§ As amended (in the Standing Committee), considered.
1.12 pm§ Mr. John Greenway (Ryedale)I beg to move, That the Bill be now read the Third time.
I am delighted that this important Bill has made such speedy progress. Before enumerating the amendments involved, I wish to congratulate the hon. Member for Warley, East (Mr. Faulds) on the progress of his Children and Young Persons (Protection from Tobacco) Bill. Had I not been so preoccupied with my own Bill, I might have been prepared to lend him a hand with his. I very much support the Parents Against Tobacco campaign and I am sure that many parents today will be celebrating the passage of the hon. Gentleman's Bill to another place. I hope that it will reach the statute book very soon.
As I said, I am also delighted that my own important Bill has made such speedy progress. I hope that the House will give it a Third Reading so that it can go to another place, where I hope that it will have as swift and easy a passage as it has enjoyed in this place.
I wish to place on record my gratitude to all those who have given the Bill their wholehearted support, in particular the sponsors, those hon. Members who were kind enough to attend the Committee stage and also my hon. Friend the Member for Chislehurst (Mr. Sims), whom I omitted to include as a supporter, but who nevertheless served on the Committee. I know that he shares my anxieties about these matters.
I am grateful for the overwhelming support that I have been given by the Law Society, which has sponsored the Bill, and has helped me in what I think that the House will agree is an extremely complex subject. In seeking to ensure that all the relevant issues were brought before the House, I have this morning been reading some of the briefs prepared by the Cardiff Law School, the British Epilepsy Association and various other organisations about matters appertaining to the Bill. The complexity of some of the legal issues surrounding case histories is almost mind-boggling at times. I do not profess to have the knowledge of the law necessary to understand all of the arguments relating to some of those cases. However, in our consideration of the Bill on Second Reading and in Committee—I hope that the same will apply today—we have managed to discuss the issues of importance relating to the Bill, so that those outside the House, who will no doubt seek to interpret our intentions and who will have to work with the Bill for the benefit of those whom it seeks to help, will be clear about our intentions and the areas of concern with which we sought to deal.
The Bill amends the Criminal Procedure (Insanity) Act 1964, to provide safeguards for vulnerable people who have been found either unfit to plead in relation to the charge against them or not guilty by reason of insanity. Under the 1964 Act such people have to be detained indefinitely in hospital without trial and regardless of the severity of the alleged offence.
The provisions will affect a number of people. I have already mentioned the British Epilepsy Association. It might be for the convenience of the House and of the record if we could reflect on how the British Epilepsy Association views current law and how it affects epileptics, 725 and to explain why they have been so keen to support this measure, as have a number of organisations, and to support reform of the existing law.
As a result of the Sullivan case of 1983 an epileptic episode is classified legally as a "period of insane automatism". The British Epilepsy Association, in common with all medical organisations, has argued consistently that epilepsy is not any kind of insane manifestation, but a proven neurological condition.
Today's law is based on the McNaghten rules of as long ago as 1843. We are seeking to change those laws by creating a proper definition in the Bill. At the time when the McNaghten rules were written, medical understanding of epilepsy was poor—that is not difficult to understand —and the condition was far more widely believed to have a psychiatric basis. Clearly, the law has not moved with the times.
When a person is charged with an offence committed during an epileptic attack it is not medically possible for that person to be guilty of a wilful criminal act. In a moment, hon. Members will glean from one of the amendments made to the Bill in Committee how important it is that we get our thinking right on the mental element of any offence that has been committed where the person charged may be insane or unfit to plead.
It is right that an individual should be able to plead not guilty and cite the details of his epilepsy as a defence. Under the law as it stands, the defendant cannot plead not guilty without the caveat "by virtue of insanity", which results in a mandatory committal to a psychiatric hospital. At present the court cannot place supervision orders in such a case, nor can it discharge the defendant. The court simply has no choice.
