Anderson and Ors. v. Scottish Ministers and Anr.

[2001] UKPC D5
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The three applicants were mental patients held in state hospitals who had been convicted of homicide.  At the time of their convictions, the medical view was that all psychiatric conditions were treatable to an extent.  However, relevant medical knowledge had moved on, and medical advice was now that the conditions of the three applicants were medically “untreatable.”

As such, a loophole in the applicable law in Scotland had opened up which would have allowed these applicants to be discharged from the hospital even though they remained a danger to the public. For the first two applicants, a discharge would have resulted in their complete release. The third applicant would have been discharged back into prison.

In 1999, the loophole was closed by amending the relevant statutory legislation retrospectively. The applicants argued that the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 (“the 1999 Act”) is incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”); in effect, that their continued detention under the 1999 Act infringes their rights to liberty and to a fair hearing under the Convention.

The Court rejected the applicants’ case and held that the continued detention of a restricted patient in a hospital on the grounds of public safety is not dependent on the patient’s mental condition being treatable.

The Court base its decision on the following grounds, holding that:

The detention was lawful under Scottish domestic law. Whether the detainee should also receive treatment, and the place of detention, is a matter for domestic law (provided that place is suitable for someone of unsound mind).

The 1999 Act is not incompatible with Article 5 of the Convention.  The Scottish Parliament was entitled to pass legislation for the continued detention of restricted patients to protect public safety even if the medical conditions were not treatable.

In the case of Reid, the applicant who would be released back to prison, the word “public” in the 1999 Act could be interpreted to protect a small section of the public; namely, the relevant prison population and prison employees, visitors, etc.  Whether it is necessary, proportionate to the risk to such “public” safety, to detain Reid instead of discharging him back to prison, is a question for the domestic law and decision makers, based on relevant medical evidence.

Article 5.1.e of the Convention – which protects an individual’s right to liberty and security of person, save to detain a person of unsound mind, so long as in accordance with a lawfully prescribed procedure –  does not require a detained individual to have medical treatment.  An individual need only be detained in “an appropriate institution.”

Article 5.4 of the Convention – which entitles a detained person to access to justice, and a speedy decision on the lawfulness of his detention / release – had not been contravened. Because the court may itself make the decision, the process need not necessarily involve a review (in these circumstances, by the Scottish sheriff).  The applicants were restricted patients, and were well aware of the reasons for their original detention.

The 1999 Act intruded on existing legal proceedings, and such an interference by the legislature into the administration of justice designed to influence a particular judicial outcome must be justified “on compelling grounds of general interest.” The retrospective nature of the 1999 Act was justified because of the danger to public safety and was proportionate to the protection of the public. The risk was an imminent one, and the remedy provided by the 1999 Act was needed quickly. Moreover, the test for continued detention was a sufficiently high one.

As regards the argument that the 1999 Act was arbitrary (in that it only applied to a small number of restricted patients, about 12), this could not be correct because the essential vice of arbitrariness is the absence of restraint of legal powers and in fact there were adequate legal procedures in place; the law complied with domestic law and the Convention; and “[s]imply because a small number of people are directly affected should not suffice.”

“It is in my view a somewhat surprising proposition that a requirement for treatment should be built into the exception enabling the detention of persons of unsound mind. One of the immediate concerns which one has about such persons is that of public safety and one might well assume that one object of this exception is that of the protection of the public. To construe the provision as not permitting the detention of persons of unsound mind who constitute a danger to the public if released into society because they are not susceptible to treatment does not seem to me to accord with common sense. It attributes to the authors of the Convention the same view of the treatability of mental disorders which bedevilled the mental health legislation in Scotland . . . While exceptions to the liberty of the individual must be construed restrictively, it would be wrong to assume that the authors of an international Convention were proceeding under a like error. A consideration of the case-law confirms the view that treatability is not an essential ingredient under article 5.1.e as regards the detention of person of unsound mind.” Para. 60.

“I am persuaded that there were such grounds [compelling grounds of the public interest]. The legislation was aimed not just at the two appellants Anderson and Doherty, but at all those who, like them, had committed crimes of the most serious kind, including in particular homicide, and had a history of mental disorder which might be held to be untreatable. As the law stood these persons would be entitled to be discharged into the society of others giving rise to a potentially serious danger for those who came into contact with them. The risk was an imminent one and if a remedy was to be provided it was necessary to provide it speedily. Furthermore it should be noticed in this context that the new provision is so worded as to impose a fairly high test for a continuation of detention. The decision rests upon the sheriff being "satisfied" that the conditions are met. The patient must be suffering from a mental disorder. The effect of that disorder must be such that his detention in hospital is necessary; the standard is one of necessity, not merely desirability or convenience. The necessity must be in order to protect the public from serious harm. So there must be a risk not just of harm, but of serious harm.” Para. 73.

