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Session 2002 - 03
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Appellate Committee - Regina v. Drew (Appellant)

THIRTY-FIRST REPORT

from the Appellate Committee


8 May 2003


Ordered to Report

The Committee (Lord Bingham of Cornhill (Chairman), Lord Steyn, Lord Hutton, Lord Millett and Lord Rodger of Earlsferry) have met and have considered the cause Regina v. Drew (Appellant) (On Appeal from the Court of Appeal (Criminal Division)). We have heard counsel on behalf of the appellant and respondent and on behalf of the Secretary of State for the Home Department pusuant to section 5 of the Human Rights Act 1998.

  1. This is the considered opinion of the Committee.
  2. At issue in this appeal against sentence is the compatibility of section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and section 37 of the Mental Health Act 1983, when applied to mentally ill offenders, with article 3 of the European Convention on Human Rights.
  3. The appellant was born on 1 May 1963. His career after leaving school was marked by criminal activity and drug abuse. On 4 August 1995 he was convicted of two offences of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. He was sentenced to concurrent terms of six years’ imprisonment for these offences and was released in April 1999. On 19 November 1999 he committed an offence of wounding with intent to cause grievous bodily harm contrary to section 18 of the 1861 Act. He pleaded guilty to this offence (and also to a more minor offence, irrelevant for present purposes) in the Crown Court at Cardiff on 1 August 2000. This wounding offence was a "serious offence" for purposes of section 2 of the Crime (Sentences) Act 1997 and section 109 of the 2000 Act which replaced section 2.
  4. The appellant was not insane when he committed the 1999 offence, nor was he unfit to be tried when he pleaded guilty in the Crown Court and (later) appeared for sentence. But he was known to be mentally ill. While in custody following his arrest in November 1999 he manifested psychotic symptoms and messianic delusions and in June 2000 was admitted to a psychiatric hospital where, with treatment, his mental condition improved. Two approved consultant psychiatrists were of opinion that he was suffering from schizophrenia and would be a serious danger to the public if released. They recommended that a hospital order be made under section 37 of the 1983 Act with a restriction on his release, unlimited in time, under section 41 of the Act. This was a recommendation which the Recorder of Cardiff, before whom the appellant appeared for sentence on 1 March 2001, would have accepted had section 109 of the 2000 Act allowed him to do so. But the offences of which the appellant had been convicted in 1995, like that to which he had pleaded guilty in August 2000, were "serious offences" within the meaning of section 2 and section 109 of the 1997 and 2000 Acts respectively, and section 109 of the 2000 Act, read with section 37 of the 1983 Act, precluded the making of such an order in the absence of exceptional circumstances. So, as the section required, the Recorder imposed a sentence of life imprisonment, although he did so with an expression of regret. He fixed the minimum term to be served at two years and eight months’ imprisonment. On being sentenced the appellant was returned to prison where his mental condition deteriorated sharply for want of a drug which had been prescribed for him in hospital but which the prison could not prescribe. On 9 March 2001, following urgent and repeated representations by HMP Cardiff where the appellant was confined, the Home Secretary, acting with expedition, authorised the transfer of the appellant from prison to the psychiatric hospital where he had been treated before. This transfer, made under sections 47 and 49 of the 1983 Act, took effect at once, eight days after sentence. The interruption in the appellant’s medication had a harmful effect on his mental health and it took several months after his return to hospital for the doctors to gain full control of his symptoms.
  5. Stripped to its bare essentials, the argument of Mr Huw Davies QC for the appellant rested on three main propositions: (1) it is wrong in principle to impose a punitive sentence of imprisonment on those who, like the appellant, are mentally ill and so not criminally culpable. Accordingly (2) the imposition of an automatic life sentence on such defendants is "inhuman or degrading treatment or punishment" within the unqualified prohibition in article 3 of the European Convention on Human Rights. Therefore (3) sections 109 and 37 of the 2000 and 1983 Acts respectively, in requiring imposition of such a sentence in cases such as the appellant’s, even where the offender is mentally ill, are incompatible with article 3 of the Convention. Before considering these contentions it is necessary to cite the key provisions to which they relate.
  6. Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000

    Section 109(1)-(4) provide as follows:

    "109 (1) This section applies where

    (a) a person is convicted of a serious offence committed after 30 September 1997; and

    (b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.

