HL Deb 15 February 1999 vol 597 cc485-97

4.32 p.m.

Lord Williams of Mostyn

My Lords, I beg leave to repeat a Statement made by my right honourable friend the Home Secretary in another place.

"With permission, Madam Speaker, I should like to make a Statement on new measures which my right honourable friend the Secretary of State for Health and I are proposing in order further to protect the public from dangerous people in our society.

"Up to now we have dealt with those who are capable of committing acts of a serious sexual or violent nature in one of two ways: by conviction and imprisonment through the criminal courts or by detention on the recommendation of doctors under powers in the mental health Acts. There is, however, a group of dangerous and severely personality-disordered individuals from whom the public at present are not properly protected and who are restrained effectively neither by the criminal law nor by mental health provisions.

"Their propensity to commit the most serious sexual and violent acts may be well known and well recorded. They may, however, only have been convicted of crimes carrying a limited determinate sentence and will have to be released from prison at the end of their sentence, even though they may themselves have warned staff of their certainty of recommitting serious offences on release. These people are plainly suffering from what the public would understand as the most serious personality disorder. But because current mental health legislation prevents the detention of even a person posing the highest possible risk to the public unless doctors also state that the condition is one which is treatable, these people remain at large and without the benefit of any attempts at clinical intervention unless and until they commit an offence and there is sufficient evidence to secure a conviction. In a limited number of cases they may not have come to the attention of the criminal justice system at all.

"As successive governments have recognised, this situation is plainly unsatisfactory. As long ago as 1975 an official committee—the Butler Committee—recommended that indeterminate, reviewable sentences be introduced for some of these individuals. Much more recently, legislation enacted by this and the previous government does mean that increasingly effective conditions can be imposed on offenders as they are being released from prison into the community. Post-release supervision is compulsory for prisoners serving one year or more. Those who breach their licence conditions can be immediately recalled to prison.

"Section 2 of the Crime (Sentences) Act which came into force in October 1997 provides for a mandatory life sentence for those convicted of a second serious sexual or violent offence.

"The Crime and Disorder Act introduced extended supervision of up to an extra 10 years for sex offenders and gave the police powers to apply for a sex offender order to protect the public from any sex offender whose behaviour in the community is giving cause for concern.

"However, not all of these powers can apply to people who were sentenced before 1992. In recent months we have seen dangerous offenders such as Robert Oliver and others released with no conditions imposed on what they did or on where they lived.

"In these circumstances the contribution of people working on the ground in the police, prison, probation, health, education, housing and social services is essential. I should like to pay tribute to them today for their work. Multi-agency risk panels are now widespread. As honourable Members on both sides of the House are aware the information-sharing and planning arrangements of these panels are protecting victims' interests and dealing effectively with dozens of people who would otherwise undoubtedly pose a serious risk to the public.

"But effective arrangements are beyond the capacities of local agencies alone. Central government action is also needed. I can therefore tell the House today of both what we are proposing for the short term and also of our legislation for the medium term. For the short term we are putting in place an early-warning system so that local agencies and central government have the maximum possible time to prepare for a dangerous person's re-entry to the community. Prison and probation services are being asked to provide this information to the Home Office's Probation Unit. Similar arrangements are being made through the NHS with hospitals which treat patients detained under the Mental Health Act 1983. A support group within the Home Office Probation Unit made up of staff from the operational services will be there to assist local agencies to deal with particularly difficult cases.

"These changes will help the system deal with dangerous people now. But a new legislative framework for the system is long overdue. As I have explained, under current legislation—based upon the provisions of the mental health Acts—only some of these severely disordered people can be detained and then only if,

'treatment is likely to alleviate or prevent a deterioration of their condition'.

"There is a continuing debate about what treatments, if any, are effective in dealing with personality disorder. But the protection of the public cannot wait for the outcome of research which may take many years to complete. Society cannot rely on a lottery in which, through no fault of the courts, some dangerous severely personality-disordered people are sent, for a limited time or indefinitely, to prison or to hospital but others remain in the community, or return to it, with no interventions whatsoever.

