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Ackner, L.
Addington, L.
Ampthill, L.
Baldwin of Bewdley, E.
Belstead, L.
Bingham of Cornhill, L.
Blease, L.
Bledisloe, V.
Bridge of Harwich, L.
Broadbridge, L.
Byron, L.
Calverley, L.
Carlisle, E.
Carlisle of Bucklow, L.
Chichester, Bp.
Clancarty, E.
Cocks of Hartcliffe, L.
Colville of Culross, V.
Craigavon, V.
Dahrendorf, L.
Darcy (de Knayth), B.
Ezra, L.
Geraint, L.
Grey, E.
Hacking, L.
Hampton, L.
Hamwee, B.
Harris of Greenwich, L.
Harris of High Cross, L.
Harrowby, E.
Hilton of Eggardon, B.
Hindlip, L.
Hutchinson of Lullington, L.
Kilbracken, L.
Kinnoull, E.
Kirkwood, L.
Kitchener, E.
Lester of Herne Hill, L.
Lockwood, B.
Longford, E.
Lowry, L.
Mackie of Benshie, L.
McNair, L.
McNally, L.
Mar and Kellie, E. [Teller.]
Masham of Ilton, B.
Monson, L.
Norton, L.
Ogmore, L.
Oliver of Aylmerton, L.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Rea, L.
Redesdale, L.
Robson of Kiddington, B.
Rochester, L.
Rodgers of Quarry Bank, L.
Russell, E. [Teller.]
Saltoun of Abernethy, Ly.
Sefton of Garston, L.
Shannon, E.
Simon, V.
Swinfen, L.
Taylor of Gosforth, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thurso, V.
Tope, L.
Tordoff, L.
Varley, L.
Walpole, L.
Warnock, B.
Weatherill, L.
Wigoder, L.
Williams of Crosby, B.
Addison, V.
Alexander of Tunis, E.
Allenby of Megiddo, V.
Anelay of St. Johns, B.
Archer of Weston-Super-Mare, L.
Astor of Hever, L.
Attlee, E.
Balfour, E.
Banbury of Southam, L.
Barber of Tewkesbury, L.
Beaverbrook, L.
Belhaven and Stenton, L.
Berners, B.
Bethell, L.
Birdwood, L.
Blatch, B.
Blyth, L.
Bowness, L.
Brabazon of Tara, L.
Bradford, E.
Brentford, V.
Bridgeman, V.
Bridges, L.
Brookeborough, V.
Brougham and Vaux, L.
Bruntisfield, L.
Burnham, L.
Byford, B.
Cadman, L.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Carnock, L.
Chadlington, L.
Chalker of Wallasey, B.
Charteris of Amisfield, L.
Chesham, L. [Teller.]
Clanwilliam, E.
Clark of Kempston, L.
Cochrane of Cults, L.
Courtown, E.
Craigmyle, L.
Cranborne, V. [Lord Privy Seal.]
Cross, V.
Cumberlege, B.
Dean of Harptree, L.
Denbigh, E.
Denham, L.
Denton of Wakefield, B.
Donegall, M.
Downshire, M.
Erroll, E.
Fairfax of Cameron, L.
Ferrers, E.
Fraser of Carmyllie, L.
Geddes, L.
Gisborough, L.
Goschen, V.
Gray, L.
Gray of Contin, L.
Haig, E.
Harmsworth, L.
Harris of Peckham, L.
Hemphill, L.
Henley, L.
Holderness, L.
HolmPatrick, L.
Inglewood, L.
Jeffreys, L.
Jenkin of Roding, L.
Kenilworth, L.
Keyes, L.
Kimball, L.
Kintore, E.
Knutsford, V.
Laing of Dunphail, L.
Lindsay, E.
Lindsey and Abingdon, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Luke, L.
Lyell, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Mackay of Drumadoon, L.
Macleod of Borve, B.
Marlesford, L.
Massereene and Ferrard, V.
Merrivale, L.
Middleton, L.
Miller of Hendon, B.
Milverton, L.
Monk Bretton, L.
Montgomery of Alamein, V.
Mountevans, L.
Mowbray and Stourton, L.
Munster, E.
Murton of Lindisfarne, L.
Napier and Ettrick, L.
Northesk, E.
O'Cathain, B.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Rankeillour, L.
Reay, L.
Renton, L.
Renwick, L.
Romney, E.
Rotherwick, L.
Rowallan, L.
Saatchi, L.
Saint Oswald, L.
Sandford, L.
Seccombe, B.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Skidelsky, L.
Soulsby of Swaffham Prior, L.
Stevens of Ludgate, L.
Stewartby, L.
Strange, B.
Strathclyde, L. [Teller.]
Strathmore and Kinghorne, E.
Swinton, E.
Teviot, L.
Teynham, L.
Thomas of Gwydir, L.
Trumpington, B.
Ullswater, V.
Vivian, L.
Wharton, B.
Whitelaw, V.
Wilcox, B.
Resolved in the negative, and amendment disagreed to accordingly.
6.41 p.m.
[Amendments Nos. 3 and 4 not moved.]
Lord Hacking moved Amendment No. 5:
The noble Lord said: My Lords, in moving the amendment, I shall address your Lordships on Amendments Nos. 11 and 12. I shall also address consequential amendments, Amendments Nos. 132, 133 and 134.
