CRIMINAL LUNATICS (SCOTLAND) BILL [Lords]. (Hansard, 2 July 1935)

§ Mr. BUCHANAN
On the last occasion that this Bill was before the House I raised a point, and I will raise it again when the Bill goes upstairs. The Secretary of State for Scotland cannot, however, blame me if I raise the matter now. I had no idea that the Bill was to come on to-night. I thought that it was to be taken on Thursday. During the 13 years that I have been a Member of the House I have been interested in the question of criminal lunatics, and I would ask the Secretary of State to review this subject. The main proposition of the Bill is the building of a new asylum. I am not against that. The quarters at Perth are shocking. The whole place is bad, and a new asylum is necessary. Therefore, I welcome the Bill. But I take this opportunity of raising the question of the treatment of criminal lunatics, and I would ask the right hon. Gentleman to see whether the position cannot be reviewed. It certainly calls for comment.
A person may be charged with having committed a crime in the ordinary way. On the day of the trial the defence is made that at the time of the commission of the offence the person was insane. Therefore, the Procurator-Fiscal certifies that he is unfit to plead. Such a person has not been found guilty of the crime but only guilty of being unfit to plead. As a consequence that person is taken to a criminal lunatic asylum and detained for an unlimited period. The offence 1833 may have been a simple one of stealing, for which the sentence might have been perhaps a few months imprisonment, but because the person is deemed to be unfit to plead he is detained in a criminal lunatic asylum practically at His Majesty's pleasure. There ought to be power of liberation in respect of a person who is not certified as dangerous at the time when the sentence of committal was passed upon him. I give the case of a boy whose parents are decent people, his father fought for the country. The boy was charged with having committed an offence—I wrote to the Secretary of State about this case a few days ago—but was not sentenced. He was declared to be unfit to plead and has been retained in the asylum now for 12 months, although the crime which he was alleged to have committed would not have meant a sentence of more than three months. He is now detained for a period which looks like never coming to an end. The boy is not dangerous, he may be mentally defective, and I say that he should be transferred to an ordinary mental asylum.
In my view the liberty of the subject is endangered by the Bill. I know the reply will be made that it does not alter the present law. I admit that, but I say that when you are asking for an extension of the criminal lunatic law you should not confine it to one small part but should examine the whole question in much greater detail. This boy in the ordinary way would not have been sentenced to more than three months imprisonment, indeed, if some of the learned Gentlemen I see around were concerned in the case he probably may not have been sentenced at all, but because he is not fit to plead he has been kept in a criminal lunatic asylum for over a year. In my view the judge who would halve tried the lad should have been consulted and asked what sentence he would have passed. Then, at the end of that period, he should be sent to a civil lunatic asylum. If the particular local authority has not a convenient place to which to send such cases there are other authorities who have the accommodation and he could have been quite easily transferred.
Under the Bill power is given to two doctors to certify but it does not say whether they are to be prison doctors or departmental doctors. I am not critical of the medical profession, and so far as health insurance is concerned I do not 1834 agree with the view that the medical profession do not do their work well. But, at the same time a doctor in a mental asylum may be the worst person to examine a patient. He has a mental complex because he works in the atmosphere of an asylum. We all get a complex in regard to our own work, indeed, I have been many times charged with being always prepared to defend the criminal and never able to see that he is wrong. It may be true, but here you have these people who have a mental complex, and you can hand over to two doctors with that complex the examination of this lad. Neither of the two doctors is qualified for that work. The doctor who examined the inmate should be taken from outside and be completely unknown to him. Secondly, the friends of the inmate should have a choice of doctor as well. They should have some right to place alongside the departmental doctor some other doctor whom they think fit to bring in.
I am not sure that I am not now going beyond my duty, but we are allowing this Bill a Second Reading because we believe that the new asylum is urgent. When we went upstairs for the Poor Law Bill, the Lord Advocate's predecessor, who has now gone to the bench and who is one of the finest men I have ever met in the House of Commons, met our amendments decently and well. It is because of my experience of that Bill that I do not divide on this to-night. I hope when we come to the Committee stage upstairs we shall be met with as much openness, frankness and decency as we were met with on the Poor Law Bill, because that modified my view about fighting things in Committee. It is because I think there is a chance of having this Bill decently amended, while getting the new asylum built, that I do not divide to-night. The matters I raise to-night are on behalf of a small section of the community. They may be mentally deficient, or criminal, but the more defenceless they are the more need there is for someone to say something on their behalf.

