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Lord Macaulay of Bragar: I was hoping to save some of the Committee's time. However, I will speak to Amendment No. 90 first. The new hospital direction is causing anxiety among those people who are unfortunate enough to be involved in that area of life. It was tabled to make sure that the court does not dodge the responsibility of making a hospital order when a person is suffering from a mental illness--whatever the correct description may be--and uses the hospital
direction as a half-way house. That will serve neither the community nor the individual and will only create difficulties.I should like to hear the noble and learned Lord's response. We cannot have a situation where the courts use the order as a half-way house rather than face up to the reality of the circumstances of the offence, the circumstances of the individual and his long-term future in relation to society. I beg to move.
Lord Mackay of Drumadoon: As I indicated earlier, the Government have thought about this amendment and cannot agree to it. What concerns us are the assumptions that lie behind it. They are assumptions to be borne in mind when considering an option which is not properly focused in the amendment.
As I indicated earlier, there are two stand-alone options when dealing with serious offenders who have mental problems. The first is to send the offender to prison and the other is to impose a hospital order. The hospital direction is not a stand-alone option; it is to run with imprisonment. Therefore, the options are, first, a hospital order; secondly, imprisonment with a hospital direction; and thirdly, imprisonment alone.
Our concern is that by putting such a provision on the face of the Bill Parliament would be taking the view that the courts need reminding of what the relevant sentencing options are in serious cases of this nature. Clearly, if any question of mental illness arises, the strong probabilities are that the court would have before it medical reports, and the Bill sets out what would be necessary. If the court was to consider a hospital order the more appropriate disposal, we can assume that it would make one. On the other hand, if the court was not of that view and took the view that a sentence of imprisonment combined with a hospital direction was the right order, again it would proceed along that path.
The idea that the court must start out by looking at the hospital order and be satisfied that that was not appropriate before considering the direction linked with imprisonment or imprisonment alone is the wrong approach. All three options are open, and, indeed, any other option that might strike the court as being appropriate for a person convicted in the High Court suffering from mental illness. In another case, probation with a condition of taking such medical assistance or guidance as a supervising officer deemed appropriate might be an option. One doubts whether community service would be, but one can never eliminate the possibility.
It seems to be wrong to set out which option one has to look at first and which option one has to exclude. That is why the assumption that lies behind the order is not one the Government feel is attractive. If that is correct, the second part of the amendment is also inappropriate because it would require the court to state why it had rejected the hospital order before passing to the sentence of imprisonment linked with the hospital direction.
I am sure the noble Lord had the best of motives in bringing forward this suggestion, but I hope he is persuaded that it would not be a helpful route to follow.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for his explanation. I am sure that it will be read with interest by those concerned with this delicate area of human behaviour. With that proviso, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar moved Amendment No. 91:
The noble Lord said: This amendment speaks for itself. I assume from what the noble and learned Lord the Lord Advocate has already said that it will not appeal to him. Perhaps the Government will have a look at it to see whether it is a sensible amendment. The general view is that hospital orders should not apply to the people set out in Amendment No. 91. On that basis, I beg to move.
Lord Mackay of Drumadoon: As my right honourable friend the Minister of State made clear when this issue was debated in another place, the first three lines of new Section 59A, which are to be found printed on page 13, lines 4 to 7, achieve the result which this amendment seeks to achieve. For that reason the Government believe it is unnecessary. Virtually all the categories of persons set out are already excluded by the opening words of Section 59A,
The only exceptions would be those few offences in the Service Acts which may be, and in a particular case have been, tried in the criminal courts rather than by court martial. If a full trial has taken place before the High Court or a sheriff court, in those few cases I can see no reason for precluding the court from considering the imposition of a hospital direction in addition to any term of imprisonment. It will have heard all the evidence and it will have all the medical evidence available. With that explanation, I hope that the amendment will not be pressed.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar moved Amendment No. 92:
The noble Lord said: This amendment again speaks for itself. Before anyone is dealt with under the medical conditions within the criminal law we believe that the reports before the court should be of recent and not of ancient origin. The suggestion is that they should be made within one week of the patient appearing in court so there is no doubt that when the court takes its view of the proper disposal it has up-to-date reports before it. I beg to move.
Lord Mackay of Drumadoon: The Government consider this amendment to be unnecessary. The amendment refers to the evidence being within seven days of a court appearance. The approach the Government have always followed in these matters is to leave it to the court to be satisfied that the evidence is sufficiently up-to-date for it to discharge its duty or to exercise its powers under the sentencing legislation. We see no reason to change that approach on this occasion.
In our view, the other concerns lying behind the amendment are adequately addressed by Clause 9(2) of the Bill, which is in fairly technical terms in so far as it refers to amendments of Section 61 of the 1995 Act (requirements as to medical evidence). With that explanation, I hope the amendment will not be pressed.
Lord Macaulay of Bragar: It is becoming like a game of tennis here. On this occasion, game, set and match to the noble and learned Lord the Lord Advocate! Those concerned with these issues will no doubt look with interest at what he has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar moved Amendment No. 93:
The noble Lord said: This amendment applies to the same kind of situation which I explained when I moved Amendment No. 90. It is self-explanatory. It seeks to ensure that a court making a hospital order or direction should have before it all the information necessary to make the order. With that short explanation, I beg to move.
Page 13, line 13, at end insert ("or a person to whom subsection (2A) below applies.
(2A) This subsection applies to any person who is--
(a) convicted of an offence punishable by imprisonment under the Army Act 1955, the Air Force Act 1955 or the Navy Discipline Act 1957;
(b) a civil prisoner, that is to say a person appearing before the court in respect of a civil debt;
(c) awaiting to be sentenced by the court for non-payment of a fine imposed upon him; or
(d) detained under the Immigration Act 1971.").
""convicted on indictment in the High Court or in the sheriff court of an offence punishable by imprisonment".
Page 13, line 25, after ("form;") insert--
("(bb) each medical practitioner mentioned in paragraph (a) above shall confirm to the court that--
(i) he has examined the patient personally within seven days of appearing in court;
(ii) each such examination was either carried out separately, in which case not more than five days elapsed between the days on which the separate examinations took place, or no objection was made by the patient or his nearest relative (being informed of the right of the offender to have separate examinations) and the examinations were carried out together;
(iii) he is not related to the offender; and
(iv) he has no pecuniary interest in the admission of the offender to that hospital;").
Page 13, line 29, at end insert ("; and
(d) the court has received a report from a mental health officer who has interviewed the person within 14 days of the hearing.
(3A) A report under subsection (3)(d) above shall be in the prescribed form and shall--
(a) report on the social circumstances of the person; and
(b) confirm that, in the opinion of the mental health officer, a hospital direction would be the only appropriate disposal in all the circumstances of the case.").
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