"The Government therefore propose that, subject to parliamentary time being available, there should be new legal powers for indeterminate but reviewable detention of dangerously personality-disordered individuals. These powers would apply whether or not someone was before the courts for an offence. But the powers would be exercised by the courts—and not by the Executive—where it could be established that the individual had a recognised severe personality disorder and was a grave risk to the public.

"Depriving individuals of their liberty in such circumstances is a very serious step. The key aim is to protect the public while meeting the health needs of individuals. So we will ensure that the process of ordering detention involves a robust system of checks and balances covering both legal and clinical issues. Once in a detention, there will be regular quasi-judicial reviews of the justification for continued detention. And the individuals concerned must have the best possible chance of becoming safe to return to the community. We therefore propose to establish a range of specialist programmes and a new approach to managing the detention of all those detained under the new power. This approach will involve close operational links with the existing services.

"I have outlined for the House today what the Government believe is needed. But because of the complexity of this area and the seriousness of creating the kind of detention powers I have described it will be important to consult more widely. This will enable us to ensure both that we have not overlooked any options and that the action we take is effective and measured, commands broad support and is compatible with our obligations under the European Convention. My right honourable friend and I therefore propose to publish in the spring a consultative document which will outline in more detail the nature of the problem and the options for the new framework within which these powers will operate. In the light of responses to that document we will take final decisions later this year.

"We also need to find out why some people develop severe personality disorders and how this can be prevented. We are therefore funding further research (nearly £1 million over three years). But we know already that severe personality disorder is often associated with large, broken families where abuse has been rife and children may have been taken into local authority care or received community-based mental health treatment before embarking on drug abuse and criminal careers. These problems of course need to be dealt with in any event.

"In conclusion, a number of honourable Members on both sides of the House have had to deal with the consequences in their own constituencies of the release of such dangerous, severely personality-disordered offenders. I am extremely grateful to them and to local police, probation and health services for the sensitive and responsible way in which they have handled cases in their constituencies involving offenders to whom these measures relate, often in the face of serious and alarmed public concern. I hope that this constructive all-party approach will continue and that these proposals will receive wide support inside and outside this House".

My Lords, that concludes the Statement.

4.42 p.m.

Lord Cope of Berkeley

My Lords, we are most grateful to the Minister for repeating to this House a Statement approximating to that made by his right honourable friend the Home Secretary in another place. We all recognise this to be an extremely difficult area of policy within a difficult portfolio, and the long history of the matter which was partially recited in the Statement demonstrates that. As the Statement made clear, to deprive people of their liberty, particularly indefinitely, when they have completed prison sentences for offences that they have committed, is a most serious matter and, and even more serious when no further offence has been committed. Our obligations under the European Convention on Human Rights are a recognition of that seriousness.

The Government are, however, right to say that the safety of the public and the prevention of further offences is the most important consideration. While we shall want to consider the details of the consultative document and, subsequently, the proposed legislation, we support the Government in continuing to develop policy in this area.

I should like to raise a number of points, although I realise that the Minister may be unable to answer them today. They may be dealt with in due course by the consultative document, but it would be helpful if the Minister could provide guidance at this stage. First, I am not clear as to how all this fits into the ongoing review of sex offences that is now being carried out within the Home Office. Secondly, if I have correctly understood the Statement, the new powers apply to those unconvicted and to those convicted before 1992. Is it intended to treat those convicted since 1992 in the same way, because I understand that the position is not quite the same as in the current legislation. I understand that approximately 300 to 600 people are considered likely to be affected, although that is very much an estimate.

Thirdly, which courts are expected to be asked to handle this matter? I take it that it will not be dealt with by either magistrates or juries and that the decisions will be taken by judges. Subsequently, where will appeal lie? Will it lie to the mental health tribunals, as it does under part of the present legislation, or direct to the courts? Sometimes the vital questions may be essentially medical ones. Is the patient treatable or not? If they are treatable obviously they will fall under the existing legislation. That is essentially a medical rather than a judicial judgment; but at other times obviously points of law will arise. Where the matters are for judges to decide is it anticipated that medically qualified people will assist them in assessing the cases before them?

