§ 7.34 p.m.
§ Lord Allen of Abbeydale
My Lords, I beg to move that this Bill be now read a second time.
I welcome the opportunity of speaking to this Motion about a Bill which has already passed through another place. I believe that it carries out a worthwhile and overdue measure of reform in regard to mentally vulnerable people who get caught up in our criminal justice system. Perhaps I may be forgiven for recalling that when I joined the Home Office at what now seems a very long time ago, one of my first concerns was responsibility relating to Broadmoor. One of my last official activities was to give the inaugural Home Office evidence to the Butler Committee on Mentally Abnormal Offenders. Since then a long association with MENCAP has involved me in cases where the shortcomings of the present law have become only too glaringly apparent.
This Bill is concerned with two main categories of person; namely, those who are unfit to plead in relation to a criminal charge against them, and those who, under a special verdict, are found not guilty by reason of insanity. At present under the Criminal Procedure (Insanity) Act 1964, which I recall was based on a report made by the Criminal Law Revision Committee, once a person has been found unfit to plead because of mental disorder, the court has no option but to order the individual to be detained in hospital. That must be done regardless of the gravity of the charge and whether the individual might be better cared for in the community. That must also be done without any trial or any other means of establishing whether the individual committed the act which forms the basis of the charge.
For example, when the mentally handicapped are involved it has turned out that the individual has been so anxious to please the police and tell them what they seem to want to be told that he or she has confessed to a crime which it later turns out was committed by somebody else. Equally, if the special verdict is recorded of not guilty by reason of insanity, again the court has no alternative; it must make an order committing the individual to hospital with restrictions and without limitation of time. Thanks to humane administration, in practice discharge from the hospital may not be too prolonged. But sometimes detention continues for a very long time indeed. There is certainly no alternative to starting in hospital. There is nothing like a guarantee or certainty of eventual discharge.
The Butler Committee concluded that changes in the law were needed under both heads. Here we are at last, 16 years after the committee's report, doing just that. The Bill proposes two main changes. I am 181 looking at the new Section 4(A) which is provided for in Clause 2. Provision is made that where the accused is found to be unfit to be tried there is to be a determination by a jury whether the accused actually committed the act which forms the basis of the charge.
This "trial" will look at the evidence presented by the prosecution and defence, but not at the intentions of the accused since mens rea is meaningless for someone who is unfit to plead. If the jury is satisfied that the accused did the act it will make a finding to that effect. This is quite a new legal concept and is not at all the same as having been found guilty of a criminal offence. If the jury is not satisfied that the accused did the act, it will return a verdict of acquittal.
Secondly,—and this change applies both to someone who has been found to be unfit to plead and has done the act charged against him and also to someone found not guilty by reason of insanity—the options open to the court are greatly widened. The obligation to commit to hospital under restrictions will continue to apply in cases of murder. Otherwise it will be open to the court to commit to hospital with or without restrictions; or to make a guardianship order under the Mental Health Act 1983; or make a supervision and treatment order as set out in the second schedule to the Bill, or an order for absolute discharge.
The 1964 Act was passed with the best of motives to try and avoid mentally affected people getting involved with the full rigours of the criminal law system. However, the fact that, under either heading, the result was committal to hospital—possibly for a long time—has meant that considerable ingenuity has been displayed in avoiding both submissions of unfitness to plead and also the special verdict with its label of insanity. It would be better sometimes to plead guilty arid hope for a non-custodial sentence than face the certainty of-committal to hospital for an unknown period.
I shall not trouble your Lordships with details of individual cases, but suffice to say that there are examples of individuals staying in hospital when they could perfectly well have been looked after in the community; and others where an individual has been committed to hospital and kept there for years when he may never have committed the act alleged against him and when it is now quite impossible to discover the truth.
It is not therefore surprising that there have not been all that many cases in recent years where a defence has been pursued under either of these heads. There must have been, beyond doubt, a number of cases where the mental state of the accused was such that he or she ought to have had protection of the kind contemplated by the 1964 Act, but where the defence made sure that the issue of mental condition was not raised. The Bill provides an effective remedy.
Those are the two main changes. There are, however, two others to which I should like briefly to refer. First, at present there is no requirement on the court to consider expert medical evidence when the special verdict of not guilty by reason of insanity is in question. Clause 1 puts that right. Secondly, the first schedule to the Bill will make it possible where an 182 individual who has been found unfit to plead recovers to the extent that he can properly stand his trial—and the proportion of those who, after treatment, recover to this extent has been going up—for him to be brought direct to court without, as at present, having to be returned to prison first.
