Factual and Procedural Background
This was an appeal against sentence brought after a referral by the Scottish Criminal Cases Review Commission. The Appellant argued that the 1998 hospital order with restriction on discharge was a miscarriage of justice because later psychiatric evidence showed that he did not have paranoid delusional disorder when the order was imposed. [Para 13][Para 16][Para 30][Para 31]
The Appellant had pleaded guilty in 1998 to breach of the peace and assault involving Solicitor A, following earlier conflict with her and a history of convictions for similar conduct. The sentencing judge heard psychiatric evidence from several clinicians, including reports supporting paranoid delusional disorder and others favouring personality disorder or uncertainty, and then imposed a hospital order with restriction on discharge in November 1998. [Para 17][Para 19][Para 20][Para 24][Para 25][Para 29]
The Appellant was refused leave to appeal at the time, remained detained in secure psychiatric care, and the Commission later referred the case in 2025, after which a fresh appeal was lodged. [Para 30][Para 31][Para 32]
Legal Issues Presented
- Whether later psychiatric and longitudinal-history evidence showed that the 1998 diagnosis of paranoid delusional disorder was wrong, so that the hospital order with restriction on discharge amounted to a miscarriage of justice. [Para 13][Para 16][Para 224][Para 225]
- Whether, looking at the case as it stood in 1998 but with the benefit of fresh evidence, the court should quash the restriction order and the hospital order because personality disorder, not mental illness, was the correct diagnosis. [Para 59][Para 68][Para 90][Para 94]
Arguments of the Parties
Appellant's Arguments
- The long-term psychiatric record was fresh evidence showing a consistent pattern of personality disorder rather than delusional disorder. [Para 210][Para 213]
- He had not shown the kind of fixed false beliefs or relapse under stress that would be expected in delusional disorder, and his grievances had an objective basis in reality. [Para 210][Para 213]
- The lack of response to medication, and the later diagnosis of personality disorder, supported the contention that the 1998 diagnosis was wrong. [Para 211][Para 213]
- He also relied on Article 5 of the European Convention on Human Rights and on Reid v HM Advocate. [Para 215][Para 216]
Respondent's Arguments
- The court should not quash a valid order merely because psychiatric opinion had changed after 1998. [Para 218]
- Neither of the later expert witnesses had excluded the correctness of a diagnosis of paranoid personality disorder, and the original reporting psychiatrist should be given significant weight because she had examined the Appellant in 1998. [Para 219][Para 222]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Kennedy v HM Advocate [2024] HCJAC 50, 2025 JC 156 |
Court may interfere with sentence only if it is a miscarriage of justice. |
Used to state the governing test for appellate interference with sentence. [Para 69] |
| Johnstone v HM Advocate [2013] HCJAC 92, 2013 SCCR 487 |
Appeal must be assessed as at the time of sentence; later psychiatric opinion or changed practice does not of itself invalidate a valid order. |
Relied on for the approach to fresh evidence and the limits on retrospective challenge to hospital and restriction orders. [Para 73][Para 74][Para 75][Para 76][Para 77][Para 78] |
| Mackison v Bernard [2025] HCJAC 45, 2026 JC 47 |
Post-conviction developments may help the court assess an earlier mental state. |
Cited to support considering the later longitudinal psychiatric record when deciding whether a miscarriage of justice occurred. [Para 224] |
| Reid v HM Advocate [2012] HCJAC 150, 2013 SCCR 70 |
This was the case the Appellant said was difficult to distinguish. |
Mentioned only in submissions; the opinion does not rely on it in the reasoning. [Para 216] |
| MB v Spain, application 38239/22, 6 February 2025 |
Article 5 unsound-mind questions are assessed at the time liberty is deprived and expert evidence must be scrutinised strictly. |
Cited by the Appellant in support of the ECHR argument. [Para 215] |
Court's Reasoning and Analysis
The court began by accepting that the 1998 diagnosis had been reasonable on the information then available, and treated the appeal as one turning on whether later evidence could nevertheless show a miscarriage of justice. [Para 224][Para 225]
It held that the later records were materially different from the evidence before the sentencing judge because they provided a much longer longitudinal history, showing that the Appellant's behaviour at the time of the index offence fit a broader pattern consistent with personality disorder. [Para 225][Para 226]
The court rejected the argument that delusional beliefs must be wholly detached from reality, holding that neither ICD-10 nor ICD-11 requires that, and that the Appellant's objectively grounded grievances could still have been delusional if held with fixity, conviction, and resistance to counterargument. [Para 229][Para 232][Para 233]
On the evidence, the court accepted that extreme conduct alone did not prove delusional disorder, but considered that the contemporaneous presentation in 1998, including the intensity of the Appellant's beliefs and the violence directed at Solicitor A, was consistent with a delusional disorder coexisting with personality disorder. [Para 233][Para 234][Para 235]
The court also relied on the literature and current ICD-11 categories to accept that delusional disorder can remit, so the later shift to a personality-disorder diagnosis did not undermine the original diagnosis by itself. [Para 236][Para 237]
Although all three expert witnesses were well qualified, the court gave significant weight to the original reporting psychiatrist because she had personally observed the Appellant in March and August 1998 and was best placed to assess the intensity of his beliefs at the material time; by contrast, the independent expert's evidence rested mainly on records and later review. [Para 239][Para 242][Para 243]
Holding and Implications
Appeal refused. The court held that the Appellant had not shown the 1998 diagnosis of paranoid delusional disorder to be wrong, and therefore the hospital order with restriction on discharge remained valid. The direct effect was that the order stood against the Appellant. [Para 244]