Domestic Violence, Crime and Victims Bill [HL]
Baroness Scotland of Asthal (Minister of State, Home Office; Labour)
My Lords, Amendments Nos. 56, 57 and 71 would introduce procedural changes to the court process and powers under the insanity legislation. There is a need to amend the court's procedure to bring the range of disposal options available to the court following a finding of unfitness to plead or not guilty by reason of insanity in line with the options available under the Mental Health Act 1983.
Amendment No. 56 seeks to change the disposals available to the court finding of unfitness to plead or not guilty by reason of insanity reached under the Criminal Procedure (Insanity) Act 1964. Previously, the court could make an order for the defendant's admission to hospital, a supervision and treatment order or an absolute discharge. However, the court did not have to be satisfied that the defendant was mentally disordered before ordering his admission to hospital. Therefore, it was theoretically possible for someone who was not mentally disordered to be detained in hospital.
In addition, the admission order relied on the Secretary of State to issue a warrant ordering the defendant's admission to hospital within two months. This caused practical difficulties if the Secretary of State was not informed of the court's decision in time, as it could lead to the order lapsing and no further detention being possible.
The new options are for the court to make a hospital order, with or without restrictions, under the Mental Health Act 1983 in the same way that it could have done if the defendant had been convicted of an offence; for the court to make a new disposal called a supervision order, which is tabled in Amendment No. 71; or for the court to give an absolute discharge.
Amendment No. 56 would make hospital orders apply in the same way as those under the Mental Health Act 1983, with one exception—that the court will be able to order a hospital to admit a defendant. This is to reflect the fact that the court will not have the option of imposing a prison sentence on a defendant who is found not guilty by reason of insanity or unfit to plead. The application of the 1983 Act means that the court will be able to make a hospital order only if there is evidence that the defendant is mentally disordered.
The new supervision order seeks to provide a disposal to deal with those cases in which the defendant is not mentally disordered—he might be unfit to plead or not guilty by reason of insanity because of some physical disorder such as diabetes or epilepsy—but it is still thought that some intervention is required.
Where the finding is one made on a charge of murder, the court will have to make a restricted hospital order if the conditions as to mental disorder are met. Where they are not, the supervision order is available to provide a structure for whatever treatment is appropriate to address the risk of further harm.
The powers in the Mental Health Act 1983 to remand a defendant to hospital for a report or for treatment and to make an interim hospital order have been extended to cover the situation in which a court is considering which disposal to make following a finding of unfitness or insanity. This power to remand for report or treatment will be useful to the court if, for example, it is unsure whether a hospital order is the correct disposal following a finding of unfitness of a verdict of not guilty by reason of insanity.
Amendment No. 57 would provide a new right of appeal to the Court of Appeal against disposals following a finding of unfitness to plead or not guilty by reason of insanity. Amendment No. 71 would insert a new schedule into the Criminal Procedure (Insanity) Act 1964. It makes provision about the new supervision order which creates a range of powers for the court to dispose of defendants found unfit or insane, but for whom disposals under the Mental Health Act are not justified.
This new supervision order is similar to the existing supervision and treatment order available under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, which it will replace. However, it is broader in two respects. First, it can include requirements for medical treatment in respect of physical illness rather than simply mental illness. Secondly, it is possible for the order only to provide for the supervision of defendants without including any requirement to submit to medical treatment. It is narrower because it cannot include a requirement for treatment as an inpatient. We think that that strikes the right balance in meeting the needs of the defendant.
Like its predecessor, the supervision order is non- punitive and carries no sanction, there being neither conviction nor evidence justifying medical compulsion. The order enables the court to require the provision of appropriate support and treatment to the defendant to minimise the risk of further harm and provides a means of drawing any problems to the attention of the relevant authorities.
Amendments Nos. 87, 88, 93 and 111 are consequential amendments. Amendments Nos. 93 and 101 also remove the provisions in Section 71 of the Mental Health Act 1983 requiring the Secretary of State to refer to the mental health review tribunal. Similarly, the amendments also remove the interpretation from Section 79 of the 1983 Act of restricted patients detained under the insanity legislation, since the proposed amendments would enable such persons actually to be detained under the relevant provisions.
Amendments Nos. 95 and 112 amend Section 16 of the Prosecution of Offences Act 1985. Amendment No. 103 inserts a reference into Section 133 of the Sexual Offences Act 2003 to include persons detained under the Mental Health Act 1983. All the other amendments are consequential. I have taken a little time to go through them because I anticipate that those who come to look at these provisions may want to know precisely what we had in mind and how they will fit together. I hope that noble Lords will forgive me for being comprehensive, but I hope that I will never have to repeat the information. I beg to move.