CALLUM STEPHEN TOLE v. HER MAJESTY'S ADVOCATE

"Where it appears to the prosecutor in any court before which a person is charged with an offence that the person may be suffering from mental disorder, it shall be the duty of the prosecutor to bring before the court such evidence as may be available of the mental condition of that person".

The purpose of this is to enable the court, in an appropriate case, to commit a person to hospital rather than remanding him in prison.

[3] On 26 April 2011, the appellant appeared on petition charged with murder by stabbing. The Crown instructed that he be psychiatrically examined. By this time, the appellant would, of course, have had the opportunity of having access to a lawyer. He had availed himself of that opportunity. He was advised by a solicitor of the likely prospect of a psychiatric examination. He was counselled not to discuss the circumstances of the alleged offence with any psychiatrist.

[4] The appellant was interviewed by two psychiatrists. The trial judge reports that each psychiatrist made it clear to the appellant that the interview was conducted on the instructions of the prosecution. He did not have to participate. Any resultant report would be disclosed to the prosecutor and might be read out in court. The appellant was told that the normal rules of medical confidentiality did not apply.

[5] In a report dated 28 April 2011, Dr Andrea Friel, consultant forensic psychiatrist, described her meeting with the appellant. She states that the appellant had been aware of the nature of the interview and had agreed to it proceeding. The report narrates the personal history of the appellant, including his extensive use of illicitly acquired drugs, including diazepam. It records that the appellant "last took" diazepam "on the night of the index offence". In particular, when dealing with the day of the offence, it gives the following account: