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Prosecutions under s 315 – Mental Health (Care & Treatment)(Scotland) Act 2003 (R008955)

Freedom of Information: Prosecutions under s 315 – Mental Health (Care & Treatment)(Scotland) Act 2003 (R008955)

Thank you for your e-mail of 2 November 2014 under the Freedom of Information (Scotland) Act 2002 (FOISA) in which you seek the following information:

"I am writing to request information under the Freedom of Information act on the number of successful prosecutions using section 315 of the Mental Health Act of 2003 and also the number of criminal proceedings brought under this section that did not lead to prosecution.”


Enquiries have been conducted and I can confirm that information is held in relation to your request, which I have attached at Annex A and Annex B.

Please note that we do not hold any data in this respect prior to 2006-07. The Mental Health (Care and Treatment) (Scotland) Act 2003 only came into force on 5 October 2005. Accordingly, the information provided is from 2006/2007 onwards.

You will note that court proceedings were taken in respect of 46 charges which were reported to COPFS from 2006/2007 until 2013/14. There are also a number of charges reported to us for which the cases are still ongoing. No action was taken in respect of a total of 21 charges between 2006/07 and 2013/14. As you will see from Annex B, this was largely down to there being insufficient admissible evidence to proceed with a criminal prosecution. You will also note that no action was taken for ‘other’ reasons for a total of 5 charges. Other considerations that are taken into account when deciding whether to proceed with a criminal prosecution include the public interest in raising criminal proceedings in the first instance. 

It might be helpful if I provide some general information about the role of the Procurator Fiscal in raising criminal prosecutions. 

In Scotland the police report incidents of alleged criminality to the Procurator Fiscal. The Procurator Fiscal, as the independent prosecution authority, then decides whether action can be taken in respect of a criminal allegation based on whether there is sufficient admissible, credible, corroborated evidence, in law, of a criminal offence having been committed. 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.

If the Procurator Fiscal concludes that there is sufficient evidence, they will then consider what action, if any, should be taken in the public interest.The COPFS Prosecution Code at pages 6 – 8 outlines the various factors that are to be considered by the Crown in determining whether it is in the public interest to prosecute an accused person.

I attach a link to the COPFS Prosecution Code:
http://www.copfs.gov.uk/images/Documents/Prosecution_Policy_Guidance/Prosecution20Code20_Final20180412__1.pdf

As you will note, in considering the public interest, Prosecutors take a number of factors into account, including the background and personal circumstances of the accused; the motive for the alleged crime; any mitigating circumstances and the risk of further offending. This can involve competing interests and will vary with every case. As a result, assessment of the public interest involves careful consideration of all factors.

As there is a duty on the Procurator Fiscal to prosecute cases in the public interest, 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. 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.

pdfR008955 - Annex A.pdf15.45 KB

pdfR008955 - Annex B.pdf13.42 KB