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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson & Ors v. The Scottish Ministers & Anor [2000] ScotCS 336 (16 June 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/336.html Cite as: [2000] ScotCS 336

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[1] We have before us three references from the Sheriff Court at Lanark under paragraph 7 of Schedule 6 to the Scotland Act 1998 ("the Scotland Act"). All three references have been made in the context of appeals under Section 63 of the Mental Health (Scotland) Act 1984 ("the 1984 Act") by patients in the State Hospital at Carstairs who are subject to restriction orders. In all three cases the Sheriff has referred the same question to the court: is Section 1 of the Mental Health (Public Safety and Appeals)(Scotland) Act 1999 ("the 1999 Act") a provision which is, in whole or in part, outwith the legislative competence of the Scottish Parliament by virtue of Section 29(2)(d) of the Scotland Act 1998 and, accordingly, not law in terms of Section 29(1) thereof?

[2] More particularly, the question turns on whether Section 1 is compatible with the rights of restricted patients under Article 5(1)(e) and Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").

[3] The relevant facts of the three cases are not in dispute.

[4] The applicant Karl Anderson was formerly known as Karl Tonner. Under that name in 1968 he pled guilty at Dundee Sheriff Court to an indictment containing a charge of culpable homicide and, more particularly, to assaulting a girl aged 12, seizing hold of her, forcing her to accompany him to a basement cellar, there compressing her throat with his hands, tying a piece of rope or other ligature around her neck and strangling and killing her. Tonner was charged with culpable homicide on the basis of diminished responsibility. In the High Court at Edinburgh on 6 December 1968 Lord Justice Clerk Grant, being satisfied on the evidence of two medical practitioners that Tonner was suffering from a mental disorder, by order authorised his admission to, and detention in, the State Hospital at Carstairs in terms of Section 55 of the Mental Health (Scotland) Act 1960 ("the 1960 Act"). It appears that Tonner was diagnosed as suffering from a serious personality disorder with schizoid features, which was considered to be treatable. The Lord Justice Clerk made a further order under Section 60 of that Act restricting the discharge of Tonner without limit of time. He has been continuously detained since then in the State Hospital.

[5] On 8 July 1999 Anderson appealed by way of summary application to the Sheriff at Lanark under Section 63 of the 1984 Act. He asked the sheriff to order his absolute discharge under Section 64. On 2 August 1999 judgment was given in the case of Ruddle v. The Secretary of State for Scotland 1999 G.W.D. 29-1395. Sheriff Allan directed the absolute discharge of Ruddle from the State Hospital and he was duly discharged. No hearing in relation to Anderson's appeal had taken place by 1 September 1999. Subsequently, in the context of that appeal the Sheriff made the present reference to this court.

[6] The applicant Brian Martin Doherty was convicted at Antrim Crown Court on 15 May 1995 of the kidnapping and manslaughter of a boy of 11. The trial judge, Mr. Justice Higgins, narrated the circumstances and commented that "A more cruel and macabre killing is difficult to imagine." He added that it was an offence of a kind not hitherto seen in the Northern Irish jurisdiction. The Crown accepted a plea of guilty to manslaughter on the basis of diminished responsibility. Doherty was sentenced to life imprisonment on the manslaughter charge and to ten years imprisonment on the kidnapping charge, the sentences to run concurrently. In imposing the life sentence, the trial judge observed that Doherty

[7] On 19 June 1995 the Secretary of State for Northern Ireland made a transfer direction in terms of Article 53 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986 No. 595) ("the 1986 Order"). In terms of the direction Doherty was transferred to Holywell Hospital in Northern Ireland. The Secretary of State also directed that he should be subjected to a restriction direction in terms of Article 47 of the 1986 Order. In making the order for Doherty's transfer the Secretary of State expressed himself as being satisfied on the basis of medical reports that he was suffering from a mental disorder of a nature or degree which warranted his detention in hospital for medical treatment. The medical reports indicated that Doherty suffered from mental handicap - borderline only, in the view of one of the experts - resulting in significant impairment in his social functioning and major behavioural disturbance. Then, on 27 July 1995, under Section 81 of the 1984 Act the Secretary of State for Northern Ireland authorised Doherty's removal to the State Hospital at Carstairs. In doing so, the Secretary of State indicated that it appeared to him that it was in the interests of Doherty to remove him to the State Hospital. There is no comparable facility in Northern Ireland. On 14 August 1995 Doherty's responsible medical officer furnished a report dated 11 August to the managers of the State Hospital, stating that in his opinion Doherty was suffering from mental handicap of a nature or degree which made it appropriate that he should be liable to be detained in hospital for medical treatment. Reports lodged in process indicate that in 1995 the view was taken either that Doherty suffered from severe mental handicap or that he suffered from mental handicap and the structured and psychiatrically-led approach to his care afforded by his being accommodated within the State Hospital prevented his behaviour from deteriorating.

[8] On 22 July 1999 Doherty appealed by summary application to the Sheriff at Lanark under Section 63 of the 1984 Act asking the Sheriff to notify the Scottish Ministers under Section 65(1) that, if he were subject to a restriction order, he would be entitled to be absolutely discharged. On being so notified, it would have been the duty of the Scottish Ministers under Section 65(2) to direct by warrant that Doherty be remitted to prison to complete his sentence. By 1 September 1999 no hearing had taken place in relation to Doherty's appeal. Subsequently, in the context of that appeal the Sheriff made the present reference to this court.

[9] The third applicant is Alexander Reid who pled guilty at the High Court at Glasgow on 8 September 1967 to a charge of culpable homicide. Having heard oral evidence from two practitioners that Reid was suffering from mental deficiency, Lord Walker ordered him to be admitted to, and detained in, the State Hospital at Carstairs under Section 55 of the 1960 Act. He also made an order under Section 60 restricting Reid's discharge from hospital without limit of time. It is a matter of agreement that, despite the evidence led before Lord Walker, Reid is not mentally handicapped and does not now suffer from mental deficiency. But he does suffer from a mental disorder manifested only by abnormally aggressive and seriously irresponsible behaviour. That disorder can conveniently be referred to as a "psychopathic personality disorder".

[10] In 1985 Reid was transferred to Sunnyside Hospital in Montrose but he still remained a restricted patient. In 1986 he was convicted of an assault on a girl of 8 and was sentenced to three months imprisonment. After his release from prison, Reid was recalled to the State Hospital where he has remained ever since. Reid has appealed repeatedly against his continued detention. In particular he appealed in 1994 and the Sheriff at Lanark refused his appeal on 19 July of that year. Reid then brought proceedings for judicial review of the Sheriff's decision. The Lord Ordinary's interlocutor dismissing the petition was reversed by the Second Division. On appeal to the House of Lords, the Lord Ordinary's interlocutor was restored, but their Lordships agreed with the interpretation of the legislation which the Inner House had adopted. The proceedings are reported as R. v. Secretary of State for Scotland 1997 S.L.T. 555; 1998 S.C. 49 and 1999 SC (HL) 17. Although Reid thus ultimately failed to have the Sheriff's decision reduced, the decision of the House of Lords was extremely important in clarifying certain aspects of the relevant law. Indeed that decision was the starting point for the events which led to the 1999 Act and to the present proceedings. In March 2000 Reid appealed by summary application under Section 63 of the 1984 Act asking the Sheriff at Lanark to order his absolute discharge under Section 64. In that appeal the Sheriff made the present reference to this court.

[11] The common factor in all three cases is that the applicants are "restricted patients" within the terms of Section 63(1) of the 1984 Act. The only patients who can be so classified are patients who have been involved at some stage in proceedings before the criminal courts. As I have explained, in the case of the applicants Anderson and Reid, the High Court made a hospital order under an earlier version of the provision which is now to be found in Section 58 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). In addition the court made an order under Section 60 of the 1960 Act, the equivalent of Section 59 of the 1995 Act, subjecting them to special restrictions relating to their detention. Before making such a restriction order, under Section 59(1) the court has to be satisfied, on various grounds, that it is necessary "for the protection of the public from serious harm" to make a restriction order. Among the grounds to be taken into account is the risk that, as a result of his mental disorder, the offender would commit offences if set at large.

[12] A patient who is subject to a Section 59 order is a "restricted patient" under Section 63(1) of the 1984 Act. The definition of restricted patient also includes patients who are subject to a "restriction direction" in terms of Section 72. These are patients who have been transferred from prison to hospital under a transfer direction made under Section 71. By Section 81(2) a patient, such as Doherty, who was made the subject of a restriction direction by the Secretary of State for Northern Ireland, is treated as if he were subject to a restriction direction under Section 72 and so counts as a "restricted patient" under Section 63(1).

[13] To appreciate the significance of the status of "restricted patient", it is necessary to have regard to the scheme for the detention of patients under the 1984 Act. The general provisions relating to the admission and detention of patients are found in Part V of the Act. Part VI then provides a special régime which applies to patients detained in connexion with criminal proceedings. Within this Part are provisions dealing with restricted patients.

[14] Many patients in mental hospitals are, of course, voluntary patients. But the law has always required to deal with the situation where, either for the benefit of the patient himself or to protect others, the patient needs to be treated in hospital but will not enter voluntarily. In broad terms, Part V contains the current law relating to such patients.

[15] In particular, Section 17 lays down the grounds upon which these patients can be admitted and detained:

In the cases of Anderson and Reid the applicable provision is Section 17(1)(a)(i) which deals with persons suffering from a psychopathic personality disorder. Section 17(1)(a)(ii) applies to Doherty's case. It is worth examining these provisions in a little more detail.

[16] The persons to whom paragraph (1)(a)(i) applies are simply described as suffering from a persistent personality disorder which manifests itself only by abnormally aggressive or seriously irresponsible conduct. Section 17 is not as such concerned with people who are involved in criminal proceedings - it comes to apply to them only by virtue of Section 58 of the 1995 Act. In itself Section 17 describes the circumstances which justify the admission and detention of such persons in a civil context under Section 18. There are, of course, many people who persist in abnormally aggressive or seriously irresponsible conduct. For the most part, they remain at liberty in the community until their conduct takes the form of a criminal offence and they are brought before a court. Even then, they will retain their liberty unless the court chooses to impose a sentence of imprisonment or detention, as the case may be. Where they are not before a criminal court, Section 17 allows for the compulsory admission and detention of such persons in hospital only where their behaviour is a symptom of a mental disorder and detention would make possible treatment which would be likely to alleviate or prevent a deterioration in their condition. Simply as a form of shorthand I shall refer to this as "the alleviating treatment test". The same test applies to persons suffering from mental handicap under paragraph (1)(ii). It is noteworthy that the precondition for admission and detention is simply that the treatment "is likely" to have the desired effect. That is a practical test which allows for the fact that doctors are unlikely to be able to predict the success of any treatment with total accuracy. On the other hand, by adopting that test, Parliament must have envisaged that the treatment, though "likely" to be effective, would not in fact always prove to be so. As the House of Lords held in R. v. Secretary of State, once it turns out that the patient's condition is untreatable, the basis for his detention under Section 17 flies off and he must be released.

[17] When the section is viewed in a purely civil context, this is by no means a surprising or particularly disturbing situation since the patient simply returns to the community and his aggressive and irresponsible conduct is left to be controlled in the normal way by the criminal law. Similarly, persons suffering from mental handicap, as opposed to severe mental handicap, are to be returned to the community if the treatment proves ineffective. Their conduct too will be controlled in the normal way by the criminal law. While this approach may indeed be acceptable when it is applied in a civil context, experience has shown that real difficulties can and do arise when the same test is used by criminal courts for making hospital orders in cases of serious crime and it subsequently turns out that treatment cannot alleviate or prevent a deterioration in the patients' condition. Those difficulties lie at the heart of this case.

[18] Section 24 of the 1984 Act deals with emergency admissions and Section 26(1) with detention for a period of up to 28 days. The admission and longer-term detention of patients are regulated by Section 18 which contains the safeguard of a procedure involving the relevant application being approved by an independent judicial figure in the shape of the sheriff. Once the patient has been duly admitted, the duration of his detention is governed by Section 30. Essentially, the authority for his detention lasts for an initial period of six months, then, if renewed, for a further period of six months, after which, if renewed, it lasts for renewable periods of twelve months. Of course, before the expiry of any period, the patient must be assessed and, if the grounds for detention set out in Section 17 are still fulfilled, the authority for the patient's detention is renewed for the relevant period (Section 30(3) and (4)). If not discharged, the patient has a right of appeal (Section 30(6)). The ordinary patient detained under Part V can be discharged by the responsible medical officer, the Mental Welfare Commission for Scotland or the sheriff, if an appeal is taken (Section 33).

[19] Where a patient is admitted by virtue of an order under Section 59 of the 1995 Act, he is subject to certain, but not all, of the provisions in Part V of the 1984 Act (Section 60(2) of, and Part I of Schedule 2 to, the 1984 Act). In particular the duration of his detention is regulated by Section 30 and so is only for renewable periods of six or twelve months. Similarly, he can be discharged under the (slightly modified) provisions of Section 33.

[20] The effect of a restriction order is, as Section 62(1) of the 1984 Act makes clear, to place certain special restrictions on a patient to whom it applies. In particular by Section 62(1)(a)

By virtue of this subsection the authority for the detention of restricted patients is different from the authority for the detention of other patients. Under Part V the authority for the detention of other patients must be renewed from time to time or else it runs out; Part V does not apply to restricted patients and the authority for their detention lasts without renewal until an order for the patient's discharge is made under Sections 63 to 68 of the Act.

