APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Carloway	2010 [HCJAC120] XC319/10 OPINION OF THE COURT delivered by LORD REED in APPEAL AGAINST SENTENCE by JASON THOMAS McFADYEN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: C. Shead,; John Pryde & Co., Edinburgh

Respondent: D. Bain, Q.C. A.D,; Crown Agent

5 November 2010

[1] This is the appeal of Jason Thomas McFadyen, who pled guilty at Hamilton Sheriff Court to the following charge:

"On 10 May 2008 you JASON THOMAS McFADYEN did enter the dwelling house then occupied by Jeanette Clelland at 54 Loanhead Road, Newarthill and there steal a quantity of alcohol, a quantity of female clothing, a bag, a box containing cosmetics and a laundry basket."

His pleas of not guilty to other charges were accepted by the Crown. The Sheriff called for reports, including a psychiatric report, and remitted the appellant to the High Court of Justiciary for sentence.

[2] The facts of the case, as narrated by the Sheriff in his report, were as follows. On the evening of 9 May 2008 the complainer, a 47 year old woman, was within her home. She has two daughters who were in their late teens or early twenties. She went to bed and locked and secured the house. At about 1.30 in the morning one of her daughters returned home with a friend and then left the house again, apparently without locking or securing it. Sometime later the complainer was awakened by the sound of a person inside the house. Initially she thought the sound was being made by her daughter, but after a time she became aware of someone entering her bedroom, where she lay in bed. She saw that it was a man, the appellant, and asked, "Who's that?". He replied, "I'm Kev". The complainer noticed that he was wearing a long black coat which reached down to his ankles. She asked him what he was doing in her house. At that point the appellant ran from the room and left the house by the back door. The complainer got out of bed and saw the appellant leaving the house carrying a laundry basket. She attempted to go after him for a short distance. She failed to catch him and returned to the house and telephoned the police. On her return she found that some underwear belonging to her daughters had been taken, together with some bottles of alcohol. When the police attended they found another article of clothing belonging to one of the complainer's daughters, which had been dropped by the appellant as he left the house. The complainer's daughters subsequently confirmed that various items of underwear and other clothing, as well as a handbag and a box of make up, were missing. The police searched the area but no one was found. Subsequently a neighbour saw the appellant throwing a black bin bag into his garden. The bag was recovered and found to contain the clothing and other items. The appellant was detained and taken to Bellshill police station, where he was interviewed in the presence of an appropriate adult. During the interview he told the police that he was a cross-dresser. Other female clothing unconnected to the theft was recovered from his house.

[3] The sheriff had produced before him a schedule of five previous convictions. These included two previous convictions for theft by housebreaking, one in 1990 and the other in 1991. The second of those convictions was accompanied by a conviction for assault on the householder in the course of the housebreaking. In 1993 the appellant was convicted in the High Court of assault to severe injury and permanent disfigurement. This was a serious offence in the course of which he entered the home of a woman who was in her bedroom and came out of the room when she heard someone in the house. The appellant attacked her by striking her on the face, forcing her to the floor, sitting astride her and attempting to strangle her. He took a knife from his pocket and began to stab her. The woman managed to grab the knife and snapped the blade but the appellant continued to stab her and again attempted to strangle her. He eventually stood up and began kicking and punching her to the face and body and demanded that she enter one of the bedrooms. He then ran to another bedroom, where he stole her handbag and left the house. Following that conviction the appellant was made the subject of a hospital order and a restriction order without limit of time. That order was subsequently replaced by a compulsion order and restriction order under the Mental Health Care and Treatment (Scotland) Act 2003.

[4] The appellant was initially placed in Hartwoodhill Hospital, but his manipulating, threatening and violent behaviour required him to be removed to the State Hospital, where he remained between 1993 and 1997. He returned to Hartwoodhill in 1997, but his behaviour again deteriorated and he was returned to the State Hospital in 1998, remaining there until 2001, when he was admitted to Dykebar Hospital.

[5] In September 2005 the CORO was conditionally discharged and the appellant was permitted to reside in his own tenancy, with a condition that he be subject to 24 hour supervision and a prohibition of the consumption of alcohol. Following complaints from neighbours concerning antisocial behaviour, he was recalled to Dykebar Hospital. During the period of recall he was noted to be manipulating boundaries with new and inexperienced care staff. He appealed against the recall and in February 2007 a Mental Health Tribunal upheld his appeal and he was again conditionally discharged into the community, again subject to 24 hour supervision and a prohibition on consuming alcohol.

[6] On 10 May 2008, notwithstanding the supposed supervision, the appellant committed the crime to which this appeal relates. He was then recalled to Dykebar Hospital by the Scottish Ministers. He remained there until February 2009, when he appeared on the present charges and was remanded in custody. In late 2009 or early 2010 the Mental Health Tribunal conditionally discharged the appellant from the CORO, naming as a secure environment Her Majesty's Prison, Addiewell.