“The balance between the rights and interests of a person of unsound mind to enjoy freedom from restraint and the opposing rights and interests of members of the public to live free from the fear of being assaulted or injured by persons whose mental condition is such as to give rise to a risk of such unsocial conduct may be a delicate one to draw in practice. But in principle it cannot be right that the public peace and safety should be subordinated to the liberty of persons whose mental states render them dangerous to society. Of course safeguards must be provided by recourse to a court of law to protect the detainee from unlawful detention. But I find nothing in the Convention which gives the rights of the detainee who is a danger to society a priority over the rights of the citizen to live in peace and security. The provision which the Scottish Parliament has introduced in section 1 of the Act of 1999 seems to me to comply with the Convention and does not fall to be challenged as being "not law".” Para. 74.


The applicants were ‘restricted patients’ within the terms of the Mental Health (Scotland) Act 1984 having been involved in proceedings before the criminal courts. They were assessed as presenting a high risk to the public if released into the community. In July 1999 two of the applicants appealed to the sheriff under s 63 of the 1984 Act contending that they were entitled to be absolutely discharged since the mental disorder from which they suffered was no longer susceptible to treatment. Treatability was specified as a necessary condition for the appropriateness of continuing the detention. Following a decision in August 1999 in which the sheriff granted such a discharge to a patient who was still considered dangerous, emergency legislation was enacted by the Scottish Parliament. The Mental Health (Public Safety and Appeals) (Scotland) Act 1999, s 1, required a sheriff to refuse such applications for release if necessary to protect the public from serious harm (the serious harm test). In March 2000 the third applicant sought release under s 63 of the 1984 Act. The sheriff referred to the Court of Session the question whether s 1 of the 1999 Act was beyond the legislative competence of the Scottish Parliament by virtue of s 29(2)(d) of the Scotland Act 1998 and, accordingly, not law in terms of s 29(1) thereof. The essential issue was whether the amendments were compatible with Art 5 of the European Convention of Human Rights (ECHR). The applicants contended that it was unlawful under Art 5(1)(e) of the Convention to continue to detain a mentally disordered person who had been admitted to hospital for the purpose of receiving treatment, but who no longer satisfied that particular condition for their detention. Furthermore, they alleged that s 1 contravened Art 5(4) by depriving a restricted patient of his/her right to have the lawfulness of their detention reviewed. The first and second applicants, whose appeals had been adjudged under the amended legislation despite their having been lodged prior to the 1999 Act, also complained of its retroactive effect. They alleged that this constituted interference in the judicial process and was inconsistent with their right to equality of arms.

Held that:

  1. The right to liberty enshrined in Art 5 is not absolute and exceptions arise where social policy comes into play. A fair balance has to be struck between the interests of the community in protecting the lives and health of members of the public and the individual rights of restricted patients. Domestic law relating to the detention of persons of unsound mind has to fulfill three criteria to comply with the Convention: a true mental disorder has to be established by a competent authority; the mental disorder has to be of a kind warranting compulsory confinement, and; the validity of the patient’s continued detention has to depend upon the persistence of such a disorder. If, during a patient’s detention, the legislature amends the statutory basis for continued detention, the patient remains lawfully detained under Art 5 so long as the new basis meets the necessary criteria. Since detention of persons of unsound mind is lawful under the Convention where necessary for the protection of the public, there was nothing to stop the Scottish legislature from making this a specific ground in the new Act. The system as amended by s 1 complies with the criteria and, accordingly, does not violate Art 5(1)(e) ECHR.
  2. Article 5(4) requires states to have a system for a court to review the lawfulness of a patient's detention by reviewing those conditions which according to Art 5(1)(e) are essential to the lawful detention of a person. Since a state is free to alter its criteria so long as they do not conflict with Art 5, there is no reason why the alteration should not apply to those already in detention. If they were subjected to the new law they would have their detention reviewed under the new law. As Art 5(1)(e) is not violated by the new criteria, Art 5(4) is not either.
  3. The need to avoid the danger which the release of the applicants might have posed was an important public interest which justified the retrospective application of the 1999 Act. Furthermore, the measure of retrospection was a proportionate means of achieving this aim. It follows that there was no violation of Art 5(4). Accordingly, validity of the 1999 Act is unanimously upheld.
Judges: Lord Rodger of Earlsferry LP, Lady Cosgrove, Lord Philip Lawyers: For the 1st and 3rd Applicants: Graham Bell QC and Simon Collins For the 2nd Applicant: Jonathan J Mitchell QC and Janys M Scott For the 1st Respondents: Patrick Hodge QC and Robert McCreadie For the 2nd Respondent: Lynda Clark QC (A-G for Scotland) and Alan Dewar [Adapted from INTERIGHTS summary, with permission]