[21] Sections 63 and 64 deal with the kind of appeal brought by Anderson and Reid, while Section 65 (which refers back to Section 64) deals with the particular situation of a patient, such as Doherty, who is subject to a restriction direction. Sections 66 and 67 are not of importance for present purposes but Section 68 is. Before the 1999 Act the first two subsections of Section 68 provided:

[22] Although, for much of hearing before this court, attention was focused on Section 64, which governs the appeals before the Sheriff giving rise to these references, towards the end of the hearing it became clear that Section 64 really requires to be seen in the context of Section 62(1)(a) and Section 68 since in practice it is those provisions which regulate a patient's detention before an appeal is taken. Once a restriction order has been pronounced, the patient is liable to be detained until an order is made for his absolute discharge. So, even if all the preconditions for his detention under Section 17 are no longer fulfilled in fact, he remains liable to be detained until an order is made for his absolute discharge. But, of course, the Scottish Ministers must not detain someone whose condition does not warrant detention under the Act. They are therefore given a power under Section 68 to discharge a patient, who is subject to a restriction order, either absolutely or subject to conditions. Although Section 68 is deliberately framed in order to give the Scottish Ministers a discretion to release, Mr. Hodge, Q.C., who appeared on their behalf, pointed out that they could not lawfully exercise that discretion so as to fail to discharge a patient whose condition no longer met the criteria for detention under Section 17. If they did so, their exercise of discretion would be unlawful and subject to judicial review. In substance therefore, before the 1999 Act, by virtue of Section 68(2) the Scottish Ministers required to discharge any patient who did not meet the criteria for detention. In order to ensure that the Scottish Ministers had the necessary information for the proper exercise of their discretion, Section 62(2) made provision for the responsible medical officer to submit reports on any restricted patient's condition at least every twelve months. That statutory minimum requirement was supplemented by an internal memorandum requiring the responsible medical officer to furnish a report spontaneously at any time if the patient's condition changed in such a way that the Scottish Ministers should be informed.

[23] It follows that the Scottish Ministers were - and indeed are - under a continuing obligation to consider the condition of a patient under a restriction order and to order his absolute discharge if the statutory conditions permitting his detention no longer apply. If the Scottish Ministers do order the patient's absolute discharge, then his detention comes to an end under Section 62(1)(a). If they do not, his detention continues to be authorised under Section 62(1)(a).

[24] As I have noted already, Doherty is for present purposes to be treated as though he were subject to both a transfer direction under Section 71 and a restriction direction under Section 72 of the 1984 Act. Patients transferred from prison under a transfer direction are in a similar position to patients who have been admitted under a hospital order (Section 71(4)) and therefore the modified version of Part V applies to their detention. Section 71A, which was inserted by Section 62(1) of, and paragraph 5 of Schedule 1 to, the Crime and Punishment (Scotland) Act 1997, deals with the duty of the Scottish Ministers to direct that such patients be remitted to prison if the circumstances justifying their detention in hospital no longer apply. But where, in addition, a restriction direction applies to such patients, their return to prison is covered by Section 74. Subsections (1) - (3) and (5) provide:

Subsection (1A), inserted by Section 7(4) of the 1997 Act, deals with patients who are subject to a hospital direction under Section 59(A) of the 1995 Act. But for present purposes it is unnecessary to explore that refinement.

[25] Against that background it can be seen that Sections 64 and 65 do indeed provide for an appeal procedure in the fullest sense: they allow the patient to have the sheriff review any decision of the Scottish Ministers not to discharge him or not to remit him to prison.

[26] In the case of a patient who is subject to a restriction order, if the sheriff is satisfied in terms of Section 64(1), then he will order the absolute discharge of the patient, whose detention will then come to an end in terms of Section 62(1)(a). Before the 1999 Act the relevant terms of Section 64 for present purposes were these:

[27] Again, patients who are subject to a restriction direction as opposed to a restriction order enjoy a full right of appeal under Section 65 which refers back to Section 64 and which (as amended by the 1997 Act but before the 1999 Act amendments) provided inter alia:

[28] The provisions of Section 64, which apply to all appeals, were scrutinised by the House of Lords in R. v. Secretary of State for Scotland. Their Lordships held that, if a sheriff were satisfied that a patient suffering from a psychopathic personality disorder could not be treated in a way which would be likely to alleviate or prevent a deterioration of his condition, the sheriff would require to order his discharge since one of the cumulative grounds warranting his detention did not apply (1999 S.C. (H.L.) at p. 39 B per Lord Clyde). A succinct statement of their Lordships' conclusion is to be found in the speech of Lord Hutton (1999 S.C. (H.L.) at p. 47 C - D):

[29] In accordance with their Lordships' decision, in appeal proceedings under Sections 63 and 64 against the decision of the Secretary of State not to discharge him, Sheriff Allan ordered Ruddle's absolute discharge on 2 August 1999, even though he was still considered to be dangerous. Similarly, it was in reliance on the decision in R. v. Secretary of State that Anderson lodged his appeal against the Scottish Ministers' refusal to discharge him, on the basis inter alia that the sheriff should be satisfied that the alleviating treatment test could not be met. The appeal which Doherty lodged against the Scottish Ministers' failure to order his transfer to prison also proceeded on inter alia the basis that the same test could not be met in his case either. Had the sheriff been so satisfied, in the case of Anderson he would have required to direct his absolute discharge and, in the case of Doherty, he would have required to notify the Scottish Ministers that, if Doherty had been subject to a restriction order, he would have been entitled to be absolutely discharged. The Scottish Ministers would then have been obliged, in terms of Section 65(2)(a), to remit Doherty to a prison in Northern Ireland.

[30] The potential problems arising from the decision in R. v. Secretary of State were recognised by the Lords of Appeal themselves. Although Lord Clyde suggested that some of the difficulties might be eased by the use of the machinery of conditional discharge (1999 S.C. (H.L.) at p. 41 D - F), Lord Hutton described the situation facing the Secretary of State, and later the Scottish Ministers, in stark terms (1999 S.C. (H.L.) at p. 51 B - E):

[31] As Mr. Hodge emphasised, the decision of the House of Lords did not simply affect the way in which appeals were to be decided in terms of Section 64. It also meant that the Scottish Ministers had a duty to use their powers under Section 68(2) to discharge any patient with a psychopathic personality disorder who could not be treated in a way which would alleviate or prevent a deterioration of his condition, even if the information before them indicated that the patient continued to be a serious danger to members of the public, whether adults or children. They were under that duty, whether or not the patient appealed. The dilemma in which the Scottish Ministers thus found themselves can be appreciated when it is realised that the patients are indeed potentially dangerous. Both Anderson and Doherty have killed children. In addition, a medical report on the applicant Reid makes the general point that more than eighty per cent of restricted patients re-offend on release. It adds that, among the restricted patients in the State Hospital, Reid was rated as being the second most likely to re-offend. In my view the Scottish Ministers were therefore fully entitled to be apprehensive that, if the restricted patients in question were discharged, there would be a risk of serious danger to members of the public (including danger to life). If confirmation be needed that the Scottish Ministers' fears at this time were shared by many others, it can be found in the speeches in the Scottish Parliament during the debates on the Bill which was introduced to deal with the matter. Without quoting them, I refer to the comments of the Deputy First Minister and Minister for Justice, Mr. Jim Wallace, Q.C., in the Scottish Parliament Official Report, 2 September 1999, columns 74 and 77, of Ms. Roseanna Cunningham at column 108, of Miss Annabel Goldie at column 96 and of Dr. Richard Simpson at column 116. Similar views are to be found in other speeches at the various stages of the legislative process.

[32] It is worth observing that, although the problem which the Scottish Ministers faced was serious, it was confined to a relatively small number of cases, apparently about 12 in total. They are all patients who were not sentenced to imprisonment but were simply detained as restricted patients under a hospital order which was made on the basis of medical opinion that treatment would be likely to alleviate, or prevent a deterioration of, their psychopathic personality disorder or mental handicap. By the 1990s, however, whether because of advances in knowledge or because of a simple shift in expert opinion in Scotland, a number of the psychiatrists dealing with these patients had come to the view that their psychopathic personality disorder was not susceptible of treatment of this kind. In their opinion, therefore, the preconditions for admission and detention under Section 17 of the 1984 Act would not now be met in the case of such patients and, today, similar individuals would probably be dealt with by a sentence of imprisonment. Indeed Section 59A of the 1995 Act now allows a court to impose a sentence of imprisonment accompanied by a hospital direction if the court considers that the alleviating treatment test is satisfied. If it turns out that the treatment is not effective, the offender can be returned to prison to serve the remaining period of the sentence of imprisonment or detention which the court will have imposed on the usual basis, having regard among other things to the need to protect the public against further offending.

[33] Faced with a number of problems thrown up by the 1984 Act, but in particular with the difficult situation created by this particular group of patients, the Scottish Ministers set up a committee under the chairmanship of the Rt. Hon. Bruce Millan to carry out a general review of the Act. They also established a committee under the chairmanship of the Hon. Lord MacLean to review the sentencing and treatment of serious violent and sexual offenders. It is intended that the report of Lord MacLean's committee should be available to inform the deliberations of Mr. Millan's committee. In addition, however, in the light of the decision in the case of Ruddle, the Scottish Ministers resolved to legislate to deal with the immediate difficulty. On 31 August 1999 the Mental Health (Public Safety and Appeals)(Scotland) Bill was introduced and thereafter treated as an emergency Bill, with the result that on 13 September, in terms of Section 28(2) of the Scotland Act, Her Majesty was able to signify her assent to the Bill. The 1999 Act came into force immediately and by Section 1(5) the relevant amendments had effect in relation to appeals proceeding under Sections 64 and 65 in which the hearing was to take place on or after 1 September 1999. Therefore the amendments affected the appeals by Anderson and Doherty even although they had been lodged before the Act was passed and, indeed, before the Bill was introduced. Of course, they also affected the appeal by Reid.

[34] The 1999 Act comprises three sections, the second of which introduces a system of appeals to the Court of Session from the decisions of sheriffs under Sections 64 and 66. The new system of appeals is welcomed by the applicants and there is no challenge to the vires of Section 2. The applicants' challenge to the Act is restricted to Section 1, which is in these terms:

[35] The operation of these amendments to the system for discharge and remitting to prison, as well as for appeals, is more easily appreciated if Sections 68, 74 and 64 of the 1984 Act are set out in their amended form. Section 68 now provides inter alia:

[36] As a result of the changes, Section 68(2A) directs the Scottish Ministers that they are not to exercise their power under subsection (2) to discharge a restricted patient if they are satisfied that he is suffering from a mental disorder the effect of which is such that "it is necessary for the protection of the public from serious harm" that he continue to be detained in a hospital, whether for medical treatment or not. Again, by way of shorthand, I shall refer to this as "the serious harm test". It is of some significance to notice straightaway that the amendment borrows the critical words "it is necessary for the protection of the public from serious harm" from the related context of Section 59(1) of the 1995 Act, where they are used to describe the test which judges have to apply in deciding whether to make a restriction order. Section 59(1) is the current embodiment of a provision which reached its present form when Section 178(1) of the Criminal Procedure (Scotland) Act 1975 was amended by Section 22(2) of the Mental Health (Scotland) Act 1983 so as to include the words "from serious harm".

[37] In practical terms, the introduction of subsection (2A) means that, in order to perform their functions under Section 68(2), the Scottish Ministers will wish to have information under Section 62(2) from the patient's responsible medical officer both as to whether the patient poses a threat of serious harm to the public in terms of the serious harm test in Section 68(2A) and as to whether his condition is such that the prerequisites for his detention under Section 17 continue to apply. The Ministers will then have to decide on the basis of the information available to them in any given case whether they are satisfied that the serious harm test in Section 68(2A) is met. If so, then they are not entitled to discharge the patient and he will, accordingly, continue to be liable to be detained under Section 62(1)(a). If the serious harm test in subsection (2A) is not met, the Ministers must go on to consider whether the patient's condition still justifies his detention under Section 17. If they conclude that it does, then they are not obliged to discharge him and if, in the exercise of their discretion, they do not do so, he will remain liable to be detained. If on the other hand they conclude that the preconditions for his detention under Section 17 are no longer satisfied, then the Ministers will require to discharge him and he will no longer be liable to detention.

[38] Similarly, Section 74, dealing with the Scottish Ministers' duty to return to prison patients who are subject to a hospital direction and a restriction direction, is amended by Section 1 of the 1999 Act so that its opening provisions read:

The effect of the amendments is that the Scottish Ministers have no duty to remit patients who are under a restriction direction if they are satisfied that the serious harm test is met.

[39] In its amended form Section 64 contains the provisions for appeals under the new system where the additional serious harm test has been incorporated into the system for discharge and for remitting to prison:

[40] The new structure for considering appeals by restricted patients mirrors the structure of the new system for the Scottish Ministers' consideration of the discharge of such patients. Just as the Scottish Ministers must now first apply the serious harm test, so also the sheriff must now first apply the same serious harm test. If the test is met, the Scottish Ministers are not to discharge the patient. Similarly, if the sheriff is satisfied that the test is met, he must refuse the patient's appeal. If the Scottish Ministers are not satisfied that the serious harm test is met, then they must go on to consider whether the patient's detention is justified in terms of Section 17. If they conclude that it is not, they must discharge him. Similarly, if the sheriff differs from the Scottish Ministers and is not satisfied that the serious harm test is satisfied, then he will need to go on to consider the appeal under subsection (1) as interpreted by the House of Lords in R v. Secretary of State - in effect applying the test in Section 17. If the sheriff is not satisfied in terms of Section 64(1), he will refuse the patient's appeal and the patient will remain liable to be detained in terms of Section 62(1). If, on the other hand, the sheriff is satisfied in terms of Section 64(1), in the case of a patient subject to a restriction order he will direct the patient's absolute discharge and the patient will then cease to be liable to be detained under the Act. In the case of a patient subject to a restriction direction, the sheriff will give the appropriate notification to the Scottish Ministers in terms of Section 65 and the patient will be remitted to prison.

