I suppose if I were to have thought rationally about it I should have anticipated in advance the public outcry and “media frenzy” that the Noel Ruddle case has brought about. Not only has my client been pursued by eager journalists keen to satisfy the public’s macabre and unrelenting curiosity for the psychopathic killers; but I too have become an object of interest and even hate, with headlines in certain tabloids announcing me as “Champion of Child Killers” and even The Sunday Times brandishing me as “The Devil’s Advocate”. It has been suggested I am “cashing in” in attempting to “win freedom for psychos”; arriving at Lanark Sheriff Court “in £30,000 Mercedes”.
Reporters and photographers have regularly besieged my office and followed me to various courts throughout Scotland. My neighbours and former business partners have been questioned about me and about my private life. Several members of my local faculty in Kirkcaldy have similarly been approached. I have received hate mail. It seems the consensus of opinion is that I am to be criticised for carrying out my professional duties to the best of my ability. Oh for the benefit of hindsight! Having said that, how many of us as criminal practitioners have been asked at social events by non-legal interested parties: “How can you act for someone even if you know they are guilty?” To lecture the seemingly ignorant inquisitor on the role of the lawyer as representative and not as judge and/or jury often, more often than not, leaves the listener baffled.
It is therefore much appreciated by me to obtain a forum to outline the distinctive legal points of the Ruddle case which hereto have not been reported and obviously I hope, to a more sympathetic and informed audience.
I took over acting for Mr Noel Gerard Ruddle after he wrote to me from the State Hospital in Carstairs in September 1997. In terms of the current Mental Health (Scotland) Act, 1984 every patient who is a long-term patient with a hospital order imposed following upon either a civil admittance of by virtue of a disposal in a criminal case has an annual right of appeal against his or her continued detention. This provision was introduced following a successful case taken to the European Court of Human Rights, namely the decision of X against UK (1981) 4EHRR188. Essentially what the decision said was that there had to be some kind of independent review procedure for long-term hospital patients and the 1960 Mental Health (Scotland) Act was amended in order to introduce the independent appeal to the Sheriff Court. This was later consolidated in the Mental Health (Scotland) Act, 1984.
Mr Ruddle had on 20 March 1992 pled guilty at Glasgow High Court to three contraventions of The Firearms Act, 1968, two charges of assault to danger of life, a charge of culpable and reckless discharge of rifle to danger of life, and culpable homicide. The date of the original or “index” offence was 30 November 1991. The High Court heard evidence from two consultant psychiatrists, and the court on hearing this evidence and being satisfied that Mr Ruddle was suffering from a mental disorder within the meaning of the 1984 Act made a hospital order under Section 175 of the Criminal Procedure (Scotland) Act, 1975 (now Section 58 of the Criminal Procedure (Scotland) Act, 1995) specifying the State Hospital as the place of detention. Furthermore, a restriction order was made in terms of Section 178 of the Act. A restriction order against a patient’s discharge may be made where it seems to the sentencing court that because of the nature of the offence, the person’s previous history and the risk that he or she would commit offences if allowed to go free, an order is necessary to protect the public from serious harm. The doctors involved must give evidence orally before a restriction order can be made. It is therefore clear that at Glasgow High Court Mr Ruddle did indeed satisfy these criteria.
The imposition of the restriction order has an important political effect also. It brings the patient under the direct control of the Scottish Executive (previously the Secretary of State for Scotland and now under the Scotland Act, 1998 a matter devolved to the Scottish Parliament and the Scottish Executive). In “Carstairs Speak” someone in this category is referred to as a “Secretary of State patient” which Mr Ruddle certainly was. A patient who is a “Secretary of State patient” cannot be discharged by their RMO (responsible medical officer) – the psychiatrist with primary responsibility for a particular patient or by the Mental Welfare Commission. Only the sheriff (following a successful appeal) or the Scottish Ministers may discharge such a patient.
At the time of the “index offence” Mr Ruddle was diagnosed as suffering from the psychotic disorder of paranoid schizophrenia. Personality disorder was not the basis for the recommendation for the hospital order. In any event it is generally acknowledged by psychiatrists that offenders diagnosed as having personality disorders would not normally be made the subject of a hospital order. They are in general not thought to be treatable and accordingly would generally be sent to prison. As at the time of the appeal to Lanark Sheriff Court seeking discharge Mr Ruddle had been continuously detained in the State Hospital at Carstairs since 20 March 1992 when the original order was made. The appeal was taken to Lanark Sheriff Court as the State Hospital lies within the jurisdiction of Lanark Sheriff Court and in terms of the Mental Health (Scotland) Act, 1984, the appeal is to the sheriff of the Sheriffdom within which any particular hospital is situated.
