attorney Crichton's comprehensive psychiatric opinion and the post-trial clinical history demonstrating delusional disorder, arguing that she lacked criminal responsibility under section 51A and/or was unfit for trial under section 53F at the time of the offending and when she tendered guilty pleas.
• The Appellant asked the court to quash the convictions and to substitute verdicts of not guilty by reason of the section 51A defence or, alternatively, find her unfit for trial under section 53F and make a dispositional order under the relevant statutory provisions.
• At the hearing the Appellant's counsel, following the court's earlier analysis in Duzgun, accepted that the immediate appropriate remedy before the court was to quash the convictions (rather than to substitute verdicts and impose disposals in the appellate forum).

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the statutory framework relevant to the appeal. Section 106(3) and (3A) of the Criminal Procedure (Scotland) Act 1995 were quoted to frame appeals based on evidence not heard at original proceedings and the requirement of a reasonable explanation for its prior absence. The court also set out the statutory tests for the special defence of lack of criminal responsibility in section 51A and the criteria for unfitness for trial in section 53F.

On the question of unfitness for trial (section 53F), the court stated that, while it suspected that the Appellant was not fit for trial (probably due to a delusional disorder), the available material was not sufficiently focussed as against the statutory criteria in section 53F for the court to conclude, on the balance of probabilities, that the Appellant was unfit for trial. Accordingly, the court refrained from making a conclusive finding of unfitness under section 53F.

The court proceeded to analyse the significance of post-trial developments. It accepted that developments after conviction — notably the Appellant's compulsory detention order, hospital assessment, treatment with antipsychotic medication and response to treatment, together with Attorney Crichton's exhaustive review and subsequent clinical assessment — can materially assist psychiatrists and courts in reaching a sound conclusion on a person's earlier mental state. The court relied on authorities (including Reid, Jackson and Daly) to support the proposition that retrospective diagnosis and assessment can properly take account of later clinical developments and response to treatment.

The court considered whether the new material (Attorney Crichton's report, the Tribunal findings, correspondence from Attorney Thom and the Complainant's contemporaneous observations) constituted fresh evidence not reasonably available at trial and whether exceptional circumstances existed to treat the guilty pleas as having been tendered in circumstances clearly prejudicial to the Appellant. The Crown conceded that such exceptional circumstances existed, explaining that Attorney Bett did not have access to key records (GP, social work, criminal productions) and had not interviewed the Complainant.

Applying the fresh-evidence principles found in section 106(3) and (3A) and the case law cited (including McGarry and Healy), the court accepted the Crown's concession and concluded that a miscarriage of justice had occurred. The court noted that ordinarily, where a miscarriage of justice rests on evidence not available at the time of original proceedings, the appellate court would authorise a new prosecution; however, the Crown did not seek such authority in this instance.

Finally, when considering the proper appellate disposal, the court referred to its prior analysis in Duzgun regarding the limits of substituting verdicts and making disposals in the appellate forum. The court concluded that it would not be appropriate to substitute a verdict of not guilty by reason of the special defence in section 51A and then make disposals under section 57 in the appellate forum. Instead, the court determined the appropriate course was to quash the convictions.

Holding and Implications

CONVICTIONS QUASHED

Holding: The court sustained the appeals and quashed the Appellant's convictions on both summary complaints.

Implications and immediate effects:

• The Appellant's convictions recorded at first instance on both complaints were quashed.
• The court did not substitute a verdict of not guilty by reason of the special defence in section 51A, nor did it make a dispositional order under the mental health provisions in the appellate forum; this approach followed the court's reasoning in Duzgun.
• The Crown did not seek authority for a fresh prosecution; ordinarily that would be the course where an appeal succeeds on fresh evidence, but it was not pursued here.
• The opinion records the practical and human consequence that the Appellant spent months in prison at a time when, on the accepted evidence, she was later assessed and treated for a major psychotic illness.
• The court stated that no new precedent was intended beyond applying established principles on fresh evidence, post-trial developments, and the limits of appellate disposals; the decision rests on the particular facts, the Crown's concession, and the authorities cited.

Panel delivering the opinion: Judge Becket (delivering the opinion), with Judge Matthews and Judge Armstrong sitting.

Counsel (as recorded): Attorney Kennedy for the Appellant; Attorney MacLeod for the Respondent.