[41] The operation of the amended system gives rise to a phenomenon which lies at the heart of the attack which counsel for the applicants launched on the new provisions. The phenomenon was characterised by Mr. Collins in a striking (though perhaps not quite apt) metaphor as a "lobster pot". By this he meant that the new provisions create a system under which the test which the court must apply in deciding to admit (restricted) patients such as the applicants for detention in hospital is stricter than the test which it must apply in deciding whether they should be discharged. In other words, it is harder for them to get out than it is for them to avoid being put in. This is because, before these (restricted) patients can be admitted and detained under a hospital order, the court must still be satisfied that the alleviating treatment test is met, but, provided only that the new serious harm test is met, the patient will not now be discharged even although the alleviating treatment test is no longer met.

[42] Having set out my understanding of the way in which the amended system is intended to work, I turn now to consider the challenge mounted to Section 1 of the 1999 Act on the footing that, under Section 29(2)(d) of the Scotland Act, it is outside the legislative powers of the Scottish Parliament since it is incompatible with Article 5(1)(e) and Article 5(4) of the Convention.

Victim Test and Scope of the Proceedings

[43] The first point which requires to be addressed is whether the applicants are entitled to rely on their rights under Article 5 of the Convention in the appeals giving rise to these references. In the references the Sheriff asks an abstract question as to whether Section 1 of the 1999 Act is within the powers of the Parliament. Although the question is abstract, it must be seen in the context of the actual proceedings where both parties have treated it as raising a live issue which can conveniently be resolved before any evidence is led.

[44] I emphasise this because, at various stages in the argument for the applicants Anderson and Reid, counsel appeared to suggest that, because of the current view among psychiatrists that psychopathic personality disorder is not treatable, doctors would not now say in evidence that it was necessary, in order to protect the public from serious harm, for a psychopath to continue to be detained in hospital. The current view among psychiatrists would be, rather, that, if persons suffering from this condition require to be detained, any detention should not be in hospital but in prison.

[45] By contrast, one of the main themes in the argument by counsel for Doherty was that, since, on any discharge from hospital, he would be returned to prison to serve a sentence of life imprisonment in Northern Ireland, he would therefore pose no risk of causing serious harm to the public. Although counsel for the Scottish Ministers maintained that, for the purposes of the danger test, prison officers and other prisoners would constitute members of "the public", they also pointed out that, if the applicant's argument were to turn out to be correct, the sheriff would not be satisfied that the danger test had been met. If that were so, the existence of the test would be irrelevant to the outcome of Doherty's appeal.

[46] On the other hand, in each of the cases the reference from the Sheriff Court specifically records the agreement of both parties that, if the appeal of the applicant in question is dealt with by the sheriff on the basis of the amended legislation, there is a serious risk that it will fail. I prefer to proceed on this agreed basis rather than on assertions as to the effect of evidence not yet led. At the very least, the introduction of the new element in the test which applies in Sections 68 and 74 and in Section 64 affects the basis of the liability of the applicant to be detained and adds a new element in any appeal relating to that matter. That being so, the validity of the legislation is an issue which it is proper to resolve at this stage.

[47] On that basis also the applicants would all, quite clearly, be "victims" for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of the legislation as amended by Section 1 of the 1999 Act. This was not disputed by either the Scottish Ministers or the Advocate General. In these circumstances I simply refer to the discussion in S. Grosz, J. Beatson and P. Duffy, Human Rights, pp. 76 - 77 and to the authorities cited there. It follows that the applicants are able to rely on their rights under Article 5 of the Convention in these proceedings (Section 100(1) and (4)(a) of the Scotland Act).

[48] Counsel for the Scottish Ministers stressed - rightly, in my view - that, in considering whether Section 1 of the 1999 Act violates the applicants' rights under Article 5 of the Convention, we require to bear in mind that

This approach lies behind the observations of Lord Hope of Craighead in R. v. D.P.P. ex parte Kebilene [1999] 3 WLR 972. Speaking of the application of the Convention, he said (at p. 994 A - E):

[49] Mutatis mutandis there is guidance to be had also from the words of Lord Woolf, giving the advice of the Privy Council in relation to the Hong Kong Bill of Rights, in Attorney-General of Hong Kong v. Lee Kwong-kut [1993] A.C. 951 at p. 975:

[50] The balance which is to be struck in the present case in considering Article 5 of the Convention is between the interest of the community in protecting the lives and health of members of the public and the protection of the individual rights of the restricted patients in question. As Lord Clyde observed in R. v. Secretary of State (1999 S.C. (H.L.) at pp. 33 H - 34 A):

[51] The right to liberty which Article 5 enshrines is undoubtedly a high constitutional right. But it is not an absolute right and the exceptions which the Convention recognises arise in areas where social policy comes into play. That is certainly the case when decisions have to be taken about the circumstances in which persons may have to be detained for the protection of the rest of the community from harm. As I have explained above, the Scottish Ministers and the Scottish Parliament treated the possible discharge of the restricted patients in question as posing a serious threat to the public. Counsel for the applicants did not suggest that they had been wrong to do so. The duty of protecting health and life is one of the basic duties of any government or legislature and is, besides, enshrined in Article 2 of the Convention. Of course, however great the community interest, the Parliament had no powers to avert any danger by taking a step which would be incompatible with the individual patients' rights under the Convention and, in particular, under Article 5(1)(e) and Article 5(4). The contention for the applicants is that, in purporting to enact Section 1 of the 1999 Act, the Parliament did indeed overstep the mark by failing to keep a proper balance between the interests of the community and the rights of the individual applicants, with the result that Article 5(1)(e) and Article 5(4) were violated.

[52] One might envisage situations in which it was far from clear whether the minister concerned or the legislature had applied their minds to the balance which the Convention requires a State to hold between the community interest and the rights of individuals. But this is not such a situation. It is indeed plain from the report of the proceedings in the Scottish Parliament not only that ministers and members were aware of the Convention hovering above the debate, but also, more specifically, that they were conscious of the need to hold just that very balance. For instance, Mr. Michael Mathieson commented that the members of the Parliament had to ensure that they achieved a balance between public safety and the human rights of the individual (Official Report, col. 115). Similarly, Dr. Simpson said that, in a sensitive and difficult issue, the Parliament had a duty to protect the public from those whose disorder was manifest in seriously violent and aggressive behaviour, while also ensuring that those who had such a mental disorder should be treated humanely (Official Report, col. 116).

[53] What we must therefore decide is whether, even though the members were conscious of the need to have regard to the human rights of the patients, the Parliament none the less failed to maintain the necessary fair balance by giving too much weight to the perceived danger to members of the public and, thereby, giving too little weight to the requirements of the protection of the patients' right to freedom and in particular their rights under Article 5(1)(e) and (4). In determining that issue, as the authorities show, it is right that the court should give due deference to the assessment which the democratically elected legislature has made of the policy issues involved.

[54] The relevant provisions of Article 5 of the Convention are in these terms:

[55] The applicants' first contention is that the provisions amending Section 64 are incompatible with their rights under Article 5(1). In addressing this argument, I start from the basis that Article 5 enshrines a right to liberty of the person, in the sense of physical freedom. That right is subject to certain exceptions which are set out in Article 5(1) but these exceptions are exhaustive and call for a narrow interpretation to ensure that no-one is deprived of his liberty in an arbitrary fashion: Winterwerp v. The Netherlands Series A No. 33 (1979), p. 16 at paragraph 37. In this case we are concerned with the exception to be found in Article 5(1)(e) which applies to persons of unsound mind, among others.

[56] On analysis it can be seen that, in order that it should fall within Article 5(1)(e), the first requirement is that the detention should be lawful - "régulière" in the French text of the Article. The principle expressed by this adjective has been said to dominate the whole of Article 5(1): Guzzardi v. Italy Series A No. 39 (1980), p. 38 at paragraph 102. The content of this requirement was explained in Winterwerp (Series A No. 39, p. 18 at paragraph 39):

See also Ashingdane v. United Kingdom Series A No. 93 (1985), p. 21 at paragraph 44.

[57] On behalf of the Scottish Ministers Mr. McCreadie sought to persuade us that Article 5(1)(e) was not concerned with the lawfulness of any detention as a matter of domestic law and that, in consequence, the scope of the proceedings for review under Article 5(4) did not need to include review of lawfulness as a matter of domestic law. That submission is wholly inconsistent with the reasoning to be found in Ashingdane and in the passage which I have quoted from Winterwerp. In any event, persons of unsound mind would be stripped of the most basic weapon for their defence against arbitrary detention if they could be admitted and detained in hospital in violation of their domestic law but still have no redress under that law. So, while a review of the lawfulness of a detention as a matter of domestic law is not "of itself" decisive of whether there is a sufficient review of "lawfulness" for the purposes of Article 5(4) (X v. United Kingdom Series A No. 46 (1981), p. 25 at paragraph 57), a review which could not cover the lawfulness of the detention as a matter of domestic law would not be sufficient under Article 5(4). For these reasons I reject Mr. McCreadie's submission as to the scope of both Article 5(1)(e) and Article 5(4).

[58] Of course, if the detention of persons of unsound mind is to be in conformity with Article 5(1)(e), the law governing it must comply with three criteria which the European Court of Human Rights first laid down in paragraph 39 of their decision in Winterwerp. They are most succinctly formulated in the Court's judgment in X v. United Kingdom (at paragraph 40):

On the other hand, since Article 5 is essentially concerned with protecting an individual's liberty,

This was confirmed by the Court in Ashingdane v. United Kingdom (Series A No. 93, p. 21 at paragraph 44):

In Aerts v. Belgium Reports of Judgments and Decisions 1998-V, pp. 1961 - 1962 at paragraphs 46 - 50, the Court followed that approach in holding that there had been a violation of Article 5(1)(e) where a person, who had been found not to be responsible for committing acts of violence, was detained in the psychiatric wing of a prison in which he received neither regular medical attention nor a therapeutic environment.

[59] The very fact that the detention need not be for the purposes of treatment indicates that the Convention must recognise other legitimate aims which justify it. Counsel for the Scottish Ministers argued that detention could be justified on the ground that it was necessary to protect the public.

[60] The first authority cited in support of this contention was Guzzardi v. Italy. The applicant had a number of criminal convictions, but in particular he had served a sentence for conspiracy and for being an accomplice in a kidnapping. His sentence was to finish in February 1975 at the latest. In January the Milan Regional Court ordered that he be placed under special supervision for three years, with an obligation to reside on the small island of Asinara off the coast of Sardinia. The applicant alleged that this constituted a deprivation of liberty which violated his rights under Article 5. The European Court of Human Rights held that, in the particular circumstances, the confinement on the island did constitute a deprivation of the applicant's liberty. The Italian government sought to justify the applicant's confinement under the order on the basis that he was a "vagrant", in a broad sense of that term, and that his detention therefore fell within the exception in Article 5(1)(e). The Court rejected that argument and held that the applicant's confinement could not be justified in terms of any of the exceptions. They accordingly found that Article 5 had been violated.

[61] The particular significance of the case for present purposes lies in paragraph 98 of the Court's judgment (Series A No. 39, p. 37):

Counsel for the Scottish Ministers argued that this passage showed that the detention of a person of unsound mind could be justified simply on the ground that he would be dangerous for public safety. The passage is a little unclear. The Court's argument seems to be that the common characteristic of the various categories of persons grouped in sub-paragraph (e) is not simply that they may be dangerous to others but also that their own interests may necessitate their detention. It was indeed precisely because there could be no suggestion that Mr. Guzzardi was a person whose own interests justified his detention that in this passage the Court held that he did not fall within the definition of "vagrant" for the purposes of the sub-paragraph. None the less, it does seem to me that persons of unsound mind are, in principle, persons whose own interests may justify their detention, and that therefore, on the Court's approach, where they are liable to be dangerous to others, their detention may be justified as fulfilling the purpose for which the exception in sub-paragraph (e) is prescribed (Article 18).

[62] That this is indeed the correct interpretation of the Court's reasoning emerges from their decision in Litwa v. Poland 4 April 2000, unreported. Police officers took the applicant, who had been drunk and had behaved offensively, to a sobering-up centre where he was detained for six hours and thirty minutes. The applicant alleged that his rights under Article 5 had been violated and the Court held that there had indeed been a violation of that article. One of the issues which arose was whether the applicant fell within the definition of "alcoholics" in paragraph (1)(e). The Court reasoned at paragraphs 60 and 61 of their judgment:

[63] The reasoning of the Court shows that detention under Article 5(1)(e) can indeed be justified on grounds of social policy, including the protection of the public. Detention will be justified, however, only in the kind of situation which the Court describes later in its judgment (at paragraph 78):

[64] The principles to be derived from the authorities on Article 5(1)(e) can be summarised in this way. The admission and detention of a person of unsound mind must be in conformity with a procedure laid down in domestic law. The domestic law relating to the detention of such persons must conform to three criteria: a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of the patient's continued detention depends upon the persistence of such a disorder. Moreover, Article 5(1)(e) does not require that the detention of persons of unsound mind be for the purpose of treatment, but it should be in a hospital, clinic or other appropriate institution authorised for the purpose. Detention under Article 5(1)(e) is justified where it is necessary to serve a legitimate social purpose, which may be the protection of the public.

[65] It is against the requirements of Article 5(1)(e) construed in this way that we must judge the applicants' contention that the continued detention of patients on the basis of the danger test is in breach of the Article. In my view it is not.

