§ 2.48 p.m.
§ Order of the Day for the Second Reading read.
§ THE MINISTER OF STATE, HOME OFFICE (LORD DERWENT)
My Lords, I move today the Second Reading of a measure which represents a useful and liberal reform of the criminal law. It implements the recommendations of the Criminal Law Revision Committee on a number of questions relating to the issue of insanity in criminal proceedings, as set out in the Committee's Third Report which was published as a Command Paper (Cmnd 2149) last September. The Bill is in the form of the draft Bill annexed to the Committee's Report, subject to a few modifications and the addition of provisions relating to courts-martial. I should like to take this opportunity of saying that the Government are most grateful to the Committee for their valuable Report on these difficult issues.
The first question which the Committee were asked to consider was the form of the special verdict of "guilty but 1113 insane", which is given when a person charged on indictment with a criminal offence is found by the jury to have done the act charged but, owing to insanity, to have been not criminally responsible for it. This verdict, although in form a verdict of guilty, is in substance one of acquittal, and its present form was laid down in the Trial of Lunatics Act, 1883. Both the 1923 Atkin Committee on Insanity and Crime and the 1953 Royal. Commission on Capital Punishment felt that the verdict should be one of acquittal in language as well as in substance, and this view was shared by the Criminal Law Revision Committee. Clause 1 produces the necessary result, and provides that henceforward the verdict shall be that the accused is not guilty by reason of insanity.
The second question put to the Committee, which is dealt with in Clauses 2 and 3 of the Bill, was whether an appeal should lie against the special verdict. There is at present no right of appeal against it, because under Section 3 of the Criminal Appeal Act, 1907, it is only a person "convicted" on indictment who may appeal, and, as I have said, the special verdict amounts to an acquittal. The Atkin Committee thought that there need be no right of appeal, because in practice the accused must himself have put forward the plea of insanity, and because the issue of insanity was never raised if there was any real question whether the accused committed the act.
The position, however, has been to some extent affected by the introduction in the Homicide Act of the defence of diminished responsibility, and in giving the judgment of the Court of Criminal Appeal in Regina v. Duke, in October, 1961, the noble and learned Lord the Lord Chief Justice said that the absence of an appeal might work injustice, although he did not suggest that it had done so. The Committee recommended that a right of appeal should be given, either against the part of the verdict which implies that the accused did the act, or against the finding of insanity, or both, and that it they substituted a verdict of guilty for the special verdict the Court of Criminal Appeal should have the same power to sentence the appellant as the court of trial would 1114 have had, save that the sentence for murder would always be life imprisonment, even when the murder was capital. No one, I think, would question that the death sentence should not be imposed as the result of any appeal against the special verdict.
Clause 4 of the Bill makes amendment to the law which governs the situation when a person appearing before a superior court on indictment for a criminal offence is found unfit to stand trial by reason of insanity—that is to say, if he cannot understand the proceedings so as to be able to make a proper defence, to challenge a juror to whom he might wish to object, and understand the details of the evidence. The present procedure is regulated by Section 2 of the Criminal Lunatics Act, 1800, which, according to the preponderance of judicial authority, requires that any issue as to the fitness of the accused to stand trial should be determined by a jury at the outset; the section goes on to provide that a person found by a jury to be insane so that he cannot be tried shall be ordered to be detained during Her Majesty's pleasure. The procedure is open to the objection that it provides no opportunity for testing the prosecution's case before the issue of insanity is put to the jury, and that consequently a person who would have been entitled to an acquittal on the facts, had he been able to stand his trial, may suffer injustice.
The Committee found some difficulty on the question whether the issue of fitness to plead should, as normally happens at present, be determined on arraignment or immediately it arises, or whether postponement of the issue should be allowed, as has occasionally been done; and they were unable to reach a unanimous decision. Some of the members felt that the possibility that injustice might result is in practice so small, and the difficulties about allowing a trial to start without first investigating the accused's fitness to plead when that issue has been raised are so substantial, that postponement should not be allowed. The majority of the Committee, however, favoured allowing postponement up to the opening of the case for the defence, including the determination of any submission that there is no case for the accused to answer, and that is the course which the Government think should be adopted. 1115 I should perhaps add that deaf mutes, even though not insane in the usual sense, are dealt with under the 1800 Act if by reason of their disability they do not satisfy the criteria of fitness to plead, and it seems particularly desirable in such cases to be able to delay the testing of the issue of unfitness if there is any real possibility that the prosecution will not be able to prove their case.
Here I should perhaps mention that the clause differs slightly from that in the Committee's draft Bill in providing specifically that in considering whether to allow postponement the court should take into account the nature of the supposed disability. As a further safeguard, the Committee recommended that there should be a right of appeal against a finding of unfitness to plead, and this is provided in Clause 4(6). A successful appeal against a finding of disability would result in a fresh trial, unless the Court of Criminal Appeal considered that the appellant should have been acquitted before the issue of fitness was determined.