    (2) The court shall impose a life sentence, that is to say―

    (a) where the offender is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment for life,

    (b) where he is under 21 at that time, a sentence of custody for life under section 94 above,

    unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.

    (3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.

    (4) An offence the sentence for which is imposed under subsection (2) above shall not be regarded as an offence the sentence for which is fixed by law."

    There follows in subsection (5) a list of criminal offences all of which are serious offences for purposes of the section if committed in England and Wales. The list includes offences related to murder (although not murder itself, for which a mandatory life sentence is prescribed elsewhere), manslaughter, offences under section 18 of the 1861 Act, rape and attempted rape, unlawful sexual intercourse with a girl aged under 13, certain of the most serious firearms offences and robbery involving the possession of a firearm or imitation firearm. All are offences carrying a maximum penalty of imprisonment for life. In subsections (6) and (7) the section contains broadly comparable lists of serious offences committed in Scotland and Northern Ireland.

  7. Section 109 reproduces (in its application to England and Wales) section 2 of the Crime (Sentences) Act 1997. The enactment of section 2 was preceded by a White Paper ("Protecting the Public: The Government’s Strategy on Crime in England and Wales", Cm 3190, March 1996), Chapter 10 of which was entitled "Automatic Life Sentences for Serious Violent and Sex Offenders" and explained the rationale of the Government’s proposal:
  8. "10.3. A wide range of serious violent and sex offences carry a maximum sentence of life imprisonment, including manslaughter, rape and the most serious woundings. In these cases the court has the discretion to impose a life sentence either because the offence is so serious that it merits the maximum available penalty, or because the trial judge feels unable to determine when it will be safe to release the offender. In either case, the trial judge will specify the tariff which must be served, and at the end of that period the Parole Board will determine whether the offender can safely be released.

    10.4. The great advantage of the life sentence is its flexibility. It recognises that there are two separate considerations: the length of time the offender should serve as punishment for the offence he or she has committed (the tariff), and the question whether he or she can safely be released at the end of that period. However courts make very little use of the discretionary life sentence. In 1994, for example, 434 offenders were convicted of rape or attempted rape, but only 12 were sentenced to life imprisonment. In 1994, 217 offenders were convicted of a second serious violent or sexual offence, but only 10 received a discretionary life sentence.

    10.5. This does not necessarily mean that the sentences imposed on violent and sex offenders are too lenient: long sentences are frequently imposed on offenders convicted of violent and sex offences . . . . But if a determinate sentence is imposed the offender must be released once that sentence has been served, even if there is every reason to believe that he or she will commit further serious offences. That has led to a number of tragic cases where offenders convicted of violent or sex offences have been released only to repeat their offences almost immediately.

    10.6. It is essential that the public receives proper protection from serious, dangerous and persistent offenders. Long sentences are not sufficient, of themselves, to provide that protection: before potentially dangerous offenders are released an assessment must be made to see whether they still pose a risk. If an offender cannot safely be released he or she must continue to be detained – if necessary indefinitely.

    10.7. This proposal is not designed to increase the time such offenders spend in prison as punishment for the offences they have committed. That will continue to be the responsibility of the trial judge, who will be expected to set a tariff appropriate to the seriousness of the offence, just as the judge would if he or she were imposing a determinate sentence. This will enable the risk presented by the offender to be assessed towards the end of the tariff, when it will be known in the case of a sex offender, for example, whether that offender had undertaken the sex offender treatment programme, and how he or she had responded to it. The proposal will ensure that when the tariff ordered by the court expires, offenders who represent a real risk to the public are not released unless and until the Parole Board is satisfied that it is safe to do so. Once released, they will remain on licence and subject to recall in the same way as other life sentence prisoners."