There are instances of courts endeavouring to use their discretion. On occasion, that can be helpful to the defendant, but it does not alter the law or remove the need to change it. In any event, it has no bearing on other cases by way of precedent. Defendants have to choose the lesser of two evils. The law does not offer such people protection. The individual decides, or is advised, to plead guilty. Otherwise, the person has to plead not guilty by virtue of insanity and, as a consequence, is sent to a psychiatric institution.
The British Epilepsy Association would like two amendments to the law, one of which cannot be dealt with in the Bill. I refer to it because another hon. Member may wish to return to the matter in future. The association wants epilepsy to be reclassified within the law, and the implication that it is a psychiatric illness to be removed. The Bill cannot do that. Instead, it provides the courts with the flexibility that they so urgently require to deal appropriately with such cases.
At the time of Second Reading, the concept of a trial of the facts to determine whether a person who was unfit to plead had committed a criminal offence was new. Following the Committee stage, correspondence, and a great deal of interest on the part of right hon. and hon. Members, we have now come to terms with what that concept should mean.
I wish to refer especially to the changes that we made in Committee. The amendments to clause 2 substitute provisions for section 4 of the Criminal Procedure 726 (Insanity) Act 1964. The first two amendments sought to restore safeguards available under the 1964 Act which it was not our intention to remove.
The amendments allow the court to postpone consideration of whether a defendant is unfit to plead until any time up to the opening of the case for the defence. That safeguard was originally introduced into the 1964 Act to answer the criticism that, even when the prosecution had insufficient evidence to secure a conviction, a finding of unfitness prevented the prosecution case from being tested and still resulted in the accused being detained indefinitely in hospital. If the prosecution has an extremely weak case —although the accused person may be unfit to plead or, if he pleaded at all, would have to plead not guilty by reason of insanity—it is surely right that the evidence, such as it is, should be brought before the court, as an instant acquittal might well be the outcome. The question of unfitness to plead would then never need to be addressed. To give flexibility to the courts to postpone consideration of unfitness to plead will allow the case for the prosecution to be tested. If there is insufficient evidence for the jury to convict, the case can be dismissed and the accused acquitted without the need to consider whether he is unfit to plead.
A further advantage of retaining this provision, as provided for in the amendments that were agreed in Committee, is that it allows the courts to consider the accused's intention—that is, the mental element in cases where that may be relevant. That goes to the heart of the problem faced by epileptics and to the heart of the concern expressed by the British Epilepsy Association.
The trial of the facts that would follow a finding of unfitness to plead would look only at the facts of the case. It would not consider the accused's motivation. Clearly, it could not do so. It would already have been established that the accused was unfit to plead. Concern was expressed, however, on Second Reading that to exclude the mental element, which is so important in establishing a conviction in other criminal cases and very much the strength of our English criminal law, might be to the detriment of certain mentally vulnerable defendants. This provision, which merely restates the existing law, does not preclude the mental element being taken into account in those cases where it may be relevant. If intent is not established by the prosecution, the court will have the opportunity to acquit the accused in appropriate cases.
The remaining amendments to clause 2, agreed in Committee, clarify the circumstances in which the same or a separate jury should decide the question of fitness to plead and hear other parts of the trial. We wanted to remove any doubt. The amendments were drafted in such a way as to achieve that aim. They also allow for the postponement of the consideration of fitness to plead, as agreed in the first two amendments. If the question of fitness to plead is considered by the court on the arraignment of the accused—when the accused first appears before the court—and the jury decides that the accused is fit to plead, the case will be referred to a proper trial in which the accused will be tried by a different jury from that which decided the question of fitness to plead. The House will agree that that is the right way for us to proceed with this amendment of the law.
Similarly, if the accused is found to be unfit to plead on his first appearance in court, the case will be referred to a trial of the facts, which will be heard by a separate jury 727 from that which decided the question of fitness to plead. Again, I am sure that hon. Members will feel that that is right.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)I have been listening intently to the hon. Gentleman's observations on cluase 2. The role of two registered medical practitioners in submitting evidence concerning the accused is critical. Will the hon. Gentleman confirm that in the practical circumstances of a trial, a registered medical practitioner means a consultant psychiatrist?
