The impact of not being criminally responsible

Not being criminally responsible as a special defence
Paul Mullen, Associate, Criminal Litigation & Inquiries Practice Area Unit

Section 51A of the Criminal Procedure (Scotland) Act 1995 allows a special defence if at the time of the alleged offence the accused was unable to appreciate the wrongfulness of the alleged act due to a mental health disorder.  The law recognises that there would be a lack of criminal responsibility in such circumstances.

It is important to note that a person does not lack criminal responsibility for conduct if the mental health disorder in question consists only of a personality disorder which is characterised solely or principally by normally aggressive or seriously irresponsible conduct.

This special defence relates only to a mental health disorder.  If established on the balance of probabilities then it will lead to an acquittal of the accused.

Acquittals of persons relying upon such a special defence are dealt with in Section 53E of the 1995 Act.  If a prosecutor accepts that the special defence set out in Section 51A has been made out, then the Court must acquit the person by reason of the special defence.

If, however, the prosecutor does not accept the plea, evidence can then be led to establish whether or not the special defence has been made out.  In solemn proceedings it is for the Sheriff to direct the jury to find whether the special defence has been established and, if they find that it had, to declare whether the person is acquitted on that ground.  In summary proceedings it is for the Sheriff to state that the person is acquitted by reason of the Section 51A defence.

Whereas previously (and normally) an acquittal is usually the end of the matter, in some circumstances that is not necessarily the case when a Section 51A defence comes in to play.  Where an accused is found not criminally responsible, the Court still has some power to dispose of the case under Section 57 of the 1995 Act.  The Court has to decide how to dispose of the case as best as it sees fit and can make the following disposals:-

• A Compulsion Order;

• A Restriction Order;

• Interim Compulsion Order;

• Guardianship Order;

• A Supervision and Treatment Order;

• Make no Order.

Accordingly, it is important for the Court to have as much information as possible before disposing such cases.  It is normal for the accused’s solicitor to provide the Court with a psychiatric report detailing not only whether or not the Section 51A defence was applicable at the time of the alleged offence, but also the likely prognosis for the accused’s mental health in the future.

At Livingstone Brown we regularly instruct a number of health professionals, including psychologists and psychiatrists to assess clients who wish to rely upon the special defence afforded to them.