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Cite as: [2001] EWCA Crim 2861

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Drew, R v. [2001] EWCA Crim 2861 (19th December, 2001)


		Case No: 01/1893/Y3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

19th December 2001

B e f o r e :

LORD JUSTICE KENNEDY
MR JUSTICE BELL
and
MR JUSTICE COOKE
____________________

R

- v -

Anthony James Drew

____________________

Huw Davies QC and Andrew Jones (instructed for the appellant)
Ian Murphy QC and Ieuan Morris (instructed by CPS for the Crown)
David Perry (instructed by Treasury Solicitor for the Secretary of State for the Home Department)
____________________

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

____________________

Lord Justice Kennedy :

Background

Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, so far as relevant for the purposes of this appeal, reads –

“(1) This section applies where –

(a) a person is convicted of a serious offence committed after 30th September 1997; and

(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.

(2) The court shall impose a life sentence, that is to say –

(a) Where the offender is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment for life.

Unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.

(4) An offence the sentence for which is imposed under subsection (2) above shall not be regarded as an offence the sentence for which is fixed by law.”

Subsection (5) identifies serious offences for the purposes of the section, and they include offences under section 18 of the Offences Against the Person Act 1861.

Section 109 replaced the similarly worded section 2 of the Crime (Sentences) Act 1997 with effect from 25th August 2000.

On 1st August 2000 in the Crown Court at Cardiff, the appellant, who was born on 1st May 1963 pleaded guilty to wounding with intent to do grievous bodily harm contrary to section 18 of the 1861 Act, and possession of an offensive weapon. On 4th August 1995 he had received a sentence of 6 years imprisonment in respect of two offences of causing grievous bodily harm with intent contrary to section 18, those sentences being ordered to be served concurrently. Thus it followed that when he pleaded guilty to the other offences on 1st August 2000 he fell within the scope of section 2 of the 1997 Act, now section 109 of the 2000 Act. For the purposes of this judgment it is convenient to refer to the 2000 Act as if it were in force at all material times. The 1995 offences had been committed when the appellant, in the course of an argument, subjected his former girl friend and her male friend to a prolonged attack with a stick, causing quite serious injuries to both of them. The offences which brought him back before the Crown Court at Cardiff in August 2000 were committed on 19th November 1999 when the appellant, at a public house, subjected a man named Dean Mayo to a frenzied attack with a kitchen knife, apparently because he had tried to intervene in an altercation between the appellant and the landlord. When interviewed the appellant claimed to have no recollection of the incident, but admitted carrying the knife. He said he did that for his own safety.

The appellant was not sentenced until 1st March 2001, when, in accordance with the statutory provisions to which we have referred, he was sentenced to life imprisonment. On that occasion it was submitted that the psychiatric reports of Dr Huckle and Dr Mars and others disclosed “exceptional circumstances” in the form of mental ill health which would enable the court not to follow the normal course envisaged by section 109. The doctors were unanimous that the appellant suffered from a mental illness within the meaning of the Mental Health Act 1983. That illness was probably schizophrenia. It rendered the appellant a continuing and substantial risk to the public, and the doctors were satisfied that were it not for section 109 of the 2000 Act it would be appropriate for the court to make an order pursuant to section 37(1) of the Mental Health Act 1983 authorising the admission of the appellant to and his detention in hospital, together with an order under section 41 of the 1983 Act restricting his discharge from hospital, the latter order being without limit of time. The Recorder of Cardiff, who was the sentencing judge, declined to find exceptional circumstances, and that was plainly right because in Dean David Newman [2000] 2Cr App R (S) 227 this court made it clear that mental illness alone cannot constitute exceptional circumstances for the purposes of section 109. The Recorder went on to pass a sentence of life imprisonment, and to fix the tariff period at 2 years 8 months. He then said –

“I have to say that I regret having to pass this sentence. Had I the power to do so I would have passed a sentence under the Mental Health Act, making you the subject of a Hospital Order with a restriction without limitation of time. That, for the reasons I have explained, is impossible.”