    It was said to be one of the key elements of the Government’s proposal (paragraph 10.10) that

    "the court will also have discretion not to pass the automatic life sentence in genuinely exceptional cases. This is intended to allow for occasional quite unforeseeable circumstances where it would plainly be unjust and unnecessary to impose the life sentence. But it should be emphasised that this provision will be designed to cover only genuinely exceptional cases. The court will be required to explain what were the exceptional circumstances which justified some other sentence in place of a life sentence . . . ."

    The chapter concluded, in paragraph 10.11:

    "10.11. Too often in the past, those who have shown a propensity to commit serious violent or sex offences have served their sentences and been released only to offend again. In many such cases, the danger of releasing the offender has been plain for all to see – but nothing could be done, because once the offender has completed the sentence imposed, he or she has to be released. Too often, victims have paid the price when the offender has repeated the same offences. The Government is determined that the public should receive proper protection from persistent violent or sex offenders. That means requiring the courts to impose an automatic indeterminate sentence, and releasing the offender if and only if it is safe to do so."

  9. The thrust of section 2, carried over into section 109, is not open to doubt. Those who have committed two qualifying serious offences have shown themselves to be a danger to the public. To protect the public an indeterminate sentence of imprisonment is required to ensure that they are not released, as may happen on completion of a determinate sentence, when they are still a source of danger. The criteria applied by the courts in imposing discretionary life sentences (laid down in cases such as R v Hodgson (1967) 52 Cr App R 113; R v Pither (1979) 1 Cr App R (S) 209; R v Wilkinson (1983) 5 Cr App R (S) 105; and Attorney-General’s Reference No 32 of 1996 (R v Whittaker) [1997] 1 Cr App R (S) 261) lead to insufficient use of the power to impose such sentences and thus to the imposition of determinate sentences on those who will remain a source of danger to the public on release. Thus where the qualifying conditions are met a life sentence must be automatically imposed unless the circumstances are exceptional. The court is not to enjoy the discretion (expressly conferred by sections 3(2)(b) and 4(2)(b) of the 1997 Act and reproduced in sections 110(2)(b) and 111(2)(b) of the 2000 Act in relation to repeated offences of drug trafficking and burglary) to decline to impose the statutory sentence where the court is of opinion that there are specific circumstances which would make that sentence unjust in all the circumstances.
  10. Section 37 of the Mental Health Act 1983

  11. As it now stands, section 37 of the 1983 Act, so far as relevant to this appeal, provides:
  12. "37 Powers of courts to order hospital admission or guardianship

    (1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or falls to be imposed under section 109(2) of the Powers of Criminal Courts (Sentencing) Act 2000 or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

    (1A) In the case of an offence the sentence for which would otherwise fall to be imposed under subsection (2) of section 110 or 111 of the Powers of Criminal Courts (Sentencing) Act 2000, nothing in that subsection shall prevent a court from making an order under subsection (1) above for the admission of the offender to a hospital.

    (1B) For the purposes of subsections (1) and (1A) above, a sentence falls to be imposed under section 109(2), 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000 if it is required by that provision and the court is not of the opinion there mentioned.

    (2) The conditions referred to in subsection (1) above are that –

    (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either –

    (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or

    (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

    (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

    (4) An order for the admission of an offender to a hospital (in this Act referred to as ‘a hospital order’) shall not be made under this section unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital . . . ., and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.

    (5) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified; and where such directions are given –

    (a) the Secretary of State shall cause the person having the custody of the patient to be informed, and

    (b) the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order.

    (7) A hospital order or guardianship order shall specify the form or forms of mental disorder referred to in subsection (2)(a) above from which, upon the evidence taken into account under that subsection, the offender is found by the court to be suffering; and no such order shall be made unless the offender is described by each of the practitioners whose evidence is taken into account under that subsection as suffering from the same one of those forms of mental disorder, whether or not he is also described by either of them as suffering from another of them.

