R v Drew (Anthony James)
| Jurisdiction | England & Wales |
| Judgment Date | 19 December 2001 |
| Neutral Citation | [2001] EWCA Crim 2861 |
| Date | 19 December 2001 |
| Court | Court of Appeal (Criminal Division) |
[2001] EWCA Crim 2861
Court and Reference:Court of Appeal ; 2001/1893/Y3
Kennedy LJ, Bell and Cooke JJ
Appearances:H Davies QC and A Jones for B; I Murphy QC, I Morris and H Davies for the prosecution; D Perry for the Home Secretary
Whether the imposition of an automatic life sentence for a second serious offence breached the European Convention in relation to an offender who qualified for a hospital order.
On 1 August 2000, D pleaded guilty to an offence of wounding with intent to do grievous bodily harm contrary to s. 18 Offences Against the Person Act 1861; he repeatedly stabbed a man in a public house. In 1995, he had been sentenced to imprisonment in respect of 2 s. 18 offences: he attacked his former girlfriend and her male friend with a stick. Consequently, he was within the statutory provisions (s. 2 Crime (Sentences) Act 1997 as re-enacted in s. 109 Powers of Criminal Courts (Sentencing) Act 2000) requiring a sentence of life imprisonment to be imposed following conviction for a second serious offence, unless there were exceptional circumstances.
The medical evidence was that D suffered from a mental illness, probably schizophrenia, and the doctors suggested that a hospital order under s. 37 Mental Health Act 1983 together with a restriction order under s. 41 should be made. However, the judge found that this did not amount to exceptional circumstances and so on 1 March 2001 imposed a sentence of life imprisonment, though he recognised that the Mental Health Act disposal was the preferable sentence. Subsequently, D was transferred to hospital by the Home Secretary under s. 47 of the 1983 Act; if and when he recovers, he can be returned to prison to serve the rest of his sentence.
On appeal, it was argued that where mental illness is the essential reason for the commission of an offence, the offender does not merit punishment and so should not be imprisoned, because of the stigma marking out such a person as a deliberate wrongdoer who deserves punishment; it was noted that the automatic life sentence provisions, including the requirements to set a tariff for punishment purposes, were inconsistent with the need for treatment for offenders such as D. It was submitted that to imprison him in circumstances where but for the existence of an earlier offence the court would make a hospital order amounted to punishment; that it was "inhuman and degrading" to label someone who is mentally ill as a deliberate wrongdoer deserving punishment, and so in breach of Art 3 European Convention; and that the sentence of life imprisonment was arbitrary and so in breach of Art 5 of the Convention.
The prosecution argued that there was no evidence of D being subjected to inhuman or degrading treatment, which requires physical or mental suffering which was not alleged here; that D was in the same institution as if a psychiatric disposal had been made, the only difference being that his danger to the public meant that he will be more effectively detained; that there was no breach of Art 5, given that D was to be deprived of his liberty in any event and the sentence was individualised according to his needs after it was imposed.
The Home Secretary submitted in addition that D's mental condition did not relieve him of culpability (which would have been a defence to the allegation, which he did not submit at trial); and that the automatic life sentence provisions created a presumption based on dangerousness, which could be displaced by showing the absence of continuing danger, which D had not been able to do.
Background
1. 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 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 UK 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 subs(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 subs(2) above shall not be regarded as an offence the sentence for which is fixed by law."
2. Subsection (5) identifies serious offences for the purposes of the section, and they include offences under s. 18 of the Offences Against the Person Act 1861.
3. Section 109 replaced the similarly worded s. 2 of the Crime (Sentences) Act 1997 with effect from 25 August 2000.
4. On 1 August 2000 in the Crown Court at Cardiff, the appellant, who was born on 1 May 1963, pleaded guilty to wounding with intent to do grievous bodily harm contrary to s. 18 of the 1861 Act, and possession of an offensive weapon. On 4 August 1995 he had received a sentence of 6 years' imprisonment in respect of 2 offences of causing grievous bodily harm with intent contrary to s. 18, those sentences being ordered to be served concurrently. Thus it followed that when he pleaded guilty to the other offences on 1 August 2000 he fell within the scope of s. 2 of the 1997 Act, now s. 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 19 November 1999 when the...
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