Grounds of Appeal

Mr Huw Davies QC for the appellant, whilst accepting the Recorder’s interpretation of the constraints of domestic law, submits that in the context of this case we should regard the requirements of section 109 of the 2000 Act as incompatible with the rights of the appellant under Articles 3 and 5 of the European Convention on Human Rights and should make a declaration to that effect, as envisaged by section 4 of the Human Rights Act 1998. That being the form of relief sought the Crown has exercised its right to intervene, so we have had the benefit of submissions not only from Mr Davies for the appellant and Mr Ian Murphy QC for the respondent, but also from Mr David Perry for the Secretary of State.

History after sentencing.

On 9th March 2001, less than ten days after he was sentenced, the appellant was transferred from prison to the hospital to which he would have been admitted had the Recorder been able to make an order under section 37 of the 1983 Act. There the appellant remains, receiving treatment appropriate to his condition, just as he would have received it if a hospital order had been made. The transfer took place as a result of the Secretary of State exercising the powers which he has under section 47 of the 1983 Act, and if and when the medical authorities decide that the appellant no longer needs treatment in hospital the appellant can be returned to prison to serve the rest of his sentence.

The relevant Articles.

Before turning to the submissions made to us it is convenient to set out the relevant parts of the wording of the two Articles which we are invited to consider in this case. Article 3 headed “Prohibition of Torture” is brief, and it reads –

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5, headed “Right to Liberty and Security” is longer, and so far as relevant it reads –

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;”

The Appellant’s Submissions

Mr Davies submits that it has long been a principle of law in England and Wales that where mental illness is the reason or the essential reason for the commission of an offence the offender does not merit punishment and should not be imprisoned. That is because of the stigma which is attached to imprisonment. When a sentence of imprisonment is imposed it amounts to a public statement that the offender is a deliberate wrongdoer who deserves punishment, and where the offender is mentally ill such a statement should not be made. Mr Davies accepts that if the offender is dangerous the public will need protection but, he submits, that can be achieved by making a Hospital Order under section 37 of the Mental Health Act 1983 with a restriction order under section 41 of that Act. In support of his submission that the difference between such orders and a sentence of imprisonment is significant Mr Davies invited our attention to the judgment of this court in Beulah Birch [1989] 11 Cr App R (S) 202 at 210 where Mustill LJ said in relation to those subject to Hospital Orders –

“In general the offender is dealt with a manner which appears, and is intended to be, humane by comparison with a custodial sentence. A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of in patient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts.”

The court then went on to deal with the effect of a restriction order. Mr Davies invited us to contrast the words we have cited with what was said in Chapter 10 of the White Paper “Protecting the Public” (March 1996, Command 3190) which preceded the introduction of the Crime (Sentences) Act 1997. Paragraph 10.1 of that paper reads –

“The Government proposes that the court should be required to impose an automatic life sentence on offenders convicted for a second time of a serious violent or sex offence, unless there are genuinely exceptional circumstances. The trial judge would set the “tariff” to be served for retribution and deterrence. At the end of that period, the Parole Board would determine whether it was safe to release the offender.”

Mr Davies points out that in Beulah Birch it was said that where it was appropriate to make an hospital order questions of retribution and deterrence are immaterial, yet paragraph 10.1 of the paper assumes that it will be possible to set a tariff in respect of those factors. The paper goes on in paragraph 10.4 to speak of consideration being given to “the length of time the offender should serve as a punishment” as well as to whether he can safely be released, but if the circumstances are such as to call for a hospital order there should be no punishment because “a hospital order is not a punishment” (Beulah Birch supra).

