§ Order for Second Reading read.1.27 pm
§ Mr. John Greenway (Ryedale)
I beg to move, That the Bill be now read a Second time.
I am pleased to introduce a Bill which will provide much-needed safeguards for mentally vulnerable and disabled people who become caught up in the criminal justice system—that is, people who are found to be unfit to plead in relation to a criminal charge against them or who are found not guilty by reason of insanity.
Those safeguards build on the protection that the existing law was intended to provide, but which has been denied to those vulnerable people because of the inadequacies of the present law. Severe consequences result from that. To avoid those consequences, my Bill provides the court with a range of disposable powers so that it can choose an order appropriate to the circumstances of the case before it and meet the individual needs of care, security, supervision and treatment of the defendant.
The need to amend the law has been recognised for over 15 years, since the Butler committee on mentally abnormal offenders presented proposals for change in the mid-1970s. The Butler committee's key proposals are contained in the Bill.
The Bill has widespread support, not only from the Law Society, which has promoted it and to which I am extremely grateful, but from all the relevant professional associations and voluntary organisations concerned with the care and treatment of mentally disordered people, as well as those involved in the operation of the criminal justice system. I am delighted, too, that the Bill has all-party support, as reflected by my hon. Friends who most enthusiastically agreed to sponsor it. The Bill also has the Government's support and I am grateful to my right hon. Friend the Minister of State, Home Office for his help and support in preparing the Bill and defining the issues that it should contain, especially with regard to disposal arrangements.
I am also grateful to my right hon. Friend the Home Secretary for showing the Government's support in a recent answer to a parliamentary question, in which he said:The Government have reviewed the 1964 Act in the light of recommendations made by the Butler committee on mentally abnormal offenders which reported in 1975. The Government recognise that it is desirable to amend the Act by providing for an examination by a court of the case against an accused person found unfit to plead."—[Official Report, 28 January 1991; Vol. 184, c. 372.]Why, then, is the Bill needed? It seeks to amend the 1964 Act to which my right hon. Friend the Home Secretary referred—the Criminal Procedure (Insanity) Act 1964.
The Bill will affect two groups of people: those who are found to be unfit to plead in relation to a criminal charge against them and those who are found not guilty by reason of insanity. Under the Criminal Procedure (Insanity) Act, once a person accused of committing a criminal act has been found to be unfit to plead because of mental disorder, the court has no alternative but to order that person to be detained in a hospital, specified by the Secretary of State, without trial or any determination by the court of whether 1270 the person committed the act of which he or she is accused. Furthermore, the person is held regardless of the severity of the alleged offence. I stress the point about the severity of the alleged offence because, in many instances, it is extremely minor and trivial.
A fundamental principle of English law is that a person charged with a criminal offence is innocent until proved guilty, yet that principle does not apply to people who are so mentally disordered as to be unfit to plead in relation to the charge against them. One of the many cases described to me in preparation for this debate was the celebrated case of Valerie Hodgson, of which many of my right hon. and hon. Friends will be aware. She was in her mid-30s and mentally handicapped. She had lived with her family all her life and was cared for by her father. In the early hours of one morning, she was awoken by a noise. On going downstairs, she found the body of her father, who had been stabbed fatally in the chest.
Like many mentally handicapped people, Valerie was highly suggestible and anxious to please. During interviews at the police station she confessed to having murdered her father. Her uncorroborated confession was the only evidence against her and when the case came to court Valerie was found to be unfit to plead because she could not understand the nature of the court proceedings or instruct her legal advisers to prepare a proper defence, so the trial was abandoned. Under the Criminal Procedure (Insanity) Act 1964, Valerie was committed, first to prison and then to a secure hospital, with no limit on the period she was to spend there.
There was no opportunity for the court to examine the forensic scientific evidence that would have shown that Valerie did not commit the murder and meanwhile her father's murderer went free. After she had spent 14 months in hospital, new evidence emerged leading to the conviction of the murderer so Valerie was allowed to return home to her family.