Clause 5(1) of the Bill deals with the treatment of persons found not guilty by reason of insanity or unfit to plead. As the law stands, the effect of a special verdict or finding of unfitness is that the accused is ordered by the court to be kept in custody during Her Majesty's pleasure, and my right honourable friend the Home Secretary then orders his detention in a specified hospital from which he cannot be discharged without the Home Secretary's consent. There is also power under the Mental Health Act, 1959, which is sparingly exercised, to remit to prison to stand trial a person found unfit to plead who later recovers.
It might be suggested that in dealing with persons found not guilty by reason of insanity or unfit to plead, the courts, instead of having to order detention during Her Majesty's pleasure, should have the same discretion to make hospital orders, with or without the restrictions on discharge which make the patient subject to the Home Secretary's control, as they have in dealing with mentally disordered persons who are convicted. The Committee, however, came down in favour of retaining the present system, subject to slight modifications, primarily on the ground that it works satisfactorily in practice, that 1116 the Home Office is in a better position than the courts to investigate the questions relevant to the accused's treatment and that uniformity is highly desirable and is more likely to be achieved if cases continue to be handled by a single experienced authority rather than by a great many different courts.
I should emphasise that we are dealing here with a very small class of persons who have been charged before a superior court with an indictable offence, but who by reason of insanity have not been convicted. They are in a special category and they can properly be distinguished from mentally disordered offenders as a whole.
The procedure set out in Clause 5 will differ from the present system only in that the archaic reference to Her Majesty's pleasure will be eliminated, and that the court, not the Home Secretary, will order the accused's detention in hospital, although it will as at present be for the Home Secretary to specify the hospital concerned. In their report the Committee proposed a further modification, namely, that where a person was found, either by the trial court or on appeal, to be either under disability so as to be unfit to plead or not guilty by reason of insanity, the court should have discretion to release him if they were satisfied that it would be safe for the public and the accused to do so, instead of requiring his admission to hospital.
The Government, however, consider that difficulties would be caused by dividing the responsibility in this way between the Home Secretary and the courts, and enquiry which has been made of the judges by the noble and learned Lord Chief Justice has revealed that they are also of that opinion. We have therefore decided against including this provision in the Bill. In cases where the offence is not serious the Home Office is always ready to authorise discharge, even after quite a short time, if the accused person no longer needs treatment in hospital and no risk to the public is involved.
Clause 5(2) provides that the Court of Criminal Appeal, when they allow an appeal against the special verdict and substitute an acquittal, shall in certain circumstances order that the appellant should be temporarily detained 1117 in hospital for a maximum period of 28 days. The grounds on which such detention would be ordered are equivalent to those on which any mentally disordered person may be temporarily detained for observation under Section 25 of the Mental Health Act—namely, if his disorder warrants his detention in the interest of his own health or safety, or with a view to the protection of other persons. In the great majority of cases the appellant will already be detained in hospital in pursuance of the special verdict when his appeal is heard, and the order for his temporary detention in suitable cases will give a breathing space in which to make the best possible arrangements for his disposal. In some cases the hospital authorities may wish to invoke other provisions of Part IV of the Mental Health Act (which relates to non-criminal mentally disordered persons) in order to continue the patient's detention beyond the initial 28-day period.
The Committee were also asked to advise on another point referred to by the Lord Chief Justice in his judgment in Regina v. Duke. Under the Homicide Act, 1957, a person charged with murder may plead something less than insanity —namely, diminished responsibility. Acceptance by the jury of such a defence means a verdict of manslaughter, and may result in a fixed, and sometimes comparatively short, period of imprisonment. A verdict of guilty but insane, on the other hand—that is, the present verdict—means that the accused is liable to indefinite detention in a hospital and that his discharge is subject to the Home Secretary's consent.
The Lord Chief Justice pointed out that there was conflict of practice on the question whether, if the accused put forward a defence of diminished responsibility, the prosecution could call evidence to the effect that the prisoner's mental condition at the time of the offence went beyond diminished responsibility and that he was in fact insane. The Committee recommended that, to avoid uncertainty, provision should be made to allow the prosecution to call evidence of insanity when the defence is one of diminished responsibility, and that, although the matter is not in 1118 dispute, there should also be express provision for the converse situation by allowing evidence to be called showing that the accused was suffering from diminished responsibility when a defence of insanity is put forward.