The relative section under which the appeal was taken is Section 64 of the Mental Health (Scotland) Act, 1984 which states:
“64(1) Where an appeal to the sheriff is made by a restricted patient who is subject to a restriction order, the sheriff shall direct the absolute discharge of the patient if he is satisfied:
(a) that the patient is not, at the time of the hearing of the appeal, suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(b) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; and (in either case)
(c) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
“(2) Where in the case of any such patient as is mentioned in subection (1) of this section the sheriff is satisfied as to the matters referred to in paragraph (a) or (b) of that subsection but, not as to the matters referred to in paragraph (c) of that subsection, he shall direct the conditional discharge of the patient.”
In so far as Mr Ruddle’s progress within the State Hospital is concerned between March to August 1992, it was accepted that there was a remarkable improvement in Mr Ruddle’s mental health in respect of the psychosis which led to his admission and since August 1992 he showed no signs of psychosis whatsoever. In the initial period until August 1992 he was treated by antipsychotic and antidepressant medication. It was held to be the view that his original psychosis at the time of the index offence was likely (as is often the case) to have been a substance induced disorder, induced with a variety and combination of drugs and alcohol. He had not received any medication since August 1992 and there was no question that drug treatment would as at the time of Mr Ruddle’s appeal be appropriate for him.
Mr Ruddle was accordingly recognised in 1992 as suffering from an antisocial personality disorder which was considered at that stage by his RMO, Doctor Thomas Whyte, as being treatable by specific treatment intervention. Doctor White attempted to arrange for said intervention to take place, but without success.
In April 1998 Mr Ruddle was seen and examined by a panel called the Medical Sub Committee of the State Hospital comprising three psychiatrists not employed at the State Hospital and a senior nurse. This committee has no legal status within the structure of the hospital but performs an important expert advisory review role, periodically reviewing the appropriateness of each patent’s detention and continued treatment. Very importantly in this case the committee concluded that Mr Ruddle was suffering from personality disorder, but that medical treatment in hospital was not likely to alleviate or prevent a deterioration of his condition. Mr Ruddle was told by way of a letter from the Medical Sub Committee on 16 April 1998 – this letter being lodged as a production in this case.
“The Medical Sub Committee has concluded that you are suffering from a mental disorder which is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct. The Medical Sub Committee did not consider that treatment is likely to alleviate or prevent a deterioration of your condition.
“You will appreciate that this is the view of the Medical Committee but that decisions concerning your transfer, conditional discharge or discharge are matters for the Secretary of State for Scotland”.
The Secretary of State was similarly advised as to the Medical Sub Committee’s decision. Mr Ruddle’s RMO, in the light of the decision of the Medical Sub Committee and following extensive consultation with colleagues, reviewed his opinion and actually changed his mind in so far as Mr Ruddle’s treatability was concerned. He concluded that his previously held view was untenable against Scottish psychiatry teaching and out of step with the majority of practising psychiatrists. He attempted to obtain a conditional discharge for Mr Ruddle into a local hospital within the community setting but was unable to find a consultant psychiatrist willing to act under such a discharge, the reason being that the overwhelming psychiatric view was that an absolute discharge was appropriate.
Meanwhile Mr Ruddle continued to show improvement – co-operating fully, security level being reduced, full ground parole awarded, given a key to his own room.
Every Secretary of State patient’s RMO requires under Section 62(2) of the 1984 Act to provide an annual report in respect of each patient to the Secretary of State. On 9 March 1999 the responsible medical officer, Doctor White, indicated to the Secretary of State’s advisor that his view was not aligned with that expressed by the Medical Sub Committee. The Secretary of State was further aware that the Mental Welfare Commission had seen Mr Ruddle on 19 March 1998 and had concluded, “Commissioners expressed some concern about the treatability of Mr Ruddle’s condition.” All it would appear were now agreed, including the RMO, by March 1999 that albeit Mr Ruddle was suffering from an antisocial personality disorder (which may also be described as psychopathic or a dis-social personality disorder according to different psychiatrists (those of us involved in this area of law will appreciate how difficult it often is for two psychiatrists to agree on definitions let alone anything else!) that there is a substantial dispute within literature regarding the treatability of personality disorder and the conclusion reached was that treatment would not be likely to alleviate or prevent a deterioration of Mr Ruddle’s condition.