[66] First, so far as the domestic law is concerned, the new serious harm test for refusing to discharge a restricted patient or to order his return to prison, and so for continuing his detention, is contained in a statutory provision which both the Scottish Ministers and the sheriff must apply (Sections 68, 74 and 64 respectively). So far from the introduction of that new test leading to arbitrariness, it appears that it was introduced to avoid any situation arising where the Scottish Ministers might be under pressure to avoid danger to the public by continuing to detain patients for whose detention there was no longer any statutory warrant because the alleviating treatment test could no longer be met. Continued detention in those circumstances would have been the epitome of arbitrariness, but continued detention under the amended Sections 68 and 74 would be lawful in purely domestic terms.

[67] Although detention under Sections 68 and 74 would indeed be lawful in terms of the amended statute, the amendments to the statute would not themselves be within the power of the Scottish Parliament and would therefore not be law, if they created a system of detention which was incompatible with Article 5(1)(e). Again, the compatibility of the system with the Article must be judged against the criteria identified above. I am satisfied that the system conforms to those criteria. In terms of Section 68(2A) and Section 74(1B) the Scottish Ministers must be satisfied that the patient is suffering from a mental disorder (first Winterwerp criterion) and that it is such as to make it necessary for the protection of the public that he continue to be detained in hospital (second and third Winterwerp criteria; Guzzardi and Litwa).

[68] In particular, I reject the applicants' contention that the detention of the applicants on the basis of the serious harm test constitutes a form of preventive detention which cannot be justified in terms of paragraph (1)(e). The very terms of the serious harm test make clear that the purpose of the patient's continued detention is to protect the public, not just from harm but from "serious harm". Moreover, the test requires that the detention be "necessary" to secure this protection. In my view the terms of the danger test are framed in such a way as to meet the strict requirements for compulsory detention which are specified by the Court in paragraphs 60, 61 and 78 of their judgment in Litwa. As I noted above, since 1983 the same serious harm test has been used by judges when deciding whether to make a restriction order. So the test which is to be applied in deciding whether to discharge a restricted patient or to transfer him to prison is the same as the test which is used to decide in the first place whether the patient should be subjected to the special rules restricting his discharge. The serious harm test has not been challenged as arbitrary in that context. For these reasons, I see no basis for holding that continued detention on the basis of the serious harm test in Section 68 would be arbitrary.

[69] Counsel for the applicants argued, however, that, even if detention on the basis of the danger test would not have violated Article 5 - which they did not concede - the system contemplated by the 1984 Act as amended by the 1999 Act would indeed violate the Article. This was said to be because the grounds for admission and detention in Section 17 are not mirrored in the grounds for discharge in Section 68(2A) and Section 64(1A). This was said to give rise to the (objectionable) "lobster pot" effect which I mentioned above, in that it was harder for a patient to obtain his discharge than it was for him to avoid being admitted in the first place. A patient should be able to obtain his discharge if any of the essential criteria for his admission ceased to apply. If that principle were infringed, there would cease to be any relationship between the conditions of the patient's detention and the purpose for which it was being effected. So, in the case of persons suffering from a psychopathic personality disorder or mental handicap, the purpose of their admission was to receive treatment to alleviate or prevent any deterioration in their condition. But, under the 1999 Act, they could now be detained in a hospital even though such treatment could not be provided.

[70] Counsel sought support for their argument from the decision of the House of Lords in R. v. Secretary of State and particularly from a passage in the speech of Lord Clyde (1999 S.C. (H.L.) at pp. 38 F - 39 C):

For present purposes, the significance of the passage is said to lie in Lord Clyde's observation that he found it hard to believe that Parliament's intention, in setting down the criteria for the sheriff to discharge a restricted patient under Section 64(1), had been to omit from his consideration criteria which had been prescribed for the patient's admission. Similarly, Lord Clyde had said that the sheriff would consider the grounds which warrant detention and, where they were cumulative, the sheriff would require to grant a discharge if any one of them was no longer sound. Since Lord Clyde had rightly attached importance to the fact that Section 64(1) was the result of reforms which had been effected in order to bring our law into line with the requirements of Article 5(4), his remarks were an authoritative statement of what Article 5 required. Applying that approach, counsel argued, the position under the 1999 Act was incompatible with Article 5(1)(e) because neither the Scottish Ministers nor the sheriff required to discharge a patient or to order his return to prison even though one of the criteria warranting his detention in the first place was no longer sound.

[71] The flaw in counsel's argument, as it seems to me, is that it applies Lord Clyde's observations to a context which his Lordship did not have in mind. In R. v. Secretary of State, the House of Lords were dealing with a case where the patient had long been detained on the basis that he was suffering from a psychopathic personality disorder which could be treated in a way that would alleviate or prevent a deterioration in his condition. When he appealed and sought his discharge, his mental disorder remained the same, a psychopathic personality disorder. All that he claimed had changed was the doctors' opinion as to his treatability in terms of the alleviating treatment test. In other words, Lord Clyde was dealing with a case where there was only one possible basis for the patient's detention. It followed that, if one of the essential elements of that basis fell away, the only basis for his lawful detention ceased to exist and he required to be discharged. But it is easy to envisage a case where, say, a patient is admitted because of a psychopathic personality disorder which passes the alleviating treatment test, but he subsequently develops schizophrenia of a degree and nature which would in itself justify his detention under Section 17(1). In that situation, even if doctors decided that his personality disorder was not treatable, his schizophrenia would constitute a sufficient basis for his detention and for the sheriff to refuse to discharge him under Section 68(1). Indeed the case of the applicant Reid is a case of that kind. His counsel did not dispute that, so long as the alleviating treatment test had been met, his detention had been lawful even though he had initially been detained on the basis of mental handicap and even though, when this diagnosis was later rejected, he was then detained on the basis of a psychopathic personality disorder. In such cases the grounds for admission and the grounds for any ultimate discharge will necessarily be different, in the sense that they will relate to different medical conditions. But, under Section 17 and indeed in Convention terms, at both stages the essential question is the same: whether the patient is suffering from a mental disorder of a kind or degree warranting compulsory confinement under Section 17 and under the Convention. For that reason, it respectfully seems to me, Lord Clyde's observations should not be read as applying to a case where the initial ground of detention is no longer valid but a fresh valid ground of detention exists.

[72] Counsel for the applicants not only accepted that a patient could be lawfully detained under the Convention on the basis of a supervening mental disorder; they also accepted that, if, during a patient's detention, the legislature amended Section 17 to bring it into line with developing medical knowledge, by specifying a new mental disorder, the patient could then be lawfully detained under the Convention on the basis of that new disorder. In my view, that must be correct: if the newly specified disorder is such that all the necessary Winterwerp criteria can be met, then the patient remains lawfully detained under Article 5(1)(e). Counsel argued that the position was different, however, when the new basis for detention was not a newly specified medical condition but simply the protection of the public. I am not persuaded that the distinction is valid for the purpose of determining the lawfulness of detention under paragraph (1)(e). For the reasons which I have already given, I am satisfied that detention for the protection of the public can fall within the scope of the reservation in that paragraph and can therefore in appropriate circumstances be lawful under the Convention. If that is so, then I can see no reason why it should be unlawful to detain a patient on this newly added basis, even though he was initially admitted and detained on a different, but lawful, basis.

[73] As counsel for the Scottish Ministers pointed out, if detention of persons of unsound mind is lawful under the Convention where it is necessary for the protection of the public, then there would be nothing to stop the Scottish Parliament from amending Section 17 to make that a specific ground for the admission and detention of persons suffering from mental disorder. If counsel for the applicants were correct and the need to protect the public from serious harm could not be made a ground for refusing to discharge a patient admitted on another basis, the result would be that a patient posing a threat of serious harm to the public would require to be discharged, but could immediately be readmitted and detained on the ground that it was necessary for the protection of the public. Such a conclusion defies the common sense which underlies the old maxim frustra petis quod mox restiturus es.

[74] Mr. Bell, Q.C., sought to refine the applicants' argument by contending that under the Convention at any given moment the grounds for the discharge of a patient laid down by the law had to match the grounds which the law laid down for his admission and detention. I accept that in principle it is somewhat strange that the legislature should prescribe different criteria for the two purposes. From what we were told, the anomaly seems to have come about because the Scottish Ministers did not wish to recast the mental health legislation radically, in advance of the report of Mr. Millan's committee. They had therefore limited the scope of the proposed amendments so that they dealt only with the particular problem which was causing concern. That problem arose only in the case of restricted patients who were already detained and the amendments were therefore crafted so as to deal with the criteria for discharge only. There was no need to deal with the criteria for admission. However that may be, the question for the court is simply whether the mere fact that the law prescribes different tests for admission and for discharge means that patients who fail to secure their discharge under this system are ipso facto unlawfully detained under the Convention. In my view the answer must be that the difference in the criteria does not make the patients' detention unlawful, provided that the test which is prescribed for deciding on discharge is itself compatible with Article 5. For the reasons which I have given, I am satisfied that the serious harm test in Sections 68(2A), 74(1B) and 64(A1) is indeed compatible with Article 5. That being so, I reject this argument also.

[75] Finally, counsel suggested that, even if detention of a person of unsound mind might be lawful if it were for the protection of the public, detention in a hospital should not be regarded as lawful where there was no treatment which the person could be given to alleviate his condition or to prevent its deterioration. In such a case prison, rather than a mental hospital, would be the appropriate place to detain the person. Indeed Section 102 of the National Health Service Act 1978 showed that Parliament had recognised that the purpose of the detention of patients in the State Hospital was treatment. This principle had been breached by Section 68(2B), 74(1C) and 64(C1). I reject that argument also. The decision of the Court in Ashingdane (Series A No. 93, p. 21 at paragraph 44) shows that Article 5 is concerned with liberty rather than with the particular place of lawful detention. None the less in the same passage the Court indicate that, though the Convention does not give a right to treatment as such, a hospital which offers a therapeutic environment will be an appropriate place to detain people of unsound mind. Indeed, in Aerts (Reports of Judgments and Decisions 1998-V, p. 1962 at paragraph 50) the Court found that there had been a violation of Article 5(1)(e) where such a person was held in a psychiatric wing of a prison in which he could receive no treatment or therapeutic environment. In the light of these authorities I conclude that detention of a person of unsound mind for the protection of the public can lawfully take place in a hospital.

[76] I am therefore satisfied that Section 1 of the 1999 Act is not incompatible with the rights of patients such as the applicants under Article 5(1)(e) of the Convention.

[77] The applicants also contend that Section 1 of the 1999 Act is incompatible with their rights under Article 5(4).

[78] Article 5(1) requires that any exception to the right to liberty should be lawful, both in terms of domestic law and in terms of the Convention. Article 5(4) ensures that the right to liberty is enforceable by requiring States to have in place a system for a court to make a speedy review of the lawfulness of a patient's detention and to order his release if it is not lawful.

[79] Obviously, paragraph (4) requires that there should be an independent check on the lawfulness of a patient's initial compulsory admission to hospital. But, by their very nature, certain mental disorders can change over time. So, even if a patient's condition may warrant his detention at the time when he is admitted, a subsequent improvement may mean that his detention is no longer justified under the Convention. In the words of the third Winterwerp criterion, "the validity of continued confinement depends upon the persistence of" a disorder warranting compulsory confinement (Winterwerp v. Netherlands Series A No. 33, p. 18 at paragraph 39; X v. United Kingdom Series A No. 46, p. 18 at paragraph 40). Article 5(4) therefore requires not only that there should be an independent check on the lawfulness of a patient's initial admission but also that there should be a periodic independent review to make sure that the patient's detention remains lawful.

[80] In X v. United Kingdom the Court summarised their view of the application of Article 5(4) to persons of unsound mind at paragraph 52 of their judgment (Series A No. 46, p. 23):

Applying that approach, the Court found that British law did not provide the necessary periodic review. As a result, Parliament enacted the Mental Health (Scotland) Act 1983 to bring the law in Scotland into line with the Convention. Among the changes made to the 1960 Act was the introduction of a right of appeal for restricted patients (Section 21). This right of appeal is now to be found in Section 63 of the 1984 Act which allows patients to appeal at regular intervals against their detention.

[81] It is important to emphasise the purpose of the periodic reviews during a patient's detention. The purpose is not to introduce a further check on the lawfulness of the patient's admission and initial detention. The assumption is that the review which is carried out at the time of, or shortly after, the patient's admission will be an adequate guarantee that everything has been regular at that stage. So, in the cases of Anderson and Reid, for instance, it can be assumed that the proceedings in the court which made the hospital order and the availability of an appeal from those proceedings will have ensured that the applicants' admission and initial detention were lawful. Similarly, although Doherty was admitted to hospital as the result of a transfer direction by the Secretary of State for Northern Ireland, in terms of Section 81(2) of the 1984 Act he is treated as though the direction had been given under Section 71. By subsection (5) of that section, he had a right of appeal against the direction - a right which he apparently chose not to exercise. So, it is no part of the sheriff's function in determining an appeal according to the criteria in Section 64 to carry out a retrospective check on lawfulness. Rather, as required by the decision in X v. United Kingdom, the sheriff's function, as the terms of the section indeed make clear, is to consider whether at the time of the hearing the patient's detention continues to be lawful. In other words, the sheriff is in principle concerned with the lawfulness of the patient's detention at present and not with its lawfulness in the past, except in so far as the past may cast light on its lawfulness at present.