Fourthly, who is it proposed will run the new system of detention? Will it he run by the Prison Service, who look after some people at the moment, or National Health Service hospitals; or will new institutions be created for the purpose in either the public or private sector? Lastly, it would be helpful to know when the Minister considers that spring will arrive because that is when the consultation paper is due to be published. Can the noble Lord give any further idea about when any legislation is likely to find a slot in the legislative programme?

4.47 p.m.

Lord Dholakia

My Lords, I wholly endorse the sentiments expressed by the noble Lord, Lord Cope. We are grateful that the Government have now made this Statement. We welcome the fact that the Government seek arrangements for better diagnosis and an improved system to deal with people suffering from personality disorders. We all agree that at present people are inadequately and inappropriately dealt with by both the penal system and the health system. We therefore welcome the proposed consultation. We also welcome the emphasis in the Statement on the fact that most people with personality disorders do not pose a serious risk to the public. The majority of them are not ex-murderers in waiting. Will the Minister affirm that properly funded community care arrangements, as opposed to the inadequately financed system of community care which has operated for too long, provide the best way to deal with the majority of people who suffer from mental disturbance?

We also welcome the emphasis on early intervention and prevention. If we can give a high priority to improving the diagnosis of young people with personality problems and provide them with the help that they need this will prevent the problem from developing with far worse disorders at a later stage. We also welcome the short-term proposal for better arrangements to identify dangerous offenders in the prison system before release and to provide well planned and co-ordinated release arrangements for them. Can the Minister provide further details of the agencies or departments from which staff will be seconded to the Home Office Probation Unit to form the new support group that will oversee these arrangements?

Many of the current problems arise from the fact that psychiatrists are split over the treatment of people with personality disorders. One psychiatrist will regard an individual as untreatable while another will be prepared to accept the same person for treatment. It is therefore often a matter of chance whether someone ends up in hospital or in the prison system. If a person goes to prison, often he leaves at the end of his sentence just as dangerous as when he went in.

We agree that there is a strong case for a new, indefinite reviewable order for dangerous people with personality disorders. In relation to mentally disordered offenders, a recent report by NACRO, which I chair, entitled Risks and Rights, drew attention to the gap in current powers which the proposal would fill. However, there are two important provisions. First, use of the new power must be based on strong and tested evidence of dangerousness and subject to rigorous judicial procedures to ensure that people are not detained unnecessarily or in an arbitrary manner. Secondly, alongside an emphasis on protecting the public, there must be an equally strong emphasis on rehabilitation and providing those mentally disordered people with the care they need for their mental condition.

We believe that the best way to achieve that would be to set up a new and separate system of units, distinct from the prisons and special hospital systems. The current system has failed people with personality disorders as well as failing the public and we need a clean break from it. The new units should provide a positive regime based on education, psychological input and rehabilitation. This would be the best way to protect the public while ensuring that those mentally disturbed people are not written off or dumped in institutions without hope. We shall, of course, scrutinise the legislation with the utmost care. The Government would receive co-operation from this side of the House on condition that every effort is made to ensure that there is no miscarriage of justice in the implementation of those measures. We should like to know what safeguards and help are available to courts in such matters.

We know the inadequacy of special hospitals. We know that the review of the Mental Health Act is now taking place. It is also appropriate to ensure that medium and long term strategies are part of the Mental Health Act review.

4.51 p.m.

Lord Williams of Mostyn

My Lords, I am truly grateful for the generous bipartisan spirit in which the noble Lords, Lord Cope and Lord Dholakia, approached the matter. I do not think that we can begin to hope for a successful outcome unless we regard the issue essentially as a deeply worrying social problem which has nothing to do with party political advantage or posturing. I am most grateful that none has been illustrated.

The noble Lord, Lord Cope of Berkeley, put a number of questions. The review of sex offences is currently going on because I think that it has been well recognised that sexual offences are the product of historic accretions. Very often they are not well defined; and often there is a difference of penalty which is regarded as inappropriate. Despite the fact that the label may be too lenient, the sentence available is often not sufficient. That is quite distinct. We are not simply dealing with those who may commit sexual offences, but with those who are seriously personality disordered. It is a wider point.

