Drew, R v [2003] UKHL 25

House of Lords
Between
Drew, R vAppellant
Before
Lord Bingham of CornhillDate 8 May 2003
[14]47 , paragraph 16). Interpreted in accordance with R v Offen [2001] 1 WLR 253 , section 109 does not lack an objectively justifiable protective purpose:(1) Defendants sentenced to determinate sentences of imprisonment must be released after serving a specified proportion of their sentences and are subject to recall for a limited period only. If on release they are still dangerous, they are a source of risk to the public.(2) Defendants made subject to hospital orders, whether restricted or not, are entitled to release when the medical conditions justifying their original admission cease to be met: R v London South and South West Region Mental Health Review Tribunal, Ex p Moyle [2000] Lloyd’s Rep Med 143, 150; R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2002] QB 235 , 248, paragraph 18. Further, they are liable to recall only on medical grounds. They may be a source of danger to the public even though these medical conditions are not met. While it is possible to argue, as Mr Davies did, about the magnitude of this risk, it cannot be said not to exist.(3) A defendant sentenced to life imprisonment under section 109 is not deprived of all his rights. He may appeal against imposition of the sentence. He may appeal against the minimum term specified by the judge. He is eligible for release on the expiry of that term and is entitled to be released if he is no longer a source of danger to the public. But the decision whether it is safe to release him will be taken by the Parole Board, as an independent body acting judicially, which will not be confined to the medical considerations of which, alone, a Mental Health Review Tribunal may take account, and he is liable to recall indefinitely if he appears to present a danger to the public, the grounds of recall, again, being broader than in the case of a restricted patient. In short, an automatic life sentence affords a measure of control not available under the other available orders. Had it been open to the Recorder to make an order under section 45A (which it was not, because the appellant was not suffering from psychopathic disorder) it seems likely that he would have done so. This would have avoided the ill effects which the appellant undoubtedly suffered as a result of his confinement in prison. We hope that further thought may be given to exercise of the power conferred by section 45A(10). In the course of his argument for the Home Secretary, Mr Perry gently suggested that Court of Appeal decisions generally encouraging the making of hospital orders where the relevant medical criteria were met might, in the absence of adversarial argument, have given less than adequate weight to the differing conditions governing the release and recall of restricted patients as opposed to life sentence prisoners. He instanced authorities such as R v Howell (1985) 7 Cr App R (S) 360; R v Mbatha (1985) 7 Cr App R (S) 373; R v Mitchell [1997] 1 Cr App R (S) 90; R v Hutchinson [1997] 2 Cr App R (S) 60. There may be some force in this criticism, and we would accept that these differing conditions are a matter to which sentencing judges and appellate courts should try to give appropriate weight. The difficulties caused to prison managements by the presence and behaviour of those who are subject to serious mental disorder are, however, notorious, and we would need to be persuaded that any significant change in the prevailing practice was desirable. Recommendation We agree with the Court of Appeal that sections 109 and 37 of the 2000 and 1983 Acts respectively are not incompatible with article 3 (or, for that matter, article 5) of the Convention and the appeal should therefore be dismissed. We so recommend. Before the Court of Appeal (Criminal Division) (Kennedy LJ, Bell and Cooke JJ) Mr Davies for the appellant made submissions to very much the same effect as those before the House, although he placed some reliance on article 5 of the European Convention as well as article 3. The court rejected those submissions: [2002] 2 Cr App R (S) 189; [2002] Crim LR 220. Having heard argument on behalf of the Crown and the Home Secretary, as the House also has done, the court did not accept that the appellant was other than criminally culpable and held (in paragraph 27 of its judgment) that it had been open to Parliament to say, as it had in 1997, that The issues[15]We return to the argument for the appellant, summarised in paragraph 5 above.[16]It may be accepted that a sentence of life imprisonment, passed under section 109 of the 2000 Act, is, in part at least, punitive in purpose and effect. The minimum term specified by the judge to be served before release is imposed as retribution for the crime committed. It may also be accepted as wrong in principle to punish those who are unfit to be tried or who, although fit to be tried, are not responsible for their conduct because of insanity: see, generally, RvH [2003] 1 WLR 411 ; [2003] UKHL1. But the appellant did not claim to be unfit to plead and advanced no defence of insanity. Instead, he pleaded guilty to an offence of which an essential ingredient was an intention to cause grievous bodily harm to another. The Recorder of Cardiff did not regard the appellant as other than criminally culpable. Had he done so he would not have specified a minimum term based on a notional sentence of eight years’. The appellant’s mental illness could properly be relied on as mitigating the criminality of his conduct but not as absolving him from all responsibility for it. Mr Davies laid stress on the stigma attaching to a sentence of life imprisonment, which he criticised as unfair in the case of a mentally-disordered defendant such as the appellant. It is of course true that conviction of serious violent crime carries a stigma. But the appellant will have been stigmatised less by the sentence passed upon him than by his voluntary admission of guilt.