    (8) Where an order is made under this section, the court shall not –

    (a) pass sentence of imprisonment or impose a fine or make a probation order in respect of the offence,

    but the court may make any other order which it has power to make apart from this section; and for the purposes of this subsection ‘sentence of imprisonment’ includes any sentence or order for detention."

  13. It is unnecessary to review the detailed statutory provisions governing the admission of offenders to hospital under section 37 since their effect was clearly and authoritatively explained by the Court of Appeal (Criminal Division) (Mustill LJ, Saville and McKinnon JJ) in R v Birch (1989) 11 Cr App R (S) 202, 210:
  14. "Once the offender is admitted to hospital pursuant to a hospital order or transfer order without restriction on discharge, his position is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say in his disposal. Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled. If the authority expires without being renewed, the patient may leave. Furthermore, he may be discharged at any time by the hospital managers or the ‘responsible medical officer’. In addition to these regular modes of discharge, a patient who absconds or is absent without leave and is not retaken within 28 days is automatically discharged at the end of that period (section 18(5)) and if he is allowed continuous leave of absence for more than six [now twelve] months, he cannot be recalled (section 17(5)).

    Another feature of the regime which affects the disordered offender and the civil patient alike is the power of the responsible medical officer to grant leave of absence from the hospital for a particular purpose, or for a specified or indefinite period of time: subject always to a power of recall (except as mentioned above).

    There are certain differences between the positions of the offender and of the civil patient, relating to early access to the Review Tribunal and to discharge by the patient’s nearest relative, but these are of comparatively modest importance. In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence. A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts."

  15. As this passage makes plain, the detention of an offender admitted to hospital under section 37 alone may not be renewed if the medical conditions which justified admission cease to be met, and if those medical conditions cease to be met at any time the duty of the responsible medical officer, exercising a medical judgment, is to discharge the offender from hospital. Understandably, this benign regime was thought to provide insufficient protection in the case of offenders whose release might present a serious risk of danger to the public. Thus section 37 is fortified by the additional provisions of sections 41 and 42 which, so far as relevant to this appeal, provide:
  16. "Restriction orders

    41 Power of higher courts to restrict discharge from hospital

    (1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as ‘a restriction order’.

    (3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows –

    (a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below;

    (b) no application shall be made to a Mental Health Review Tribunal in respect of a patient under section 66 or 69(1) below;

    (c) the following powers shall be exercisable only with the consent of the Secretary of State, namely -

    (i) power to grant leave of absence to the patient under section 17 above;

    (ii) power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection (3) of that section; and

    (iii) power to order the discharge of the patient under section 23 above;

    and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer; and

    (d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;

    and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.

    (5) Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect.

    (6) While a person is subject to a restriction order the responsible medical officer shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.

    42 Powers of Secretary of State in respect of patients subject to restriction orders

    (1) If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient cease to be subject to the special restrictions set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly.

    (2) At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

    (3) The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant."

  17. An offender subject to a hospital order under section 37 coupled with a restriction order under section 41 has statutory rights of application to a Mental Health Review Tribunal under sections 70, 72 and 73 of the 1983 Act, but his position is radically different from that of the unrestricted offender. This again was recognised by the Court of Appeal in R v Birch (1989) 11 Cr App R (S) 202, 210-211:
  18. "In marked contrast with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41. A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before September 30, 1983) and now to the Secretary of State and the Mental Health Review Tribunal. A patient who has been subject to a restriction order is likely to be detained for much longer in hospital than one who is not, and will have fewer opportunities for leave of absence."

