Stalking and unfitness to plead

Recent court proceedings against a man accused of having stalked the author Janice Galloway have brought Scottish legislation against stalking to public prominence, with the Scottish Government having agreed to discuss potential revision of the law with Crown Office. Today’s Herald reports Ms Galloway having called for “significant and workable change”, while one MSP has indicated an intention to ask a question about the matter in Parliament next week. But what are the legal issues this case has highlighted, and what might be done? From media reports, the following appears to be the case. Piecing together what has happened in a particular case from media reports is always risky; the picture is necessarily an incomplete one. What is said below is intended as a comment on the legal issues raised by the case, rather than the case itself.

Mr McNaught faced five charges of threatening or abusive behaviour, an offence created by the Criminal Justice and Licensing (Scotland) Act 2010 and which carries a maximum sentence of five years’ imprisonment. A trial began before a jury at Hamilton Sheriff Court. In the course of the trial, concerns arose about Mr McNaught’s health. Following examination by a doctor and a psychiatrist, the sheriff concluded that Mr McNaught was unfit for trial (section 53F of the Criminal Procedure (Scotland) Act 1995). It was suggested that he might have been able to continue with the trial following a break of three to four weeks, but as that was impossible in the context of a jury trial, the sheriff continued with an “examination of facts” (see The Herald, 18 September).

Following the examination of facts, the sheriff then ruled that Mr McNaught had committed the acts alleged against him (s 55 of the 1995 Act). The test applied in this process is not the same one as is involved in deciding whether to convict a person of an offence. In particular, a conviction for threatening or abusive behaviour requires that the prosecution prove beyond reasonable doubt that the accused intended to cause fear or alarm or was reckless as to whether his behaviour would do so. This need not be proved beyond reasonable doubt in an examination of facts, although the sheriff must be satisfied on the balance of probabilities that there are no grounds for acquitting the accused. Although the differences between an examination of facts and a trial are narrow ones, they are real, and a finding in an examination of facts is not a finding of guilt nor a conviction.

In an examination of facts, if the sheriff finds that the person concerned did commit the acts alleged against them, he or she can make one of the orders referred to in s 57 of the 1995 Act. The orders referred to in s 57 are all what might be termed “mental health disposals”. There are detailed provisions in the Act setting out what conditions must be satisfied for them to be available. It may be that none of them is appropriate in a particular case, and so the sheriff also has the option of making no order.

At this point, the case becomes difficult to understand. From news reports, it seems that the prosecution, following the examination of facts, chose to ask the sheriff to make a non-harassment order (s 234A of the 1995 Act). Such an order would have required Mr McNaught to “refrain from such conduct in relation to [Ms Galloway] as may be specified in the order”. Breach of such an order is a criminal offence. The applicable penalties are identical to the offence of threatening and abusive behaviour, but it is likely to be easier to prove a breach of the order - depending on its terms - than that offence. Its existence may therefore allow the police to intervene at an earlier stage than would otherwise be possible. However, a non-harassment order is, in criminal proceedings, a sentence. It can only be made following a conviction for a criminal offence. An examination of facts cannot result in a conviction and Mr McNaught had not been convicted. The sheriff, therefore, had no option but to decline to make a non-harassment order.

So what should be done? At least two particular changes have been canvassed in the media reports so far:

1. Mental health issues should not be a defence in stalking cases. This has been suggested by Ann Moulds of Action Scotland Against Stalking, and by Ms Galloway herself. At first glance, this is understandable: Ms Moulds suggests that stalking itself implies some form of mental health issue on the accused’s part, and so it might be feared that allowing any defence defeats the purpose of the legislation. But Ms Moulds’ comments seem to suggest that what happened in this case implies that it can be a defence to a criminal charge simply to identify a “mental health issue” of some sort, and that the sheriff’s decision in this case would, if followed elsewhere, results in large numbers of people accused of stalking escaping justice. That is incorrect. A trial can only be halted because of unfitness to plead if the accused’s condition means that he or she cannot effectively participate in the trial.  No civilised society puts people on trial - or at least no civilised society should - in circumstances where they are unable to understand properly what is happening in the proceedings and to instruct their defence. Claims of unfitness to plead must, of course, be rigorously assessed. (Given that law reform does not appear to be a realistic issue for consideration here, I leave aside here the obvious undesirability of referring to “mental health issues” as an undifferentiated and catch-all term in that context.)

