HC Deb 05 May 1959 vol 605 cc315-28
Mr. K. Robinson

I beg to move, in page 47, line 38, to leave out from "and" to "of" in line 43 and to insert: shall in accordance with the provisions of this Part". This is a paving Amendment to those Amendments in the name of my right hon. Friend the Member for Warrington (Dr. Summerskill) and my hon. Friends, in page 48, to leave out lines 1 to 3, and in line 8, to leave out subsection (4).

This Clause deals with the power of magistrates' courts, when they have heard a case and decided that it is appropriate that a hospital order should be made, but consider that, in view of the character of the offence or of the offender, a hospital order with special restrictions would be the appropriate way of dealing with the case, to commit the case to quarter sessions for sentence. It is not within the competence of a magistrates' court to make a hospital order with restrictions governing discharge.

8.15 p.m.

Under the committal procedure, there are two ways in which cases can be com- mitted to quarter sessions. One is specifically under this Clause by which quarter sessions have an option of dealing with the case in one of two ways. They can either make a hospital order with or without restrictions, or they can deal with the case in such a way as the magistrates' court would have been able to deal with it had it not felt that a hospital order was appropriate. Subsection (4) gives power to commit to quarter sessions under Section 29 of the Magistrates' Courts Act, 1952. It was this power which gave rise to some discussion in Committee.

I took exception to the fact that this Clause includes wording such as … where the court is of opinion that greater punishment should be inflicted for the offence than the court has power to inflict ". It seemed to me that that wording was wholly inappropriate in a Bill dealing with mental disorder and the treatment of mental disorder, although it deals with treatment under conditions of compulsion. To talk about greater punishment when dealing with a man whom the courts have decided should be treated as a patient and not as a prisoner seemed to me wholly inappropriate.

I know that the hon. and learned Gentleman has given much thought to this matter, because he wrote to me at some length saying why he felt that it was necessary that the subsection should remain in the Clause. Although I appreciated his arguments, I am afraid that we could not accept them. Therefore, we tabled these Amendments, the effect of which would be to limit to some extent the power of quarter sessions to deal with cases committed from magistrates' courts. What they would have power to do would be to make a hospital order with or without special restrictions. The Parliamentary Secretary may say that this is limiting the power of the higher court too severely, but in answer to that I would say that we are dealing with cases which have been heard in the magistrates' courts and where, in the face of the evidence produced, the court, on medical recommendations, has come to the conclusion that a hospital order is the appropriate way of disposing of the case. It can commit to quarter sessions only because it wishes to make a hospital order with special restrictions.

Under the Clause as it stands at present, quarter sessions may not only make a hospital order hut may disagree with the lower court. It may disagree with the medical evidence submitted, and it may, under subsection (4), inflict a much heavier prison sentence than the magistrates' court would have had power to inflict. It may be that in certain cases a judge at quarter sessions, like some of our judges, is not altogether sympathetic to the views of psychiatrists and the science of psychiatry as a whole and he might, almost on a matter of principle, say, "This psychiatric evidence is a lot of poppycock". Indeed, there are judges who take that view and frequently say so almost in those terms. In those cases, instead of a man being sent to a mental hospital for treatment, because perhaps of the prejudice of the court he would be given a prison sentence of a considerably greater length than he could have been given in the magistrates' court.

We therefore think it appropriate that the court which hears the offence should make the decision whether a hospital order or prison is the appropriate way of dealing with a case. Once that decision has been made in favour of a hospital order, the higher court—quarter sessions —should only have the power either to make a plain hospital order or a hospital order with restrictions governing discharge.

In those circumstances, this would be the happiest way of dealing with what, I quite appreciate, is a very tricky type of case. I hope that the Minister will see fit to accept these Amendments.

Mr. E. L. Mallalien

I beg to second the Amendment.

The object of the three Amendments is to try to achieve the state of affairs that, where a magistrate has passed upon the question of whether an individual before him is a mental or a criminal case, that decision should not be capable of being upset by a court of quarter sessions to whom he feels obliged to send the case for sentence. That is the essence of the matter.