It would be possible to say a great deal more about this Bill which is necessarily a little complicated. However, I hope that I have said enough to show why I think that its main purposes should commend themselves to the House. The Law Society has taken a leading part in preparing the Bill, which is supported by a very wide range of bodies. As I understand it, the Bill is looked on with favour by the Government. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Allen of Abbeydale.)
§ 7.45 p.m.
§ Lord Mottistone
My Lords, we are grateful to the noble Lord, Lord Allen of Abbeydale, for introducing the Bill so clearly and for piloting it through this House. The House will be aware that in these matters I am advised by the National Schizophrenia Fellowship who have put me in touch with Dr. Tidmarsh who is a consultant psychiatrist at Broadmoor. I shall enlarge slightly on what Lord Allen has had to say by briefly quoting some of the figures that have been given to me by Dr. Tidmarsh.
From 1975 to 1988 only 49 persons were found insane, an average of 3.5 each year. Half of those were charged with non-fatal assaults and another one-third with murder. The diagnosis in half the cases was schizophrenia; hence the interest of my friends in the National Schizophrenia Fellowship. Most had had previous hospital admissions and criminal records. Not surprisingly, in view of the seriousness of the charge, 40 per cent. went to a special hospital, but the rest did not. Those that went to a special hospital tended to stay for a long time, but even they could be released fairly quickly. Thus, one man who had killed his wife was released in three years and another who had killed his father was released in seven years.
Patients who went to local hospitals could also be released very quickly. It has been described that a schizophrenic had been absolutely discharged after four weeks; and two burglars, one with insane automatism resulting from delirium tremens and another with epileptic automatism, were both released in under six weeks. The Home Secretary therefore is not inflexible either about where he sends patients or how long they stay. The special verdict does not automatically mean—as its detractors like to suggest—an infinitely long stay in a special hospital.
That is probably enough of the basis. Perhaps I may just give the conclusions which it has been suggested to me relate to the Bill. The findings do not indicate that the 1964 Act causes injustice to a great many people. It can and is being operated in a humane fashion. However, its provisions are circumscribed and narrow and could well be widened along the lines suggested in Lord Butler's report which was published 183 in 1975 and to which the noble Lord, Lord Allen, referred. In the opinion of the writer, that should have been done long ago.
I particularly welcome the range of options provided in the Bill for disposal of those found to be under disability or insane at the time of the offence. A hospital order with restrictions was never right for every offender. I also welcome the provision for a trial of the facts for those found under disability, while every effort should be made to remove the disability by proper treatment. That is now being done in at least two-thirds of cases. There will always be those who do not improve sufficiently to be tried. In such cases there is the possibility of a grave injustice. Although I believe such injustices are very rare events, that is not a reason for preventing them.
This is not a big Bill and it is thoroughly to be commended to the House. I trust very much that the Government will see fit to continue to support it throughout the rest of its passage and that it will not be long before it becomes law.
§ 7.48 p.m.
§ Lord Carnock
My Lords, this is a useful Bill which will help a small but severely disabled section of the community. It has my full support. As has been said, the work in connection with the preparation of the Bill has been carried out by the Law Society and in particular by the sub-committee for mental health. I am myself a solicitor and I have been informed by the Law Society that it is very grateful indeed to the noble Lord, Lord Allen of Abbeydale, for sponsoring the Bill in this House.
§ 7.49 p.m.
§ Lord Mishcon
My Lords, I am so glad to be able to follow a noble colleague in thanking the Law Society, of which we are both proud to be members, for its association with the Bill. Thanks are indeed due to the noble Lord, Lord Allen of Abbeydale, not for the first or second time in this House, for sponsoring a measure of such social content. We are deeply grateful to him as indeed we are to Mr. John Greenway, the honourable Member for Rydale, who introduced the Bill in another place.
It is a good Bill. If one is met with a good Bill, the less one tries to say about it to one's colleagues the better, given that one wants to see it on the statute book as soon as possible. However, I wish to raise one or two points of which I have given the Minister some notice. The first thing one observes about the Bill is that it is not retroactive in spite of all the unhappy situations that have arisen as a result of the law being in the state that it is. Has the Home Office, as one hears, conducted a review of cases which would be covered by the Bill were it to be retroactive? Can the Minister inform us how far that review has progressed? I am sure that the review will have as its purpose the giving of the benefit, so far as is possible, of what is contained in the Bill to those present cases which have not had the benefit of the Bill and will not have that benefit.