Mr Ruddle, however, remained a patient. The Secretary of State, whether for political reasons or not, refused to discharge him. This was despite the fact that Dr Ann McDonald, the principal psychiatric advisor to the Secretary of State, favoured conditional discharge after the April 1998 Medical Sub Committee decision and evidence was also given in court that Dr Basson, the Secretary of State’s previous advisor, had stated in 1994 that it was hard to see, even at that stage, what the State Hospital was doing for Mr Ruddle other than containment.
Mr Ruddle had via myself indicated that he would rather not petition the court for discharge. He was fully aware of the publicity that that would involve and attract and if at all possible he indicated that he would comply with any reasonable rehabilitation package and conditional discharge. None was forthcoming and thus his appeal was lodged with Lanark Sheriff Court on 16 February 1999. Mr Ruddel’s hearing took place in Lanark Sheriff Court on 9, 28, 29 and 30 April when evidence was led from six consultant psychiatrists, namely Dr Margaret Morrison, Dr Andrew Reid, Dr Derek Chiswick, Dr Margaret Smith, Dr John Baird and the RMO, Dr Tom White. The case was then continued for legal submissions until 20 May 1999. Sheriff J. Douglas Allan issued his 37-page detailed decision granting absolute discharge on 2 August 1999. The sheriff held in his findings in fact that Mr Ruddle was receiving treatment.
“9.2 The applicant has, throughout his period in the State Hospital, been in a protective, controlled and structured environment. The wards in which he has been have had a high staff to patient ratio, have been staffed by trained psychiatric nurses working under medical supervision using their psychiatric nursing skills, a high level of observation, a high tolerance of aggressive or hostile words and actions, intervening and counselling to avoid escalation and a minimising of opportunities to behave impulsively or aggressively. This falls within the definition of medical treatment in Section 125 of the 1984 Act. Such an environment can, in come circumstances, amount to more than simply components of care or than caring containment for patients able to benefit from it. To this extent the applicant has received medical treatment in the State Hospital.”
The question was, was Mr Ruddle receiving appropriate medical treatment such that it was appropriate for him to remain liable to detention? Sheriff Allan again in his findings in fact stated,
“9.3 This would not, however, generally be considered by psychiatrists to constitute medical treatment in the clinical sense. In essence, although therapeutic, it involves containment within a safe location, preventing exposure to influences which may trigger relapse. Psychiatrists would not generally consider it appropriate to detain a person with uncomplicated anti-social personality disorder if no specific medical treatment would be likely to be effective. The security aspect of the State Hospital environment (which should prevent access to alcohol or drugs or the opportunity to offend and should prevent the patient deteriorating) can be distinguished from any therapeutic aspects of the structured ward environment and such security aspect is not medical treatment as such.”
Of any interventionist type treatment offered by way of a focused psychological treatment the sheriff held:
“9.6 Despite the lack of evidence that such psychological interventions would be made available to the applicant in the future if he continued to be detained in the State Hospital, even if they were to be made available to him, he would not necessarily need to receive any of them as an in-patient. On the contrary, there is advantage, as regards assessment of their efficacy, in providing such treatment in the community.”
The sheriff in reaching his decision very much followed the opinion, approach and guidelines which had been set out as the correct “test” for the sheriff to follow in appeals of his nature by Lord Clyde in the case of R v The Secretary of State for Scotland 1999 SLT 279, at page 294B-G. In that decision Lord Hope stated at page 287J:
“The issues to which the sheriff is required to address his mind when he is considering an application for discharge under Section 64(1) are the same as those which have to be considered when an application is made under Section 18(1) for admission to a hospital”.
The criteria for admission to hospital under Section 18 are contained in Section 17(1) of the 1984 Act. Section 17(1)(a)(i) contains an important condition which requires to be satisfied.
“In the case where the mental disorder from which (a person) suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition”.
In the Reid case their lordships held that this test, the so-called “treatability test”, is incorporated into the so called “appropriateness test” in Section 64(1)(a) per Lord Hope at page 288J where he approves that view as expressed by Lord Macfadyen in the Reid case in the Inner House. Lord Hope observes at page 288H-I:
“It is only if the ‘treatability test’ is satisfied that it will be necessary to consider whether it is appropriate that the treatment should be received by a person in a hospital and, if so, whether it is necessary for his health or safety or for the protection of other persons”.