[17]Section 82 of the 2000 Act imposes additional duties on sentencing courts where offenders appear to be mentally disordered. Save where a custodial sentence is fixed by law (as in cases of murder) or falls to be imposed under section 109, the court must consider the offender’s mental condition before imposing a custodial sentence. The humanity and fairness of this requirement are obvious. But it cannot, as a matter of national law, be stigmatised as wrong in principle to pass a sentence of imprisonment on a mentally disordered defendant who is criminally responsible and fit to be tried. This is made clear by the terms of section 37 of the 1983 Act, for even where the conditions in subsection (2)(a)(i) or (ii) are found to be satisfied the court may make a hospital order only if it is also of opinion under subsection (2)(b) that a hospital order is "the most suitable method of disposing of the case". If it is not of that opinion, a sentence of imprisonment may be imposed even on an offender in whose case the conditions in subsection (2)(a)(i) or (ii) are satisfied. The Court of Appeal in R v Birch (1989) 11 Cr App R (S) 202, 215, pointed out that prison might be chosen as an alternative to hospital either because the offender was dangerous and no suitable secure hospital accommodation was available or because there was an element of culpability in the offence which merited punishment, as might happen where there was no connection between the mental disorder and the offence or where the offender’s responsibility for the offence was reduced but not wholly extinguished. There is no divergence in this respect between national law and Strasbourg jurisprudence: in X v United Kingdom (Application No 5229/71, 5 October 1972) the Commission rejected as manifestly inadmissible a complaint by a mentally-disordered defendant that he should be held in a psychiatric hospital and not in a prison.[18]There would be strong grounds for challenging the compatibility of section 109 of the 2000 Act with article 3 of the Convention if its effect, read with section 37(1) of the 1983 Act, were to deny a mentally-disordered defendant qualifying for an automatic life sentence the medical treatment which his condition required. To subject such a defendant to unnecessary suffering, humiliation, distress and deterioration of his mental condition could properly be regarded as inhuman or degrading treatment or punishment. But that is not a necessary result of these provisions, since section 47 of the 1983 Act gives the Home Secretary power to transfer a defendant sentenced to imprisonment to a hospital where he will receive any medical treatment he needs, and the Home Secretary is obliged to act compatibly with the Convention. Thus, as the Recorder observed in this case, the effect of the sentence may be very much the same whether he is sentenced to imprisonment or made subject to a hospital order.[19]If it were shown that a mentally-disordered defendant was held in prison, that he was there denied medical treatment, available in hospital, which his mental condition required and that he was suffering serious consequences as a result of such denial, he would have grounds for seeking judicial review of the Home Secretary’s failure to direct his transfer to hospital under section 47 of the 1983 Act: Keenan v United Kingdom (2001) 33 EHRR 913 . But this would not be a challenge based on the compatibility of sections 109 and 37 with article 3. Nor is it the ground of challenge which the appellant makes, or could make, in this case, since the Home Secretary exercised his transfer power promptly. While the interruption of the appellant’s medication during the 8 days following sentence caused him ill effects, these were not in our opinion of sufficient severity to engage the operation of article 3: see Ireland v United Kingdom (1978) 2 EHRR 25 , 79, paragraph 162; Aerts v Belgium (1998) 29 EHRR 50, 90, paragraph 66.[20]In R v Buckland [2000] 1 WLR 1262 , 1268, the Court of Appeal described section 2 of the 1997 Act as "founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration and, if released, should be liable indefinitely to recall to prison." In a case where the evidence showed this assumption to be soundly based no issue of compatibility with the Convention was likely to arise, but there were very obvious issues of compatibility in any case where it appeared that the court was required to pass a sentence of life imprisonment on a defendant who appeared to present no danger to the public. This was the problem which confronted the Court of Appeal (Lord Woolf CJ, Steel and Richards JJ), after the Human Rights Act 1998 came into force, in R v Offen [2001] 1 WLR 253 . The court neatly resolved the problem by holding (page 272, paragraph 79):