§ Mr. James Arbuthnot (Wanstead and Woodfood)
Is not one of the curious factors of that case—and the whole of the law—that Valerie was committed to prison not for committing an act, but for being unfit to plead? When it was found that she had not done the act, she was released, in spite of the fact that she was still unfit to plead.
§ Mr. Greenway
My hon. Friend has succinctly outlined an anachronism of the present law. I think that he will agree that Valerie was extremely fortunate; many others have been less fortunate and, even today, there are people in our mental institutions who have been there for a long time—25 years and 40 years in two specific cases.
§ The Minister of State, Home Office (Mr. John Patten)
I am grateful to my hon. Friend for allowing me to intervene so early in his speech. Does he agree that, although it may be coldish comfort for Valerie, she was paid compensation on the direction of my right hon. Friend the Home Secretary, which was at least some recompense for what she, alas, went through.
§ Mr. Greenway
I am grateful to my right hon. Friend, who has provided some balance to what I am saying, but surely he would agree that the 1964 Act works against those people whom it was originally meant to protect. That is why we should take this opportunity to change the law.
1271 Equally severe consequences apply to people who have been found not guilty by reason of insanity. Under the Criminal Procedure (Insanity) Act, they must be detained in hospital, with restrictions on their discharge and without time limit. A plea of not guilty by reason of insanity, known as the insanity defence, was intended as a protection to excuse defendants from punishments associated with a crime for which they were not fully responsible because they suffered a lack of reason caused by what the law calls a "disease of the mind." However, medical conditions such as epilepsy have been defined by 19th century case law to be diseases of the mind. Therefore, people who commit a crime during or in the aftermath of an epileptic fit cannot use their epilepsy as a defence without being labelled insane. Having found them not guilty by reason of insanity, the court has no alternative but to impose an order committing them to hospital, with restrictions on their discharge and without a time limit.
I am grateful to the British Epilepsy Association for providing me with details of cases where people who have committed minor offences during or in the aftermath of a fit have been advised to plead guilty, rather than risk being found not guilty by reason of insanity and so face a mandatory hospital order. For instance, one unfortunate lady has had a complex partial epilepsy problem for 35 years. She is now 72 years old, but when she was 60 she was accused of shoplifting. She remembers nothing of the incident except being approached by sales staff who refused to believe her explanation even after she had shown them her medical identity bracelet. The police did not believe that she was epileptic, as she had not been writhing on the floor. She was so frightened by the experience that she pleaded guilty and was fined £60.
A current case still awaiting trial concerns a man charged with assault of a newsagent. His epilepsy was undiagnosed at the time of the incident even though he had sought medical advice about having "funny turns". It has since been established that he has stress-related epilepsy. The man is now faced with a difficult decision which illustrates clearly the problem that the Bill is designed to solve. He has to choose whether to plead not guilty on the grounds of sane automatism, in the hope that the court will use its discretion and not impose a hospital order, or to avoid the risk of detention in hospital by pleading guilty.
The House will agree that such cases highlight the need for reform. The Criminal Procedure (Insanity) Act 1964 was intended to protect an unfit person from the ordeal of a trial if his or her mental state might cause the trial to be unfair. Equally, the insanity defence was intended as a protection for people who were not fully responsible for their actions. However, the vulnerable people who should be protected by the law are avoiding using it because of its draconian consequences. My Bill will make the law more practicable and usable and will provide much-needed safeguards and protection for people with disabilities.
How will the Bill help? First, it will stop miscarriages of justice against people who are unfit to plead. It will help in the implementation of the policy—agreed by all parties—of diverting mentally disordered people from the criminal justice system. That, indeed, is the thrust of what my right hon. Friend the Minister wants to achieve. The Bill will provide safeguards and ensure better care and treatment for mentally vulnerable people.
§ Mr. John Patten
Does my hon. Friend recognise that his proposal fits in well with the proposals in the Criminal Justice Bill, which was given its Third Reading earlier this week, to ensure that when courts believe that there is a need to look at psychiatric reports, they should do so? Does he agree that in the Standing Committee debates on the Criminal Justice Bill, in which he played a distinguished part, and in the debate on this Bill, we have done an enormous amount to try to rectify some of the problems facing mentally ill people in the criminal justice system?