The noble Lord asked which courts might be concerned. There are a number of possibilities. Plainly the magistrates' court, which has a maximum jurisdiction of 12 months, would be wholly inappropriate. If it is to be a reviewable sentence passed on a finding and conviction of crime, then one would have thought that it would be the appropriate criminal court. If one has a sentence in the criminal jurisdiction, then one would have thought, subject to consultation—we genuinely want fully informed consultation—that it would be in the usual way.

If one has the power to take away liberty without a finding of guilt, one would be looking to bodies such as the mental health tribunals which, by and large, have had good public confidence and support. However, I stress that we have come to no absolute conclusions. When we speak of a consultative document, that is truly what we want.

Judges are well equipped to deal with medical issues at present. They have to give directions to juries in cases of diminished responsibility. They have to make rulings; and often they have to pass sentences based on the medical evidence before them. I take the noble Lord's point. It is not simply a legal or judicial question. It requires the input of medical expertise. I entirely agree with the noble Lord, Lord Dholakia. One cannot find unanimity of clinical perception about precisely what the disorder is, or whether it is treatable. That is one of the fundamental gaps in the present law.

The question was posed: where are these people to be kept? At present, 400 dangerous severely personality disordered people are detained in hospitals, and about a further 1, 400 are held in prison. That is one of the specific questions to which we have to put our minds. A point arising from the question posed by the noble Lord, Lord Dholakia, is this. Are we to have distinct units? Are we to cater for those in hospitals? Have some of them still to remain in a secure prison regime? That is a question on which, again, we wish genuinely to consult.

The noble Lord, Lord Cope, asked me when spring was to come. As soon as I give a date, there will be floods, blizzards and national disasters. But we hope to have the consultation paper out before Easter.

Legislation is a matter for parliamentary time. It is not an easy question. I think that it is better to try to get the matter right on the widest possible basis of consultation.

The noble Lord, Lord Dholakia, asked me about the general areas in which we would look for seconded staff. Essentially we would be looking to professionals with expertise and experience in health, social services, prisons and probation. One does not want to be too prescriptive on that but I believe that he would support our suggestion that we should tap into those sources of expertise. The noble Lord is right. NACRO provided a helpful, measured report, as I saw it, which recommended the reviewable sentence. It is helpful to have the support of such a reputable body.

I hope to set at rest any suggestion that one is simply locking up people without proper justification. There is ample justification in a public protection context and in the fact that many people who have serious disorders are simply not treated, as the noble Lord said, because we have no effective sanctions or mechanisms to deal with them. I take the noble Lord's point that if one is to deal with some badly affected people in the community, it must be properly resourced.

Again one needs distinct limits; and one needs to be cautious about taking away liberty from our fellow citizens except on abundant, persuasive material. The review of the Mental Health Act continues under the review set up by my right honourable friend Mr. Dobson. That casts a wider net than the specific question that we deal with here.

I have answered all noble Lords' questions. I repeat my grateful response for the way in which the Statement has been dealt with. I repeat again that we genuinely want an inclusive process of consultation. There are few people involved, but the public dangers are quite significant.

4.58 p.m.

Lord Ackner

My Lords, the reviewable sentence was first raised in a report provided by Lord Butler to the Home Office, the subject matter of the report being dangerous offenders. Are these proposals very much on the lines of the recommendations in that report; namely, that a sentence be reviewed every two or three years by a medical committee, it having initially been imposed because of the position of the accused and the likelihood that he would be dangerous if let out at the end of his sentence?

In this Chamber, to my knowledge, we have raised the desirability of a reviewable sentence for at least the past six years. I have nagged the noble Lord since he became the Minister; and I nagged his predecessor when we debated the Crime (Sentences) Bill. Why has it taken so long to appreciate that a new indeterminate sentence is absolutely vital? To what extent is the present decision the result of the inquiry presided over by His Honour Peter Fallon QC?

Lord Williams of Mostyn

My Lords, the noble and learned Lord never nags me. He will remember that when my party was in opposition I spoke in part on home affairs. He frequently raised the issue of the Butler proposals and has done so since we have been in Government. I can fairly say that on every occasion I have stated my own conscientious view that there was a lot to be said for an examination of them.

