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Lord Meston: I am grateful to the noble Lord, Lord McIntosh, for his initial reaction to this amendment and to the noble and learned Lord the Lord Chancellor for his response. It was not my intention in any way to impede a proper defence. The court will clearly have to look at the conduct of the defendant as a whole. The intention of this amendment was to make it easier to separate the different aspects of the conduct complained of, particularly where there are what I have described as mixed motives. However, this is not a matter to be debated at length at this hour. I should like to consider the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Lord Mottistone moved Amendment No. 9:

Page 1, line 21, at end insert (", or
( ) that by reason of severe mental illness he is unable to make a judgment on the matter.").

The noble Lord said: In moving Amendment No. 9, I wish to speak also to Amendments Nos. 22 and 27, which make the same point in Clause 4 and, for Scotland, in Clause 8. Amendments Nos. 9 and 22 were proposed to me by the National Schizophrenia Fellowship, because it was worried that some schizophrenia sufferers could harass others or cause them to fear violence without having any idea what they were doing. I added Amendment No. 27 after checking with NSF (Scotland) that it agreed that that should be done.

Before putting down the amendments, because I was going to be out of London at Second Reading--I am sorry that I was not present--I wrote to my noble friend Lady Blatch to ask for her view of them. My noble friend replied that she understood the reasons for seeking to exempt severely mentally ill people from the scope of the offences and the tort created in the Bill. My noble friend went on to explain how the Government already make provision to safeguard mentally disordered persons from inappropriate prosecution under the Bill or indeed under any other relevant Acts. My noble friend drew to my attention Home Office Circular 66/90 which gives guidance to the courts on this matter. In subsequently discussing the subject verbally with my noble friend, I suggested to her that, as the circular is seven years old, there might well be cases where it had been shown to need amendment to achieve its aims. The Minister said that, if that was so, she would be very happy to consider amending the circular. Accordingly, I have asked the National Schizophrenia Fellowship to

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advise me on the workings of Home Office Circular 66/90. At short notice, it has provided me with four examples. I shall briefly describe three of them.

A man who had a diagnosis of schizophrenia was arrested on suspicion of criminal damage and burglary. He was homeless, having lost his accommodation because of harassment by neighbours who set fire to his flat. He tried to break into a property which had been his home at an earlier date, apparently not realising that it was now occupied by others. He was remanded to a prison in spite of the fact that a social worker provided full details of his mental health problems to the magistrates. The young man died following the use of restraint. At the inquest, the coroner expressed his concern about the fact that the man had been in prison and had fallen through every available net.

Home Office Circular 66 advises magistrates, at paragraph 4(v) that,

    "if his mental state or other factors, such as homelessness, give rise to difficulties in releasing him on bail, arrangements should be made with the health, probation and social services to ensure that appropriate support can be provided such as admission to hospital where his mental condition warrants it, or to a hostel, if the managers agree".

We understand that, in spite of the guidance, magistrates felt that prison was appropriate. That case is an example of the circular not giving firm enough advice on such a point.

In another case--it is ongoing--a young woman of 19 has been on remand in prison for six months after setting fire to her mattress in a psychiatric unit. Because of attempts to hang herself, she has spent considerable periods in a strip cell while she awaits trial on an arson charge. She is receiving neuroleptic medication and the prison doctor has told her family that she should be in a secure unit. Other doctors have diagnosed personality disorder. Circular 66--this is important--does not appear to address the complex issues raised by this case at all.

In a third case a man appeared before a magistrates' court charged with affray, carrying an offensive weapon and setting fire to his car. The pre-sentence probation report had advised ordering a psychiatric report on the grounds that the defendant appeared to be suffering from a mental disorder. In the event the stipendiary magistrate decided that such a report was not needed and sentenced him to two months' imprisonment. Later he attacked children and a teacher with a machete. Serious injuries were inflicted and he is now awaiting sentence in a high security mental hospital.

Home Office Circular 66 draws the attention of magistrates to their powers to arrange for a medical report while an accused person, who appears to be mentally disordered, is on bail, for medical treatment as a condition of bail, and for a remand to hospital--if this seems necessary rather than bail--to obtain a medical report on his mental state. The circular does not suggest that advice to the court from a probation officer, which is what happened in this case, recommending ordering a psychiatric report, should be very carefully considered by the magistrates before being set aside. In view of the sufferings of the victims in this case, and the consequences for the man of not receiving psychiatric

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treatment at an earlier stage, it would seem that the circular needs review and revision to cover such circumstances.