§ Mr. Greenway
I entirely agree, and I am grateful for my right hon. Friend's kind remarks about the small part that I played in the Bill's proceedings. This Bill fits in well with the Government's policies as set out in the Criminal Justice Bill, which I hope will shortly be considered in another place. The proposals in my Bill for treating people with disabilities in the community also fit in well with the proposals of my right hon. Friend the Secretary of State for Health on community care. Government policy on community care for people with mental handicaps, which is now at an advanced stage, will mean that more vulnerable people will be living in the community. There is much potential for some such people to get into danger of the kind that I have outlined.
A mentally handicapped person living in a normal suburban household with two or three other people should be integrated and should have some money in his pocket to visit the shops, like anyone else. Such people could encounter danger and difficulty, especially in urban areas where they may not be known. The possibility is less likely in rural areas, such as that which I represent, but they could suddenly find themselves in a police station facing a charge. For that reason alone it is right to change the law. In every respect, the Bill is entirely in line with the Government's broad front policy.
I have spoken about how the Bill seeks to care for people returned to the community. That is one of its key factors. It introduces two main changes to the existing law. First, it will require a court to carry out a trial of the facts to determine whether the accused carried out the act with which he is charged. The court will examine evidence presented by the prosecution and the defence to satisfy the jury that the person committed the act or made the omission charged. That is an entirely new concept in English law and I am privileged to attempt to make such a change.
The court will look only at the facts of the case, including any forensic or scientific evidence and witness evidence, but it will not look at the intentions of the accused. That is the key point. It will not look at the mens rea—what was in the accused's mind—which is a crucial part of our criminal law. It would be meaningless to try to form an impression of the motives of someone who, because of his mental condition, is unfit to plead.
The Bill also allows a court to appoint a person to safeguard the interests of the accused, for example, by ensuring that legal representatives are instructed to act for the defendant in the trial of the facts. I shall come to that in due course.
Secondly, if the court is satisfied that the accused committed the act or made the omission charged, it will bring in a finding to that effect. As I have said, this is a new legal concept and it is vital to get clear in our minds that such a finding is not the same as being convicted of a 1273 criminal offence. It merely establishes that the unfit person has committed an act that would have resulted in a criminal conviction if the accused had had a sound mind. If no such finding is made, the person is acquitted.
The first example shows clearly how much better the law would be by virtue of this provision. Sadly, at present we have to detain in hospital people about whom we have no clear view as to whether they committed the act with which they were charged. We are now providing for that. When I come to the issue of disposals I shall cite cases where people will be detained in psychiatric hospitals.
The advantage to society is that for the first time society will know that at least a jury has considered all the circumstances and all the evidence against the accused, and we shall all be able to sleep easy in our beds with clear consciences, knowing that the jury's findings mean that the psychiatric hospital patient did that of which he was accused.
§ Mr. Arbuthnot
There are two issues here. The first is whether the person concerned committed the act of which he is accused. The second, which causes me some worry, is whether that person should, in his own or society's interests, be detained in a mental hospital in any event. It seems from what my hon. Friend is saying that the second question will not arise, even if perhaps it ought to, if the person did not commit the act.
§ Mr. Greenway
My hon. Friend has put his finger on it. When people get into difficulties with the law, that can indeed serve as a means of bringing them to the attention of the authorities. Surely, however, the question whether they should be detained indefinitely in a psychiatric hospital is covered by the Mental Health Act 1983, which contains provisions enabling people to be detained regardless of whether they have been accused of a criminal offence. Society must decide; I do not think that it is up to the Bill to make sweeping changes in the way in which society deals with the mentally ill or mentally handicapped.