[82] The contention for the applicants is that, although Section 64 in its original form provided for the kind of periodic review which the Convention required, the changes wrought by the 1999 Act mean that it no longer does so. In particular, it is said, the requirement that the sheriff should refuse an appeal, if he holds that the serious harm test is established, interposes an obstacle between the patient and the necessary review of the lawfulness of his detention. So, for instance, if a patient suffering from a psychopathic personality disorder was admitted on the basis that treatment could alleviate it or prevent it from deteriorating, the sheriff cannot even consider his appeal - asking to be discharged because the evidence now shows that his condition is untreatable - until he has first considered whether the patient's condition requires him to be detained for the protection of the public from serious harm. The interposition of this obstacle, say the applicants, deprives the patient of his right under Article 5(4) to a review of the lawfulness of his continued detention on the basis on which he was originally admitted and detained. In support of their argument counsel relied on the passage which I have quoted from the speech of Lord Clyde in R v. Secretary of State for Scotland.

[83] The same point was put in a slightly different way under reference to what Sedley J., as he then was, said in the Divisional Court in R. v. Canons Park Mental Health Tribunal ex parte A [1994] 1 All E.R. 481 where, in rejecting the argument that the treatability criterion should not be applied by a tribunal carrying out the same function as the sheriff under Section 64 of the 1984 Act, he said (at p. 493 h - j):

[84] I have come to the conclusion that, although argued with skill, the applicants' contention is unsound, for very much the same reasons that their argument on Article 5(1)(e) is unsound. The argument appears plausible if the amendment of Section 64 introducing the serious harm test is viewed in isolation from the other amendments - more particularly, in isolation from the amendment to the Scottish Ministers' power under Section 68 to order the discharge of patients affected by a restriction order and in isolation from the amendment to their duty under Section 74 to direct that patients under a restriction direction be remitted to prison. As I have sought to explain, however, the two sets of amendments have to be viewed in parallel. Those in Section 68 restrict the Ministers' power (and duty) to discharge a patient who is under a restriction order, while those in Section 64 introduce a procedure for the independent review by the sheriff of the Ministers' exercise of their amended power. Likewise the amendments to Section 74 restrict the Ministers' duty to direct that a patient who is subject to a restriction direction should be remitted to prison, while those in Section 64 introduce a procedure for the independent review by the Sheriff of the Ministers' performance of their duty under the amended scheme.

[85] The Ministers are barred from exercising their power to discharge under Section 68(2) only if the serious harm test is met. If the Ministers are satisfied that the serious harm test is met, then they cannot discharge the patient, who will remain liable to be detained under Section 62(1)(a). If the test is met, that continued liability to detention is indeed in conformity with the criteria for lawful detention under Article 5(1)(e). A different but legally sufficient ground of detention has supplanted the original ground. Hence the detention of the patient is lawful even though the ground for it is not the same as the ground on which the patient was originally detained.

[86] What Section 64(A1) does, however, is to give the sheriff the power to carry out an independent check to make sure that the requirements of the new serious harm test are indeed made out. In the proceedings before the sheriff the burden of proving this is on the Scottish Ministers (subsection (B1)). Although the subsection does not specify the kind of evidence which they must lead, the first Winterwerp criterion requires that it should comprise objective medical expertise and, in accordance with Section 101(2) of the Scotland Act, I would read subsection (B1) in that sense. The leading of this evidence before an independent sheriff constitutes the check required by Article 5(4) of the patient's continued liability to detention on the basis of the serious harm test. If the sheriff finds that the test is made out, then he is finding that circumstances exist which make the patient's continued liability to detention lawful both under the 1984 Act and under the Convention. If, on the other hand, he is not satisfied that the serious harm test is met, then he will conclude that the patient's continued liability to detention on that alleged basis is not justified. The sheriff will then go on to review any other grounds for the patient's continued liability to detention under the remaining provisions of Section 64(1) as interpreted by the House of Lords in R v. Secretary of State for Scotland. This provides the necessary review of these other grounds for Article 5(4) purposes.

[87] Viewed in this way, the amendments to Section 64, so far from depriving the patient of the right which he has under Article 5(4) to a review of the continuing lawfulness of his detention, add an additional form of review which is necessary, again under Article 5(4), to allow a full scrutiny of the legality of any decision by the Scottish Ministers not to discharge the patient. If, as I have held, the serious harm test can constitute a lawful ground for a patient's detention under paragraph (1)(e), then what Article 5(4) requires is that this new ground should be susceptible of periodic review. The fact that the ground to be reviewed - and hence the scope of the review - is different from the original ground for admission does not make the review unlawful under the Convention. Nor, for the reasons which I have given in relation to paragraph (1)(e), is there anything in the decision of the House of Lords in R. v. Secretary of State for Scotland to suggest otherwise.

[88] Similarly, when viewed in this way, the amendments to Section 64 do not fall foul of the strictures of Sedley J. in the Canons Park case since the appeal provision as thus amended allows the sheriff to review the conformity of the Scottish Ministers' decision not to discharge the patient with all the various criteria which may justify his liability to detention under Scots law. Those criteria are, as I have held, compatible with Article 5(1)(e) of the Convention. More particularly, in Canons Park the Divisional Court rejected a construction of the legislation which would have required the review tribunal to employ criteria which were not found anywhere else in the legislation and which were not the criteria that were used to determine whether a person should be detained. Here, by contrast, the amendments to Sections 68 and 74 mean that all the criteria which the sheriff uses to reach a decision in an appeal under Section 64 are criteria which govern the discharge of restricted patients and their remit to prison - and hence govern also the duration of their lawful liability to detention, under Section 62(1)(a).

[89] For these reasons I would reject these arguments by the applicants that Section 1 is incompatible with Article 5(4) of the Convention.

[90] The applicants' final argument was also based on Article 5(4). Counsel for the Scottish Ministers accepted that a person of unsound mind was entitled to access to an independent tribunal and that the proceedings before the tribunal had to be conducted fairly. Counsel also accepted that, in general terms, the right to equality of arms, which has been expounded by the Court in relation to hearings governed by Article 6, would apply to the hearings required by Article 5(4). The applicants' argument was that the retrospective application of the amendments to pending proceedings violated that right.

[91] This particular argument applies only in the cases of Anderson and Doherty, since they had lodged their appeals to the sheriff in July 1999 before the decision in the Ruddle case and before the 1999 Act had been passed. In neither of the appeals had a hearing taken place by 1 September. The Act came into force on 13 September but, as previously mentioned, Section 1(5) provides that the amendments made to the appeal provisions in Section 64 of the 1984 Act are to apply to appeals in which the hearing takes place on or after 1 September, while the amendments to Section 68 are to apply in relation to cases considered by the Scottish Ministers on or after that date. No point was taken, in the argument before us, about the disjunction between the dates when the two sets of amendments took effect. It may be that, since by its very nature an appeal under Section 64 is concerned with the continuing decision of the Scottish Ministers, even after 1 September, not to discharge a patient, the point is not of practical significance. But I express no concluded view on it.

[92] The argument for the applicants took as its starting point the hypothesis that the Scottish Parliament had decisively altered the test to be applied in the appeals by Anderson and Doherty - which the Scottish Ministers opposed - in such a way as to make it very likely that the appeals would fail when otherwise they would have been likely to succeed. To test the argument I accept that hypothesis. I also proceed on the basis that, as I have held, Section 1 of the 1999 Act does not otherwise infringe the applicants' Convention rights. The applicants argued that by intervening, at the instance of the Scottish Ministers, in a manner which was decisive to ensure that the outcome in these pending proceedings was favourable to the Ministers, the Parliament had infringed the applicants' rights under Article 5(4). If correct, this argument would mean that Section 1 of the 1999 Act was indeed beyond the legislative powers of the Scottish Parliament, but only in so far as it was given retrospective effect.

[93] In support of their contention the applicants cited the decision of the Court in Stran Greek Refineries and Stratis Andreadis v. Greece Series A No. 301B (1994). That case concerned an agreement between the Greek military junta and Mr. Andreadis under which he agreed to construct a crude oil refinery on land near Athens. He was the only shareholder in Stran Greek Refineries. The project stagnated and the government decided to return the land to its previous owners. In due course, when democracy was restored, by virtue of a special statutory power the new government terminated the contract. A dispute arose as to compensation which the applicants claimed was due to them for expenditure in relation to the scheme. Eventually, after many different procedural stages, the dispute reached the Court of Cassation. While the case was pending there, the Greek parliament enacted a law which entered into force immediately. It contained a section declaring void any pending proceedings relating to a class of contracts which included the contract between the former Greek government and the applicants. In holding that the applicants' rights under Article 6(1) had been infringed, the European Court of Human Rights held (Series A No. 301B, p. 82 at paragraph 49):

[94] Further support was sought in the decision of the Court in Pressos Compania Naviera S.A. v. Belgium Series A No. 332 (1995). In Belgium the services of pilots of sea-going vessels are provided by the State. For many years the courts took the view that the State was not liable for negligence or error on their part but in 1983 the Cour de Cassation abandoned that approach and held that the State could be held liable. In 1988 a statute was passed with retrospective effect to change the law back to its previous form, with the result that the State would once more not be liable. The applicants contended that this statute interfered with their right to the peaceful enjoyment, under Article 1 of the First Protocol, of a claim which they had against the State for damage caused by its negligence. They also contended that there had been an infringement of their rights under Article 6(1) of the Convention. The Court held that, in so far as the statute had retrospective effect, the applicants' rights under the First Protocol were infringed. Since their complaints under Article 6(1) overlapped with their complaints under the First Protocol, the Court did not find it necessary to decide the Article 6(1) point.

[95] The judgment of the Court is therefore of no direct assistance for present purposes, but the applicants founded on certain observations in the opinion of the Commission. The Commission noted that Article 6(1) required that a matter under litigation be decided by the courts on the basis of the relevant existing legislation without interference by any of the parties or by any other State authority (paragraph 84). They concluded (Series A No. 332, p. 38 at paragraphs 87 - 88):

[96] That passage suggests that the lawfulness of the retroactive operation of the statute was to be determined by an assessment of the proportionality of the effect of the retrospective statute to the public interest objectives which it sought to achieve.

[97] In National & Provincial Building Society v. United Kingdom Reports of Judgments and Decisions 1997-VII, p. 2325 the applicant building societies had challenged regulations relating to the taxation of investors' interest. In judicial review proceedings the Woolwich Building Society succeeded in having the regulations declared invalid. The applicants raised proceedings for restitution of tax which they had been required to pay under the regulations and for judicial review of the relevant Treasury Orders. The government then carried through Parliament legislation retrospectively validating the Treasury Orders so far as they applied to all the building societies except the Woolwich and thus extinguishing the applicants' proceedings for judicial review. The Court held that there had been no violation of the applicants' right of access to court under Article 6(1). They observed (1997-VII, p. 2363 at paragraph 112):

[98] In Zielinski v. France 28 October 1999, unreported, the Court again stated (at paragraph 57):

[99] Drawing these various authorities together, I conclude that the principle of the rule of law and the notion of a fair hearing would generally preclude any interference with the sheriff's conduct of the appeal under Section 64 with the purpose of influencing his determination of the issue in the appeal. Such interference could, however, be justified on compelling grounds of general interest: any interference would have to be proportionate to the public interest which it sought to secure. The court requires to treat any reasons adduced to justify such an interference with the greatest possible degree of circumspection.

[100] The 1999 Act was passed by the Scottish Parliament with a view to avoiding what it saw as a serious threat that the release of the restricted patients concerned would result in danger to the health, and indeed to the lives, of members of the public, whether children or adults. I have already decided that the members of the legislature were entitled to regard that danger as significant. As Mr. Hodge observed, it is hard to imagine a more compelling public interest than the protection of the public from violent or lethal attacks by persons with a prior history of homicide related to an untreatable mental disorder. The view was taken that, if the legislation were not made to apply to the hearings of the appeals by Anderson and Doherty, which were then pending but which were still at an early stage, there was a risk that Anderson would require to be discharged absolutely and that Doherty might have to be returned to prison. This would undermine the aim of protecting the public from the threat from dangerous patients like them. No inter partes hearing had yet taken place in either appeal.

[101] I am doubtful whether retrospection would have been justified if the only pending appeal had been that of Doherty since there was no prospect of him being discharged into the community. But the discharge of Anderson did present a risk to ordinary members of the public. Viewing the matter with the greatest possible degree of circumspection, I conclude that the need to avoid that danger to the safety of members of the public was an important public interest which justified applying the 1999 Act to hearings in appeals held on or after 1 September. The measure of retrospection was a proportionate means of achieving the protection of the public. I therefore hold that there was no violation of Article 5(4) in this respect.

[102] For the foregoing reasons I would answer the question in each of the references in the negative.

[1] These three cases have been referred to us by the Sheriff at Lanark under paragraph 7 of Schedule 6 to the Scotland Act 1998. They involve a devolution issue which has arisen in appeals which the three applicants have brought under section 63 of the Mental Health (Scotland) Act 1984 (the "1984 Act"). All of the applicants are restricted patients as defined by section 63(1) of the 1984 Act and are presently detained in the State Hospital, Carstairs. Your Lordship in the chair has set out the histories of the three applicants from their initial disposal by the criminal courts on charges of great gravity, though their subsequent detention and treatment to the present time. Your Lordship has also set out the legislative scheme of Parts V and VI of the 1984 Act in so far as it relates to the detention and discharge of restricted patients, together with the nature and effect of the amendments made to Part VI by the Mental Health (Public Safety and Appeals)(Scotland) Act 1999. I gratefully adopt your Lordship's analysis and shall restrict myself to such repetition of the statutory provisions as is necessary for the explanation of my opinion on the arguments advanced.