In conclusion, I can see that my amendments, in seeking to remove severely mentally ill people wholly from the effects of the Bill, are probably going too far. I can see that victims of harassment need to be assured that they can call upon the services of the police and the courts to help protect them from those who cause harassment, whatever the background to the case. However, I hope that my hastily prepared examples--I emphasise that because I feel sure that the Home Office, perhaps even aided by the Department of Health, if they can aid each other, could produce many more examples--of the need for Home Office Circular 66/90 to be brought thoroughly up-to-date to provide the necessary protection for the unfortunate people who are truly not responsible for their actions will encourage my noble and learned friend the Lord Chancellor to give a firm undertaking that a thorough analysis of, and any necessary amendment to, that circular in the light of experience of the past seven years and the possible effects of the Bill will be carried out and brought into effect sooner rather than later. I beg to move.

Lord McIntosh of Haringey: In his admirable speech the noble Lord has provided the answer to his initial argument. However, he is to be commended for bringing it forward in the way that he did. He is quite right in saying that the amendments would go too far and would remove the protection from victims of stalking from people who had severe mental illness. As he rightly said, that cannot be what he intends. The issue is very much wider than stalking. The issue covers people committing all kinds of crime in conditions of mental illness and mental disorder. I am sure the noble Lord is right in saying that we have to bring the guidance we give to the police and to the courts up-to-date and make sure it is adhered to.

The Lord Chancellor: I am grateful to my noble friend Lord Mottistone for indicating to me in advance what he had in mind in putting down these amendments. As a result, I am able to say that my noble friend Lady Blatch has agreed to look into the cases my noble friend brought to her attention by way of example and to reflect on whether amendment to the guidance is required and, in the light of her consideration of that, to make a decision which she will then communicate to my noble friend when that is completed. There is also a civil aspect to this matter. We looked into some of this in connection with domestic violence. The most important aspect is in relation to the criminal law and to the code of guidance which the Home Secretary has issued. I am sure that if my noble friend Lady Blatch needs any help from the Department of Health it will be readily forthcoming. In these matters the Government act as one.

8 p.m.

Lord Mottistone: I am grateful to the noble Lord, Lord McIntosh, for his support and to my noble and learned friend the Lord Chancellor for his assurances on

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behalf of our noble friend Lady Blatch. The key matter is that harassment must be solved in this kind of way along with the other matters which have been mentioned. It is very difficult to avoid treating wrongly people who do things which they do not know are wicked. These orders are helpful up to a point. However, various other things are happening and I hope that the situation is getting better as we go along. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Offence of harassment]:

Lord Meston moved Amendment No. 10:

Page 1, line 24, after ("liable") insert ("--
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or both, or

The noble Lord said: As the Committee knows, the Bill, as drafted, provides two levels of primary criminal offence. Under Clause 2 a person who pursues a course of conduct amounting to harassment commits an offence punishable only on summary conviction. Under Clause 4 a person whose course of conduct causes the victim to fear on at least two occasions that violence will be used commits a more serious criminal offence punishable either after summary conviction or on indictment. In the latter case the Bill stipulates a maximum of five years' imprisonment.

The amendment seeks to allow for the possibility of trial on indictment for the lesser offence as well, with a maximum sentence of two years' imprisonment. The cases which have been reported in the press at least suggest that even where there is not an actual act or threat of violence, the powers of sentencing available in the magistrates' court on summary conviction may not be enough. There can be a lengthy, sustained campaign of harassment by an obsessive individual, causing the victim enormous anguish and suffering but nevertheless falling short of the fear of violence on two occasions which is required for the more serious offence under Clause 4. In such circumstances a victim could be driven out of his or her mind with worry and distress and caused considerable panic without actually suffering a fear of violence, without there being a threat of violence or with the threat of violence only having been made on one occasion rather than twice as required under Clause 4.

Conversely, and resisting the temptation to go into the merits of jury trial despite what is in the newspapers today, the allegations in these cases can be made by jilted or spurned partners. It may be that the accused should have the right to jury trial in such a case. For those reasons I hope that the added flexibility of disposal which is proposed in the amendment will find favour with the Committee. I beg to move.

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