When cases go to the court of quarter sessions for sentence, as the Joint Under-Secretary well knows there is no rehearing of evidence. All that happens is that the prosecutor, whoever he may be, recites the case and thereafter the police give evidence about the antecedents of the offender. It is true that by subsection (3) of the Clause, Where an offender is committed to quarter sessions under this section, the court of quarter sessions shall inquire into the circumstances of the case … That does not mean, however, that there will be a rehearing or that the court of quarter sessions has the same opportunity of deciding upon the main question as has the magistrate who has had the various medical witnesses before him. The court of quarter sessions will not have those witnesses before it.

Therefore, our suggestion is that the question of whether an offender is a criminal or a mental sufferer is one which ought not Ito be passed upon again by the court of quarter sessions and that, in effect, the only question which the court of quarter sessions should be left to decide is whether there should be an order of restriction on discharge from hospital. That is the whole point of these Amendments. I am sure the hon. and learned Gentleman who is dealing with the matter knows that what I have said about the evidence not being heard again in quarter sessions is correct. That being so, he will, I think, admit that some very strong argument must be put forward for permitting the court of quarter sessions to reverse that decision upon which it has not heard the relevant evidence.

Mr. Renton

These three Amendments raise two quite separate matters. The first two of them deal with the powers which quarter sessions shall have when cases are committed to them by petty sessions. The third Amendment, the purpose of which is to leave out subsection (4), is much more of a drafting matter, although on this occasion it is an important drafting matter. Here is a question almost of statutory presentation. It is a point which worried me when hon. Members opposite raised it in Committee and I undertook to look into it carefully. I have done so very carefully. I have had consultations about it and I should like now to give the House the results of our further thoughts on the matter.

I take first the point of substance concerning powers of quarter sessions and whether these cases should be submitted to quarter sessions in this way. The effect of the first two Amendments would be to limit the discretion of quarter sessions in those cases in which a magistrates' court thought that a hospital order with an order restricting discharge should be made. If the Amendment were accepted, it would have the result that quarter sessions would be obliged to make a hospital order whether they still thought it right or not and their discretion would be limited to deciding whether that hospital order, which they would have to make, should be accompanied by an order restricting discharge. We are agreed that that is the plain purpose of the Amendment. We say that it is too restrictive of the jurisdiction of quarter sessions.

In considering cases of this kind, quarter sessions will have to look not at all the evidence which went towards deciding whether the offence had been committed, as the hon. and learned Member for Brigg (Mr. E. L. Mallalieu) seemed to suggest. They will have to look at those matters to which they are obliged to apply their minds under Clause 64 (1), namely, the nature of the offence "— not the way in which it was committed, but the offence of which the man has either been found guilty or to which he has pleaded guilty— the antecedents of the offender and the risk of his committing further offences if set at large and the question of the necessity of protecting the public.

Therefore, what quarter sessions will consider is this. They have to look at the medical evidence, the nature of the offences, the antecedents of the offender and the risk of his committing further offences if set at large. If they are to assess all those factors, it seems right that they, being the superior court, should be in a position to look at either the sentence or what is done in lieu of sentence as a whole and afresh and in the light of the circumstances at the time when the case comes before them, not in the light of circumstances some weeks or, perhaps, several months previously. They should be free not only to reject the proposal that a restriction order should be made, but also to overrule the decision that the making of the hospital order is the most suitable way of dealing with the case.

It is true that there will be many cases in which there would be in the mind of either court, either petty sessions or quarter sessions, no doubt that admission to hospital is a proper course, but there will be other cases in which there will be grounds for more than one opinion as to the choice between hospital or probation with a condition of receiving treatment. The possibility of prison must also be considered, because a hospital order will be made only when there is no other suitable method of treating the patient bearing in mind the medical evidence as to his condition.

There will be yet other cases in which circumstances change between the hearing before petty sessions and the hearing at quarter sessions. That, above all, is the circumstances which I implore hon. Members opposite to bear in mind. Sometimes a person's mental condition will change very quickly. It may not be a deeply seated mental disease. It may be something quite temporary, due to some anxiety which may meanwhile have passed away.

There may be no mental condition to treat by the time a person comes before a quarter sessions. To insist then that the hospital order should still stand would seem quite wrong. We may also have cases in which, while the person's mental condition had been found to be bad, at the time petty sessions awarded the sentence, by the time he got to quarter sessions that court might have found that the offence had been committed quite a long time before the case even came before potty sessions, and that the appropriate way of dealing with the matter was to fine that person.