[2] In their appeals Anderson and Reid, who are subject to restriction orders made under section 59 of the Criminal Procedure (Scotland) Act 1995, each crave the court to direct his absolute discharge, or alternatively his conditional discharge, in terms of section 64 of the 1984 Act. Doherty, who, by virtue of the provisions of section 81(2) of the 1984 Act, is to be treated as if he were subject to a restriction direction made under section 59A of the 1995 Act, craves the court to find and declare that he would, if he were subject to a restriction order, be entitled to an absolute discharge. In that event, the sheriff would, in terms of section 65(1)(a) of the 1984 Act, require to notify the Scottish Ministers accordingly. All three applicants also seek declarator that section 1 of the Mental Health (Public Safety and Appeals)(Scotland) Act 1999 is a provision outwith the legislative competence of the Scottish Parliament and, accordingly, is not law in terms of section 29 of the Scotland Act. This is the devolution issue which brings these cases before us. It is an issue of considerable importance, not only because it is the first time that the Court has been asked to determine whether an Act of the Scottish Parliament is within the competence of the Parliament, but also because it raises questions of great constitutional significance.

[3] Of the three applicants Anderson and Reid are suffering from a mental disorder of the kind referred to in section 17(1)(a)(i) of the 1984 Act, namely, a persistent mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct. This condition is conveniently referred to as psychopathic personality disorder. Doherty suffers from mental impairment as referred to in section 17(1)(a)(ii). All of them are considered to pose a risk of serious harm to the public.

[4] The provisions which govern the compulsory detention of mentally disordered persons both under the civil law and the criminal law are to be found in section 17(1) of the 1984 Act. These provisions are incorporated into the criminal law by section 58 of the Criminal Procedure (Scotland) Act 1995 which enables the High Court or the Sheriff Court to impose a hospital order on an offender if he or she falls within the grounds set out in section 17(1) and if certain other requirements, which are not material for present purposes, are met. Section 59 of the 1995 Act, enables the court further to restrict the discharge of an offender who has been made the subject of a hospital order without limit of time, where it is necessary for the protection of the public from serious harm so to do. Those further restrictions are set out in section 62(1) of the 1984 Act.

[5] It is convenient to look first at section 17(1) of the 1984 Act. It provides:

[6] For the purposes of this reference, the important point which emerges from that section is that persons suffering from psychopathic personality disorder or mental impairment may only be compulsorily detained if medical treatment in a hospital is likely to alleviate or prevent a deterioration of their condition; in other words, if they are treatable. If they are not treatable they cannot be made the subject of a hospital order, and if they are convicted by a criminal court they must be sentenced to imprisonment, if the crime merits such a disposal. At the time of their initial detention all three applicants were considered to be treatable.

[7] Following on the decision of the European Court of Human Rights in X v. United Kingdom (1981) 4 E.H.R.R. 188, the Mental Health (Scotland) Act 1983 introduced a periodic right of appeal for restricted patients, enabling them to apply to the sheriff annually for a discharge. The relevant provision is now section 63 of the 1984 Act.

[8] The powers of the sheriff in such an appeal are governed by section 64 of the Act. That section together with sections 66, 68 and 74 of the Act were amended by the Mental Health (Public Safety and Appeals)(Scotland) Act 1999 ("the 1999 Act") and a new section 66A was added. It is the effect of these amendments which has given rise to these references. Before considering the amendments and the circumstances surrounding their introduction I shall look first at section 64(1) in its unamended form. It is in the following terms:

The effect of that section was the subject of consideration by the House of Lords in R v. Secretary of State for Scotland 1999 SC (HL) 17 where it was held that a restricted patient suffering from a psychopathic personality disorder or mental impairment who appeals under section 63 must be discharged by the sheriff if he is no longer treatable. Shortly after that decision, a restricted patient in the State Hospital, Noel Ruddle, successfully obtained an absolute discharge in an appeal to the sheriff under section 63 on the ground that he was no longer considered treatable. The case is reported at 1999 G.W.D. 29-1395.

[9] Following upon the decision in R. v. Secretary of State for Scotland and the disposal of the case of Ruddle, the Scottish Executive were aware that there were a number of restricted patients, apparently about 12 in all, who, although they were considered a danger to the public, might fall to be discharged from detention in the State Hospital on the ground that their condition was such that treatment in hospital was unlikely to alleviate or prevent a deterioration of it. As I understand it, the Executive had been advised that they were treatable, but were aware of the existence of contrary psychiatric opinion which might find favour with the sheriff in any appeal by the patients in question. This situation had arisen as a result of a shift in psychiatric opinion as to the susceptibility of such persons to treatment, with the result that patients who were originally considered to be treatable might no longer be considered to be so. In the light of these considerations the Scottish Executive took speedy steps to bring forward amending legislation with the express purpose of enabling the patients in question to continue to be detained while there remained the risk of serious harm to the public in the event of their release.

[10] The Mental Health (Public Safety and Appeals)(Scotland) Bill 1999 was accordingly introduced into the Scottish Parliament on 31 August 1999, and treated as an emergency bill. After its passage through the Parliament it was given the royal assent on 13 September 1999.

[11] The most significant amendment in the context of this reference was made to section 64. Corresponding amendments were also made to sections 66, 68 and 74, but it is convenient to examine the changes to section 64 in the first place. The following 3 subsections were added to be read before subsection 1.

In addition, the first part of subsection (1) was amended to read:

Section 66 deals with the right of the conditionally discharged patient who has been recalled to hospital to appeal against the recall to the sheriff. That section was amended by the insertion of additional subsections whose terms mirror those of the new subsections (A1), (B1) and (C1) of section 64. Section 66A was added to provide for an appeal to the Court of Session against sheriffs' decisions under sections 64, 65 and 66. Section 68, which gives power to the Scottish Ministers to lift restriction orders and grant discharges of restricted patients, was also amended by the addition of subsections (2A) and (2B) which again mirror the provisions of subsections (A1) and (C1) of section 64. It is also relevant here to mention the provisions of section 62 of the 1984 Act, which, as I have already noted, sets out the restrictions on discharge imposed by a restriction order. Section 62(1)(a) provides that a restricted patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is absolutely discharged under sections 63 to 68. This distinguishes a restricted patient from other patients subject to hospital orders whose detention requires to be the subject of periodic renewal. Section 62(4) provides that the responsible medical officer must examine and report on the restricted patient to the Scottish Ministers at yearly intervals. The amendments took effect in relation to appeals under section 64 of the 1984 Act in which the hearing took place on or after 1 September 1999. The amendments to section 68 took effect in relation to cases considered by the Scottish Ministers on or after 1 September 1999.

[12] The significant development brought about by these amendments is that the sheriff and the Scottish Ministers are prohibited from discharging a restricted patient so long as it is necessary to detain him in hospital to protect the public from serious harm, regardless of whether he is treatable or not.

[13] These cases bring into focus the conflict between the individual's right to liberty now enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), and the duty of the State to protect its citizens from harm. It is clear from the reports of the debates on the bill in the Parliament that Ministers and Members of the Parliament were alive to this conflict, and in a number of speeches in the debates the need to seek an appropriate balance between the conflicting interests was rightly highlighted. At the same time concern was expressed on all sides about the risk to public safety which would arise if persons who were considered to pose a risk to the public were to be released into the community.

[14] Three principal submissions were advanced on behalf of the applicants, all of them based upon the provisions of Article 5 of the Convention. The relevant provisions are as follows:

[15] The first principal submission advanced on behalf of the applicants was that the provisions of section 1(1) to (4) of the 1999 Act were incompatible with the rights of the applicants under Article 5(1)(e) of the Convention. Their effect, it was argued, was to create a form of indefinite preventive detention under which persons such as the applicants, who had been detained on the basis that they fulfilled the criteria in section 17(1) of the 1984 Act, could continue to be detained even although they no longer fulfilled those criteria. The criterion which was no longer fulfilled was of course the requirement that their condition was such that hospital treatment was no longer likely to alleviate or prevent a deterioration of it.

[16] Article 5 of the Convention allows for the deprivation of liberty in certain cases. One of these is the case of persons of unsound mind. In terms of paragraph (1)(e) of Article 5 such persons may be subject to lawful detention in accordance with a procedure prescribed by law. The Convention itself makes no provision as to the criteria upon which unsoundness of mind is to be determined, nor does it set out the circumstances in which persons of unsound mind may be deprived of their liberty. These matters are left to individual States to regulate by their domestic law. The law of Scotland regulates these matters through the provisions of the 1984 Act. Section 1 of the 1984 Act (as amended by section 3 of the 1999 Act) defines mental disorder as mental illness (including personality disorder) or mental handicap however caused or manifested. Section 17(1), as I have already noted, provides that persons suffering from psychopathic personality disorder or mental impairment may only be detained when treatment in a hospital is likely to alleviate or prevent a deterioration of their condition, and when it is necessary for their health or safety or for the protection of other persons that they should receive such treatment, and the treatment cannot be provided unless they are detained. The treatability requirement is not, however, a criterion which the Convention requires to be fulfilled before a mentally disordered person may be detained. That was correctly accepted on behalf of the applicants. Guidance as to what the Convention does require for compliance with Article 5(1)(e) was given in the decision of the European Court of Human Rights in the case of Winterwerp v. The Netherlands (1979) 2 EHRR 387. In that case three requirements were set out. These have been reaffirmed by the Court in subsequent cases, and are as follows. First, there must be a true mental disorder established by objective medical expertise. Second, the disorder must be of a kind or degree warranting compulsory confinement. Third, the detention only remains valid so long as the disorder persists. So a domestic law which provides for detention on these conditions will conform with Article 5(1)(e).

[17] Article 5(1)(e) also requires the detention to be "lawful". "Lawfulness" in this context was explained by the Court in Winterwerp to involve conformity with domestic law in both procedural and substantive terms, and with "the purpose of the restrictions permitted by Article 5(1)(e)". There may be more than one purpose. For example, in Guzzardi v. Italy (1980) 3 EHRR 333 the safety of the public and the safety of the mentally disordered individual were both seen as legitimate objectives of detention under Article 5(1)(e). In the recent case of Litwa v. Poland, 2 April 2000, unreported, the Court made it plain that persons to whom in Article 5(1)(e) applies may be detained for the sole purpose of protecting the public, so long as it is necessary in the circumstances, and other measures are insufficient to achieve that end.

[18] The amendments made to the 1984 Act are designed to achieve the continued detention of the class of person to whom they relate on the ground of public safety alone. Section 64(A1) and 68(2A) prevent the discharge of the patient if the sheriff or the Ministers are satisfied that the patient is 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 be detained in a hospital, whether for medical treatment or not. Accordingly for detention to continue, there must be a persisting mental disorder (a matter on which, in terms of domestic law, the decision-maker must be satisfied by medical evidence), and detention must be necessary to protect the public from serious harm. In other words, the disorder must warrant compulsory confinement. The requirements set out in Winterwerp are therefore met, and so, in my view, the amended provisions conform with Article 5(1)(e).

[19] It was argued on behalf of the applicants that the effect of the 1999 Act was to create a form of indefinite preventive detention for persons arbitrarily selected. I had some difficulty with the applicants' use of the word "arbitrary" in this context. As I understood it, the accusation of arbitrariness arose from the fact that, because of changes in psychiatric thinking, offenders suffering from psychopathic personality disorders coming before the courts today would fall to be sentenced to imprisonment rather than made the subject of hospital orders. The word "arbitrary" connotes the notion of acting in the exercise of an untrammeled discretion, even capriciously, without reference to sound reasons or fixed rules. The 1999 Act is directed at a small group of individuals who, it is not disputed, pose a threat to public safety. It provides for their detention on the basis of conditions which in my view comply with the Convention, and which include a periodic right of appeal. The fact that there may be personality disordered persons in prison who are not subject to the provisions of the 1984 Act does not make the provisions of the 1999 Act arbitrary. It merely indicates that differences in psychiatric opinion have led to different disposals. That is a matter for which the Executive cannot be held responsible. In these circumstances it seems to me that the accusation of arbitrariness is unjustified.

[20] The applicants argued further that Article 5(1)(e) was contravened because the criteria for discharge under the new sections 64(A1) and 68(2A) Act no longer reflected the criteria for detention under section 17(1). As counsel for the applicants put it colloquially it was harder to get out than it was to get in. Psychiatric medicine does not stand still. The understanding of mental disorder has developed over the years and will no doubt continue to develop with further research. The history of these cases shows that the preponderance of view within the psychiatric profession may alter. In these circumstances, governments must be free, as they must in relation to a multitude of areas of human activity, to alter their policies as developments in medical and social thinking dictate. When such alterations in policy occur, consequential changes to the legislative provisions may be necessary. There is nothing in the Convention or in the jurisprudence of the European Court of Human Rights which prevents a state from altering provisions governing the detention of mentally disordered persons. It would not be reasonable if it were so in the light of the considerations I have just mentioned. Nor is there any provision of the Convention which I interpret as requiring that the continuation of detention must be regulated by the same provisions as those under which the detainee entered detention in the first place. If that were so a state might be forced to operate two or more regimes depending on the point in time at which the detainee was compulsorily detained. That might give rise to a situation in which individuals would require to be released under the outdated provisions, only to be immediately re-detained under the new provisions. It would in my view be unreasonable to require such a procedure to be gone through when the same legitimate result could be achieved by provisions of the kind included in the 1999 Act. For this reason also I do not consider that the provisions of the 1999 Act breach Article 5(1)(e).

[21] The applicants also argue that, in order to comply with Article 5(1)(e), the continuation of the detention of the detainee had to remain consistent with the objectives of the sentencing court. The sole objective of the sentencing court in relation to these applicants was, according to the argument, the treatment of the offender. The objective of the 1999 Act on the other hand was containment alone. So, it was argued, the treatment objective had been abandoned. In my view the assertion that the objective of the sentencing court in each of these cases was treatment alone is ill-founded. A consideration of the provisions of section 17(1) of the 1984 Act and of the provisions which they replaced makes it clear that protection of the public is at least as important an objective as the treatment of the individual. Indeed, the respondents argued that the reference to treatment in section 17(1) was simply an expression of the means of effecting the ultimate end, which was public protection. I think that there is force in that submission since, according to section 17(1)(b) there would be no detention unless it were necessary for the protection of the public that the mentally disordered person should receive treatment in hospital. For these reasons I do not consider that the objective of the sentencing court will be departed from when the provisions of the 1999 Act are operated.