As my hon. Friend knows, schizophrenics are sleeping rough in London and other places. A recent edition of the Esther Rantzen programme "That's Life" highlighted the case of a homeless schizophrenic. I took the matter up with my hon. Friend the Member for Loughborough (Mr. Dorrell), the Under-Secretary of State for Health, who assured me that he had investigated the case. I understand that the person concerned was not considered to be of sufficiently unsound mind to be detained in a psychiatric hospital, and had refused treatment. The House should, of course, be concerned about such matters, but I do not think that they should be included in the Bill.
My hon. Friend's intervention touched on a point that I was about to make about the provisions in the Bill to increase the number of disposal options available to the courts. I accept that that will arise only if it is found that the person concerned committed the act of which he is accused; nevertheless, it is an important issue. The provisions will give the courts more flexibility and choice. If someone has been found unfit to plead, and it has been found that that person committed what would normally be considered a criminal act—and also in the case of those found not guilty by reason of insanity—the court will be 1274 able to choose between a range of orders, taking into account all the circumstances of the case, the severity of the offence and the individual needs of the defendant.
As the existing law provides, the court will be able to make an order that the person be detained in a hospital specified by the Secretary of State. That hospital order will not necessarily be accompanied by an order that imposes restrictions on the person's discharge from hospital unless he or she has been found to have committed murder. In those cases, the court must make a restriction order. In all other cases, it need impose a restriction order only where it is considered necessary to protect the public from serious harm.
Those provisions ensure that there is no risk that an unfit person who is a danger to the public will be allowed to go free in the community. I wish to stress that with all the force that is available to me. It is vital that it is understood that anyone who is likely to be a danger to society will be detained, as now. I am sure that it is passing through the mind of my right hon. Friend the Minister of State that that very much encapsulates the flavour of our discussions on sentencing when considering the Criminal Justice Bill.
In addition to the orders requiring detention in hospital, the courts will have other orders available to them, including a supervision and treatment order which will be similar to what is known as a psychiatric probation order, which is provided for under the Powers of the Criminal Courts Act 1973. That is being incorporated into the Criminal Justice Bill, which the House discussed only this week. Such an order provides for supervision by a social worker or probation officer and includes the additional requirement of medical treatment. The person subject to the order might be treated as a patient in hospital or might receive treatment in the community. Such an order would have been ideal for a young man called Glenn Pearson, whom I know many hon. Members have heard about. He is a young man who is profoundly deaf. He is unable to communicate and he has some learning difficulties. He was found unfit to plead to a charge of theft of three light bulbs and a £5 note. He was detained for several months in a psychiatric hospital. That is what I meant when I referred to the consideration of the severity of the offence.
Also available will be a guardianship order under the Mental Health (Amendment) Act 1983, which allows a guardian to be appointed to provide some supervision and assistance to the person under guardianship. Finally, the Bill will provide for the court to grant an absolute discharge in cases where no other order is necessary. That will be based on the circumstances of the individual case.
I have already said that the Bill has widespread support. I pay tribute to the Law Society, and especially to Miss Penny Letts, who has been extremely helpful to me in the preparation of the Bill. I pay tribute also to the Royal College of Psychiatrists, which has provided considerable support. I understand that at a conference the forensic section of the royal college organised an impromptu petition in support of the Bill. The conference took place last weekend and the organising of the petition produced more than 40 signatures of eminent consultant forensic psychiatrists. All the major voluntary organisations involved in the care and treatment of those with mental disorders and disabled people support the Bill. These organisations include MIND, Mencap, the British Deaf Association, the British Epilepsy Association, the 1275 National Schizophrenia Fellowship and the British Institute of Mental Handicap. I shall not mention all the organisations that support it because they are too numerous.
I am especially grateful for the help and support of the Mental Health Foundation's committee on the mentally disordered offender, whose membership includes many eminent professionals who are involved in law, psychiatry and criminal justice.
It is encouraging also that the support of so many organisations involved in the criminal justice system has been forthcoming. These include NACRO, Liberty, Justice and the Legal Action Group, as well as the two probation officer associations. They all support and welcome the Bill's provisions. Indeed, it has been difficult to find anyone who is opposed to the Bill. I can only thank those who have supported me, including the sponsors.