"It therefore can be assumed the section was not intended to apply to someone in relation to whom it was established there would be no need for protection in the future. In other words, if the facts showed the statutory assumption was misplaced, then this, in the statutory context, was not the normal situation and in consequence, for the purposes of the section, the position was exceptional." "
In our judgment, section 2 of the 1997 Act will not contravene Convention rights if courts apply the section so that it does not result in offenders being sentenced to life imprisonment when they do not constitute a significant risk to the public." In his argument for the Home Secretary, Mr David Perry expressly accepted the correctness of this approach, as would we. He moreover accepted that it would apply equally to a mentally-disordered defendant, relieving the court of the need to impose an automatic life sentence, and permitting the making of a hospital order, if it were established that there was no need to protect the public against him in future. The making of a hospital order in such circumstances is expressly envisaged by section 37(1B) of the 1983 Act. Thus the complaint of arbitrariness and excessive punishment which might otherwise be made with some force under articles 3 and 5 of the Convention is met, first, by pointing to the court’s release from the obligation to impose a life sentence where a defendant is shown not to be dangerous and, secondly, where a life sentence is passed, by the imposition of a minimum term reflecting the culpability of the individual defendant (see R v Lichniak [2002] 3 WLR 1834 , 1840-1841; [2002] UKHL 47 , paragraph 16).[21]Interpreted in accordance with R v Offen [2001] 1 WLR 253 , section 109 does not lack an objectively justifiable protective purpose:(1) Defendants sentenced to determinate sentences of imprisonment must be released after serving a specified proportion of their sentences and are subject to recall for a limited period only. If on release they are still dangerous, they are a source of risk to the public.(2) Defendants made subject to hospital orders, whether restricted or not, are entitled to release when the medical conditions justifying their original admission cease to be met: R v London South and South West Region Mental Health Review Tribunal, Ex p Moyle [2000] Lloyd’s Rep Med 143, 150; R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2002] QB 235 , 248, paragraph 18. Further, they are liable to recall only on medical grounds. They may be a source of danger to the public even though these medical conditions are not met. While it is possible to argue, as Mr Davies did, about the magnitude of this risk, it cannot be said not to exist.(3) A defendant sentenced to life imprisonment under section 109 is not deprived of all his rights. He may appeal against imposition of the sentence. He may appeal against the minimum term specified by the judge. He is eligible for release on the expiry of that term and is entitled to be released if he is no longer a source of danger to the public. But the decision whether it is safe to release him will be taken by the Parole Board, as an independent body acting judicially, which will not be confined to the medical considerations of which, alone, a Mental Health Review Tribunal may take account, and he is liable to recall indefinitely if he appears to present a danger to the public, the grounds of recall, again, being broader than in the case of a restricted patient. In short, an automatic life sentence affords a measure of control not available under the other available orders. Had it been open to the Recorder to make an order under section 45A (which it was not, because the appellant was not suffering from psychopathic disorder) it seems likely that he would have done so. This would have avoided the ill effects which the appellant undoubtedly suffered as a result of his confinement in prison. We hope that further thought may be given to exercise of the power conferred by section 45A(10).[22]In the course of his argument for the Home Secretary, Mr Perry gently suggested that Court of Appeal decisions generally encouraging the making of hospital orders where the relevant medical criteria were met might, in the absence of adversarial argument, have given less than adequate weight to the differing conditions governing the release and recall of restricted patients as opposed to life sentence prisoners. He instanced authorities such as R v Howell (1985) 7 Cr App R (S) 360; R v Mbatha (1985) 7 Cr App R (S) 373; R v Mitchell [1997] 1 Cr App R (S) 90; R v Hutchinson [1997] 2 Cr App R (S) 60. There may be some force in this criticism, and we would accept that these differing conditions are a matter to which sentencing judges and appellate courts should try to give appropriate weight. The difficulties caused to prison managements by the presence and behaviour of those who are subject to serious mental disorder are, however, notorious, and we would need to be persuaded that any significant change in the prevailing practice was desirable. Recommendation[23]We agree with the Court of Appeal that sections 109 and 37 of the 2000 and 1983 Acts respectively are not incompatible with article 3 (or, for that matter, article 5) of the Convention and the appeal should therefore be dismissed. We so recommend.

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