We are providing that there shall be no such thing as a hospital order and a fine. While it may be appropriate for quarter sessions to award a fine, if we limit the discretion of quarter sessions, in the way it is suggested we do, the difficulties which I have mentioned are very likely to arise. Surely, it is much better to leave a broad discretion to quarter sessions.

8.30 p.m.

I was a little shocked, if he will forgive me for saying so, when the hon. Member for St. Pancras, North (Mr. K. Robinson) said that there are chairmen of quarter sessions and judges—though it is irrelevant to bring judges into this context, unless they happen also to be chairmen of quarter sessions as some of them are—who think that psychiatry is poppycock. I very much doubt whether in 1959 anybody holding a responsible judicial position feels in that way about these things. Bearing in mind that to overcome this difficulty would seem to be one of the main reasons prompting the moving of the Amendment, I should like to assure the hon. Member that I do not think that the difficulty exists. We feel it wrong and that it might be against the interests of the accused to fetter the court's discretion as suggested. We feel that it might even deprive the accused of his liberty when he should not be so deprived.

Mr. E. L. Mallalieu

Supposing that at petty sessions the offender is found to be mental and not a criminal and he is then, as he must be under subsection (1), committed in custody to quarter sessions. Surely, that custody will be a medical custody at least as much as a prison custody. What is the position if, while in that custody, treatment is begun and then the man is taken to quarter sessions and, for one reason or another, quarter sessions does not approve of the mental aspect of the case as found by the court below and, half through his treatment, the man is sent away to some gaol? Is not that a likely thing to happen, and can it be contemplated by the hon. and learned Gentleman that that is a proper thing to happen?

Mr. Renton

I am not sure that I have understood that point. The hon. and learned Member will find that in the circumstances set out at the beginning of subsections (a) and (b), the court, instead of making a hospital order or dealing with this in any other manner, may—it is not compulsory—commit him in custody to quarter sessions to be dealt within respect of the offence. The two things are mutually exclusive. Either there is a hospital order, or there is not. if there is a hospital order then, as soon as the arrangements can be made, as required by Clause 59, the order will take effect, subject to the question of committal to quarter sessions to see whether or not there should be a restriction on discharge. While quarter sessions is considering the question of restriction on discharge, it is to be entitled under the Bill to review also the question whether the hospital order already made and already effective should stand. I think that is right.

Mr. E. L. Mallalieu

That is precisely my point. I feel, therefore, that a man might have had a hospital order made in respect of himself and treatment might be in process and he might be switched away to goal by a quarter sessions unsympathetic to this sort of thing. That seems to me highly improper.

Mr. Renton

I assure the hon. and learned Member that that person—and I refrain from referring to him as a prisoner or a patient—under Clause 66 (1) can be committed to hospital to await consideration of the matter by quarter sessions. In this context the hon. and learned Member may refer to Clause 67 (1) which endorses this.

I feel that I should now come to the question of whether subsection (4) should stand part of the Clause. I am quite prepared that we should consider that as an issue on its own. If subsection (4) were omitted, the magistrates would not be able, in the more difficult cases, to use the procedure under Section 29 of the Magistrates' Courts Act, 1952, because, having made up their minds for the purpose of Clause 59 (1) of the Bill that the most suitable method of disposing of the case was to make a hospital order with an order restricting discharge, they could not simultaneously be of the opinion for the purpose of Section 29 of the 1952 Act that greater punishment should be inflicted on the offender.

As a matter of drafting and of clarity and so that the courts understand exactly what powers they are using, we have to use these words -I have been into the question of whether the words have to be used—and we are able to assure hon. Members opposite that the infliction of greater punishment and the making of hospital orders are mutually exclusive, so there is no question of people who suffer from mental disorder being made the subject of criminal penalties. It is a question of the one or the other, but the most operative words of all in the subsection are in the last two lines: …unless a hospital order is made in his case with an order restricting his discharge. Unless that happens, quarter sessions shall have the power, which it has under the 1952 Act, of awarding a punishment which petty sessions would not have the power to do.