Clause 2 of the Bill seeks to ensure that the jury that decides whether the accused is fit to plead is separate from that by which the accused is tried. I mentioned earlier the arrangements for a person to be appointed by the court to put the case for the defence. That will enable court rules to provide for a guardian ad litem to be appointed, to safeguard the accused's interests and to ensure that he or she has legal representation at the trial of the facts. That would be similar to the appointment of a next friend in the case of defendants in civil proceedings who suffer from a disability. I am sure that the House will welcome that important safeguard.
The Criminal Procedure (Insanity) Act 1964 was intended to provide safeguards and protection for vulnerable individuals, but it fails to achieve that objective. The vulnerable people whom it should protect avoid using the law because of the draconian consequences. The Bill will make the law usable and provide much-needed safeguards, protection and proper provisions for those who suffer from a disability and who are among the most vulnerable individuals in our society. I commend the Bill to the House.
§ 2.1 pm
§ Mr. Edward O'Hara (Knowsley, South)
I congratulate the hon. Member for Ryedale (Mr. Greenway) on his Bill, which I am delighted to support. I echo the appreciation that he expressed of the excellent supporting work of the Law Society in preparing the Bill, and I make special mention of Penny Letts and Judy Foy for the help that they give me.
My reasons for supporting the Bill are the concerns that have been expressed about the existing law, the confusion or imperfect understandings that lie behind those concerns, their consequences for the individual and for the law, and the credit that should be given to the Bill for the excellent proposals that it contains.
I am concerned, first, about the rights and protection of the individual, and of society in general—which appear to be adequately provided for in the existing law. I am concerned also about the adequacy and integrity of the law. At present, there is inadequate understanding of the balance that should exist between consideration of the needs of society and those of the individual. Both are important, but it is surely the mark of an enlightened and mature society that they are kept in balance.
I will quote one case to illustrate my argument, but, in view of the time available to me, I shall not quote many 1276 others at length. I refer to the case of a gentleman who, in 1987, was the subject of an independent report by a consultant psychiatrist to a mental health review tribunal. It was only after going through the records that the psychiatrist discovered that the gentleman had been ordered to hospital in 1973. Having been found unfit to plead in relation to the alleged theft of a bottle of milk from a doorstep, a year before the tribunal hearing, the gentleman concerned was charged with the theft of a packet of tea from a supermarket while on leave from hospital. No one questioned his fitness to plead to that charge, which the court dealt with by way of a fine, even though in law he was still unfit to plead in relation to the original charge laid against him in 1973. The treatment of that individual seems to me to suggest that society is more than adequately protected.
The worthy motive of humanity, the only slightly less worthy motive of paternalism and the certainly unworthy effect of institutionalisation may also be confused. One gentleman spent 40 years incarcerated unnecessarily as a result of a sentence passed under what I regard as an inadequate law. Still further confusion arises from antediluvian attitudes to, and understanding of, diagnoses and treatment. Related to that are an undesirable rigidity in the law and a misunderstanding of the variety of conditions and the offences that those who suffer from them commit or—as the hon. Member for Ryedale said—are alleged to commit, as the case may never be tested in court. Those confusions need to be eliminated by changes in the law.
The consequence of all those confusions is that the principle of natural justice is frequently violated. It is violated whenever an individual is incarcerated without proof of guilt. Moreover, the law itself is demonstrably not respected by its practitioners if they advise a client to plead guilty out of concern for the possible nature of the sentence rather than out of concern for the likelihood of the person's being guilty. In a number of respects, the law is obsolete and in need of reform.
The Bill would make some commendable changes in the law. For example, it would offer the flexibility that would eliminate most of the concerns and confusions that I enumerated and thus offer more protection to the individual. The Bill also contains adequate safeguards for the protection of society where necessary. As the hon. Member for Ryedale said, in cases where there is a fixed penalty in law, that penalty will apply. In addition, other legislation provides for the protection of society from those who are not of sound mind. The Bill will do all that with minimal increased expenditure and manpower implications. Most important of all, the Bill suggests an enlightened attitude to those who cannot always behave in conformity with social norms and a recognition that there have been advances in the understanding of such conditions and in treatment techniques.
