R v Drew (Anthony James)
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 2003 |
| Neutral Citation | [2003] UKHL 25 |
| Court | House of Lords |
| Date | 08 May 2003 |
[2003] UKHL J0508-1
HOUSE OF LORDS
Ordered to Report
The Committee (Lord Bingham of Cornhill (Chairman), Lord Steyn, Lord Hutton, Lord Millett and Lord Rodger of Earlsferry) have met and have considered the cause Regina v. Drew (Appellant) (On Appeal from the Court of Appeal (Criminal Division)). We have heard counsel on behalf of the appellant and respondent and on behalf of the Secretary of State for the Home Department pusuant to section 5 of the Human Rights Act 1998.
This is the considered opinion of the Committee.
At issue in this appeal against sentence is the compatibility of section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and section 37 of the Mental Health Act 1983, when applied to mentally ill offenders, with article 3 of the European Convention on Human Rights.
The appellant was born on 1 May 1963. His career after leaving school was marked by criminal activity and drug abuse. On 4 August 1995 he was convicted of two offences of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. He was sentenced to concurrent terms of six years' imprisonment for these offences and was released in April 1999. On 19 November 1999 he committed an offence of wounding with intent to cause grievous bodily harm contrary to section 18 of the 1861 Act. He pleaded guilty to this offence (and also to a more minor offence, irrelevant for present purposes) in the Crown Court at Cardiff on 1 August 2000. This wounding offence was a "serious offence" for purposes of section 2 of the Crime (Sentences) Act 1997 and section 109 of the 2000 Act which replaced section 2.
The appellant was not insane when he committed the 1999 offence, nor was he unfit to be tried when he pleaded guilty in the Crown Court and (later) appeared for sentence. But he was known to be mentally ill. While in custody following his arrest in November 1999 he manifested psychotic symptoms and messianic delusions and in June 2000 was admitted to a psychiatric hospital where, with treatment, his mental condition improved. Two approved consultant psychiatrists were of opinion that he was suffering from schizophrenia and would be a serious danger to the public if released. They recommended that a hospital order be made under section 37 of the 1983 Act with a restriction on his release, unlimited in time, under section 41 of the Act. This was a recommendation which the Recorder of Cardiff, before whom the appellant appeared for sentence on 1 March 2001, would have accepted had section 109 of the 2000 Act allowed him to do so. But the offences of which the appellant had been convicted in 1995, like that to which he had pleaded guilty in August 2000, were "serious offences" within the meaning of section 2 and section 109 of the 1997 and 2000 Acts respectively, and section 109 of the 2000 Act, read with section 37 of the 1983 Act, precluded the making of such an order in the absence of exceptional circumstances. So, as the section required, the Recorder imposed a sentence of life imprisonment, although he did so with an expression of regret. He fixed the minimum term to be served at two years and eight months' imprisonment. On being sentenced the appellant was returned to prison where his mental condition deteriorated sharply for want of a drug which had been prescribed for him in hospital but which the prison could not prescribe. On 9 March 2001, following urgent and repeated representations by HMP Cardiff where the appellant was confined, the Home Secretary, acting with expedition, authorised the transfer of the appellant from prison to the psychiatric hospital where he had been treated before. This transfer, made under sections 47 and 49 of the 1983 Act, took effect at once, eight days after sentence. The interruption in the appellant's medication had a harmful effect on his mental health and it took several months after his return to hospital for the doctors to gain full control of his symptoms.
Stripped to its bare essentials, the argument of Mr Huw Davies QC for the appellant rested on three main propositions: (1) it is wrong in principle to impose a punitive sentence of imprisonment on those who, like the appellant, are mentally ill and so not criminally culpable. Accordingly (2) the imposition of an automatic life sentence on such defendants is "inhuman or degrading treatment or punishment" within the unqualified prohibition in article 3 of the European Convention on Human Rights. Therefore (3) sections 109 and 37 of the 2000 and 1983 Acts respectively, in requiring imposition of such a sentence in cases such as the appellant's, even where the offender is mentally ill, are incompatible with article 3 of the Convention. Before considering these contentions it is necessary to cite the key provisions to which they relate.
Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000
Section 109(1)-(4) provide as follows:
"109 (1) This section applies where—
(a) a person is convicted of a serious offence committed after 30 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,
(b) where he is under 21 at that time, a sentence of custody for life under section 94 above, 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.
(3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.
(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."
There follows in subsection (5) a list of criminal offences all of which are serious offences for purposes of the section if committed in England and Wales. The list includes offences related to murder (although not murder itself, for which a mandatory life sentence is prescribed elsewhere), manslaughter, offences under section 18 of the 1861 Act, rape and attempted rape, unlawful sexual intercourse with a girl aged under 13, certain of the most serious firearms offences and robbery involving the possession of a firearm or imitation firearm. All are offences carrying a maximum penalty of imprisonment for life. In subsections (6) and (7) the section contains broadly comparable lists of serious offences committed in Scotland and Northern Ireland.
Section 109 reproduces (in its application to England and Wales) section 2 of the Crime (Sentences) Act 1997. The enactment of section 2 was preceded by a White Paper ("Protecting the Public: The Government's Strategy on Crime in England and Wales", Cm 3190, March 1996), Chapter 10 of which was entitled "Automatic Life Sentences for Serious Violent and Sex Offenders" and explained the rationale of the Government's proposal:
"10.3. A wide range of serious violent and sex offences carry a maximum sentence of life imprisonment, including manslaughter, rape and the most serious woundings. In these cases the court has the discretion to impose a life sentence either because the offence is so serious that it merits the maximum available penalty, or because the trial judge feels unable to determine when it will be safe to release the offender. In either case, the trial judge will specify the tariff which must be served, and at the end of that period the Parole Board will determine whether the offender can safely be released.
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