184 My other two points are technical. However, I feel I ought to raise them just in case some improvement to the Bill is necessary. I certainly do not want to take up any time in moving unnecessary amendments. As the noble Lord, Lord Allen of Abbeydale, told us, the provisions of new Section 4A introduce into our criminal procedure for the first time, as I know it, a system whereby a jury will decide on certain facts when someone is unfit for trial. What it has to do is set out in new Section 4A. Subsection (2) states:The trial shall not proceed or further proceed but it shall be determined by a jury",whether, on the facts, the act complained of or the omission complained of has in fact been committed. If satisfied that it has, the Bill states that the jury shall decide that the act has been committed by the person, if I may use the phrase, before the court, even though he is unfit to plead. Subsection (4) states that if the jury finds that the act has not been committed or the omission is not there, it,shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion".At first sight that looks to be a complete negation of what is stated in subsection (2):The trial shall not proceed or further proceed".The statement is made that the count in question shall be dealt with as though the trial had proceeded to a conclusion. At first sight it seems to be a contradiction in terms. It is not just that which worries me. What will happen if there is an acquittal in accordance with new Section 4A as though the trial had proceeded to a conclusion but the person who is unfit to plead recovers and confesses that he did the act, in spite of the acquittal? What will happen if new evidence comes to light which shows that there was a commission of the act when the person was in full command of his mental state and would at the time of commission of the act have been fit to plead? What will happen in those circumstances? There is a doctrine of our criminal law which is sacred in our tradition. I refer to the doctrine of autrefois acquit. If, as the Bill states, the person has been acquitted and it is as though the trial had been concluded, can he in spite of those circumstances be tried? Can he be charged and tried? Does the defence of autrefois acquit apply?
Let us take the reverse situation. Let us take it for granted that instead of finding that there should be an acquittal there is a finding that he did in fact commit the act. Let us say that it is a criminal act. The person concerned recovers and says, "This is quite absurd. If only I had been able to go to my trial I would have been able to show, as I can show you now, that I was in Birmingham when this act was committed—there is complete evidence that I was—and I am supposed to have committed this offence in Cardiff". What is the procedure for upsetting the finding of the jury that the act was committed by this person? I raise these matters on a perusal of the Bill only to ensure that we do not fall into any error. The Bill is a valuable Bill. That is my only purpose. It is not to quibble or to delay.
My final observation before I sit down is to welcome what the BMA has said of the Bill in approving of it. The BMA believes that it is most likely going to mean that more patients will require 185 care and that more doctors and psychiatrists will be needed. I hope that in supporting the Bill the Government will say that the support will be there for all the personnel who are needed.
§ 7.57 p.m.
§ Lord Reay
My Lords, the Government fully support the Bill, which reforms the Criminal Procedure (Insanity) Act 1964. As the noble Lord, Lord Allen of Abbeydale, explained, the 1964 Act deals with two categories of people: those who, because of their mental state, are found unfit to plead to the charges made against them, and those who are found not guilty by reason of insanity. The latter is sometimes referred to as the "special verdict".
Where an accused person is found unfit to plead there is no requirement for the Crown Court to test the case against that person in order to satisfy itself that he committed the offence. The consequence is that at present an innocent person might in theory be sent to, and detained in, hospital even though he did not commit the offence in question. Indeed, in one such case the government later paid compensation.
The Butler Committee on Mentally Abnormal Offenders, which reported in 1975, recognised the possible injustice that might be caused and recommended that there should be what it called a trial of the facts. The Bill adopts this recommendation. Clause 2 provides that following a finding of unfitness to plead, the court should inquire into the circumstances of the offence in order to satisfy itself that tale accused did the act or made the omission charged. Where the court is so satisfied, it should make a finding to that effect and then consider how the case should be disposed of. Where it is not so satisfied, a verdict of acquittal should be returned. The Government are satisfied that this reform is a workable one and that it represents a fair and balanced solution to the problem.