I have great pleasure in giving wholehearted support to the Bill.
§ 2.9 pm
§ The Minister of State, Home Office (Mr. John Patten)
I am pleased to follow the hon. Member for Knowsley, South (Mr. O'Hara) and to have heard the four important points that he made by referring to some interesting 1277 examples. Hon. Members respect his long-standing interest in these matters and warmly congratulate him on his speech.
I was also extremely interested to hear the interventions of my hon. Friend the Member for Wanstead and Woodford (Mr. Arbuthnot) during the speech of my hon. Friend the Member for Ryedale (Mr. Greenway). Perhaps he will catch your eye later, Mr. Deputy Speaker, because I dare say that he has more to say. We particularly value his contributions because, as a barrister, he understands many of the important and convoluted issues that must be addressed.
I warmly congratulate my hon. Friend the Member for Ryedale on his excellent measure. It is an important Bill, and I hope that it passes rapidly through all its stages. My hon. Friend said that he knew of no one who was against it. It is unusual that no one is against a Bill. We do not have many such occasions, but I guess that this is one of them. The Bill would do something that the whole House wishes, and that is to have incarcerated in hospital or in prison only those who should be incarcerated for the time being. Again, I know of no hon. Member who thinks that that is a bad principle. I hope that the relatively small number of cases in which things have gone wrong—for example, cases such as that of Valerie Hodgson—do not happen again.
The House would wish the Bill to be proceeded with at great pace and to be brought into law at an early date so that practitioners can begin to use the new legislative measure in the interests of the law and of those who should not be in hospital for a moment longer.
I shall elaborate on the point that I made in an intervention during the speech of my hon. Friend the Member for Ryedale. He was good enough to allow me to intervene on two occasions, and I was grateful for both opportunities. His Bill, which the Government and all hon. Members fully support, chimes in very well with the close concern of the Criminal Justice Bill, which is leaving this House for another place, for the welfare of those who are mentally ill and who may come before the courts. There was precious little between the hon. Members for Huddersfield (Mr. Sheerman) and for Kingston upon Hull, West (Mr. Randall), who spoke on several occasions during the proceedings of the Criminal Justice Bill, and myself on this issue. New provisions in the Criminal Justice Bill make it possible for the courts to specify at an early stage that they have psychiatric reports before them to avoid the unfortunate event of someone being committed to prison if he or she should not be so committed.
Here, of course, we are on to something slightly different—those who should not be committed to hospital unless necessary. In other words, there are two tracks of the Government's approach. The service of my hon. Friend the Member for Ryedale on the Criminal Justice Bill Standing Committee—not the first great criminal justice measure that he has considered—his distinguished service on the Home Affairs Select Committee and his service in respect of this Bill bring to bear the weight of all his experience to make sure that we get the law right.
Only a comparatively small number of people are affected by the operation of the Criminal Procedure (Insanity) Act 1964, with which the Bill seeks to deal, but 1278 the principles involved are important. There is a strong and principled demand for reform. It is clearly necessary to have effective and just provisions to deal with those who are unfit to plead and with those who, at the time of committing the offence, were, alas, so mentally disordered that they are subsequently found not guilty—to use the term of art—by reason of insanity. That problem has exercised the minds of hon. Members, the other place and members of Governments of both parties for a long time.
As long ago as 1975, some while before I and my hon. Friends the Members for Ryedale and for Wanstead and Woodford became Members of the House, the Butler committee on mentally abnormal offenders made some far-reaching proposals for the reform of provisions for dealing with such people. The Home Office subsequently consulted a wide range of people. A wide consultation process lasted a considerable period. I am a believer in consultation, particularly on complex areas of criminal law, but the trouble with consultation, as with the reports that the consultation is about, is that it does not always produce unanimity of views. Sometimes the committee deals, as the Butler committee did, with a matter of such overweening complexity that the consultation process throws up even more complexities to be dealt with.