Obviously, we take into account the Fallon report, but the problem was identified previously. After all, Judge Fallon dealt with the problems of a particular institution—and wider questions, too, I readily concede—but essentially there is legitimate informed public concern about this issue.

The Statement does not entirely follow the Butler recommendations. There will be a reviewable sentence in the context of a finding of guilt and an allegation of crime, as the noble and learned Lord, Lord Ackner, pointed out. However, we are making it wider than that because we are saying that in some circumstances, with care, caution and safeguards, it may be that some of our fellow citizens will have to be managed by having their liberty taken away, even though they have committed no crime. Therefore, the Statement is wider than the Butler proposals, but it builds on them in the sense that one has a reviewable sentence.

The noble and leaned Lord asked about the possibility of a review every two or three years. That is the kind of scheme we have in mind, but I stress that there are sound arguments for a period shorter than three years. We want to discuss that when the consultative paper goes out.

Lord Clinton-Davis

My Lords, will my noble friend indicate whether anyone appearing before the courts in this regard will be entitled to legal aid? What will be the position when there are no court proceedings as such? Will legal aid be available to challenge evidence which might be given in support of continued detention? In relation to either situation, will disbursements incurred in order to procure expert evidence be allowable, even if legal aid is available?

Lord Williams of Mostyn

My Lords, my noble friend raises an extremely important question in the context of what I was specifying; care, caution and proper safeguards. There will be legal aid for people facing an order for indeterminate reviewable detention. There will also be legal aid for the periodic quasi-judicial reviews.

Specific disbursements would, in the usual way, be a matter for the authority of the legal aid board. However, if one is dealing with difficult areas of say, medical expertise, one would expect it to deal favourably with such requests. I am happy to give your Lordships the assurances that the noble Lord invited me to give.

The Earl of Mar and Kellie

My Lords, the House will be aware that in Scotland there used to be a sentence called preventive detention which was last used in the 1950s. It is similar to what the Minister is proposing. Has the Home Office consulted the Scottish Office about the reasons why preventive detention was abandoned in Scotland?

Lord Williams of Mostyn

My Lords, we used to have preventive detention in England and Wales, too, but we are not speaking of the same beast. Preventive detention was a weapon of sentencing open to the courts when serious criminals were being dealt with. I stress again that the order of reviewable indeterminate detention will be available to those who have committed no crime, but who can be demonstrated to be severely personally disordered. So preventive detention, although it had its opponents and critics, has nothing to teach us about this new sentence.

Lord Beloff

My Lords, I wish to ask the Minister a question that has been worrying me since the proposal was trailed a few hours ago. How is it proposed to identify individuals who have committed no crime, but are thought to be dangerous to their fellow citizens and therefore to be considered for some form of detention and treatment?

If I walk along the street, see someone who is behaving oddly and think that he may have a personality disorder, am I to go up to the nearest police constable and say, "Take him into custody and have him looked into"? I can see what happens once you have detained the person, but with 50 million people I do not know how one identifies such people who, by definition, have committed no crime.

Lord Williams of Mostyn

My Lords, I hope that one will not start in quite so cavalier a way as the noble Lord suggests, otherwise our numbers in this House might be severely diminished almost overnight! I recognise that the noble Lord asks a serious question. Police officers may well have been alerted when no crime has been committed. Members of social services may have had professional dealings with such unfortunate people. There may well have been contact with the Probation Service or other public statutory agencies. I cannot stress too strongly that one does not want to over-exaggerate the numbers involved; they are relatively small.

I realise that the noble Lord put his case strongly in order to draw attention to an important aspect, but one does not want the "witches of Salem" tendency. Plainly, there must be a careful mechanism before any hearing is set up. I anticipate that the kind of bodies which would bring such cases to the attention of the appropriate tribunal would be those I have specified. However, we are more than happy to have the assistance of anyone who wishes to offer their views on the consultative process.

Lord McNair

My Lords, perhaps I may press the Minister on the nature of the research. Who will carry it out? As it will be under the Home Office rather than the Department of Health, presumably that will have a bearing on the matter. Is it not true that most, if not all, the people to whom the Statement refers have had, in addition to their involvement with the criminal justice system, some considerable involvement with the psychiatric system and the mental health services?

