APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Nimmo Smith
Lord Philip
C.B.G. Nicholson, C.B.E., Q.C.
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[2006]
HCJAC 70
Appeal
No: XC316/06
OPINION OF THE COURT
delivered by LORD PHILIP
in
APPEAL
In terms of Section 62 of
the Criminal Procedure (Scotland) Act 1995
by
WING HONG BRIAN YUNG
Appellant;
against
PROCURATOR FISCAL,
EDINBURGH
Respondent:
_______
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Act: Paterson, Solicitor, Purdie
& Co
Alt: A. Mackenzie A.D., Crown
Agent
12 September 2006
[1] This is an
appeal by Wing Hong Brian Yung against a finding of the Sheriff at
Edinburgh dated 14 February 2006, acquitting him of three charges of
assault on the ground that he was insane at the time of commission of the
offences. The appellant was charged on
summary complaint with three charges of assault. At a pleading diet on 6 January 2006 the
Court made an assessment order in terms of section 52D of the Mental
Health (Care and Treatment) (Scotland) Act 2003, and subsequently received an
opinion dated 27 January 2006 from Dr Fionnbar Lenihan, a
Consultant Forensic Psychiatrist, to the effect that the appellant was
suffering from a mental disorder, namely schizophrenia, and was insane at the
time of the offences with which he was charged and was also insane in bar of
trial. An examination of facts was
ordered under section 54(1)(b) of the Criminal
Procedure (Scotland) Act 1995. The examination of facts took place on 14
February 2006
when the sheriff was provided with a further report from Dr Lenihan
confirming his earlier opinion and recommending that the appellant should not
attend the examination of the facts. An
opinion from a second Consultant Forensic Psychiatrist,
Dr Andrew Wells, in similar terms to the original opinion of
Dr Lenihan was also before the Court.
The parties entered into a joint minute agreeing that the terms of the
letters containing the opinions of the psychiatrists were not in dispute, and
that they should be accepted in evidence.
On the unopposed motion of the procurator fiscal, the sheriff ordered
that the examination of facts should proceed in the absence of the
appellant. Evidence was then led by the
Crown from a number of witnesses. The
appellant was represented at the hearing but no evidence was led on his behalf.
[2] After hearing
the evidence the sheriff pronounced herself satisfied beyond reasonable doubt
that the appellant did the acts constituting the offences libelled. She was further satisfied on a balance of
probabilities that he was insane at the time of the commission of the
offences. She accordingly acquitted him
on grounds of insanity in terms of section 55(3) and (4) of the 1995 Act,
and proceeded to make an interim compulsion
order in terms of section 57(2)(b) of the Act.
[3] The appellant
now appeals, purportedly under section 62(1)(b)
of the Act, against the sheriff's finding which, in his Note of Appeal, he
asserts was made in terms of section 55(2) of the Act. He contends that in the absence of the
appellant at the examination of facts there was insufficient identification of
him as the perpetrator of the three assaults libelled on the
complaint. His appeal under section 62(1)(c) against the interim
compulsion order was in the event not insisted in.
[4] We were
informed that the appellant had, on 30 May 2006, been returned to Hong Kong under an administrative arrangement because
the student visa, which allowed him to live and study in the United Kingdom, had expired. It was represented to us that he nevertheless
retained an interest in the outcome of the appeal in respect that his ability
to return to the United Kingdom in the future might be adversely affected by
the sheriff's finding that he had committed the acts constituting the offences
with which he was charged. In these
circumstances we allowed the appeal to proceed.
[5] The Crown tabled
a preliminary plea to the competency of the appeal. In support of that plea the Advocate Depute submitted
that, contrary to the assertion in the Note of Appeal, the sheriff had not made
a finding in terms of section 55(2), but had acquitted the appellant on
grounds of insanity in terms of section 55(3) and (4). While the 1995 Act made provision in
section 62(1)(b) for an appeal by an accused
person against a finding under section 55(2), there was no provision for
an appeal by an accused person against an acquittal in terms of
section 55(3) and (4). An appeal
against an acquittal under section 55(3) was available only to the Crown
under section 63(1)(c). In those circumstances the appeal was incompetent.
[6] Mr Paterson,
solicitor advocate for the appellant, submitted that an accused person in the
position of the appellant must be entitled to appeal against a finding that he
had done the acts constituting the offence with which he was charged. He had an interest to challenge such a
finding. If successful, he would fall to
be dealt with under the non-criminal provisions of the Mental Health Act, and
would consequently be in a
better position than he would be under the
mental health provisions applicable to criminal proceedings. Section 62 should be interpreted in
favour of the appellant.
[7] In our
opinion the plea to the competency of the appeal must be given effect. There is no provision in the 1995 Act for an
appeal against an acquittal in terms of section 55(3) and (4). Parliament no doubt considered that, as in
other areas of the criminal law, provision for an appeal against acquittal was
unnecessary and inappropriate. Provision
is however made under section 57(2) for an appeal against an order following
upon an acquittal under section 55(3).
The accused's right to challenge any order restricting his liberty is
accordingly safeguarded.
[8] Having
sustained the Crown's plea to the competency, it is not necessary for us to
consider the merits of the appeal.