As I said in Committee, I feel that the insertion of these words …that greater punishment should be inflicted… were unfortunate in the context of a Bill of this kind. I am still rather sorry that we find it necessary to use them, but I am quite sure that, bearing in mind that clerks of magistrates' courts and quarter sessions and magistrates have to understand this matter and the familiarity which they already have with the 1952 Act, and bearing in mind the broad discretion they are given, these words are appropriate. I hope that with that explanation the hon. Gentleman will feel a little less unhappy about the matter than he did before.

Mr. Ede

I feel profoundly uncomfortable about this Clause on the points raised by my hon. Friend the Member for St. Pancras, North (Mr. K. Robinson) and the explanation that has been given by the Joint Under-Secretary.

I do not like the position which seems to be created by this Clause, in which there may be a refusal on the part of quarter sessions to accept a finding that has already been made by a court of summary jurisdiction. Generally in these Section 29 cases there has been a conviction. Quite frequently it is a conviction as a result of the confession of the person who has been charged, and the magistrates' court, in cases that come under Section 29 of the Magistrates' Courts Act, often find that the person charged has so long a record of crime that any punishment which the court could inflict would be quite inadequate. So the court sends him to quarter sessions, where the same record is read out which is already admitted at the court of summary jurisdiction. Then the magistrate sitting in quarter sessions can decide what is the appropriate penalty. There is never any question then arising of the matter not having been properly brought to the court of quarter sessions.

As I understand it, a magistrates' court will not be able to make an order sending a man to the special hospital—

Mr. Renton

The right hon. Gentleman is not quite right there. A magistrates' court will be able to make a hospital order, but it will not be able to make a hospital order with a restriction on discharge.

Mr. Ede

The hon. and learned Gentleman did not give me time to make the exception that I was going to make along the lines which he has just indicated. I would have thought that this would be a better way of dealing with the matter, and I suggest it to the hon. and learned Gentleman and to his right hon. and learned Friend. Would it not be better to put an obligation on the magistrates' court, if it suspects that the case is one that is more properly treated by a hospital order, to call medical evidence, and if the medical evidence supports the view —or at any rate leaves a reasonable doubt in the mind of the court—then, without registering a conviction or doing anything of that kind, the case should go to quarter sessions to be heard, with no conviction having been recorded against the person in the court below?

I suppose if a magistrates' court finds a person guilty and makes a hospital order, that would be a thing which the defendant, the person convicted, could appeal against to quarter sessions in the ordinary way. He could probably appeal both against a conviction and against the sentence—if we regard a hospital order as a sentence. Of course, if he upsets the conviction, then anything that has happened after the conviction automatically lapses.

I suggest that in order to avoid getting the kind of conflict between the court of summary jurisdiction and the court of quarter sessions, which my hon. Friend the Member for St. Pancras, North mentioned in the course of his speech, it would be much better that some such course as I have suggested should be brought into the Bill instead of the course that is now prescribed.

I will not press the hon. and learned Gentleman to give me an answer now, but the Minister has been so willing to accept suggestions on the practical working of this Measure, both between the Committee stage and this stage and between this stage and the fate of the Bill in another place, that I hope all the arrangements contemplated in this Clause will be further examined. In spite of what the hon. and learned Gentleman has said about the prevalence of scientific thinking on psychiatry and similar subjects by magistrates—I will not say anything about judges—I am afraid that his experience of magistrates has been of appearing before them and not of listening to what they say in the magistrates' room before they go in. When they hear that a psychiatrist is to be called or after they have heard a psychiatrist, I can assure the hon. and learned Gentleman that on occasions, and not only among the senior members of the bench but also among the ordinary magistrates, it is possible to hear views on psychiatry that, in view of what he said at the Box this evening, would greatly shock him if he heard them.

8.45 p.m.

This is a very difficult subject. We are trying to do the best we can for a class of persons who appear in the courts and who have sometimes probably suffered because of misunderstanding on the bench about the true nature of their mental make-up. I hope that we will not regard the Clause in its present form as necessarily being the last word in 1959 on this issue of how to deal with something which has been found in the magistrates' court and then sent to quarter sessions. I should prefer these cases to be dealt with at quarter sessions rather than by magistrates because if there is a defence at quarter sessions the issue will be decided by the jury, which would be of value in these matters.

