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Baroness Blatch: My Lords, I hope that I shall be able to address many of the anxieties expressed by noble Lords and my noble friends. The amendments would have the effect of upsetting the balance which 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. I repeat to my noble friend: it is an extremely important issue and it is essential that we get it right. The provisions in the Bill are not inconsistent with our concern for such people.
The first effect of the amendments would be to enable the courts to regard evidence of mental disorder as a reason for not applying the automatic life sentence provided by Clause 2. But again the life sentence is needed to protect the public from further repetition of the most serious sexual and violent offences; to ensure that people who have a history of committing such offences, for whatever reason, receive supervision for life. A disposal under the mental health legislation cannot achieve that. It would therefore frustrate the purpose of the mandatory sentence in protecting the public if evidence of a mental disorder could be regarded as an exceptional circumstance, thus enabling the life sentence to be avoided.
My noble friend may be concerned to ensure that mentally disordered offenders who come to be sentenced under the provision can receive treatment for their disorder. That can be achieved by way of the hospital direction power at Clause 45. Initially that will be available only for psychopathically disordered people, but there is a provision to extend its scope to all categories. Until that happens those people can be transferred to hospital by the Home Secretary if the doctors recommend it. My noble friend Lord Pearson of Rannoch was concerned about this point. If people fall outside that category, and before the extension powers are used, on advice from the medical professionals to the Home Secretary they can be removed to hospital.
Under Clauses 3 and 4 the courts need not apply the mandatory sentence if they think it inappropriate in the light of specific circumstances relating to the offender. The Bill also provides that they retain the power to make a hospital order as an alternative to the mandatory sentence. Paragraph 12(2) of Schedule 4 provides that the courts retain the power to make a hospital order as an alternative to the mandatory sentence. There is therefore no need for a mental disorder to be regarded as an exceptional circumstance if a hospital order appears to be the most appropriate sentence.
My noble friend Lord Renton thought that the test applied would be "exceptional circumstances" in the way we have been discussing hitherto. That is not the case. If the courts believe that the mandatory sentence should be set aside for these purposes, they have the power to do that and substitute the hospital order.
The final effect of my noble friend's amendment would be to enable the courts to substitute a guardianship order under the Mental Health Act 1983 for the mandatory sentences provided by Clauses 2 to 4. My noble friend did not speak to this amendment, but I am assuming that they are all in the same group. The guardianship order is a provision intended to ensure that vulnerable people receive care and support. It is in no way a custodial disposal nor one which provides any sanction over repeated criminal behaviour. A guardian order would be entirely inadequate to provide the public with protection from further repetition of the serious and distressing crimes with which the mandatory sentences are intended to deal. I say again that some psychopathic people are extremely dangerous and a guardianship order would not be appropriate.
My noble friend Lord Hacking referred to disturbing the principle that when a person is suffering from an identifiable psychiatric illness they should not be punished; they should be treated. Perhaps I may pose the following question to my noble friend. What happens if that person is a repeat violent offender who has either completed treatment or is untreatable, or the medical profession claims that treatment is having no effect whatever? Should that person, who may be dangerous, be released into the community?
If my noble friend is suggesting that hospital beds should be kept in cases where the medical profession says that a person is untreatable, cannot be treated further or that treatment is having no effect, he is suggesting that hospitals be turned into secure units for mentally disordered offenders. I have no doubt that my noble friend will respond to that. What is happening at the moment is that people are being released into the community who are dangerous; they are reoffending, and the Bill is attempting to answer that point. Under my noble friend's amendment, where the medical profession itself believes that the person cannot be treated further, he would be released back into the public domain if we did not have the provisions in Clause 2 and therefore the public would not be safe.
My noble friend referred to the fact that under a hospital direction the mentally disordered offender would be returned to prison. That will only be the case on the advice of the responsible medical officer that the
offender no longer needs to remain in hospital. Again, my noble friend misunderstands the purpose of the provision. He was suggesting that prison sentences for such people should involve only treatment and not punishment and deterrent. But some people who fall into that category are determined by the courts to be culpable for the crimes that they commit. If they are not culpable for the crimes that they commit, "exceptional circumstances" can be invoked by the courts.On another point, my noble friend Lord Hacking said that it was fundamentally wrong for a mentally ill person to be sent to prison at all. Except for sentences passed under Clause 2, the court will retain the power and the option of making a hospital order under the Mental Health Act--a point I made for the benefit of my noble friend Lord Renton. Sentencing under Clause 2 is for repeat violent offences from which the public must be protected by supervision for life--it is supervision for life which is important in those circumstances--which cannot be provided by a Mental Health Act disposal.
The options under Clause 2 are that the courts must, for repeat offences, pass a life sentence. They may add a hospital direction under Clause 45 initially for psychopathically disordered offenders but there is the power to extend that. Even if it were not extended, the courts may recommend that the Home Secretary transfer to hospital under Section 47 of the Mental Health 1983. Only if the court accepts other exceptional circumstances for not making a life sentence can it make a hospital order under Section 37 of the Mental Health Act 1983.
Of itself, mental disorder is not an exceptional circumstance. It can be; but it is not of itself. The options under Clauses 3 and 4 are that the court may make a hospital order under Section 37 of the Mental Health Act 1983; it may pass the mandatory sentence and add a hospital direction under Clause 45; it may decide that mental disorder constitutes a specific circumstance which would make it inappropriate to pass a mandatory sentence; it may pass a mandatory sentence to recommend that the Home Secretary transfer to hospital again under Section 47 of the Mental Health Act 1983; or it may simply pass a mandatory prison sentence. Again, it would depend on the court's determination of the culpability of the person.
One can only very much sympathise with the point made by my noble friend Lord Annaly about his sister who is profoundly deaf. However, someone who is profoundly deaf is rather different from the mentally disordered offenders about whom we are talking and to whom these amendments apply. My noble friend referred to behavioural difficulties. We are talking about people committing serious violent or sexual offences. Being profoundly deaf would not necessarily be a reason for exonerating someone in those circumstances. It would still be important for the courts to deal with that case. However, if, as my noble friend went on to say, there were medical needs to be met for that person, the options for the courts under Clauses 2, 3 and 4 would apply and hospital treatment would be afforded.
My noble friend Lord Pearson of Rannoch referred to proposals and said that they would lead to an increase in mentally disordered offenders being sent to prison. Given the flexibility of the provisions under the Bill as proposed, there is no reason why that should be so. The hospital order remains available for all offenders except those receiving a mandatory life sentence. Those sentenced under Clause 2, which is the mandatory life provision, can be sent to hospital under a hospital direction or, before it becomes available for categories other than psychopathic disorders, they can be transferred to hospital on the advice of the courts or the medical profession by warrant of the Home Secretary of the day.
I believe that what we have here is certainly more flexibility than we have in the courts at the moment. The provision prevents anyone being released into the community who is a repeat violent and/or sexual offender without having a proper assessment of risk. It is important that it ensures that the medical needs, whether they are mental health needs or physical needs, are properly met by the medical profession.
Lord Pearson of Rannoch: My Lords, before my noble friend sits down, I have to say to her that she has addressed her remarks largely to psychopaths and mentally ill offenders. Perhaps she will briefly address herself to new Section 45A(2). It is absolutely clear that that cannot apply to mentally handicapped offenders. Mentally handicapped people are not suffering from a psychopathic disorder. The subsection states:
- "that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and"--
- "that such treatment is likely to alleviate or prevent a deterioration of his condition".
None of that can apply to a mentally handicapped offender.
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