[22] In a related argument, counsel for the applicants contended that the continued detention of untreatable persons in hospital, as provided for in the amended legislation, meant that there had ceased to be any relationship between the ground on which they had been detained and the place and conditions of detention. For this argument counsel relied on Ashingdane v. United Kingdom (1985) 7 EHRR 528 at paragraph 44, and Aerts v. Belgium (1998) 29 E.H.R.R. 50, at paragraphs 46-50. I do not accept this argument. The reason for the detention of the applicants in the first place was the fact that they were suffering from a mental disorder. They continue to suffer from mental disorder, and for that simple reason I am not prepared to hold on the basis of counsel's assertion alone and in the absence of any expert guidance, that detention in the State Hospital is inappropriate.

[23] The applicants' second proposition was that section 1(1) of the 1999 Act was incompatible with their rights under Article 5(4) of the Convention. It prevented them from having the lawfulness of their detention decided by a court and their release ordered if the detention was found not to be lawful. The effect of the 1999 Act amendments was that, in an appeal under section 63 of the 1984 Act by an untreatable restricted patient suffering from a psychopathic personality disorder, the sheriff was obliged to refuse the appeal, even although the applicant did not fulfil one of the cumulative criteria on which his initial detention had been based. The result of this, it was argued, was that the sheriff became a decision-maker of first instance, applying the new provisions of section 64(A1), rather than a court for the purposes of Article 5(4) testing the lawfulness of the detention on the criteria on which it had been imposed. In support of this argument counsel for the applicant relied upon a passage from the speech of Lord Clyde in R. v. Secretary of State for Scotland. His Lordship in considering the criteria which had to be considered by a sheriff in an appeal by a restricted patient under section 63 of the 1984 Act said this at page 38A-B:

In the same case Lord Hope quoted with approval, at page 30B, the dissenting judgment of Roch L.J. in R. v. Canons Park Mental Health Review Tribunal, ex parte A. [1995] Q.B. 60 where his Lordship said at page 78C:

[24] R. v. Secretary of State for Scotland was concerned with the interpretation of the unamended section 64 of the 1984 Act, and its interrelation with the provisions of section 17(1). It was not concerned with the situation with which were are faced; namely the introduction of new provisions for the review of the detention of mentally disordered persons which have the effect that the criteria to be applied at review differ from the criteria which were applied in determining their initial detention. In these circumstances, I take the view along with your Lordship in the chair, that the decision in R. v. Secretary of State does not bear upon the particular question that we have to consider. Counsel for the Scottish Ministers submitted that, if the 1999 Act is in conformity with Article 5(1)(e) it must necessarily follow that its provisions are also in compliance with Article 5(4). Under reference to X v. United Kingdom at para. 57, Ashingdane v. United Kingdom at para. 52 and E. v. Norway (1990) 17 E.H.R.R. 30 at para. 49, counsel submitted that what Article 5(4) required was a review of the conditions which, according to Article 5(1)(e) were essential to the lawful detention of a person on the ground of unsoundness of mind. For the reasons I have already given, I consider that the conditions which are essential to the lawful detention of the applicants in accordance with Article 5(1)(e) are the provisions introduced by the 1999 Act. So that "lawfulness" has the same meaning in paragraph 4 as in paragraph (1)(e) of the Article. If, as I have already held, a state is free to alter the criteria for detention so long as they do not conflict with Article 5, I can see no reason under the Convention why the alteration should not apply to those already in detention. If they are subjected to the new law they will have their detention reviewed under the new law . The provisions of the new law are valid domestically and in terms of the Convention.

[25] Further, the argument that the sheriff becomes a decision-maker of first instance is not in my view sound. In terms of section 68 the Scottish Ministers have a continuing duty to consider whether a restriction order should continue to have effect or the patient should be discharged. Under section 68(2A), in a provision which mirrors the provisions of section 64(A1), the Ministers are prevented from discharging a patient if they are satisfied that he is 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 he continue to be detained in a hospital, whether for medical treatment or not. If the applicant then appeals, the sheriff requires to review the lawfulness of the detention by applying section 64(A1). So that the criteria which he has to apply are the same as those which the Ministers are required to apply. It is clear, therefore, that it is wrong to say that the sheriff is a decision-maker of first instance. He is in reality carrying out a review of the determination which the Ministers have carried out under the new section 68. The lawfulness of the detention is accordingly now determined throughout by the new provisions. For these reasons I consider that Article 5(4) is not breached by the provisions of the 1999 Act.

[26] Your Lordship in the chair and Lady Cosgrove have dealt fully with this part of the argument advanced on behalf of the applicants. I am in agreement with the opinions expressed on it by your Lordship and your Ladyship, and there is nothing that I need add.

[27] For the reasons I have given I would also answer the questions in each of the references in the negative.

[1] These three references from the Sheriff Court at Lanark under paragraph 7 of Schedule 6 to the Scotland Act 1998 represent a significant milestone in the development of Scots law: for the first time in its history the Court of Session is asked to strike down the Act of a legislature, the power to do so having been conferred on it by section 29(1) of the Scotland Act. In all three cases the same question has been referred to the court by the sheriff: is Section 1 of the Mental Health (Public Safety and Appeals)(Scotland) Act 1999 ("the 1999 Act") a provision which is, in whole or in part, outwith the legislative competence of the Scottish Parliament by virtue of Section 29(2)(d) of the Scotland Act 1998 and, accordingly, not law in terms of section 29(1) thereof?

[2] The particular question which arises for decision is whether Section 1 of the 1999 Act is compatible with the rights of restricted patients under Article 5(1)(e) and 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The provisions of Article 5, insofar as relevant for the present case, are as follows:

[3] The right to liberty enshrined in Article 5, the overall purpose of which is to ensure that no one is deprived of his or her liberty in an arbitrary manner, has high constitutional status. Since it is a distinguishing feature of much mental disorder that the patient is unaware of the extent of the illness and unwilling to accept the need for treatment, it is not surprising that the Convention permits the lawful detention of persons of unsound mind as one of the specific limited exceptions to the general right.

[4] The right of the individual under Article 5 is not, however, an absolute right and requires to be balanced against the rights of other members of society. In particular, members of the public have a right to live their lives free from harm or the threat of harm to their health or safety through the release into the community of persons suffering from mental disorder. The State has a duty to protect the life of its citizens, a duty which is enshrined in Article 2 of the Convention.

[5] The issue which arises under Article 5 in these references is a consideration of how to achieve the balance which requires to be struck between protecting the interests of the individual restricted patients in question and the protection of the safety of members of the public.

[6] The European Court has provided guidance as to the general approach to be taken to the application of Convention rights:

Maintaining a fair balance between the particular competing interests with which this case is concerned is a difficult and onerous task. The rights of the mentally disabled, vulnerable by virtue of their disability, require careful protection. Where interests of general public safety are involved the court has a duty to maintain public confidence. In reaching its decision the court requires to have regard to general principles extracted from the Convention jurisprudence. But the fair balance which the Convention requires can, it seems to me, only be achieved if the application of those principles is tempered with good sense and realism.

[7] Your Lordship in the chair has fully explained the relevant facts of the three referrals, including the history of events leading up to the passing of the 1999 Act and also the statutory basis for the current detention of each of the applicants as a restricted patient at the State Hospital, Carstairs and the submissions of counsel.

[8] Section 17 of the Mental Health (Scotland) Act 1984 ("the 1984 Act") lays down the grounds upon which a person can be admitted and compulsorily detained in a mental hospital:

[9] All three applicants have been diagnosed as suffering from a mental disorder within the meaning of the 1984 Act. In the case of Anderson and Reid the disorder can conveniently be referred to as psychopathic personality disorder. The 1984 Act does not mention either psychopathy (the term used in the English legislation) or personality disorder but both these applicants have displayed "abnormally aggressive or seriously irresponsible conduct" (section 17(1)(a)(i)). It is Section 17(1)(a)(ii) which applies to Doherty's case. What has been described as 'the treatability test' applies to both categories. The applicants have all been assessed as currently presenting a high risk of danger to the public if released into the community. The common factor in the case of all three applicants is that they are "restricted patients" within the terms of section 63(1) of the 1984 Act. Only patients who have been involved in proceedings before the criminal courts can be so classified. The applicants were all considered to be treatable at the time of their detention; on the advice presently available to them, the Scottish Ministers consider that they remain treatable. It is recognised, however, that a contrary psychiatric opinion may be expressed and that is a concern which is readily understandable in view of the divergence of opinion in this area.

[10] Medical knowledge of psychopathic personality disorder is still at an early stage. There is no single and generally accepted definition of the condition and there are widely differing views on treatability. The extent of the difficulty is illustrated by the fact that the Royal College of Psychiatrists, the body which represents psychiatry and psychiatrists in the United Kingdom, has been unable to give a clear view about either the diagnosis or treatment of the condition (Report of the Committee of Inquiry into the Personality Disorder Unit, Ashworth Special Hospital, January 1999, Cm. 4194-11). The focus on the treatability of patients with psychopathic personality disorder in the 1984 Act is not necessarily even a reflection of the burden of psychiatric opinion at that time. The 1984 Act introduced no new law: it was a consolidating Act, re-enacting the Mental Health (Scotland) Act 1960 with all subsequent amendments. The Scottish Ministers recognising that, despite significant developments in psychiatric medicine, the last comprehensive reform of mental health law in Scotland took place in 1960, have now set up a committee under the chairmanship of the Rt. Hon. Bruce Millan to carry out a general review of the 1984 Act.

[11] Following the decision of the European Court in X. v. The United Kingdom (1981) 4 E.H.R.R. 188, a right of appeal to the sheriff was conferred on the patient who is subject to a restriction order. Section 64 of the 1984 Act (prior to amendment by the 1999 Act) provides:

[12] The meaning and effect of section 64(1) was determined by the House of Lords in the case of R. v. Secretary of State for Scotland 1999 SC (HL) 17:

In other words, the treatability test is incorporated as part of the appropriateness test in section 64(1)(a).

[13] Soon after the decision of the House of Lords, Noel Ruddle, a restricted patient at the State Hospital, was granted an absolute discharge having satisfied the sheriff at Lanark that he was no longer considered treatable (Ruddle v. The Secretary of State for Scotland 1999 G.W.D. 29-1395). Following that decision, and with a view to preventing the release in similar circumstances of a small number of restricted patients at the State Hospital who pose a risk of serious danger to the public, an emergency Bill was introduced into the Scottish Parliament to amend a number of sections of the 1984 Act, including Sections 64, 66, 68 and 74. The royal assent was granted on 13 September 1999 and the Act came into force immediately and, by virtue of section 1(5), had effect "in relation to appeals proceeding under sections 64, 65 or 66 the 1984 Act in which the hearing takes place on or after 1 September 1999".

[14] Section 64 of the 1984 Act is amended by the 1999 Act by the insertion, at the beginning, of three subsections including the following:

Further, in subsection (1) for the words from the beginning to "order" there is substituted: "Where the sheriff has decided, under subsection (A1) of this section, not to refuse an appeal."

[15] The amendment is clear in its terms and there can be no doubt as to its meaning and effect: the sheriff must now refuse the application for discharge if he is satisfied that the effect of the mental disorder from which the patient is suffering is such that it is necessary that he continue to be detained in hospital in order to protect the public from serious harm. Only if the sheriff is not so satisfied does he require to go on to consider the issues of treatability and the appropriateness of detention in hospital. The principle which now applies is that public safety is the first and paramount test when a mentally disordered patient who is subject to a restriction order appeals to the sheriff for discharge.

[16] The proposition advanced on behalf of the applicants was that a period of detention following the refusal of an appeal by an untreatable psychopath under section 64(A1) cannot be justified under Article 5(1)(e) of the Convention, at least in so far as that period exceeds a reasonable time after he has been diagnosed as untreatable. In the case of persons suffering from a psychopathic personality disorder or mental handicap, the purpose of their admission was to receive treatment to alleviate or prevent any deterioration in their condition. The domestic law had specified treatability as a necessary condition of the appropriateness of continuing detention (R. v. Secretary of State for Scotland). Detention following the refusal of an appeal in terms of section 64(A1) was, in effect, preventive detention and not detention for medical treatment. As there was now no link between the conditions of the original detention and the purpose for which it was being continued, the detention had become an arbitrary deprivation of liberty prohibited by the Convention. It was also argued, under reference to what was said by the court in Ashingdane v. United Kingdom (1985) 7 EHRR 528, that while Article 5(1)(e) is not concerned with treatment or treatability, there requires to be a link between the place of the detention and its purpose: the appropriate place for the preventive detention of an untreatable personality disordered offender is prison and not hospital.

[17] The essential principles to be applied in considering the "lawfulness of the detention" of a person of unsound mind for the purposes of Article 5 of the Convention were laid down by the European Court of Human Rights in the case of Winterwerp v. The Netherlands (1979) 2 EHRR 387 (at paragraph 39):

The minimum conditions for lawful detention are thus the objectively established existence of a true and persisting mental disorder which is of a kind or degree warranting compulsory confinement.

