Section 2 — Appeal from Decisions etc. of Sheriff Under Sections 64, 65 and 66 of 1984 Act
Mental Health (Public Safety and Appeals) (Scotland) Bill: Stage 2
4:15 pm

David McLetchie (Conservative)

The purpose of amendment 26 is to explore the scope of the appeal that can be taken to the Court of Session under the new section 66A(1).

Is the appeal intended to involve a rehearing of the case, thereby inviting the Court of Session to consider the matter anew? Or is the scope of the appeal to the Court of Session to be limited to a review of the sheriff's exercise of the judicial discretion vested in him at first instance? If the scope of the appeal is limited, it would not be open to the Court of Session to interfere with the sheriff's decision merely on the ground that it would have exercised its discretion in a different manner. This could give rise to a situation in which the Court of Session is satisfied that there is evidence to justify a finding that a patient should be kept in custody in the interests of public safety, and would have made such a finding itself, but is not prepared to interfere with the sheriff's finding to the contrary because there are no legal grounds for doing so.

I wish it to be made explicit in the bill that the court may review the evidence anew and may come, if necessary, to a different decision based on the facts and not simply on the sheriff's application of the law to the facts or on points of law alone. If the minister is not prepared to accept the amendment, I seek an assurance from him that the scope of re-appeal is sufficiently wide, in the bill as drafted, to cover the points that I have raised in the amendment and that there is no need for the matter to be clarified in the legislation.

Mr Gallie will move the other amendment in my name in this group.

I move amendment 26.