Clause 8 of the Bill and Schedule 2 make corresponding provisions in the law concerning courts-martial, and Clause 9 is merely ancillary to the purposes I have described. The Bill, except as respects courts-martial, does not apply to Scotland or to Northern Ireland. I hope, from what I have said, that the Bill will commend itself to your Lordships as making a significant improvement in the law. I am sorry that I have been somewhat long in describing the Bill, but I thought it better to go into detail at this stage, and perhaps answer in advance some of the questions your Lordships might have put. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Derwent.)
§ 3.3 p.m.
§ LORD SILKIN
My Lords, the House will be obliged to the noble Lord for the explanation he has given on this Bill, and I can assure him that he was by no means too lengthy. I can also assure him that I shall not be even as lengthy as he was. As the noble Lord said, the Bill certainly represents an improvement in the law, and I am sure that the whole House will be willing to give the Bill a Second Reading. As the noble Lord said, it arises from a Report of the Criminal Law Revision Committee, about which we had some discussion last Thursday. It is perhaps relevant to that debate to remind the House that this Committee was set up on February 3, 1959, and reported over four and a half years later, which is rather a long time. Of course, this is no reflection on the Committee itself; it is a reflection, as we said last week, on the manner in which these Committees have to do their business. They sit whenever they can afford to spare the time, and naturally a matter of this kind is bound to take a long time. But I submit to the House that more than four and a half years for the deliberation of a Committee on a matter of this kind is a long time.
Another interesting feature is that the Committee actually drafted the Bill, 1119 and although there have been some minor modifications the Bill is substantially in the form of the draft submitted. So there can be no excuse on the part of the Government of lack of Parliamentary draftsmen: the job was done for them.
The Bill itself can more appropriately be discussed in Committee. In principle, we agree with it. There is just one point which struck me as being a little doubtful, and that is in Clause 2, which provides that the Court of Criminal Appeal may dismiss an appeal if it is of opinion that but for the insanity of the accused the proper verdict would have been that he was guilty, but they may say he was guilty of an offence other than the offence charged. Now that seems to me rather peculiar. I do not know whether it is unique in English law, but for a Court of Criminal Appeal to find that a person is guilty of an offence other than the one with which he was charged seems extraordinary. The person charged will have had no opportunity on appeal of putting up a defence to the other offence upon which they are finding him guilty, or of calling evidence or anything of that kind. Therefore, it seems to me that he may be punished by the Court of Criminal Appeal for an offence with which he has never been charged. It may be that this point can be better threshed out in Committee, but if the noble Lord has a ready answer now I should be very grateful to hear it.
Subject to that, I am sure we shall all give the Bill a welcome, particularly the rather humane provision—I think it is a humane provision—that where a person, but for the fact that he has had this special verdict would have been sentenced to death, appeals unsuccessfully, he is no longer liable to have the capital punishment imposed. I think that is right. Such a person has been through the ordeal of going through two hearings, and I think it is probably right that in those circumstances he should be treated as being guilty of homicide. We shall look at this Bill again in Committee, but I am sure we shall all wish to give it a Second Reading.
§ 3.8 p.m.
My Lords, I hope that the House will give this Bill a warm welcome. It is a moderate Bill of 1120 liberal intent, and based on humanity. I can assure your Lordships that I shall be even shorter than the noble Lord, Lord Silkin. I agree that the points we want to discuss are better threshed out in Committee than now, but perhaps I might ask the Minister one question. I gather that one effect of this Bill will be to wipe out the verdict of "guilty but insane". Is it not possible that a crime may be committed where a man is in full possession of his senses but becomes insane before or when he is charged? A proper verdict, surely, should be "guilty of the crime, but insane at the time of the trial" and therefore, of course, meriting mercy.
§ 3.9 p.m.
§ LORD GARDINER
My Lords, I am sure we shall all welcome the Second Reading of this Bill. I am not quite clear why the final words of subsection (1) of Clause 5 of the draft Bill prepared by the Criminal Law Revision Committee appear to be going to be dropped, but no doubt we may consider that in the Committee stage. While I welcome the Bill, it cannot, I suggest, be put forward as a major contribution to the field of law reform. It has always been a principle of English law that if the insanity of an accused person was proved with that degree of strictness which the law requires, it must result in a verdict of not guilty, because that has always been a defence: not guilty on the ground of insanity. Whereupon, of course, the person charged was removed to what in those days was called a lunatic asylum. In 1883, however, when a lunatic shot at Her late Majesty, Queen Victoria, she expressed the very strong view that, as he had shot at her, he must be guilty whether he was insane or not. When the then Prime Minister was, unfortunately, unable to persuade Her Majesty that this was a wholly illogical view, it appeared that Her Majesty would not be satisfied unless the law was altered. Accordingly, after consulting the Leader of the Opposition, the Prime Minister felt, for the sake of peace, compelled to introduce the Trial of Lunatics Act, 1883, substituting the verdict of "guilty but insane", which is, and always has been, in law, a contradiction in terms.