§ Mr. GreenwayYes, I can give the hon. Gentleman that assurance. It is difficult to know how much of the ground to cover on Third Reading. This is such a complex matter that, for the benefit of those hon. Members who are listening intently to my argument, one almost needs to go back to the beginning and start all over again. That is a very important brick in the Bill to which I have not referred in any detail, save to say that clause 2 gives statutory backing to the McNaghten rules. Perhaps my hon. Friend the Minister will be able to tell me that I am right and that I have given the hon. Gentleman the correct answer.
I move on to deal with cases in which the question of fitness is raised with the court at a later stage in the trial after some or all of the prosecution's case has been put. Clause 2 allows the court flexibility to direct whether the question of fitness should be decided by the same jury who already heard part of the case or by a separate jury, according to the particular circumstances of the case.
That is an important provision because clearly there will be some cases where so much evidence has already been adduced that it would benefit both the court and the accused for the same jury who heard all the evidence then to hear the evidence under the provisions outlined in clause 2, to which the hon. Gentleman referred, as to whether the person is fit to plead. However, there could be other cases in which that might not be in the interests of the accused. I do not believe that the House can do anything other than give the court the discretion that it needs in those circumstances.
In cases where the accused is found unfit to plead and the case is referred to a trial of the facts, the jury who heard the earlier part of the case can also hear the trial of the facts. Of course, if the accused who is unfit later recovers to become fit to plead, as can happen, his or her case would be remitted for a proper trial and that trial would be heard by a new and separate jury.
The amendments that the Committee gladly agreed provide additional safeguards for people who are unfit to be tried and ensure that those who later recover sufficiently to stand trial will receive a fair and proper hearing.
Finally, for the benefit of hon. Members present whose interest in the Bill I gladly welcome, I confirm that part II of the Bill provides a range of disposals to the court according to the particular circumstances of the case and the defendant's individual needs. At one extreme, the court retains the power under the 1964 Act of committing the accused indefinitely to a psychiatric hospital. At the other extreme, there may be opportunity to provide an absolute discharge. In the middle, where the real benefits of the Bill are to be found, it will allow the courts to provide for supervision orders which may include treatment so that the accused can get the help that he needs within the community.
728 Although the Bill deals with an extremely complex area of the law, the changes it will introduce are straightforward, effective and long overdue. I am most grateful to officials in the Home Office who were most helpful with the drafting of the Bill and the amendments agreed in Committee and who I suspect may be listening to our deliberations today. I also thank my right hon. Friend the Minister of State, Home Office who ensured the Bill's speedy and unimpeded progress thus far. I also thank my hon. Friend the Minister for his help and his willingness to co-operate in dealing with the Bill this afternoon. I hope that the Bill will progress to another place and that long-overdue reforms can quickly be put on to the statute book for the benefit of many vulnerable people in our society.
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Peter Lloyd)I can confirm the Government's continued and full support for the Bill. I congratulate my hon. Friend the Member for Ryedale (Mr. Greenway) on guiding it through the Committee with great finesse. The Bill contains important reforms, some of which, as we understand from my hon. Friend's lucid explanation, are complex, but which are designed to safeguard the position of severely mentally disordered individuals who are found either unfit to plead or not guilty by reason of insanity.
On Second Reading, my hon. Friend expertly and clearly described the Bill's aims and he has done so again today. My right hon. Friend the Minister of State, in turn, outlined the Government's stance and support. In the circumstances, there is little for me to add, but perhaps I can confirm the point queried by the hon. Member for Greenock and Port Glasgow (Dr. Godman). The registered medical practitioner to whom the hon. Gentleman referred must be approved by the Secretary of State as having special experience in the diagnosis of treatment of mental disorder.
§ Dr. GodmanI am grateful to the Minister for answering my question. As the Bill refers specifically to the Mental Health Act 1983 and to guardianship, will elements of the code of practice require revision because of the Bill?
§ Mr. LloydAs I did not steer the Bill through Committee I am not fully aware of the details. I hope that if my hon. Friend the Member for Ryedale can reply, he will interrupt me.