§ Mr. GUY
I want to deal with what is really a Committee point, but as it raises an important question of principle affecting the liberty of the subject, not dissimilar to points raised by the hon. Member for Gorbals (Mr. Buchanan), I think it right that I should give notice of it at this stage. Under the Bill at present 1835 those in prison may be removed to a criminal lunatic asylum on a certificate granted by two doctors, and an order pronounced by the Department. There is no intervention by the court and no application to a court. In the case where a prisoner is suspected of becoming insane while he is a prisoner, the court does intervene. There is the safeguard that all the formalities by the medical officers who are certifying a prisoner are fully complied with. But under the Bill as it reads now, there is no application to the court. I know that as regards the point raised by my hon. Friend, the Lord Advocate will say that this makes no change in the existing law, but by the Act of 1857 there was the intervention of the court. There was the additional safeguard, in the case of a prisoner suspected of being insane while a prisoner, of two certificates by two doctors, and there was an additional certificate granted by the sheriff on application to him. These three certificates then went before the Department, and the order was pronounced by the Department. It may be that an application to the court is merely a formality, but there may possibly be a case where both medical certificates may be granted by prison doctors. I do not wish to say anything against them, but it is important that one of the certificates should be by an outside practitioner, and it is just in case of any possibility of malpractice not confined to this particular point of detail that there should be scrutiny of the certificate by an independent tribunal. I shall raise this point in Committee, and I should like my right hon. Friend to consider it in the meantime.

§ The LORD ADVOCATE
I am glad that the hon. Member for Gorbals (Mr. Buchanan) sees the necessity for building the new criminal lunatic asylum, because the existing department for criminal lunatics at Perth is quite inadequate for its purpose. The hon. Member raised a number of interesting and in some respects difficult points. The question of the treatment of those persons who, through insanity, are unable to plead, is really outside the scope of the Bill, because the Bill does not in any way deal with that class of person; but I Can assure the hon. Member that my right hon. Friend will give careful consideration 1836 to what he has said, and will consider any further representations that may be made to him on that topic. On the last occasion when this Bill was discussed, and now, the interest centres round Clause 4. That Clause deals with one class at two different periods. It deals first of all with the sentenced prisoner who is serving a period of imprisonment in an ordinary prison, and who during that time unfortunately loses his sanity. At present there is power to have him transferred to the criminal lunatic asylum, where, of course, he will be properly looked after.
The hon. Member for Central Edinburgh (Mr. Guy) raised the question as to what authority should be obtained before that could be done. That, of course, is a Committee point, and I am glad that he has given me notice that he intends to raise it. It will be considered and dealt with when the Bill reaches Committee. The other stage that Clause 4 deals with in Sub-section (2) is the stage when a lunatic's period of sentence has expired. The question then arises, what is to be done with him? If he should have recovered his sanity he is set free at once, but if he has not recovered his sanity the question remains whether or not he is to be taken into a criminal lunatic asylum or sent to an ordinary asylum. It is obvious that he cannot be set at liberty, more especially if he has any dangerous propensities. In fact, as the Clause stands, a certificate of two medical practitioners has to be obtained, within 14 days before the expiry of the sentence, instead of the 60 days. That is to say we are providing for up-to-date certification.
More than that, the certificate has to certify that the person is insane and that he cannot be set at liberty without danger to the public or himself and—this is an important provision—that it is advisable that he should be detained after the expiry of sentence in the criminal lunatic asylum rather than in any other asylum. We have had that power for a long time and it is interesting to note that it has only been exercised four or five times since 1920 or thereabouts. It has only been exercised in cases where to send the lunatic to an ordinary asylum would create danger not only to himself but to the persons in the asylum and where there would be danger if he escaped, which he might more readily do, from an 1837 ordinary asylum than from a criminal lunatic asylum. It has been exercised in cases of men who have been convicted over and over again of brutal sexual assaults and cases of that kind. To meet the objection which the hon. Member for Gorbals has already entered, I may state now that we are prepared in Committee to make it a requirement of Sub-section (2) that one of the certificates shall be granted by a medical practitioner who is not in the prison service. Further, to make the matter quite clear, we are prepared to insert in the Bill, as a statutory provision, what at present is the administrative practice. My hon. and gallant Friend the Member for West Fife (Mr. Milne) said the motto over the door of the asylum ought to be: Abandon hope all ye who enter here. As a matter of administrative practice, every person in that asylum is medically examined and reported on to the Secretary of State every three months and wherever sanity is recovered or wherever a person can be discharged and put in the care of friends who are able to look after him release is granted. Therefore, my hon. and learned Friend ought to choose a better motto than the one he has chosen. The other point raised by the hon. Member for Gorbals was with reference to the granting of permission for a man's own doctor or a doctor nominated by his relatives to make an examination. We are prepared to insert a provision to the effect that, before granting an order for detention, after expiry of sentence in the criminal lunatic asylum, the Secretary of State shall consider 1838 along with the other certificates, any medical report by the man's own doctor.

§ Mr. MILNE
In order to make things quite clear, may I ask whether the Lord Advocate proposes to retain the power to detain in a criminal lunatic asylum a man after his sentence has expired?

§ The LORD ADVOCATE
Certainly, in the cases provided for in Sub-section (2) where it would be dangerous, not only to the man himself but to other people, to send him to an ordinary asylum where there are not the same facilities for preventing his escape or preventing him committing another crime. With these assurances, and with the assurance that I hope we shall be able to meet the points that may be raised in Committee with the same fair spirit as the hon. Member for Gorbals said my predecessor met him on a previous Bill, I trust that the House will give the Bill a Second Reading.