The Butler report was the innocent victim of that process of producing more complexities. Everyone was straining to do what they possibly could to make matters better, but each time that the subject was examined different conclusions were reached. That should not be surprising, because the concepts involved were complex and it has been difficult to devise workable solutions.
I am not naive enough to think that all the legislation to which I or any other Minister speaks is perfect. But my hon. Friend's Bill contains a pretty workable solution to be examined by the House. I hope that the Bill will pass as rapidly as possible through its Committee stage. I hope that no imperfections will be found and that as an end product we shall have a Bill which is just but also balanced. Here I enter not a note of caution, but a note of agreement with my hon. Friend the Member for Ryedale. He firmly believes, as I do, as I know from listening to him speak time and again on the criminal justice system, in the need to protect the public and look after the victim.
I reassure the House and people outside who follow our proceedings that in my judgment nothing in the Bill diminishes the level of protection given to the general public by legislation. Deciding whether to allow someone who has been detained under the mental health legislation out of hospital, special hospital or prison is one of the most difficult tasks that Home Office officials and Ministers take. It is one of the trickiest matters on which they advise. They have done so for many years with great thoroughness and integrity. Anyone who has been involved with that system must look at a Bill such as this with a slighted jaded eye to make absolutely certain that nothing in it might make it easier for someone who might be a danger to be allowed out into the outside world. I have gone through the Bill with a fine-tooth comb, as advised, and I am happy to advise the House that I see no such threat anywhere in it.
My hon. Friend the Member for Ryedale has clearly explained the aims of the Bill. Criticism of the 1964 Act has focused on the absence of any requirements for the courts to test the case against the accused persons who are found unfit to plead. A few courts defer reaching a decision on fitness until they have heard the prosecution case. That has 1279 been our experience. Consequently, it has been possible that an innocent person might be found unfit to plead and detained in hospital indefinitely. My hon. Friend and the hon. Member for Knowsley. South, in his excellent speech, gave examples of when that has happened in the past.
It is not their fault, but the courts do not have much discretion in disposing of cases; that has also attracted considerable criticism. Under the provisions of the Mental Health Act 1983, a court may make a restriction order in respect of a person who is convicted of an offence only if it thinks it necessary for the protection of the public from serious harm. That is the "serious harm" test, which is important. I should not like to see that diminished in any way.
However, under the 1964 Act any person who is found unfit to plead or not guilty by reason of insanity, is automatically made subject to an indefinite restriction order, no matter how minor his or her offence might be or how harmless he or she might be. That is unnecessary, disproportionate and wrong. The Government believe that the Bill will overcome those problems.
One of the Bill's main provisions would mean that in cases in which the Crown court found a defendant unfit to plead because of his mental disorder, it should conduct an inquiry into the charges against him. That is an important principle. The court must satisfy itself at least that the alleged offender committed the acts with which he is charged. That amounts to a trial within a trial or to a separate trial before a trial. My hon. Friend the Member for Ryedale stressed the importance of juries being equipped to deal with the two separate issues. The trial of facts issue is important.
Under section 4(2) of the Criminal Procedure (Insanity) Act 1964 the Crown court—if it considers it expedient to do so and in the interests of the accused—may postpone consideration of the question of fitness to plead until any time up to the opening of the case for the defence. If the jury returns a verdict of acquittal, the question of fitness should not then be determined. However, the absence of any requirement to examine the case against the accused creates the possibility that a defendant may be detained in hospital indefinitely as a restricted patient, even if he has not committed the actions in question.