§ Mr. John GreenwayI am grateful for the opportunity to do so. However, I am sorry that my mind wandered as I was dealing with notes that I received from the Official Reporters. Will the hon. Gentleman ask his question again? If you will allow a further intervention, Mr. Deputy Speaker, I shall do what I can to help.
§ Dr. GodmanThe Minister again shows his characteristic courtesy. I asked whether, in the light of references to the Mental Health act 1983 and especially to the term "guardianship", it is likely that the code of practice—or the sections of it that refer to guardianship—will need to be revised if the Bill is put on to the statute book.
§ Mr. LloydMay I, at this point, give way to my hon. Friend the Member for Ryedale? However, if he would prefer to collect his thoughts, I shall continue.
729 The Bill has two main thrusts. First, there will, for the first time, be a requirement for the Crown court to test the case against an accused person who is found unfit to plead in order to satisfy itself that he committed the offence in question. As I said, that is a complex measure which has given rise to a number of issues. They have been carefully considered and we can see no reason why, in practice, the measure should not prove effective. The Government are satisfied that the introduction of a "trial of the facts" would greatly reduce the possibility of an innocent person being compulsorily detained in hospital for an offence that he did not commit.
The Bill's second main thrust is to provide the Crown court with a wider range of disposal options. Currently, if a person is found unfit to plead, or not guilty by reason of insanity, the court has no option but to send him to hospital for an indefinite period as a restricted patient. There has been increasing concern, not only that compulsory hospital treatment has not always been appropriate on medical grounds, but that it might be disproportionate in view of the nature of the offence.
The Bill proposes that following a finding of unfitness for trial, where the court is satisfied that the accused did the act or made the omission charged, or a finding of not guilty by reason of insanity, the court should have a choice of disposals—ordering an accused person to be detained in hospital with or without restrictions, a guardianship order, supervision in the community, or absolute discharge. Like my hon. Friend the Member for Ryedale, the Government believe that this will enable the court to ensure that its order is appropriate for the circumstances of each case, and will remove the inflexibility of the current provisions of the Criminal Procedure (Insanity) Act 1964. This will be particularly welcomed by the British Epilepsy Association, to which my hon. Friend rightly paid tribute, which has mounted a vigorous campaign to have the law amended in this regard.
It has already been made clear that the proposals are not novel. They are based largely on recommendations made by the Butler committee on mentally abnormal offenders, which reported in 1975. At the time, an extensive consultation exercise was conducted. Further consultation has been undertaken and the Bill's proposals have been widely and warmly welcomed by the legal and medical professions and by a wide range of organisations. Indeed, I am not aware of any significant objections to the Bill. I am aware that the specific and detailed question put by the hon. Member for Greenock and Port Glasgow (Dr. Godman) has not been answered. I shall ensure that he receives an answer by letter. I regret that I am unable to answer it now.
Accordingly, it remains only for me to commend the Bill to the House and to wish it a smooth and quick passage through the other place. I congratulate my hon. Friend the Member for Ryedale on introducing it.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)As I am a Scots Member and this is an English Bill, I hesitate to speak, but the hon. Member for Ryedale (Mr. Greenway) is to be congratulated on introducing the Bill. The House deals with two legal systems—the English and the Scottish—and I sincerely hope that the Scottish legal 730 system is not out of kilter in implementing these necessary protective measures for people who, for reasons of insanity or mental ill-health, cannot protect their own interests. I am pleased that the British Epilepsy Association is glad that the Bill is making good progress. I am sure that, if the Scottish system is out of kilter, officials and members of the association who read the debate will contact me.
