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Lord Renton: Perhaps I should declare that, some years ago, I spent four years as chairman and six years as president of Mencap. Although it was very rarely that a person with severe mental disorder or handicap committed any serious offence, when they did so they could not be treated in the ordinary way. Clause 150 acknowledges that. However, my noble friend Lady Anelay is absolutely right to say that we should not have subsection (2), which would have the ill effect of nullifying subsection (1), a very important subsection. May I have the attention of the Minister? The matter is very important, in my opinion.
It is essential that we have a medical opinion. Mentally disordered people are not normally sent to prison and should not be. They are sent to hospitals where patients are confined. Of course I realise that, in some of those hospitals, patients are confined not because they have a mental condition that requires medical attention but because they are ill and therefore must be confined in a hospital from which they cannot get out. For mentally disordered people to have a custodial sentence without a medical report is surely a very serious handicap and wrong in principle.
As someone who hasI declare an interestan involvement in at least two charities that deal with mental illness, I know that mental illness is not always florid. It often displays itself in extremely subtle and sometimes undetectable ways, but it can be extremely profound in its effect on the person appearing before the court. The court may take the view that, because the offender stands before it appearing pretty normal and not displaying any florid symptoms of the mental illness, it can really get on with the sentencing, but it may very well be wrong. I appreciate that there is immense pressure on psychiatric services, particularly in the prisons, but that is a resource issue. Many of us believe that we save money if we have more psychiatrists in the prisons, because we find ways of keeping people out of those very expensive prisons.
Amendments Nos. 161G and 161H would remove the court's discretion not to obtain a medical report where an offender was or appeared to be mentally disordered. I understand the anxiety expressed by those who have spoken, especially in the question raised by the noble Lord, Lord Carlile. It is important to remember that there are circumstances in which the court will already have obtained such a report under mental health legislationfor example, where it has remanded the person to hospital for treatment under Section 36 of the Mental Health Act 1983.
In this case, it would be a waste of time and resources of the court and of the medical practitioner to produce and consider a further report which would add nothing to the information before the court. It would already have the evidence in relation to that matter. In those circumstances, it would be open to the court to say, "We don't need to order another report because we already have available to us an appropriate report".
Similarly, the effect of Amendments Nos. 161GA, 161GB, 161J and 161K in the name of the noble Lord, Lord Dholakia, would be to require the court to obtain and consider medical reports in a wide range of circumstances, even though the reports were not necessary to inform the sentencing decision. Perhaps I may explain why that is so.
The court is required to consider medical reports only where it has in mind to make a custodial sentence. A disposal under the Mental Health Act is available only in respect of an imprisonable offence and is generally imposed in lieu of a custodial sentence. It is available only while the offender is mentally disordered as defined in Section 1 of the Mental Health Act.
To require the court to obtain and consider medical reports where those circumstances did not apply would again be to risk wasting time and resources to no purpose. There will be occasions where the court requires evidence of an offender's mental condition, even though it does not intend to make a Mental Health Act disposal. But the court should have the discretionthat is all I am talking aboutto obtain such a report where it considers it necessary. We have looked at the drafting of the Bill and considered the matter with parliamentary counsel. We are content that, as drafted, it meets the needs of the case.
Lord Carlile of Berriew: Is the Minister satisfied that Clause 150(2) does not on the face of the legislation allow the court to sentence a mentally disordered offender without a medical report being obtained? I understand that not to be the Government's intention. We all share a purposeno criticism is involved here. Should not the
Baroness Scotland of Asthal: We are in sympathy with the sentiments expressed by the noble Lord. We have looked at the matter again and we believe that the two clauses as currently structured achieve that result. It is not inconsistent, as the noble Baroness, Lady Anelay, feared, because she is right: the provision states that there must be a report, but that need not necessarily be one obtained as a result of an order or direction given by the court. A report could be available: for instance, the person may already be voluntarily in the care of a mental health institution which would be available to report to the court. Therefore, the "must" is present, but, by the same token, if the court has such a report and is content that is has the basis, the judge or magistrates sentencing can dispense with the need to obtain a fresh report.
Baroness Scotland of Asthal: My noble friend is right. In this area judges have tended not to behave capriciously. It is good that there is an understanding of the importance of such reports. The noble Lord, Lord Carlile, talked about those who do not have florid signs. I am sure he will know that there is a professional duty on those representing such individuals, as he has done, to raise that issue with the court in order to ensure that it knows of the underlying difficulty. Representatives must also provide reports at the court's request if it needs that information to make an informed judgment.
Lord Carlile of Berriew: As I am tempted to respond to the noble Baroness, I shall do so. I want to place on the record one difficulty. As counsel, however strongly one advises a solicitor to obtain a report, and however strongly the solicitor holds his or her view about obtaining a medical report, the way in which the Legal Services Commission now works means that it can be a slow and difficult process to obtain the funding for such a report.
If the purpose of the exercise is to ensure that apparently mentally disordered persons have reports prepared which can be submitted to the courtI am sure that we all share that purposeI hope that the Government will take steps to ensure that the Legal Services Commission does not, for example, place unrealistic fee limits on the psychiatrists who are asked to provide the reports. I say to the Ministeras she is in a more exalted position I have more experience of dealing with criminal trialsthat cases are sometimes delayed as a result of difficulties with the Legal Services Commission and that sometimes exacerbates the symptoms that the defendant is showing.
Baroness Anelay of St Johns: Despite the valiant efforts of the Minister to help us further along the line of understanding the Government's intention in drafting the provision, I retain some difficulty with that. We share the Government's objective that there should be no waste of time or resources. It is as much a matter of interest to the mentally disordered person that no time or resources are wasted and that they are properly allocated to reports which are needed.
I share so much of the anxiety expressed by the noble Lord, Lord Carlile of Berriew, about the importance of the reports in each and every case. The Minister rightly directed us to the fact that one of the reasons why there is no need for a "must" but why there can be a discretion is that an appropriate report may already be available. Having listened to the Minister and others, I do not believe that the drafting necessarily enables the court to be sure that the report available is the appropriate report. Clarity on what report is acceptable is not provided in the clause as currently drafted.
I do not work miracles and in drafting I never could, but I shall undertake to look carefully at subsection (1) before Report. I shall consider whether there is a way in which we could bring back a suggestion to the Government. Linked to that is my anxiety that subsection (4) appears to be declaring, "If the court in subsection (1) does not have the right report, if it has not taken the right action, don't worry, you will not invalidate your sentence unless the person subject to the sentence has appealed against it". I do not like putting mentally disordered offenders in the position of having to be given a sentence and being able to obtain a report only when they appeal. That is doing things the wrong way round.