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Lord Mackay of Drumadoon: I am confident that we shall come to early release either today or Monday. My understanding is that the problem about behaviour in a hospital is addressed in Clause 38(2) of the Bill, which reads:

"For the purposes of section 31 of this Act"--

that deals with early release--

"where a mentally disordered offender spends any period in hospital, he shall be treated as if he had spent that period in prison, and as if he had been awarded the maximum number of early release days which he could have been awarded under that section had he been detained in a prison during that period".

The Earl of Mar and Kellie: Before the noble and learned Lord sits down, can he confirm that we are dealing with an offender who was judged to be sane at

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the time of commission of the offence but subsequently, by the point of conviction, has developed a psychiatric condition?

Lord Mackay of Drumadoon: Yes, there is no doubt--as the beginning of new Section 59A sets out--that this provision will apply to persons who are:

"convicted on indictment in the High Court or in the sheriff court".

If they are insane and unfit to plead, or if there is any medical reason why they do not stand trial, this provision will have no application to them at all.

Baroness Carnegy of Lour: Just for clarity, perhaps I may raise one point with the noble and learned Lord. I have to admit that we are in an area with which I am not at all familiar. The Scottish Association for Mental Health has commented that the English Bill--the Crime (Sentences) Bill--limits the orders to patients with a psychopathic disorder. The Government have not taken the same line in Scotland. The association wonders why that is the case. If the noble and learned Lord has not already given an answer to that point--I may have missed it--can he explain it now? I feel that it is something that we ought to know.

Lord Mackay of Drumadoon: The noble Baroness is quite correct. When the provision (which I believe is in Clause 45 of the English Bill) was debated, the Government were encouraged from the Liberal Democrat Benches, as I recall, to go somewhat further and extend it to offenders other than those suffering from psychopathic disorder. That was resisted on that occasion.

We have clearly followed a different route in this Bill. If there is force in the contributions made by the noble and learned Lord, Lord McCluskey, we may well have gone too far. Clearly, the re-examination which is necessary following upon the point raised by the noble and learned Lord takes us back to considering whether the English approach is preferable or whether somewhere in between is the way that we should go in Scotland. But I shall certainly take account of the contributions made by my noble and learned friend in the examination I am happy to undertake.

Lord Monkswell: Can the noble and learned Lord the Lord Advocate say what practical difference this particular clause is likely to make? Suppose that a person has been convicted and is sent to prison for, say, four years. If he is then found to be suffering from some psychiatric disorder, presumably he could be referred to a secure mental institution for treatment. One would hope that that would happen anyway. There is, however, a suspicion that there are large numbers of people in our prisons who would in fact benefit from being in a psychiatric institution rather than in prison. The reason that they are not in such an institution is that the resources are not available to house them.

That is why I ask the practical question: what will be the practical difference with this clause? Will it effectively give judges in Scotland the power to send people to secure psychiatric institutions, where

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presumably there may not be places available for them? Will it give the judges the ability to direct resources into that area of social policy?

Lord Mackay of Drumadoon: The practical difference is that at the moment the court has two options. One option is to send the offender to prison; the other is to make a hospital order. In many instances, offenders for whom a hospital order is not appropriate come before the courts. Their medical condition is such that that is not the appropriate way for the complete disposal of that particular case. It is then said in mitigation that the accused would benefit from some form of psychiatric treatment. The response that the court has to give is that, when he goes to prison in terms of the sentence to be imposed, it will be a matter for the prison authority to take action and, in an extreme case, for the Secretary of State to exercise his powers under the Mental Health Act and take a mental health order which will require the accused to be removed from prison to the hospital in terms of the latter order.

These provisions give the court the option of making a hospital direction. That will make treatment available to the offender at the behest of the court. Armed with medical advice, the court may take the view that the mental illness or disorder from which the offender is suffering is one susceptible to treatment for which a spell in hospital will be of value. It may be felt that there is hope that over a period of time the offender will recover. If he does, he can be transferred from the hospital to the prison and release the beds in the hospital for other people whose illness is susceptible to treatment.

It is not a question of locking people up in state hospitals indefinitely. For those offenders who require that disposal, the provision already exists. These provisions relate to people whose disorder is susceptible to treatment but who, for whatever reason, have committed serious crimes which require them to be in custody for a period of time. It is an additional option to those that are currently available. It has been widely welcomed, albeit that some people with expertise in the field expressed anxiety as to whether the treating of such a patient in the hospital in the knowledge that if he recovers he will then go to prison is possibly not the ideal situation in which a psychiatrist would wish to work; it is felt that sending the offender to prison will undo the good work that has been done.

There is therefore a dilemma, as was cogently argued when we discussed similar provisions in the English Bill. Nevertheless, we believe it to be an option worth pursuing. Whatever reservations some may have about it, the message that we were given in relation to the English Bill was that we should extend it to more offenders than the English Bill currently covers. On that basis I hope the provisions will be welcome, albeit that the provisions in the Scottish Bill may need further treatment.

Lord McCluskey: I am encouraged by the earlier remarks of the noble and learned Lord that further consideration should be given to this matter. I am slightly puzzled by the reference to Clause 32 of the

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Bill. It is certainly applicable but means that a person who is in hospital is automatically entitled to the maximum number of early release days whether or not he behaves himself. Therefore, the longer he stays in hospital, the less need there is for him to behave.

Finally, I received a letter from the Scottish Association for Mental Health. I have been chairman of that body for nearly 10 years and should have raised the matter myself. Unfortunately, my letter on the subject became mixed up with others and I did not come to it until today. However, having been encouraged by the answers given by the noble and learned Lord the Lord Advocate, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Lord Macaulay of Bragar moved Amendment No. 90:

Page 13, line 11, at end insert--
("( ) The court shall not impose a hospital direction under subsection (1) above unless it is satisfied that a hospital order would not be a more appropriate disposal.
( ) Where a court imposes a hospital direction under subsection (1) above it shall give its reasons in open court for the imposition of such a direction rather than the imposition of a hospital order.").

The noble Lord said: This part of the Bill is quite interesting. The noble and learned Lord the Lord Advocate may be familiar with the recent case where a person accused of a crime "conned"--to put it one way--the psychiatrists and enabled himself to be sent to Carstairs instead of to prison. When he reached Carstairs, he complained that he should not be there, having conned his way in. We are therefore dealing with a delicate area of human behaviour.

Amendment No. 90 has not been grouped with Amendments Nos. 91 to 95. It may save some time if the noble and learned Lord the Lord Advocate can say whether or not the Government have had time to consider these amendments and are prepared to take them away and look at them further. They are not tabled for political reasons, but for social reasons in this difficult area. Perhaps the noble and learned Lord will indicate whether I need to take up the Committee's time in speaking to Amendments Nos. 91 to 95 as well as to Amendment No. 90.

Lord Mackay of Drumadoon: If it will assist, I can say that we have had some time to consider the points that lie behind these amendments and are not disposed to accept them. As the noble and learned Lord, Lord McCluskey, demonstrated, I am open to persuasion. But I need to hear the arguments first.

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