Mr Davies invited our attention to a number of previous decisions of this court, the general effect of which was to demonstrate that prior to 1997 this court had encouraged sentencers to make orders under the Mental Health Act rather than to impose sentences of imprisonment even with very dangerous offenders, and it was Mr Davies’ submission that the policy should be maintained in relation to all offenders capable of benefiting from a hospital order. Relying on the distinction drawn in Beulah Birch between hospital orders and sentences of imprisonment he submitted that to impose a sentence of imprisonment in circumstances where but for the existence of an earlier offence the court would make a hospital order must be punishment, and it must for the purposes of Article 3 of the European Convention be regarded as “inhuman and degrading” to label someone who is mentally ill as a deliberate wrongdoer deserving punishment, even if he receives appropriate care and treatment from the moment the sentence is imposed.

Mr Davies also invokes Article 5 of the Convention by submitting that although the sentence required by section 109 of the 2000 Act is prescribed by law it is, he submits, arbitrary. It is designed to increase the time spent in prison (see paragraph 10.7 of the White Paper) by an offender who, it is submitted, should not be sentenced to imprisonment at all.

The Respondent’s submissions

Mr Murphy QC did not dispute the submissions made by the appellant as to the circumstances in which orders under sections 37 and 41 of the Mental Health Act 1983 would normally be made, but he submitted that the argument for the appellant gave too much weight to a concept, namely the stigma of imprisonment, without recognising that in reality the change in the legislation did not infringe the appellant’s rights. On the facts of this case there is no evidence at all of the appellant being subjected to inhuman or degrading treatment. A psychiatric report which was before the judge shows that for a long time the appellant has misused drugs and possibly alcohol. That can be related to his commission of serious offences and in 1995 when he was sentenced to 6 years imprisonment it was not suggested that his sentence should be served anywhere other than in a prison. So a further sentence of imprisonment in his case, as opposed to a hospital order, cannot be regarded as a very significant stigma.

As to the alleged contravention of Article 3, Mr Murphy pointed out that where breaches of that article are alleged the European Court is usually concerned with allegations of physical or mental suffering, but that is not alleged here. The appellant is in the same institution that he would have been in if orders under sections 37 and 41 of the 1983 Act had been made. The only difference is that because his offences demonstrate that he is a continuing danger he will, for the protection of the public, be more effectively detained. That he does present a serious and continuing danger is clear from the medical reports, and, as was said by Lord Bingham CJ in R v Buckland [2000] 1 WLR 1262 in a passage cited by Lord Woolf CJ in R v Offen [2001] 1 WLR 253 the rationale underlying section 109 is the assumption that those who qualify “present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration.” That assumption does not seem to be misplaced in this case, and it is important to recognise, as was made clear in Offen, that section 109 is not inflexible. It establishes a norm.

Mr Murphy also drew our attention to the fact that if orders under sections 37 and 41 are made the discharge provisions are wholly different, and potentially less stringent than those which apply in relation to life imprisonment. Section 73 of the 1983 Act deals with the discharge of restricted patients. A Mental Health Review Tribunal must direct discharge if satisfied –

“(1) that the patient is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

(2) that it is not necessary for the health or safety of the patient or for the protection of others that he should receive such treatment.”

If the Tribunal is satisfied “that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment” the discharge must be absolute. Otherwise it must be conditional. So the continuing effectiveness of a restriction order is tied to the need for treatment, and if there is no continuing need for medical treatment the patient cannot be detained, even if he might still be regarded as dangerous. It is true that the definition of medical treatment in section 145 of the 1983 Act is wide. It includes nursing, care and habilitation and rehabilitation under medical supervision, but even with that wide definition the risk of a Tribunal having to discharge a potentially dangerous patient does remain.

As to Article 5, Mr Murphy submitted that in the context of this case it has no independent application. The appellant was always going to be properly deprived of his liberty in accordance with the procedures envisaged by the Article, and we were reminded that in Lichniak [2001] 3 WLR 933 the Divisional Court of the Queen’s Bench Division held that a mandatory sentence of life imprisonment could not be regarded as arbitrary given that it was individualised from the moment it was imposed.

Submissions of the Secretary of State.