  19. This, inevitably very summary, account of the hospital order regime omits reference to two problematical situations which have at different times attracted the attention of the Legislature. The first is that of the defendant who is sentenced to a term of imprisonment but whose mental condition requires treatment in hospital. In such a case the Home Secretary may by warrant under section 47(1) direct the transfer of the offender to a named hospital. Such a transfer direction has the same effect as a hospital order (section 47(3)) and may under section 49 be coupled with a restriction order. These are the powers exercised by the Home Secretary in the appellant’s case.
  20. The second problematical situation arises where neither a sentence of imprisonment nor a hospital order, on its own, appears appropriate in the case of a particular offender and where the mutually exclusive operation of such disposals appears unsatisfactory. This problem was acknowledged in the White Paper ("Protecting the Public") quoted above. In Chapter 8, "Sex Offenders and Mentally Disordered Offenders", it was said:

"8.12. The Government proposes changes in the arrangements for the remand, sentencing and subsequent management of mentally disordered offenders to provide greater protection for the public and to improve access to effective medical treatment for those offenders who need it. The central change, if adopted, would be the provision of a ‘hybrid order’ for certain mentally disordered offenders for whom the present form of hospital order is unsatisfactory, particularly those who are considered to bear a significant degree of responsibility for their offences. The order would enable the courts, in effect, to pass a prison sentence on an offender and at the same time order his immediate admission to hospital for medical treatment.

8.13. The hybrid order, together with other proposals amending the detail of the Mental Health Act 1983, would substantially increase the flexibility of arrangements for dealing with mentally disordered offenders at all stages from remand through to rehabilitation. In particular, it would enable the courts to deal with some of the most difficult cases in a way which took proper account of the offender’s need for treatment; the demands of justice; and the right of other people to be protected from harm.

8.14. Existing sentencing arrangements for offenders who are mentally disordered require the court to decide either to order the offender’s detention in hospital for treatment, or to sentence him to imprisonment, or to make some other disposal. In some cases, an offender needs treatment in hospital but the circumstances of the offence also require a fixed period to be served in detention. This may be because the offender is found to bear some significant responsibility for the offence notwithstanding his disorder, or because the link between the offending behaviour and the mental disorder is not clear at the time of sentencing. The hybrid disposal would be a way of enabling the requirements of sentencing in such cases to be met. Under the order, an offender would remain in hospital for as long as his mental condition required, but if he recovered or was found to be untreatable during the fixed period set by the court, he would be remitted to prison. The hybrid order was recommended for use in sentencing offenders suffering from psychopathic disorder by the Department of Health and Home Office Working Group on Psychopathic Disorder. The Government is considering whether it might be made available in respect of offenders suffering from all types of mental disorder currently covered by mental health legislation."

Legislative effect was given to this proposal by section 45A of the 1983 Act, inserted by section 46 of the 1997 Act. So far as relevant the section provides:

This section confers a power exercisable in the case of those upon whom automatic life sentences were required to be imposed under section 2 of the 1997 Act and (by virtue of paragraph 1(4) of Schedule 11 to the 2000 Act) section 109 of the 2000 Act, but the section only applies to those suffering from psychopathic disorder since the power conferred by subsection (10) to extend the application of the section to other descriptions of mental disorder has not been exercised in England and Wales. This is perhaps surprising, given that in Scotland section 59A of the Criminal Procedure (Scotland) Act 1995, inserted by section 6(1) of the Crime and Punishment (Scotland) Act 1997, provides for a disposal by means of a sentence of imprisonment and an allied hospital order in any appropriate case, whatever the nature of the mental disorder.