Mr. Renton

Although the right hon. Member for South Shields (Mr. Ede) was good enough to say that he did not intend to press me for an answer to his suggestions now, I shall take note of what he has said and we shall very willingly think about the matter again. I want to clarify the field of agreement or the issue between us.

We are dealing with people first brought before the petty sessions, and rightly brought before the petty sessions, in the ordinary way. At the time they are brought before the petty sessions, the court does not know whether they suffer from any mental illness or disorder. They may be guilty or not guilty. In many cases it will be quite right for the petty sessions to decide the issue of guilt.

Then comes the question of sentence, and it is on the question of sentence that dissatisfaction with the machinery proposed has been expressed.

Mr. E. L. Mallalieu

indicated assent.

Mr. Renton

At least the hon. and learned Member for Brigg (Mr. E. L. Mallalieu) nods his head on that point.

The right hon. Gentleman suggested that when the petty sessions felt that there was a case in which there might be an order restricting discharge, as well as a hospital order, instead of making a hospital order, the petty sessions should send the matter to quarter sessions, both for making a hospital order and for making an order restricting discharge.

Mr. Ede

I should prefer the magistrates, in cases where they felt a hospital order might be required, to send those cases to quarter sessions, just as they send other cases where they have no jurisdiction. In a case of breaking and entering, for instance, if the magistrates feel that there is a case to answer, they send it to quarter sessions or assizes. I should adopt a similar rule for cases of this kind where the mental capacity of the accused is so much in question and when a hospital order may have to he considered.

Mr. Renton

I understand the right hon. Gentleman's point of view, but he will appreciate that it would be a major departure from the Bill's provisions if we were to say that the question of guilt should be decided by quarter sessions in cases in which that issue would normally have been decided by the magistrates. However, I think that we understand his argument sufficiently to say that we will give the Clause further thought in the light of his suggestions and, if necessary, arrange for Amendments to be moved in another place. I can give no firm undertaking that at the end of our further deliberations on this quite difficult point we shall find it necessary or desirable to move an Amendment. All that I am saying is that we will consider it.

Mr. K. Robinson

Because of the result of some of the hon. and learned Gentleman's earlier careful consideration of the Amendments moved from this side of the House, I feel that it would be churlish to ask my right hon. and hon. Friends to divide on the Amendment since the hon. and learned Gentleman has again said that he will give this matter careful consideration. Indeed, he has said that he will give the whole Clause careful consideration. At the same time, I accept that he is not committed in any way to amending the Clause in another place.

Before asking leave to withdraw the Amendment, I should like to take up one point that the hon. and learned Gentleman adduced against the Amendment. He said that a patient or an offender might come along to quarter sessions when he had been receiving treatment for his attack of mental disorder. The mental disorder which caused the court of summary jurisdiction to suggest that a hospital order was appropriate might have been a mild one. At the time he comes to quarter sessions he may no longer be suffering from mental disorder. Surely, it is this type of case which makes this procedure highly inappropriate. Is it not wrong for a court of quarter sessions, which inevitably sees the patient at a much greater distance of time from the offence he committed, or is alleged to have committed, than does the court of summary jurisdiction to have the opportunity of overthrowing the medical evidence based on a date much nearer the commission of the offence?

The second case which the hon. and learned Gentleman specifically mentioned was that where a patient was committed in custody to quarter sessions. Under the Bill committal in custody will nearly always mean in custody in a mental hospital, probably undergoing treament. It may well be that the treatment, in fact, cures him of his disorder, or his attack, or whatever one likes to call it, before the time comes for him to go up to quarter sessions. Is it not right in those circumstances that it should be left to the doctors, the responsible medical officers in the case of an ordinary hospital order, to say that the man no longer needs medical treatment and can safely be discharged?

Even if one says that it is still necessary for the man to come before quarter sessions for an order restricting discharge, surely it would be most improper for that court to say that because this man appears to them to be not suffering from any mental disorder at that date it therefore disagrees with the magistrates who, three months before, had said that in their view the man was a proper case for a hospital order?

This illustrates the great difficulties in which we find ourselves in this Clause in dealing with this type of case. It is because I accept the hon. and learned Gentleman's statement that he will give careful consideration to the whole case that I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.