[7] The sentencing judge ordered the preparation of a risk assessment report by Miss Angela Holmes, a chartered forensic psychologist and accredited risk assessor. Her report concluded that, if at liberty, the appellant posed a high risk to the safety of the public at large. In her opinion, due to a lack of insight into his behaviour and the personality characteristics identified in the report, he presents a continuing risk of committing offences causing serious harm. She identifies lone females, intimate partners, hospital staff members and peers as the persons to whom he presents the greatest risk. Due to continuing problems with impulsivity, emotion regulation and poor behaviour control she considers that the appellant requires long term structured risk management supervision and monitoring and, where possible, treatment. Her opinion is that such requirements may be lifelong, since his capacity to engage with risk management strategies in the past has been short lived and may have been motivated by personal gain. She considers that he has a deceitful and manipulative interpersonal style, lacks empathy and is driven by his own need for stimulation and gratification.

[8] Her report notes that the appellant's previous offending has involved serious and life threatening violence, with the use of a weapon and the issuing of credible threats. These factors went beyond any level of violence required to commit theft by housebreaking, and it is thought likely that they were indulged in for his own gratification. There is a repetitive pattern of stealing female clothing, and the appellant has previously worn stolen female clothing at the time of violent offending. The pattern of offending has been persistent, has been resistant to intervention and remedial treatment, and has continued despite a high level of restriction and management. The appellant's use of alcohol and other substances has led to impulsive, violent and unpredictable behaviour, and those have acted as disinhibiting factors at the time of violent offending. He has persistently breached the conditions of his various placements, and Miss Holmes considers it likely that he will do so in the future. She takes the view that the pattern of offending will continue and, without monitoring restrictions and long term management, will lead to violent offending, possibly of a life-threatening nature, in the future.

[9] In the light of that report the sentencing judge was satisfied on a balance of probabilities that the risk criteria set out in section 210E of the Criminal Procedure (Scotland) Act 1995 were met. He considered that it was appropriate to impose an order for lifelong restriction in terms of section 210F. In terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 he ordered that a period of one year's imprisonment be served by the appellant before the provisions of sections 2(4) and 2(6) of that Act would apply.

[10] In addition to the report by Miss Holmes, we also have before us two psychiatric reports. The first, by Dr Robert Gibb, a consultant forensic psychiatrist at Hartwoodhill Hospital, concludes that the appellant suffers from an antisocial personality disorder. Dr Gibb does not consider it necessary for the appellant to be made subject to a compulsion order and restriction order or a hospital direction. Dr Gibb states that the appellant has received many years of treatment in hospital under the terms of a compulsion order and restriction order, but despite this has continued to pose a risk to others in both hospital and community settings. Dr Gibb considers that the appellant's future management would therefore be best dealt with by the criminal justice system. He expresses the belief that the risks to the public which the appellant undoubtedly poses can be adequately managed under the terms of an order for lifelong restriction. Mental health services could be involved in the appellant's management under the terms of such an order where necessary.

[11] The other psychiatric report before us is by Dr William Black, consultant forensic psychiatrist at the State Hospital. He concludes that the appellant can reasonably be regarded as suffering from an antisocial personality disorder, but shows no evidence of ever having suffered from a mental illness. Dr Black states that the appellant's difficulties are of a sort where any intervention which he might benefit from could be delivered within a criminal justice context by criminal justice staff. The appellant has no need of any specific medical treatment, even taking some of the wider definitions of what medical treatment might be. He certainly does not require treatment in hospital. Dr Black considers that either a compulsion order or a hospital direction would be inappropriate and unnecessary. As regards the question of whether the appellant should be placed on an order for lifelong restriction, Dr Black observes that the previous compulsion order with restrictions on discharge has probably outlived its usefulness, and that an order for lifelong restriction might well be a more flexible framework within which to manage the risks that the appellant presents to others.

[12] In the light of those reports, the suggestion made in the note of appeal that a compulsion order and restriction order would be a more appropriate means of protecting the public appears to us to be unsustainable. Mr Shead, addressing us on behalf of the appellant, did not maintain otherwise. Mr Shead suggested however that a supervised release order would be a suitable means of protecting the public. We note that such an order would however be in force for a maximum period of only twelve months following any determinate sentence. In the light of the reports that we have discussed, it appears to us that the appellant would require to be supervised in the community for a much longer period if the public were to be adequately protected. In those circumstances we have reached the conclusion that a supervised release order would not provide adequate protection.

[13] We accept Mr Shead's submission that an order for lifelong restriction is a sentence of last resort, which should be imposed only if the statutory conditions are met and the court is satisfied that such an order is necessary for the protection of the public. In the present case, the instant offence, if considered in isolation, would plainly not merit such an order. It cannot however be considered in isolation. There is no doubt, in light of the history and the reports, that the statutory risk conditions are met. The risk to the psychological wellbeing, if not the lives, of vulnerable members of the public has been amply demonstrated. We have come to the conclusion, for the reasons we have outlined, that there is no satisfactory alternative disposal open to the court which would provide the public with adequate protection.

[14] Mr Shead pointed out that no expert psychological or psychiatric advice had been obtained on behalf of the appellant prior to the imposition of the order for lifelong restriction. He invited the court to continue the hearing of this appeal so as to allow an opportunity for such advice now to be sought. The appellant was, however, legally represented throughout these proceedings. Those acting for him no doubt acted in accordance with their professional judgment as to what was appropriate.

[15] Finally, we note that the appellant has served the punishment part of his sentence. His case will be considered by the Parole Board. That consideration will involve a reassessment of the psychiatric position and of the risk which the appellant currently poses.

[16] In the foregoing circumstances the appeal is refused.