Killer who claimed failure to transfer him from state hospital to prison breached his human rights has damages bid dismissed

John Johnstone sought judicial review of the failures by the Scottish Ministers to provide sufficient opportunities for his rehabilitation, but a judge in the Court of Session ruled that the lack of any statutory regime for the transfer of persons from hospital to prison did not infringe the petitioner’s rights under the European Convention on Human Rights.

Lord Glennie heard that in April 1998 the petitioner pled guilty on the fourth day of his trial for murder to a charge of culpable homicide on the basis of diminished responsibility.

Following evidence from two psychiatrists to the effect that the petitioner - who had assaulted the deceased, raped her and thrown her from a window to her death - was suffering from a “mental disorder or impairment”, the judge made a “hospital order” under section 58 of the Criminal Procedure (Scotland) Act 1995, ordering that the petitioner be detained in the State Hospital, and a “restriction order” under section 59 of the 1995 Act, restricting the petitioner’s discharge from hospital “without limit of time”.

The petitioner, who has been detained at the State Hospital since 8 April 1998 as a result of those orders, wanted to be transferred from the State Hospital to prison where, with a view to his eventual release, he would expect to be provided by the prison authorities with a reasonable opportunity of taking steps to rehabilitate himself and, in due course, to demonstrate to the Parole Board that he no longer presented an unacceptable danger to the public.

But the respondents have refused to transfer him to the prison regime, as they said they had no power to do so.

The relevant provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 provide for periodical reviews of the condition of a person detained in the State Hospital, which may in certain circumstances result in that person’s release, but they do not provide for the person to be transferred to prison.

The petitioner sought declarator that the relevant provisions of the 2003 Act were incompatible with his convention rights and therefore “not law”.

He argued that the Scottish Ministers had subjected him to “degrading treatment” in terms of article 3 ECHR and that his convention had been breached in terms of article 5 ECHR - which provides that “everyone has the right to liberty and security of person” and that “no one shall be deprived of his liberty save in accordance with the procedure prescribed by law” - due to the absence of a statutory regime for the transfer of persons from hospital to prison.

He sought an order ordaining the Scottish Ministers to make an order to transfer him to a prison and damages of £10,000.

However, the judge rejected the the proposition that article 5(1)(e) can only be invoked as a justification for depriving a person of his liberty if the medical impairment from which he suffers is so serious as to necessitate treatment, by way of therapy, medication or other clinical treatment to cure or alleviate that condition.

In a written opinion, Lord Glennie said: “I therefore reject the argument that the provisions of the 2003 Act, which permit the detention of a person with a mental impairment in a mental institution on grounds, amongst others, of public safety, and do not require a person suffering from a medical impairment to be transferred to the prison environment in circumstances where there is no effective treatment available within the mental institution, are non-compliant with the Convention. I also reject the argument that the petitioner’s continued detention in the State Hospital is in breach of article 5.

“Article 3 provides that no one shall be subjected to inhuman or degrading treatment. The detention of the petitioner in the State Hospital is lawful according to domestic law and is compliant with the petitioner’s Convention rights under article 5(1)(e).

“Detention in a mental institution will inevitably give rise to the possibility that the person detained will succumb to feelings of anguish, inferiority and humiliation. But unless it can be said either that the detention is illegitimate or that the treatment of the petitioner within the State Hospital goes beyond what is necessary, then there is no basis for a complaint under article 3.

“The petitioner does not aver any circumstances of his treatment taking his case beyond the inevitable element of suffering and humiliation inevitably involved in such detention. The claim based upon article 3 must therefore fail.”

The judge concluded that there was “no merit” in the petition.

He added: “I do not find that the relevant provisions of the 2003 Act are incompatible with the European Convention on Human Rights.

“I do not find that the petitioner has been subjected to degrading treatment in terms of article 3. I do not find that the petitioner’s Convention rights have been breached due to the absence of a statutory regime for the transfer of persons from hospital to prison.

“I refuse to ordain the Scottish Ministers to order the petitioner to be transferred to a prison. I do not find the petitioner’s Convention rights to have been breached by the Scottish Ministers by detaining him in a hospital. The question of damages does not arise.”