The sheriff accordingly went through various questions in this case and asked himself (1) did Mr Ruddle have a mental disorder? Of that Sheriff Allan stated, “I am satisfied that there is no disagreement that the applicant has a mental disorder”, (2) the nature and degree of it. Sheriff Allan stated, “This witnesses all agreed that the applicant was suffering from a personality disorder…None of them suggested that the applicant was other than a person who clearly fell within the category of anti-social personality disorder”, (3) the nature of any possible treatment, ie the court is required to consider the nature and effectiveness of any possible treatment and to consider whether the “treatability test” is satisfied in the case of the psychopathic disorder. The sheriff was in fact highly critical of the shortcomings of the State Hospital to deliver a treatment package of assistance to Mr Ruddle.
“I do not have all the necessary information available to me in this present forum to reach an informed and concluded view, but I have to express my disappointment – to put it at its very lowest – that the Board or Management Committee was unable to make the necessary arrangements to provide the treatment which was considered clinically necessary by the applicant’s responsible medical officer… All I can say is that I do not consider that the applicant has been best served by the State Hospital and he has been denied the one form of primary psychological treatments which are regarded as the most credible clinical approaches to the type of personality disorder from which the applicant suffers.” (4) The sheriff required to consider the effectiveness of any possible treatment. As to the effectiveness, in the light of Lord Clyde’s guidance this is tied to the treatability test, ie in someone such as Mr Ruddle who suffers from persistent disorder manifested only by abnormally aggressive or seriously irresponsible conduct then treatment must be likely to alleviate or prevent deterioration in his condition. The Sheriff detailed,
“Of all the psychiatrists who gave evidence, Dr Baird was alone in considering that the benefits flowing from the structured environment of the State Hospital were likely, on their own, to alleviate or prevent a deterioration of the applicant’s condition”. The sheriff then went on to reject Dr Baird’s evidence stating, “Having given the most careful and anxious consideration to this conflict of views, I have concluded that the weight of evidence is against Dr Baird’s view and I have accepted the majority view that such treatment as the applicant has received from the structured, controlled and caring environment at the State Hospital has not alleviated or prevented a deterioration of his condition and is not doing so”.
In considering the treatability test the sheriff was further referred to the decision of the European Court of Human Rights in the Winterwerp case (1979-80) 2EHRR387 which was a case commenting on the lawful detention of persons of unsound mind in terms of Article 5(1)(e) of the Convention. In particular in that decision it was stressed that detention of a person simply because his views or behaviour deviated from the norms prevailing in a particular society could not be permitted. The sheriff in the Ruddle decision quoted from the Winterwerp case stating,
“In paragraph 39, the court expresses its option on the correct approach to “lawfulness”. In particular the court agreed with the Commission that there must be no element of arbitrariness. No-one may be confined as a person of “unsound mind” in the absence of medical evidence establishing that his mental state is such as to justify his compulsory hospitalisation”. The Sheriff went on to add,
“Clearly in approaching an appeal under Section 64 of the 1984 Act the domestic court will require to be mindful of that approach. There must therefore be medical evidence establishing that continued compulsory hospitalisation is necessary or appropriate”.
The sheriff was thus bound to discharge the applicant as the treatability test was not satisfied. He stated,
“In these circumstances I have been satisfied that the applicant is not, at present, suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment. In other words, the requirements of Section 64(1)(a) have been met (and I do not therefore require formally to consider Section 64(1)(b)”. The sheriff’s decision will no doubt be reported in early course. To my knowledge the case has not as yet been reported, but was evidently only issued by Sheriff Allan on 2 August 1999.
Clearly therefore there was no loophole, simply the direct application of the legislation to Mr Ruddle’s case using the House of Lords guidelines as formulated in the Reid decision.
The new legislation being the first legislation to be passed by the new Scottish Parliament taking the format of the Mental Health (Public Safety and Appeals) (Scotland) Act, 1999 remains still to be tested in Lanark or indeed elsewhere in Scotland to my knowledge having only been passed by the Scottish Parliament on 31 August 1999. Section 1 which is entitled “Continued detention of mentally disordered patients on grounds of public safety” states inter alia,
“Where an appeal to the sheriff is made by a restricted patient, who is subject to a restriction order, the sheriff shall refuse the appeal if satisfied that the patient is at the time of the hearing of the appeal, suffering from a mental disorder the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital whether for medical treatment or not…” This obviously may well have European legislation shortcomings that remain to be challenged. Watch this space!