Chamber and committees

Scottish Government submission of 30 June 2021

PE1878/A - Investigate prosecutions under the Mental Health (Care and Treatment) (Scotland) Act 2003

This new petition is a direct follow on from PE1786 which was closed on 29 October 2020.

• In our response to PE1786 we outlined the role of the Procurator Fiscal in raising criminal prosecutions and advised that there have been both prosecutions and convictions under s315 of the Act.
• Court proceedings under s315 were taken in respect of 71 charges which were reported to COPFS from 2007-08 to 2019-20. Out of these, 38 charges led to a conviction.
• During the period 2008 to 2020 Police Scotland reported one case to Crown Office Procurator Fiscal Service (COPFS) where the charge is contrary to s318 of the Act. This was a 2018 case and the prosecutorial decision taken in the case was ‘no action’ and this was due to insufficient admissible evidence.
• As there is a duty on the Procurator Fiscal to prosecute cases in the public interest, prosecutors take a number of factors into account, including the background and personal circumstances and the risk of further offending.
• A careful assessment of these factors is carried out when considering the question of raising criminal prosecutions under the Mental Health (Care and Treatment) (Scotland) Act 2003.
• In order for there to be sufficient evidence to decide to prosecute an individual, there must be corroborated evidence. This means that there is evidence from two separate sources that an offence has been committed and that the accused person was the person responsible.
• Charges that do not lead to a conviction can be largely down to there being insufficient admissible evidence to proceed with a criminal prosecution.
• COPFS is committed to ensuring that all such cases are investigated thoroughly and sensitively and prosecuted appropriately, where there is sufficient credible and reliable evidence and it is in the public interest.

Scottish Ministers will continue to work with justice partners and other public services to ensure that, in every case, people are treated as equal citizens within all parts of Scotland’s justice system. This should include full access to the physical environment, advocacy and support, information and advice, and additional communication support where this is required.