Does the Minister agree that we need to discover the role which psychiatric treatment may have played in the lives of such people? We have had psychiatric treatment for 80 years and the problem does not seem to be getting better. Why are there still so many such disturbed people?

Lord Williams of Mostyn

My Lords, in 1997 we established a network of 11 universities and hospitals for the basis of research. It is called the Virtual Institute for Severe Personality Disorder. We are funding a programme of research which will cover diagnosis, treatment and prevention. I do not believe that I am in disagreement with the noble Lord's approach.

I am thrown back to what I said to the noble Lord, Lord Dholakia; there is an extraordinary disparity of view among informed professionals about causation. We can find indicators—I mentioned those in the Statement—such as large families and abuse in childhood. However, we cannot wait until research gives us perfect answers because there is a continuing danger for a relatively small number of people both to themselves and the wider public. That is why we must deal with the matter in this way.

Lord Rowallan

My Lords, I strongly support the proposal. Not only does it help victims and potential victims for the first time in a long time, but it also saves offenders and potential offenders from themselves. It has taken 24 years to come to life and I hope that the Minister can assure the House that the autumn will not be too late. We must make an effort to ensure that more people are not hurt by those suffering from this problem.

My second question relates to Scotland where we too have people who have severe personality disorders. This provision does not cover Scotland and Scotland will be a devolved issue. Can the Minister give us an assurance that something will happen north of the Border?

Lord Williams of Mostyn

My Lords, a number of inquiries are continuing in the rather different context of the Scottish legal system. I anticipate that some legislative alteration will happen in the Scottish context also. The law is different in Scotland but there are a number of committees of inquiry roughly paralleling what has been done in the rest of the United Kingdom. I agree entirely with what the noble Lord, Lord Rowallan, said. The Government have indicated that we treat this matter with enormous seriousness. If we put out a genuinely consultative document we have to approach the conclusions with an open mind and legislative time will be the bugbear.

At present there are people who are in prison on determinate sentences who insist to the prison staff—this is partly a response to the noble Lord, Lord Beloff—that they intend to commit further, more violent crimes when they come out. When they come out and their licence period has expired, they have to be approached as non-convicted people for the purposes of this new order because they are not receiving the reviewable sentence directly related to the finding of guilt. They are sometimes a danger to themselves and sometimes a danger to the community. As a government, we cannot justify saying to members of the community that we have done nothing about this because a lot of time has passed since Butler. We are looking afresh at Butler and are not constrained by it. I take the noble Lord's point and know that he will return later in the year to remind me about what I said in February.

Baroness Gardner of Parkes

My Lords, there is a strong case for the reviewable sentence. I listened carefully to what the Minister said and I agree that we cannot establish psychiatric views firmly one way or the other. I have seen cases of people who, we were told, were not at risk of committing suicide and yet within an hour had killed themselves. All that is very real and people live in fear of someone who nearly killed them being released. I am told that when they are released they cannot be checked or supervised by the police. I agree therefore with the concept of reviewable sentences. My concern is the point raised by my noble friend Lord Beloff in relation to people who have never been known to be a problem. I think back to all those women who spent lifetimes in asylums often because they had simply had an illegitimate child. That does not apply today of course; we have a different view of these matters. However, I should like to be assured that there is no way in which a completely innocent party will lose their liberty for a lifetime.

Lord Williams of Mostyn

My Lords, I agree with the noble Baroness. There were and may still be people who entered a custodial regime for what we would regard as no proper reason and what should then have been identified as no proper reason. One can think of the example the noble Baroness gave, or petty theft, or backwardness at school, or just being unduly mischievous. That is why, when we talk of indeterminate sentences, we must attach the fellow adjective "reviewable".

I take the point of the noble Baroness and that is why I was happy to stress, in so far as I could, in my response to my noble friend Lord Clinton-Davis, the necessity to have independent legal advice so that where a proper case for release or non-continuance of the reviewable sentence can be made it is properly and professionally made as opposed to leaving it to an individual who, in the nature of things, will not be able to make his or her case as persuasively as a qualified lawyer.