One appreciates that, having regard to those relations which no doubt should subsist between the Sovereign and her 1121 Prime Minister, it may well have been difficult to cure this obvious anomaly in English law during the lifetime of Her Majesty. But, since her late Majesty, five sovereigns have reigned, and this is an anomaly which obviously ought to have been cured by every Government since 1900. It is not a point which matters very much; it is a fiddling little point in relation to those reforms in our law which really are necessary. But the nature of the anomaly and the fact that it should be reformed was strongly recommended by the Atkin Committee, who reported 41 years ago, and was endorsed by the Royal Commission on Capital Punishment in 1953. Normally, as I think I have ventured to point out to your Lordships' House before, once all lawyers are agreed that there is an anomaly in our law which ought to be reformed, on an average it takes only 35 years to have it put right; whereas, on this occasion, allowing for the fact that it would have been difficult to do it in her late Majesty's lifetime, it has taken 64 years. It cannot really be put forward as if to say to foreigners: "Look with what lightning speed we, in England, correct anomalies in our law". Therefore, while welcoming the Second Reading of this Bill, we cannot, I suggest, regard it as of any major importance in the field of law reform and can welcome it only on the principle of "Better late than never".
§ 3.14 p.m.
§ LORD CHORLEY
My Lords, I should like to add a word or two to what my noble friend has said. As one of those who took part in the discussions some years ago which led to at any rate some of these problems being remitted to the Law Revision Committee, I think that what has happened in regard to this matter strongly bears out what my noble friends Lord Silkin and Lord Gardiner have said in relation to it as an illustration of the slowness of law reform and its uncertainty in this country.
It was because this matter was raised in this House that these, I admit, very difficult problems in relation to the trial of people whose sanity is in doubt were referred to the Law Revision Committee —and I think that that ought to be borne in mind. This was not referred to the Law Revision Committee by anybody whose job it was to see that 1122 law reform was carried through; it was the direct result of debates in this House; and The Times drew attention to the point which had been made by speakers in these debates. Therefore I think we are entitled to claim some credit in this House; and we are entitled to regard this as an illustration of the very chancy and happy-go-lucky arrangements to which my noble friend Lord Gardiner and other speakers in the debate last week drew attention and underlined. That reinforces the need for having a permanent Commission to keep under review the state of our law, because if that had existed obviously this matter, which was very well known to the Judges and to practitioners in criminal courts years before it happened to come up for discussion in this House on another Bill, would have been remedied. Surely this proves beyond any question that we need very much better arrangements.
On the whole, I agree with the Government's view in relation to the actual proposals which have been put up by a majority in the Law Revision Committee on this particular matter. I think the Government have made the right decision. It may be, as my noble friend Lord Silkin says, that we shall wish to make some small changes at Committee stage, but I, too, would strongly endorse the actual contents of this Bill.
§ 3.16 p.m.
§ LORD DERWENT
My Lords, I am very grateful to your Lordships for the general welcome you have given to this Bill. I take it that the historical speech of the noble and learned Lord, Lord Gardiner, was welcome, although it dealt with the past and not with the present. In answer to the noble Lord, Lord Silkin, I think he is a little unfair about the Committee's work. In fact, since 1959 they have reported on Indecency with Children, on Suicide, on Criminal Procedure (Insanity), on the Order of Closing Speeches in Trials on Indictments and on Criminal Procedure (Jurors); and this particular matter we are discussing today was, in fact, sent to the Committee in 1962. It is a very complicated subject and I think they have worked extremely quickly on this matter, considering the number of people who have had to be consulted.
The other point the noble Lord raised 1123 was about the other offences of which the appellant may be found guilty. This refers to cases in which under the ordinary law a person charged with one offence can be convicted of some other related offence on the basis of the same indictment. It refers to cases where a man can be found guilty alternatively. I hope that I have made myself clear. On the question which the noble Lord, Lord Rea, raised, about the man who was sane at the time of his offence but insane at the time of his trial, I think it is true to say that he would be found unfit to plead.
May I say one word to the noble Lord, Lord Chorley? He is indeed right in saying that this matter was raised in your Lordships' House not so long ago by the noble Lord himself, among others. If I remember aright, he moved some Amendments to a Bill which came before your Lordships' House, and I think he was told at the time that that particular Bill was an unsuitable vehicle for his Amendments. But we are not unmindful of the fact that he did at that time press this particular point.
§ LORD CHORLEY
My Lords, I am grateful to the noble Lord. I was not claiming any kudos for myself, but wished to emphasise that it was as a result of discussions in your Lordships' House that this measure was put forward.
§ LORD DERWENT
That, indeed, is true. Again, I am grateful to your Lordships for the general welcome given to this Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.