Thursday, 17 April 2008

A very bad news day

Today’s Scottish edition of the Times cannot have made pleasant reading for staff at Crown Office. Half of the front page was given over to a photograph of Fiona Bauld and her son Jamie, a 19 year old with Down’s syndrome who has a mental age of around 5.

A story inside, which is available online, reports how Mr Bauld was involved in a “minor fracas” with an Asian girl, who herself has learning difficulties. Apparently he “pushed her with one hand and told her to go away” while the two of them were at college, and both of them were told off.

According to the Times report, this escalated into a newspaper notice – placed by persons unknown – asking for witnesses to a “racial assault”, an interview of Mr Bauld by two police officers, who charged him with assault and a letter from the procurator fiscal saying that there was sufficient evidence to charge him, followed by a brief letter 7½ months after the incident saying that no proceedings would be taken.

This raises all sorts of questions, particularly in relation to the police interview, about which nothing will be said here. Something else is particularly bemusing: the purpose of the letter saying that there was sufficient evidence to charge Mr Bauld. Inevitably, trying to analyse a case on the basis of newspaper reports runs the risk of being unfair to those concerned, but the following points spring to mind:

A person with a mental age of around 5 could not be put on trial, because they would be incapable of understanding the nature of the proceedings and the inaccurately named plea of insanity in bar of trial would succeed. It is true that an examination of facts could then be held under section 55 of the Criminal Procedure (Scotland) Act 1995, but none of the orders available to the court where an accused is found to have done an act constituting an offence in such proceedings (ordering detention in hospital, an interim compulsion order, a guardianship order or a supervision and treatment order) seem remotely appropriate to a case such as this one.

(At least the court would have the option of making no order - something which was not historically possible. That caused serious difficulties some years ago when a sheriff substitute felt compelled against his better judgment to commit a person with Down’s syndrome who had been accused of a minor breach of the peace to hospital, and the High Court had to avoid this absurdity on appeal by finding a technical defect in the proceedings: see Barr v Herron (1967) 32 J Crim L 113.)

The Times has now reported an apology by Crown Office [the report bears tomorrow’s date but was posted online today] for the time it took to reach a decision in the case. Interestingly, at least from the Times’ quote, there is no apology for the decisions taken. This new report sheds a little more light on proceedings:

“One of the main sticking points for the authorities was the refusal by Fiona Bauld, Jamie’s mother and full-time carer, to allow intervention by social workers. Because this box was not ticked, the case stalled. Mrs Bauld, 46, told The Times: “I refused to have anything to do with social work. We have never had anything to do with them. Jamie is Down’s syndrome – he is not a delinquent. He had done nothing wrong.””

But hold on a second. If the inevitable outcome of criminal proceedings against Mr Bauld would have been no trial, no conviction, and no order by the court (and it is difficult to see any other possibility, always acknowledging the possibility that the Times report does not reveal the full facts), then how could a prosecution possibly have been justified? And if a prosecution could not be justified, can it be even remotely legitimate for a prosecutor to hold open the possibility of charges in order to pressure someone to accept social work intervention? According to the Times, a Crown Office spokesman said:

“The family were aware that the Procurator Fiscal was exploring the possibility of dealing with this case in a way that would have provided additional support to Jamie. This did not prove to be possible and therefore no proceedings were taken.”

The reference of “a way that would have provided additional support to Jamie” surely means some alternative to prosecution. But alternatives to prosecution are just that: they are actions which can be taken when a prosecution would otherwise be in the public interest. Where an accused person refuses to accept an alternative to prosecution, the prosecution should be proceeded with. If proceeding with the prosecution in the absence of an acceptance would not be in the public interest, there can surely be no basis for proposing the alternative in the first place.

And this is only one of three appearances by Crown Office in the newspaper today. The Times also devotes attention to the Mental Welfare Commission’s scathing “Justice Denied” report on the case of Ms A, a 67 year old woman with a learning disability who appears to have been the subject of repeated assaults which have led not to criminal proceedings against her alleged assailants, but instead to subjecting Ms A to a “protective regime that effectively deprives her of much of her liberty”. The Times report is not online, but there is a BBC News story online, and a summary of the report can be downloaded from the Commission’s website. The Commission say they “believe that the responses of health, social care and criminal justice combined to deny Ms A access to justice”. Crown Office, who relied on professional advice which the report criticises, escape largely unscathed from the report, but few other agencies do. It is unfortunate, therefore, that Crown Office are the only agency quoted by the BBC when they seem to have the least explaining to do.

And alongside all that, a report stating that more action is needed on wildlife crime (but mostly, it seems, from the policing side) must have seemed like positively good news.

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