§ Mr. John GreenwayThe time available allows me to assure the hon. Gentleman that the Bill is supported by other organisations apart from the British Epilepsy Association. It is supported by many organisations that do social work or work with vulnerable groups and their professional bodies. They include the Association of Chief Officers of Probation, the Association of Professions for the Mentally Handicapped, the British Association of Social Workers, the British Institute of Mental Handicap, the Campaign for Mentally Handicapped People, Disability Alliance, Justice, Mencap, the Mental Health Foundation, the National Association for Mental Health—MIND—the Legal Action Group, the National Association of Citizens Advice Bureaux, the National Association for the Care and Resettlement of Offenders, the National Association of Probation Officers, the National Schizophrenia Fellowship, the Prison Reform Trust, the British Deaf Association and the Royal College of Psychiatrists. I have listed all those organisations deliberately. They read like a "Who's Who" of the organisations concerned with vulnerable people and those who try to care for vulnerable people. The presence of the hon. Member for Greenock and Port Glasgow (Dr. Godman), which I warmly welcome, gives him an opportunity to take up the cudgels and look at the position in Scotland. If he finds that the reforms contained in the Bill need to be made in Scotland, I assure him that I will help him as much as I can.
§ Dr. GodmanI am grateful to the hon. Gentleman, especially for his recitation of those honourable associations and societies, all of which are as well known north of the border as south.
The hon. Gentleman's mention of vulnerable groups prompted me to say that the Scottish system might be out of kilter with the English one. Occasionally, the two systems for protecting vulnerable individuals become unbalanced. For example, the Criminal Justice Act 1988 contains a remarkable section that allows the use of video-recorded interviews for evidence in court in child or sexual abuse cases. It is regrettable that, in Scotland, there is no such provision and I hope that our legislation is not out of kilter with this fine Bill.
I offer my compliments to the hon. Member for Ryedale. I shall table a question to the Scottish Office asking it to confirm that our legislation is almost as good as the hon. Gentleman's proposals.
§ Mr. John GreenwayWith the leave of the House, I am grateful for the opportunity to deal with this important matter.
I shall try to answer the earlier question asked by the hon. Member for Greenock and Port Glasgow (Dr. Godman). For a brief moment I feared that our wicket was in jeopardy, but the answer to the question that he so rightly raised has now been assembled. Clause 5 provides for the use of guardianship orders under section 7 of the 731 Mental Health Act 1983. A guardian may decide where the person lives and require that he attends medical treatment, occupational therapy or education. He or she may insist that a doctor or other person is allowed to see the person under guardianship. A guardianship order would be made initially for six months, but would be renewable.
It was not my intention, in drafting the Bill, to seek to change the overall provisions of the Mental Health Act 1983. However, the House and the Minister will have noted the hon. Gentleman's concern. It is less a matter for the Home Office than for the Department of Health. The hon. Gentleman's intervention was timely in drawing attention to the fact that the Bill depends on the smooth working of the provisions of the 1983 Act.
§ Mr. Peter LloydThe hon. Member for Greenock and Port Glasgow raises important points, not all of which relate directly to the Home Office. However, I shall undertake to see that my colleagues in the relevant Departments—the Scottish Office and the Department of Health—read what he said and are aware of his concern.
§ Mr. John GreenwayI am grateful to my hon. Friend for giving that undertaking and I know that the hon. Member for Greenock and Port Glasgow will be, too.
I shall not refer directly to the measure, but rely on my memory of it. In the Bill we have created a framework whereby, at a trial of fact, the person who is unfit to plead will be represented and there will be a guardian ad litem arrangement which seeks to ensure that the accused's interests are properly protected.
§ Miss Joan Lestor (Eccles)I rise for only a few moments to congratulate the hon. Member for Ryedale (Mr. Greenway). His Bill, like the previous one on the subject, has all-party support and, as he said, support from a variety of organisations that want justice to be done and do not want people to be subject to distress due to a situation over which they have no control.
Some of the legislation being amended is 150 years old. It sometimes takes the House a long time to catch up with developments that have taken place. We are also amending legislation that was enacted about 15 years ago, but some of it goes back further, as we are all aware. The assurances given by the Minister that the points made by my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) will be looked into mean that the Bill will be made to apply and work.
I add the Opposition's congratulations to the hon. Member for Ryedale on not shying away from a difficult subject that is fraught with enormous complexities which many people would want to avoid.
§ Question put and agreed to.
§ Bill read the Third time, and passed.