When I moved this amendment and spoke to the other amendments in Committee, I described the amendments as being very important. Therefore I was pleased when the Minister replied that she was at least able on that point to come to an agreement with me. In her opening words, she said,
The fundamental issue that I now ask your Lordships to consider on Report is a disturbance of the principle that has been in English penal law for many years; that when a person is suffering from an identifiable psychiatric illness he is not punished but treated. In Committee I referred noble Lords to the Mental Health Act 1983. In that Act, and under previous mental health Acts, a clear position has been set out. Under the Mental Health Act 1983 there are clear procedures when a person is suffering from an identifiable psychiatric illness (based, in the court proceedings, on the evidence of two medical practitioners). Instead of sending that person to prison, he is made subject to a hospital order. When there is concern over the public safety, the court at the same time can apply restriction orders. That is under Section 41 of the Mental Health Act 1983. There are further powers resting with the Secretary of State to make sure that the persons are not released when they are under a hospital order of indeterminate length; and under a restriction order of indeterminate length. These powers resting with the Secretary of State are that the person is not released from prison so long as there is concern relating to the safety of the public.
My noble friend having replied, I said that I should like to consider with care the speeches made in Committee and the speech of my noble friend. In reply, my noble friend said that,
With reference to the first of my amendments--it is in identical form to the amendment before the Committee--my noble friend said:
I thought the best way to approach the advice that my noble friend gave in Committee was to seek assistance from those outside your Lordships' House who have much more experience in these matters than I do. I therefore posed the question to the Penal Affairs Consortium: would not the public, as my noble friend suggested, be sufficiently protected under existing legislation, and, most specifically, under the provisions of the Mental Health Act? This is the Act to which I have drawn your Lordships' attention. If I may, I shall read the advice that I received:
I thought that further advice should be sought. I sought it from the Royal College of Psychiatrists and the Law Society which have a Mental Health and Disability Sub-committee. I shall read the advice that I received from that joint sub-committee of the Law Society and the Royal College of Psychiatrists. I believe that it is important. It is as follows:
One of my concerns in the truncated proceedings that your Lordships are going through is that noble Lords have not taken the benefit of listening sufficiently to the advice from those who are very close to this matter; namely, members of the judiciary. Another of my concerns in taking a truncated course on this Bill is that your Lordships are not seeking to benefit sufficiently from a great deal of advice that has been received from persons who have immense experience in dealing with the issues arising from the Bill. I refer, for example, to the Royal College of Psychiatrists on those who are mentally disordered. It seems to me that your Lordships should equally well note the advice received in some excellent briefs. It has not been a question of round-robin letters being sent to us but of careful and considered advice received from a number of the concerned bodies. I know that the noble Lord, Lord McIntosh, has also received such advice.
Perhaps I could clear up one matter. My noble friend was able to say that a person suffering from a mental disorder would not fall under an exceptional circumstance within the meaning of the Bill. It therefore occurred to me after the amendment was passed by your Lordships' House resulting in Clause 1 of the Bill to wonder whether the position would in any way be changed. Unless any noble Lord takes a different view, it is my submission that the position is not changed and therefore it is as necessary at Report stage as it was at Committee that this amendment be agreed to.
My noble friend has shown her sympathy to this amendment. I hope that, having heard the detailed argument in Committee and having had the opportunity to read it, she will realise that it is fundamentally wrong for someone to be sent to prison who is found, on the evidence of two doctors given before the court, to have an identifiable psychiatric illness. Whatever the new provisions 45A and 45B of the Mental Health Act 1983, the problem is not solved. In the first place, the accused is sent to prison and in the second place the hospital direction, as it is called under the proposed new Section 45A, can only be used as long as there is a reasonable prospect of treatment providing benefit. That is not the case with certain psychiatric illnesses and therefore the only consequence of the Bill is that Section 45A will not keep in hospital those who have a psychiatric illness. Notwithstanding their psychiatric illness, they will be moved back to prison. We already have evidence that that will make matters worse rather than better.
One then looks to the release provisions. Although my noble friend advances the benefits of a supervision order after the period of imprisonment under a life sentence, it is nothing like as effective or as good as the existing and well-tried provisions of the Mental Health Act 1983. I beg to move.
Page 2, line 10, at end insert--
("(4A) Where a person is convicted of an offence which falls within subsection (1) above and the conditions mentioned in section 37(2) of the Mental Health Act 1983 are satisfied, the court may if it sees fit conclude that the satisfaction of those conditions constitutes exceptional circumstances which justify it not imposing a life sentence.").
"This is an issue that we take very seriously indeed. It is an extremely important subject".--[Official Report, 13/2/97; col. 416.]
"The amendments would have the effect of upsetting the balance that the Bill provides between the need to ensure that the public are protected from repeat offending and the need to enable effective medical treatment to be given to mentally disordered offenders".
18 Mar 1997 : Column 819
"The life sentence is needed to protect the public from further repetition of the most serious sexual and violent offences and to ensure that people who have a history of committing such offences repeatedly, for whatever reason, receive supervision for life". [Official Report, 13/2/97; col. 416.]
"most offenders given hospital orders combined with restriction orders are detained in hospital for longer than they would otherwise have spent in prison. A restriction order can be made in cases where the court considers it necessary to protect the public from serious harm. Most restriction orders are made without limit of time. They subject the offender to indeterminate detention; decisions on release are made by a Mental Health Review Tribunal; and the patient is discharged under conditions which entail permanent liability to recall to hospital".
"While the Committee agrees that the public needs protection against persistent offenders, it believes that this will not be achieved by sending mentally disordered offenders to prison ... Indeed, imprisonment is likely to have the opposite effect, since the mental health of the offender is likely to deteriorate while in prison, before being released untreated and unsupported into the community ... Those mentally disordered prisoners who are eventually released are more likely to continue to pose a risk to the public, since their disorder may well have remained untreated during their imprisonment and it will prove far more difficult to ensure continuity of effective care from prison to the community, than from hospital to the community".
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