The Court of Appeal decision

 14. Before the Court of Appeal (Criminal Division) (Kennedy LJ, Bell and Cooke JJ) Mr Davies for the appellant made submissions to very much the same effect as those before the House, although he placed some reliance on article 5 of the European Convention as well as article 3. The court rejected those submissions: [2002] 2 Cr App R (S) 189; [2002] Crim LR 220. Having heard argument on behalf of the Crown and the Home Secretary, as the House also has done, the court did not accept that the appellant was other than criminally culpable and held (in paragraph 27 of its judgment) that it had been open to Parliament to say, as it had in 1997, that

The issues

 15. We return to the argument for the appellant, summarised in paragraph 5 above.

 16. It may be accepted that a sentence of life imprisonment, passed under section 109 of the 2000 Act, is, in part at least, punitive in purpose and effect. The minimum term specified by the judge to be served before release is imposed as retribution for the crime committed. It may also be accepted as wrong in principle to punish those who are unfit to be tried or who, although fit to be tried, are not responsible for their conduct because of insanity: see, generally, R v H [2003] 1 WLR 411; [2003] UKHL1. But the appellant did not claim to be unfit to plead and advanced no defence of insanity. Instead, he pleaded guilty to an offence of which an essential ingredient was an intention to cause grievous bodily harm to another. The Recorder of Cardiff did not regard the appellant as other than criminally culpable. Had he done so he would not have specified a minimum term based on a notional sentence of eight years’. The appellant’s mental illness could properly be relied on as mitigating the criminality of his conduct but not as absolving him from all responsibility for it. Mr Davies laid stress on the stigma attaching to a sentence of life imprisonment, which he criticised as unfair in the case of a mentally-disordered defendant such as the appellant. It is of course true that conviction of serious violent crime carries a stigma. But the appellant will have been stigmatised less by the sentence passed upon him than by his voluntary admission of guilt.

 17. Section 82 of the 2000 Act imposes additional duties on sentencing courts where offenders appear to be mentally disordered. Save where a custodial sentence is fixed by law (as in cases of murder) or falls to be imposed under section 109, the court must consider the offender’s mental condition before imposing a custodial sentence. The humanity and fairness of this requirement are obvious. But it cannot, as a matter of national law, be stigmatised as wrong in principle to pass a sentence of imprisonment on a mentally disordered defendant who is criminally responsible and fit to be tried. This is made clear by the terms of section 37 of the 1983 Act, for even where the conditions in subsection (2)(a)(i) or (ii) are found to be satisfied the court may make a hospital order only if it is also of opinion under subsection (2)(b) that a hospital order is "the most suitable method of disposing of the case". If it is not of that opinion, a sentence of imprisonment may be imposed even on an offender in whose case the conditions in subsection (2)(a)(i) or (ii) are satisfied. The Court of Appeal in R v Birch (1989) 11 Cr App R (S) 202, 215, pointed out that prison might be chosen as an alternative to hospital either because the offender was dangerous and no suitable secure hospital accommodation was available or because there was an element of culpability in the offence which merited punishment, as might happen where there was no connection between the mental disorder and the offence or where the offender’s responsibility for the offence was reduced but not wholly extinguished. There is no divergence in this respect between national law and Strasbourg jurisprudence: in X v United Kingdom (Application No 5229/71, 5 October 1972) the Commission rejected as manifestly inadmissible a complaint by a mentally-disordered defendant that he should be held in a psychiatric hospital and not in a prison.

 18. There would be strong grounds for challenging the compatibility of section 109 of the 2000 Act with article 3 of the Convention if its effect, read with section 37(1) of the 1983 Act, were to deny a mentally-disordered defendant qualifying for an automatic life sentence the medical treatment which his condition required. To subject such a defendant to unnecessary suffering, humiliation, distress and deterioration of his mental condition could properly be regarded as inhuman or degrading treatment or punishment. But that is not a necessary result of these provisions, since section 47 of the 1983 Act gives the Home Secretary power to transfer a defendant sentenced to imprisonment to a hospital where he will receive any medical treatment he needs, and the Home Secretary is obliged to act compatibly with the Convention. Thus, as the Recorder observed in this case, the effect of the sentence may be very much the same whether he is sentenced to imprisonment or made subject to a hospital order.