[18] The essential question which arises for consideration is whether under Article 5(1)(e) it is lawful to continue to detain a mentally disordered person who is admitted to hospital on the satisfaction of a treatment condition and who now no longer satisfies that particular condition although he does satisfy another Convention condition. To put the matter another way, is a State prevented by the Convention from changing the basis of an individual's detention at some stage after the initial detention?

[19] In order to answer that question it is necessary, firstly, to analyse the nature and overall effect on the situation of detained patients who have been concerned in criminal proceedings of the provisions in Sections 60 to 68 of Part VI of the 1984 Act, both before and since the amendments effected by the 1999 Act.

[20] Section 62 describes the effect on a patient of a restriction order and section 62(1) provides as follows:

The important effect of that provision is that whereas the authority for the detention of other patients requires to be renewed from time to time, the authority for the detention of a restricted patient subsists without renewal until an order for his discharge is made under Sections 63 to 68 of the Act.

[21] Section 68(1) confers a power on the Scottish Ministers, if they are satisfied that a restriction order in respect of a patient is no longer required for the protection of the public from serious harm, to direct that the patient shall cease to be subject to the special restriction and in terms of Section 68(2) they may, if they think fit, discharge the patient from hospital either absolutely or conditionally.

[22] A new subsection in the following terms is inserted into that section by the 1999 Act:

This new provision mirrors Section 64(A1) and imposes on the Scottish Ministers a similar restriction to the one imposed on the sheriff: discharge must not be granted if there is a serious risk of public harm.

[23] Section 62(2) provides that the responsible medical officer is required to examine and report to the Scottish Ministers on a person who is a restricted patient at intervals not exceeding one year. Further, an internal memorandum of procedure requires the responsible medical officer to provide a report at any time if the patient's condition has changed in such a way that the Scottish Ministers should be informed. In addition, the Mental Welfare Commission has a duty under section 3(2)(b) of the Act to visit detained patients regularly, including patients at the State Hospital, and such a patient may request a private interview with a medical commissioner or medical officer of the Commission. The Commission's powers and duties to discharge from detention do not extend to restricted patients, but it is required (by Section 3(3)) to make a recommendation to that effect to the Scottish Ministers in any case where the opinion is formed that such a patient should be discharged. Thus, while the effect of a restriction order is that a patient can only be discharged by the Scottish Ministers or, on appeal under section 64, by the sheriff, both the responsible medical officer and the Mental Welfare Commission have a duty to recommend such discharge if that seems appropriate. In practical terms, it is the psychiatric adviser to the Scottish Ministers (a consultant psychiatrist) who corresponds with the patient's responsible medical officer and with the Mental Welfare Commission about the treatment of restricted patients. The psychiatric adviser also personally examines each such patient at regular intervals and it is he who is generally concerned with the exercise by the Scottish Ministers of the statutory powers and duties conferred on them.

[24] It follows from what has been said that, prior to the passing of the 1999 Act, if the Scottish Ministers received a report that a particular patient was no longer considered to be treatable, they would have been under a duty to discharge that patient on the ground that the prerequisites for his detention under Section 17 no longer applied. In terms of Section 68(2A) the Scottish Ministers now require, notwithstanding any such report, to refuse to discharge him if they are satisfied that it is necessary to detain the restricted patient in hospital in order to protect the public from serious harm. A significant additional duty is thereby imposed on the Scottish Ministers in performing their functions under Section 68(2) in that they are now required to consider the public interest before deciding to discharge any restricted patient. The Ministers will have to decide, on the basis of the medical reports provided to them by the responsible medical officer, the Mental Welfare Commission and the psychiatric adviser, whether they are satisfied that the new serious harm test is met. If they do so decide, they are not entitled to discharge the patient and his detention will remain valid by virtue of Section 62(1)(a). If the serious harm test is not met, they will then require to consider whether the patient's continued detention is justified by reference to the Section 17 conditions.

[25] The reasoning of the Court in Guzzardi v. Italy (1980) 3 EHRR 333 and Litwa v. Poland 4 April 2000 indicates that detention under Article 5(1)(e) can be justified on grounds of social policy, including the protection of the public. It follows that if, prior to the coming into effect of the 1999 Act, the State had released a person detained when he became untreatable, there would have been no bar imposed by the Convention on the passing of legislation permitting detention on the new ground of dangerousness. The Scottish Parliament, faced with the particular problem created by a small group of patients, has chosen not to legislate by way of the express creation of a new ground of detention. To do so would have involved amendment, in advance of consideration of the whole matter by the Millan Committee, of section 17(1) of the 1984 Act which sets out the conditions of detention for all mentally disordered patients. Such amendment would not, in any event, have achieved the particular desired aim of securing the continued detention of the particular problematic group of dangerous offenders since hospital and restriction orders under sections 58 and 59 of the Criminal Procedure (Scotland) Act 1995 could not be made of new without a further conviction of a criminal offence.

[26] It is significant, in my view, that the overall effect of the new provisions is to prevent the release of the dangerous mentally disordered patient: neither the sheriff nor the Scottish Ministers may discharge if the serious harm test is established (section 64(A1) and section 68(2A)) and the Scottish Ministers may now not transfer a dangerous patient back to prison even if he is no longer regarded as treatable (section 74(1B)). The mechanisms for discharge are what limit the patient's liability to detention. By preventing discharge where there is a serious threat to public safety, Parliament has made clear its intention that the original hospital order should, in such a case, remain an effective warrant for the patient's lawful detention. The basis of that detention is now the new legally sufficient ground of dangerousness.

[27] In considering whether, as the applicants contend, their continued detention on that basis is in breach of Article 5(1)(e) it is necessary to consider, firstly, whether it is in conformity with the domestic law and then whether it is lawful in Convention terms. That is the approach laid down by the court in Winterwerp at paragraph 45:

[28] So far as the domestic law is concerned, the matter is governed by statutory provisions and before either the Scottish Ministers or the sheriff can decide to refuse to discharge, and thereby effectively apply a new ground of detention, they must be satisfied of the matters set out (in Sections 64(A1) and Section 68(A1) respectively). There is thus no scope for making the decision on an arbitrary basis and the continued detention under the amended provisions is lawful in domestic terms.

[29] If the detention is to be in conformity with Article 5(1)(e) the law governing it must comply with the three Winterwerp criteria to which reference has already been made. In this connection, it is important to note that a mental patient's right to treatment appropriate to his condition cannot be derived from Article 5(1)(e) (Winterwerp at paragraph 51). I am satisfied that the system introduced by the 1999 Act meets the Convention requirements. In terms of section 68(2A) the Scottish Ministers must be satisfied that the patient is suffering from a persistent mental disorder which makes it necessary for public protection that he continue to be detained in hospital (Winterwerp criteria; Guzzardi and Litwa).

[30] Further, the Court has indicated that although the Convention is not concerned with suitable treatment or conditions, the detention of a person of unsound mind should be effected in a hospital, clinic or other appropriate institution (Ashingdane at paragraph 44). It follows, in my view, that the contention on behalf of the applicants that the detention of a person of unsound mind, where no treatment can be given to alleviate or prevent a deterioration of his condition, should be in prison and not hospital, falls to be rejected.

[31] There appears to be no suggestion in the Convention jurisprudence that modification or alteration by a State of a ground of detention is unlawful and there appears to me to be no reason why that should be so. Provided the new basis requires that all the Winterwerp criteria are met then the detention remains lawful under section 5(1)(e). Further, it is clear that the European Court does not attempt in its jurisprudence to provide a definitive interpretation of mental disorder and recognises that the term is one "whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society's attitudes to mental illness change" (Winterwerp at paragraph 37). The need for a flexible approach is indicated by the very nature of mental illness which often fluctuates in its severity so that more intensive treatment, or even compulsory detention, may be required during acute phases but not at other times. Further, quite apart form developments in psychiatric medicine, changes occur in health policy affecting the care of the mentally disordered. During the early 1990s a policy of care in the community was vigorously pursued to the extent that psychiatric hospitals and wards were closed at an unprecedented rate. That trend has now been modified and current thinking recognises that many mentally disordered patients who were previously thought to be well enough to live in the community are not in fact fit to do so and may even require to be compulsorily detained in hospital. In some circumstances the decision as to whether a patient requires to be the subject of civil detention may depend upon the quality of the care available at the time in a particular local community. The evident need for flexibility in this area is clearly recognised by the Court and, with that in mind, I am satisfied that there is no reason why it should be unlawful under the Convention to detain a patient on a different lawful basis from that on which he was initially admitted.

[32] I am therefore in agreement with your Lordship in the chair that section 1 of the 1999 Act is not incompatible with the rights of patients such as the applicants under Article 5(1)(e) of the Convention.

[33] Article 5(4) requires States to have in place a system for a court to make a speedy review of the lawfulness of a patient's detention and to order his release if it is not lawful. Having regard to the fluctuating nature of much mental illness it is not surprising that this requirement extends not only to an independent check of the lawfulness of the initial compulsory admission to hospital but also a periodic review to check that the detention remains lawful. This latter requirement was emphasised by the European Court in the case of X. v. United Kingdom (1981) 4 E.H.R.R. 188 and it was following that decision that the right to appeal at regular intervals, which is found in section 63 of the 1984 Act, was introduced into our law.

[34] The contention for the applicants was, that the effect of Section 64(A1) was that the sheriff no longer carried out a review of the type required by the Convention. In particular, the fact that he now requires to refuse an appeal if he is satisfied that the danger test is established means that, in that event, he is precluded from considering whether the criteria for the original detention are still met. In the particular case of the psychopathic patient no longer considered treatable, the sheriff would be unable to consider his appeal on that ground until he had considered whether the patient's disorder required his detention on grounds of public safety. The provision, it was argued, amounts to a barrier depriving the patient of a review of the lawfulness of his detention to which he has a right under Article 5(4).

[35] It was common ground that the notion of 'lawfulness of detention' should have the same significance as in paragraphs 1(e) and 4: (Ashingdane at paragraph 52 and X. v. United Kingdom at paragraph 57). The lawfulness of the review procedure must therefore be tested by reference both to the existing domestic law as at the date of review and to the Convention (Winterwerp) conditions. So far as the domestic law is concerned, it is vital that the procedure enables the decision to detain to be reviewed (R. v. Canons Park Mental Health Tribunal ex parte A [1994] 1 All E.R. 481 per Sedley J. at page 493). On the view that has been reached that the provisions of the 1999 Act effectively create a new ground of detention, it follows that it is the lawfulness of the detention on the new ground which requires to be reviewed by the sheriff. Section 64(A1) gives the sheriff that very power: he is required to make sure that the requirements of the new test of public safety are made out. At the review proceedings, the first issue to be addressed is the lawfulness of the Scottish Ministers' decision that the applicant presents a serious risk of public harm. If that is not established to his satisfaction, the sheriff will then require to consider the lawfulness of the continuing detention by reference to the unamended provisions of section 64(1) as interpreted by the House of Lords in R. v. Secretary of State for Scotland. That would provide the review required by Article 5(4) of the other grounds. In these circumstances I consider that the section 64(A1) proceedings provide for an assessment by a court whereby the lawfulness of a patient's detention can be reviewed both by reference to the domestic law as at the date of the appeal and also by reference to Convention criteria. It follows that I agree with your Lordship in the chair that the applicants' argument that section 1 is incompatible with Article 5(4) of the Convention should also be rejected.

[36] The applicants' final argument, which applies only in the cases of Anderson and Doherty, who had lodged their appeals to the sheriff in July 1999 before the decision in the Ruddle case and before the 1999 Act had been passed, was also based on Article 5(4). As previously mentioned, the Act came into force on 13 September but section 1(5) provides that the amendments made to the appeal provisions in section 64 are to apply to appeals in which the hearing takes place on or after 1 September. In neither of the two appeals in question had a hearing taken place by 1 September.

[37] The argument for the applicants was to the effect that there had been legislative interference in the judicial process inconsistent with their rights of access to the court and fairness and equality of arms in that process. The decision of the Court in Stran Greek Refineries and Stratis Andreadis v. Greece (1994) 19 E.H.R.R. 293 was cited in support of their contention. It was submitted further that while the Scottish Parliament may have a "margin of appreciation", or area of discretion, in relation to legislative interference with Convention rights, this ought to be narrowly confined and closely scrutinised by the court. Moreover, a measure introduced by the legislature to restrict a Convention right must conform to the principle of proportionality and requires, therefore, to be both suitable and necessary. Reference was made to the observations of the court in National and Provincial Building Society v. United Kingdom (1997) 25 E.H.R.R. 127 at paragraph 112:

[38] It is clear that legislative interference designed to influence the outcome of an appeal under Section 64 would generally be precluded by the notion of a fair hearing. The Court has recognised, however, that such interference may be justified on "compelling grounds of the general interest" (Zielinski v. France 28 October 1999, unreported, at paragraph 57). The provision in question therefore requires to be tested by reference to whether it was justified on such compelling grounds and whether the interference was proportionate to the public interest which it seeks to protect. The matter requires to be scrutinised with care.

[39] The risk which the legislature faced was that of the potential release into the community of Anderson, an untreatable mentally disordered offender with a history of extreme violence, which includes the killing of a child, and who is assessed as currently presenting a high level of risk. Doherty would be returned to prison if discharged. There can be little doubt that Anderson's discharge would pose a real risk to the safety of members of the public. The duty of protecting the right to life is enshrined in Article 2 of the Convention and the legislature requires to take steps to comply with that duty. I consider that there can be no doubt that the protection of the public from the perceived risk of harm to life or limb is a compelling public interest and that the provision, although retrospective, was a proportionate response which attempts to strike a fair balance between the rights of the individual and the needs of society. I therefore agree that there was no violation of Article 5(4) in this respect.

[40] For the foregoing reasons I agree with your Lordship in the chair that the question in each of the references should be answered in the negative.