On behalf of the Secretary of State Mr Perry submitted that section 109 and its predecessor, together with the consequential amendments to the 1983 Act involve no arguable breach of Convention law. He went on to point out that if it is a breach of Convention law to sentence a defendant who is mentally ill to a term of imprisonment then the breach has happened many times in relation to those found guilty of murder. For them there can be no possibility of an order under the Mental Health Act. The same argument can be advanced in relation to discretionary life sentences, where mental instability is a factor pointing in favour of such disposal.

Mr Perry submitted that one of the most significant flaws in the argument on behalf of the appellant was the unspoken premise that a person who is mentally ill is relieved of all culpability. In reality that is never the position in relation to someone such as this appellant. If his state of mind at the time of the commission of the offence was such as to relieve him of responsibility for the crime that was something which could and should have been explored at trial, by raising the relevant line of defence. Similarly if there was any issue as to his fitness to plead.

As is clear from what was said by the court in Offen, the effect of section 109 is to create a presumption which a mentally disordered offender can displace by showing that there is no continuing danger to the public, even though, Mr Perry submits, mental illness alone cannot amount to an exceptional circumstance. That last proposition was the one point on which the submissions made on behalf of the respondent and the Secretary of State differed, but for present purposes that difference is not crucial.

Mr Perry, like Mr Murphy, emphasised that the appellant is getting the right treatment in the right place, and submitted that the European Court could hardly take seriously the submission that there is a breach of Article 3 because the appellant was sentenced to life imprisonment rather than made the subject of a Hospital Order restricted without limitation of time. In fact the European Court has never ruled that it is a contravention of either Article 3 or Article 5 to sentence someone who is mentally disordered to a term of imprisonment, and in the present case there is not and cannot be any evidence to suggest that the medical services available to the appellant as a prisoner are in any way inadequate. Such evidence would certainly be required to show that his treatment was or is likely to be “inhuman or degrading”.

Mr Perry adopted and expanded the point made by Mr Murphy, namely that the discharge provisions under the 1983 Act do nothing to protect the public from those who are dangerous but are not in need of further medical treatment now or in the future. That, he submits, is a problem which section 109 does address. It pursues the legitimate aim of protecting the public by proportionate means, and the offender himself is properly protected in the same way as an offender sentenced to a discretionary term of life imprisonment.

Mr Perry pointed out that when the legislation was in contemplation the effect upon those who would otherwise have been made subject to orders under the Mental Health Act was not overlooked (see for example paragraph 8.14 of the White Paper). Furthermore the 1983 legislation was specifically amended to take account of the provisions of the 1997 Act.

Although Mr Perry developed his submissions by reference to English and European authorities, and by reference to other powers under the Mental Health Act as amended, for the purposes of this judgment we do not find it necessary to set out those developments.

Conclusion

In the context of this case we cannot say that the sentence of life imprisonment which the Recorder was obliged to pass was incompatible with the rights of the appellant under either Article 3 or Article 5 of the European Convention. We accept that a sentence of imprisonment does carry a certain stigma. It is, as Mr Davies put it, a public statement that the offender is a deliberate wrongdoer who deserves punishment, but we do not accept that the stigma should not be applied to those convicted of serious crimes but who suffer from mental illness, given that in every case they would only have been convicted at all because they were fit to plead and have been demonstrated at trial to have had at the material time the necessary mens rea. Although what was said in Beulah Birch is right as to the effect of hospital orders, and although this court has consistently encouraged the use of both hospital and restriction orders, it has always been open to Parliament to say, as it did in 1997, that in certain defined cases there is an assumption that the offender presents such a serious and continuing danger to the safety of the public that a hospital order with a restriction order will afford inadequate protection, and there must therefore be a sentence of life imprisonment. Given that a sentence of life imprisonment does afford greater protection to the public, and that the assumption is rebuttable, and that there is no evidence to show that an offender sentenced to life imprisonment will not receive appropriate medical treatment, we find it impossible to see how the introduction of the statutory assumption can be said to have infringed the appellant’s Convention rights.

The appeal against sentence is accordingly dismissed.