 19. If it were shown that a mentally-disordered defendant was held in prison, that he was there denied medical treatment, available in hospital, which his mental condition required and that he was suffering serious consequences as a result of such denial, he would have grounds for seeking judicial review of the Home Secretary’s failure to direct his transfer to hospital under section 47 of the 1983 Act: Keenan v United Kingdom (2001) 33 EHRR 913. But this would not be a challenge based on the compatibility of sections 109 and 37 with article 3. Nor is it the ground of challenge which the appellant makes, or could make, in this case, since the Home Secretary exercised his transfer power promptly. While the interruption of the appellant’s medication during the 8 days following sentence caused him ill effects, these were not in our opinion of sufficient severity to engage the operation of article 3: see Ireland v United Kingdom (1978) 2 EHRR 25, 79, paragraph 162; Aerts v Belgium (1998) 29 EHRR 50, 90, paragraph 66.

 20. In R v Buckland [2000] 1 WLR 1262, 1268, the Court of Appeal described section 2 of the 1997 Act as

In a case where the evidence showed this assumption to be soundly based no issue of compatibility with the Convention was likely to arise, but there were very obvious issues of compatibility in any case where it appeared that the court was required to pass a sentence of life imprisonment on a defendant who appeared to present no danger to the public. This was the problem which confronted the Court of Appeal (Lord Woolf CJ, Steel and Richards JJ), after the Human Rights Act 1998 came into force, in R v Offen [2001] 1 WLR 253. The court neatly resolved the problem by holding (page 272, paragraph 79):

Taking advantage of the interpretative licence conferred by section 3 of the 1998 Act, the court concluded (page 277, paragraph 97):

In his argument for the Home Secretary, Mr David Perry expressly accepted the correctness of this approach, as would we. He moreover accepted that it would apply equally to a mentally-disordered defendant, relieving the court of the need to impose an automatic life sentence, and permitting the making of a hospital order, if it were established that there was no need to protect the public against him in future. The making of a hospital order in such circumstances is expressly envisaged by section 37(1B) of the 1983 Act. Thus the complaint of arbitrariness and excessive punishment which might otherwise be made with some force under articles 3 and 5 of the Convention is met, first, by pointing to the court’s release from the obligation to impose a life sentence where a defendant is shown not to be dangerous and, secondly, where a life sentence is passed, by the imposition of a minimum term reflecting the culpability of the individual defendant (see R v Lichniak [2002] 3 WLR 1834, 1840-1841; [2002] UKHL 47, paragraph 16).

 21. Interpreted in accordance with R v Offen [2001] 1 WLR 253, section 109 does not lack an objectively justifiable protective purpose:

Had it been open to the Recorder to make an order under section 45A (which it was not, because the appellant was not suffering from psychopathic disorder) it seems likely that he would have done so. This would have avoided the ill effects which the appellant undoubtedly suffered as a result of his confinement in prison. We hope that further thought may be given to exercise of the power conferred by section 45A(10).

 22. In the course of his argument for the Home Secretary, Mr Perry gently suggested that Court of Appeal decisions generally encouraging the making of hospital orders where the relevant medical criteria were met might, in the absence of adversarial argument, have given less than adequate weight to the differing conditions governing the release and recall of restricted patients as opposed to life sentence prisoners. He instanced authorities such as R v Howell (1985) 7 Cr App R (S) 360; R v Mbatha (1985) 7 Cr App R (S) 373; R v Mitchell [1997] 1 Cr App R (S) 90; R v Hutchinson [1997] 2 Cr App R (S) 60. There may be some force in this criticism, and we would accept that these differing conditions are a matter to which sentencing judges and appellate courts should try to give appropriate weight. The difficulties caused to prison managements by the presence and behaviour of those who are subject to serious mental disorder are, however, notorious, and we would need to be persuaded that any significant change in the prevailing practice was desirable.

Recommendation

 23. We agree with the Court of Appeal that sections 109 and 37 of the 2000 and 1983 Acts respectively are not incompatible with article 3 (or, for that matter, article 5) of the Convention and the appeal should therefore be dismissed. We so recommend.

 
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