The Bill also tackles what is generally regarded as a fundamental inflexibility in the current provisions. Under the 1964 Act, where an accused person is found unfit to plead, or not guilty by reason of insanity, the court has no option but to send that person to hospital for an indefinite period as a restricted patient, albeit with safeguards. Patients do have a right to apply to an independent mental health review tribunal for discharge. The Home Secretary can also discharge the patient at any time if he feels that hospital treatment is unnecessary and that the patient does not represent a risk to public safety.
But there is a growing awareness that in certain cases compulsory hospitalisation at the outset has been neither appropriate nor necessary. The Butler Committee also addressed this issue and recommended that, in addition to a hospital disposal, courts should have the power to make any of a number of social and medical orders. To a large extent, provisions in Clause 3 of the Bill are modelled on those recommendations. It is now proposed that the courts should be able to choose between a range of disposal options: admission to hospital, with or 186 without restrictions; a guardianship order; a supervision or treatment order; or absolute discharge. The Government believe that this is a sensible reform.
I can assure the House that extensive consultation has taken place over the proposals set out in the Bill. The issues involved are complex, and it has not been easy to devise provisions which not only protect the position of severely mentally disordered people within the criminal justice system, but also provide adequate safeguards for the general public. The proposals have been extremely well received, especially by the judiciary and the medical profession. Numerous other interested organisations have also confirmed their support. Indeed, the Bill is somewhat unusual in that, so far as I am aware, no objections to it whatever have been received. That in itself demonstrates the need for, and the strength of, the proposed reforms.
I shall deal with the questions asked by the noble Lord, Lord Mishcon. I am grateful to him for having given me prior notice of them. He asked about a review currently being conducted by the Home Office. Research commissioned by the Home Office was carried out by two independent researchers into how the 1964 Act has been administered. The results have been published. The researchers examined all cases of persons found to be unfit to plead from 1976 to 1989. On the whole, the research revealed that the Home Office managed the cases appropriately and sensibly. However, the results suggested that there was a need for a trial of the facts. In particular, it was found that many people had been detained for lengthy periods of time for trivial offences. That finding supports the need for a wider range of disposal options.
I should add that each individual case is kept under regular review. Moreover, patients have a right to apply for a discharge to an independent mental health review tribunal at specified intervals. As I said, the Home Secretary can also discharge a patient at any time if he considers that hospital treatment is no longer necessary and that the person concerned does not pose a risk to public safety. Further, if the Home Secretary, after consultations with the responsible medical officer, is satisfied that the person can properly be tried, he may remit him for trial.
The noble Lord, Lord Mishcon, then asked me two further questions. He asked what would happen if a patient who was acquitted during a trial of the facts subsequently recovered and admitted his guilt. The person would be in the same position as would be the case in regard to an acquittal in any other criminal proceedings—that is to say, such a patient cannot subsequently be tried if he recovers.
The noble Lord then asked me what the position would be in the reverse case. He referred to a trial of the facts where the court was satisfied that the person concerned committed the act, or where the person admitted the charge. He asked what the position would be if the patient subsequently recovered and fresh evidence came to light indicating that he might be innocent. I have a two-part answer to the question. The patient can be remitted to stand trial from hospital when and if he becomes fit to stand trial. The Home Secretary can remit the patient to stand trial—and I understand would normally do so; 187 irrespective of any new evidence coming to light—but only in the event of his recovery. Such advice to the Home Secretary would come from the responsible medical officer. I should add that the Home Secretary would liaise with the Crown Prosecution Service.
If fresh evidence comes to light in a particular case, a verdict of the trial of facts can be referred to the Court of Appeal by the Home Secretary. That can happen even if the accused does not become fit for trial. That would be a matter for the discretion of the Home Secretary. I hope that I have answered fully the noble Lord's questions.
It only remains for me to congratulate warmly the Law Society for promoting the Bill; the honourable Member for Rydale for sponsoring it in another place; and the noble Lord, Lord Allen of Abbeydale, for introducing it to the House. I commend the Bill to the House and earnestly hope that it will become law very quickly.
§ 8.5 p.m.
§ Lord Allen of Abbeydale
My Lords, it only remains for me to thank those who have taken part in the debate and to say how pleased I am that the Bill has received such a general welcome. I am glad that it fell to the Minister to answer the searching questions posed by the noble Lord, Lord Mishcon. I believe that I may have given the same answers; but I listened with respect and agreement to the words which fell from the Minister's lips. I invite the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.