The Bill proposes that section 4 of the 1964 Act should be replaced by new provisions. It proposes that the question of fitness should be tried by a jury as soon as it arises. If a finding of unfitness to plead is returned, there should be a trial of facts to determine whether the accused committed the act or made the omission charged. Having made up its mind, the court would be able to choose from a range of disposal options—my hon. Friend the Member for Ryedale was right to say that they are very important—including an order directing the accused to hospital as a restricted patient. Public protection is ensured under the Bill. Where a patient is detained in hospital under a restriction order, the Secretary of State will retain his power to remit him to stand trial when he is satisfied that he can be properly tried. We think it right to preserve the present mandatory hospital disposal for a defendant found unfit to plead—and where the court is satisfied that he was responsible—or not guilty by reason of insanity to a charge of murder. Again, that is very important for public protection. We enter difficult territory when we consider the mental element, but perhaps we shall discuss that in Committee.
1280 The Butler committee proposed that the trial of facts should inquire into the accused's mens rea as well as into the actus reus to provide for an acquittal if the actus reus were established but the mens rea was not. That has perhaps been the most taxing problem associated with the reform of the 1964 Act that we have faced.
A criticism of the Butler committee recommendation might be that once the mental element is included, there is little to distinguish the trial of the facts from a normal trial, something for which the accused is supposedly unfit. It would be unrealistic and even contradictory where a person is unfit to be tried properly because of his mental state, that the trial of the facts should nevertheless have to consider that very aspect. We may want to consider that issue in Committee, to which I hope the Bill will rapidly proceed.
I applaud my hon. Friend the Member for Ryedale for ensuring that the courts have a choice of disposals, including a hospital order with or without restrictions, a guardianship order and a new community treatment and supervision order, which will be modelled on the psychiatric probation order.
The measures outlined in the Bill have been warmly supported by a wide range of legal and medical opinion. The Government are right behind the Bill and I hope that it will reach the statute book speedily.
§ Mr. James Arbuthnot (Wanstead and Woodford)
Most people listening to the debate will have been struck by one thing—that it is extraordinary that this anomalous position in law has lasted for so long.
I warmly congratulate my hon. Friend the Member for Ryedale (Mr. Greenway) on his success in the ballot and on choosing this subject. Although such congratulations are part of the normal courtesies of the House, my hon. Friend deserves particular congratulations on speaking up for those who cannot speak for themselves and who need and now have such a spokesman as my hon. Friend.
I carry a message for my hon. Friend from the Law Society, which especially wants to thank him for seeking it out and raising this subject. I know that the Law Society would also like to thank the other hon. Members, including the hon. Member for Knowsley, South (Mr. O'Hara) who spoke so persuasively, for sponsoring the Bill, which does so much good for the mentally ill.
We often criticise other countries for the way in which they treat their mentally ill and mentally handicapped. We should show some caution about doing so, because this country, in effect, imprisons people without trial, whether or not they have committed an offence. What is much more extraordinary is the fact that we imprison them whether or not that imprisonment is in the interests of society or those people. The hon. Member for Knowsley, South recounted a moving case about a person who was imprisoned simply for trying to steal a milk bottle.
Although the thrust of Government policy is towards increasing care for the mentally ill and the mentally handicapped in the community, the present law makes that impossible. The failure to consider whether such care in the community is either desirable or possible is not only inconsistent with Government policy, but foolish and irrational. Present Government policy is aimed at reducing 1281 the extent to which we rely on prisons for dealing with criminals, but the present law on those who are unfit to plead makes that a nonsense.
The present law continues a tendency that has always been present in society—the tendency to treat the mentally ill and the mentally handicapped not as people, but inanimate objects that we can shunt around from place to place. Perhaps that reduces the embarrassment that we all feel when we come across someone who is different. The mentally ill are not different from us, because there is one important thing about mental and physical illness—it can and does strike any of us. We should always bear it in mind that it is the unfortunates who are struck by mental illness and who should be particularly receiving of care and attention from society. At present it is the unfortunates who happened to be hit by mental illness who are struck by the law. For that reason I particularly congratulate my hon. Friend the Member for Ryedale on his Bill, to which I wish every success.
The detention of an innocent mentally ill person in prison must have a destabilising effect. Those who are responsible for the present law try to fiddle it and compromise it. That is not only bad for the mentally ill—it demonstrates that the law needs radical change—but it brings the rule of law into disrepute.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 61 (Committal of Bills).