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The Earl of Mar and Kellie: I am grateful for that answer. I certainly believe that it will be very interesting to see how the pilot projects proceed. I hope that they will be genuine pilots; that is, that the scheme will not be proceeded with until the pilots have been properly evaluated. I hope that all four options--that is, human and remote monitoring with and outwith a probation order--will all be tried.
I remain unconvinced, but willing to be convinced, about stand-alone or, to use the noble and learned Lord's expression, free-standing restriction of liberty orders. I am interested to see how those will work out. I am certain that linked probation orders are more likely to be positive. We must remember that imprisonment is a static process in personal development terms. I do not want this alternative to imprisonment to end up being similarly static. It is important that the offender be encouraged to move on.
However, we have had a debate about this and I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Disposal in cases of mentally disordered offenders]:
Lord McCluskey moved Amendment No. 89:
The noble and learned Lord said: This amendment relates to certain words which appear at lines 7 to 8 on page 13. Members of the Committee will see that the provision in which they appear is to the effect that where a person is convicted on indictment in court of an
Section 17(1)(a) specifies the grounds. The first is that the person is suffering from a mental disorder of a certain character. It is envisaged that the mental disorder may be a persistent one which is likely to deteriorate. The other mental disorder envisaged is a mental handicap, comprising mental impairment or severe mental impairment.
Will the noble and learned Lord the Lord Advocate explain whether it is envisaged that, if the court is satisfied that the grounds contained in Section 17(1) of the 1984 Act apply, a sentence of imprisonment will be passed at the same time? I have no experience of both passing a sentence of imprisonment and making an order of this character. I should like the Government to explain how this provision is expected to work and how the sentence of imprisonment and the hospital direction are intended to be combined. No doubt in due course I shall be able to ask the Government to explain how this ties in with the early release provisions but that is a matter for another occasion. In the meantime, I beg to move.
Lord Mackay of Drumadoon: This is a technical but very important field. The effect of the amendment would be to cut the link between the new hospital direction and the sentence of imprisonment.
In bringing forward the proposals for a hospital direction, which was a disposal discussed in Chapter 13 of the White Paper, it has always been made clear by the Government that the hospital direction was never intended as a stand-alone disposal; it was in line with the flexibility that I have discussed earlier to add other disposals to the court than those which currently exist.
As the noble and learned Lord will be well aware, the 1995 Act contains a number of provisions for dealing with prisoners who are suffering from certain categories of mental illness or mental disorder. Sometimes that results in the trial not taking place because the accused is held to be unfit to plead and to stand trial; sometimes it results in the accused standing trial and being convicted and a hospital order then being imposed.
Where an accused man has been convicted, the alternative at the moment is between prison and a hospital order. This clause provides another option in serious cases where an accused is indicted and liable to a term of imprisonment because of the gravity of the crime which has been committed but who is suffering from one of the conditions set out in Section 17(1) of the Mental Health (Scotland) Act 1984.
As I understand the question which the noble and learned Lord posed, it is addressed to the issue of whether the mental handicap set out in Section 17(1)(a)(ii)--as opposed to that set out in Section 17(1)(a)(i)--is such as to make it inappropriate
I emphasise that this clause is intended to add an option; it is not intended to interfere in any way with the options that already exist. The amendment proposed would change the character of the option to the extent that it is not considered a sensible route to follow. There are prisoners suffering from a mental disorder whose treatment may be such that they recover within a relatively short period of time, and certainly within a period of time shorter than that for which prison would be appropriate if they did not suffer from any form of mental illness. Clearly that is less likely to be the position in a case to which Section 17(1)(a)(ii)--which deals with mental handicap or mental impairment--applies, but one cannot exclude the possibility that a spell in a hospital might bring about some improvement to the extent that no further treatment would be desirable and yet prison would be appropriate. I suspect that that is likely to happen in very few cases indeed but one cannot exclude the possibility.
I trust that that, together with what is set out in Chapter 13 of the White Paper, explains what this proposal is about. I hope that, on that understanding, and with that explanation, the noble Lord will accept that his amendment would serve to frustrate the objective behind this new disposal and will not press it.
Lord McCluskey: The noble and learned Lord has referred to what I think is contained in paragraph 13.5 of the White Paper. That reads:
It appears that the court will say, "You will go to prison for four years", let us say, "but you will not begin that sentence until you have been in hospital". I am not sure whether the four years start to run when the person goes into hospital--which must, under the clause, happen very soon--and, if so, whether one is in effect saying to the person, "The sooner you get better, the sooner you will find yourself in prison". That seems to be the effect of the provision.
What is envisaged is that it is appropriate for him to receive medical treatment in hospital. It is considered that the treatment will be likely to alleviate or prevent a deterioration of his condition--which is a very curious alternative--and the same applies both to mental disorder and mental handicap. So it seems to me very bizarre indeed that a judge should say, "Here is a sentence of imprisonment and when you have convinced the medical authorities that your condition has improved, you can go straight to prison". It does not appear to me that those are conditions in which the patient is likely to co-operate with the medical people treating him.
So I repeat my question, not just in relation to people with mental handicap, though I do not understand what kind of hospital treatment will improve a person suffering mental handicap. Secondly, I should like to know how this provision works in relation to a person
Lord Mackay of Drumadoon: I am sorry that I did not pick up the question from what the noble and learned Lord said earlier. There is no doubt that the sentence clock is running while the accused is in hospital. If there is a four-year sentence and he spends one year in hospital, that counts towards the four years. No doubt we can discuss the technical problems associated with early release at a later stage in our debate.
So far as concerns the point arising out of Section 17(1)(a)(ii), I certainly see the force of the noble and learned Lord's observation. That is certainly a matter which will have to be reflected upon. On the basis of my understanding of the treatment of those people, one could not exclude the possibility of such a direction being imposed and leading to some improvement which might be as far as treatment would take the offender and then he goes to prison. But it may be that more careful study of the valid point raised will show that there may be some scope for amending the new Section 59A(3) to refer to Section 17(1)(a)(i) rather than Section 17(1) per se.
Lord McCluskey: Perhaps I could ask for some further clarification. I mentioned the early release provisions. It worries me that if a person is told, "The time that you spend in hospital is knocked off the time that you spend in prison", he may be reluctant to co-operate with doctors to the extent of announcing himself cured. If he does not co-operate with the doctors in order to effect a cure, will that be regarded as naughty behaviour for the purpose of early release, so that he does not earn his one-sixth remission? Perhaps, if the noble and learned Lord the Lord Advocate cannot answer that question today, he will address it when we discuss early release, whenever that may be.
Page 13, line 7, leave out from ("may") to ("by") in line 8.
"This new option would enable the courts to impose a prison sentence, either determinate or life, but also order that the offender be initially detained in hospital for the receipt of the treatment needed for their mental disorder".
6.30 p.m.
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