2. Should it be possible to impose a non-harassment order following an examination of facts? In most cases, it is difficult to see what benefit would follow from making such an order. As noted above, a non-harassment order allows a person who breaches its terms to be prosecuted for a criminal offence. But if that person is unfit to participate in a criminal trial, no prosecution would be possible. The order would be little more than a dead letter, because a prosecution would simply lead back to an examination of facts. However, in a case where the accused’s unfitness - as in this case - appears to be temporary in nature, a non-harassment order could potentially be of some value. Although it would be wrong in principle for a court to impose a sentence on a person who has not been convicted of a criminal offence, a non-harassment order is unusual. A civil court may make an equivalent order, without an requirement that a criminal offence be proven (Protection from Harassment Act 1997 s 8). There may be something to be said for the argument that if a sheriff has heard evidence in an examination of facts which would justify him or her making a non-harassment order in a civil case, they should have that same power, although the problem of the person against whom the order is being made having been unable to participate in the proceedings remains a difficult one. In some respects, this would be a radical change in procedure, blurring the boundaries between criminal and civil cases. In other respects, it could be expected to have very limited practical impact: the number of cases in which an accused is unfit to stand trial but a non-harassment order would nevertheless be appropriate is likely to be extremely small.

There is a third question which has not been highlighted in the media coverage so far:

3. What can be expected from an examination of facts in a case like this? As explained above, an examination of facts only gives rise to the possibility of a limited number of mental health disposals. It does not follow from the fact that someone is incapable of participating in a criminal trial that one of these will be appropriate. An examination of facts is not a requirement following a finding of unfitness to plead. One option is for the prosecution to apply to the sheriff to desert the case pro loco et tempore, which means a fresh prosecution could be brought at a later date when the accused is fit to stand trial. There are, however, at least two disadvantages to this approach. First, the prosecution would have to run the risk that the accused’s condition might again deteriorate during the course of the trial and that it might again have to be abandoned. One alternative might be instead to prosecute the case under summary procedure, which would potentially allow for a break in proceedings if that happened. The major practical difference resulting from this would be that the sentencing powers of the court would be limited to one year’s imprisonment. Secondly, fresh proceedings - whether before a jury or in summary procedure - would require witnesses to give evidence for a second time, with all the distress and anxiety that involves.

In this case, it may be that the trial had proceeded so far by the time that Mr McNaught was found unfit to plead that the examination of facts (where the judge can take into account the evidence already heard) was something which could be concluded very briefly, meaning that there was no good reason not to proceed with it. Such a course of action, unfortunately, brings proceedings to a conclusion in circumstances where there is little the court can satisfactorily do. It is worth pointing out, however, that - unless an examination of facts results in an acquittal, which it has not done here - it does not prevent the accused being prosecuted again for the same offences at a later date when they are fit to stand trial. That, of course, gives rise to the same problems noted in the previous paragraph.

Cases such as this are likely to be very rare. When the Scottish Law Commission examined the law of insanity (as it then was) a decade ago, it found only 29 cases over a period in excess of two years when an accused person was found unfit to plead (appendix C of its discussion paper on insanity and diminished responsibility). In five of those cases, the facts alleged against the accused were not established. By contrast, Crown Office takes almost 100,000 cases to court every year. It is important that the issues which have arisen in this case are properly addressed, but it should not be assumed that the case itself is representative of a typical prosecution.