DREW v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, Mr Anthony James Drew, is a British national who was born in 1963 and is currently detained in a mental hospital in Gwent. He is represented before the Court by Mr H. Davies Q.C. and Mr A. Jones, barristers practising in Cardiff. The respondent Government are represented by Ms E. Willmott, Foreign and Commonwealth Office The facts of the case, as submitted by the parties, may be summarised as follows. On 4 August 1995, following an assault upon his girlfriend and a man he believed she was involved with, the applicant was convicted of two offences of causing grievous bodily harm with intent, and was sentenced to concurrent terms of six years’ imprisonment. It is likely that by the time the applicant was released, in April 1999, he was suffering from schizophrenia. He experienced the delusion that he was a special person who had been born 2000 years ago and had been sent to save sinners. He felt that people behaved strangely towards him and were constantly testing him. He was paranoid and began carrying a knife. On 19 November 1999 the applicant, who had been using cannabis and Valium, went into a public house in Newport. He attracted attention because of his dishevelled appearance and his attempts to sell a watch to customers. The landlord told him to leave after one drink, but meanwhile one of the other customers, “M”, who was completely unknown to the applicant, noticed the knife in his pocket and attempted to take it from him. The applicant took the knife back and left the pub, followed by M. Outside, the applicant struck at M with the knife, cutting M’s hands. M and his companions retaliated, and the applicant was found by the police lying motionless on the ground. He was arrested and taken to hospital for treatment. When he was finally interviewed he told the police that for some time he had been harassed by gangsters, and that he had bought the knife to protect himself against them. He believed that M was a “sidekick” of the gang leader, and that M had tried to rob him and had stolen his girlfriend. The applicant was charged with an offence of wounding with intent to cause grievous bodily harm, a “serious offence” for purposes of section 2 of the Crime (Sentences) Act 1997 and section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 (see below). He was initially remanded in custody in prison, but on 12 June 2000 he was transferred to a psychiatric hospital for examination, under the care of Dr Huckle. He remained there until 1 March 2001. At the hospital the applicant was diagnosed as suffering from schizophrenia. He was prescribed antidepressants and increasing doses of an antipsychotic drug, Quetiapane. However, he proved resistant to this treatment, and to a second antipsychotic drug. In January 2001 he was prescribed Clozapine, an a-typical antipsychotic licensed especially for use in cases of treatment-resistant schizophrenia. Clozapine may be prescribed only by an approved psychiatrist and must be dispensed by an approved pharmacy. The applicant’s condition began to improve; he was complying with the treatment programme and was keen to receive further treatment. The applicant did not claim to be unfit to plead and did not advance a defence of insanity. Instead, he pleaded guilty in the Crown Court at Cardiff on 1 August 2000. He appeared before the Recorder of Cardiff for sentencing on 1 March 2001. Dr Huckle and another approved consultant psychiatrist gave evidence that the applicant 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 Mental Health Act 1983 Act with a restriction on his release, unlimited in time, under section 41 of the 1983 Act. The Recorder explained that since the applicant had already been convicted, in 1995, of offences classed as “serious” under section 109(5) of the Powers of the Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”: see below), he had no choice but to sentence him to a term of life imprisonment. He fixed the minimum term to be served at two years and eight months’ imprisonment and remarked: “I have to say I regret having to pass this sentence. Had I had power to do so I would have passed a sentence under the Mental Health Act, making you the subject of a hospital order with a restriction without limitation of time. That, for the reasons I have explained, is impossible. ...” The applicant was taken immediately to Cardiff Prison, where he was admitted at approximately 4 p.m. and placed on the hospital wing. According to the prison medical records, he was examined by a doctor who noted that the applicant “presented as appropriate”, but was bemused at his sentence as he had been expecting to be sent to mental hospital. No-one at the prison was authorised to prescribe or dispense Clozapine. The prison authorities contacted the Clozapine Monitoring Service, which advised that if the dose was interupted for 48 hours or longer the patient would have to return to the start of his medication programme. That night the applicant had difficulty in getting to sleep and was prescribed Zimovane, after which the prison log recorded that he appeared to sleep well. The following day, 2 March 2001, the prison medical officer attempted to obtain a supply of Clozapine, but this was not possible, so Olanzapine was prescribed instead. At about 2 p.m. the applicant complained of feeling unwell. He was given 10 mg of Olanzapine and, according to the prison record, his mood improved. He appeared to sleep well that night. The following day (3 March 2001) he was again seen by a doctor who prescribed medication to help him sleep. The doctor described the applicant as appearing relaxed and talking appropriately. No particular problems were recorded in the prison medical log on 4 or 5 March 2001. On 6 March 2001 Dr Huckle examined the applicant with a view to seeking his transfer to hospital. Dr Huckle’s report indicated that the applicant was refusing the treatment offered by the prison authorities. An application for his transfer to hospital was made to the Secretary of State under section 47 of the Mental Health Act 1983 on 7 March 2001. On 8 March 2001 the applicant was examined by a second doctor, as required by section 47 of the 1983 Act. The second doctor’s report indicated that the applicant was becoming increasingly depressed and concluded that he should be transferred, because he had responded well to Clozapine in the past and that treatment was available only in a mental hospital. On the same day the Secretary of State, having considered the medical reports, authorised the applicant’s transfer to hospital. Dr Huckle noted in his report dated 5 February 2003: “[The applicant] was in Cardiff Prison for eight days and there was a clear deterioration in his mental state during that time. A number of phone calls were received by [the hospital] about his deteriorating mental state by medical staff at the prison. He was becoming more paranoid and more withdrawn and there was concern that he would pose a risk to himself or possibly to others if he started to misinterpret the environment. As a result both myself and one of the Medical Officers prepared a medical recommendation which was sent to the Mental Health Unit of the Home Office for [the applicant] to be transferred under Section 47/49 of the Mental Health Act 1983, which was achieved ... [The applicant] was returned to Clozapine on his return to [hospital] on 9 March 2002. The Clozapine was gradually increased. In the early stages of starting his medication he had clear ideas of reference in regard to other patients on the ward and showed increasing preoccupation. ... Unfortunately when Clozapine is stopped there can result in a rebound psychosis whereby the symptoms come back with a vengeance and become more difficult to treat. There is evidence on the medical file that [the applicant’s] mental state was starting to deteriorate once the Clozapine stopped and it certainly took a number of months to actually get full control of his symptoms following his return to [hospital].” Following his transfer, the applicant has remained in hospital. If and when the hospital authorities decide he no longer requires treatment in hospital, he will be returned to prison. Once the tariff period set by the judge has expired, it will be for the Parole Board to decide whether it is safe to release the applicant back into the community. The applicant appealed against sentence, arguing that his mental illness had been the primary cause of his committing the offence, and that it was “inhuman and degrading”, in breach of Articles 3 and 5 of the Convention, to label him, by sentencing him to life imprisonment, as a deliberate wrongdoer deserving punishment. The Court of Appeal rejected those submissions (R. v. Anthony James Drew [2002] 2 Cr App R (S) 189; [2002] Crim LR 220), as follows: “In the context of this case we cannot say that the sentence of life imprisonment which the Recorder was obliged to pass was incompatible with the rights of the [applicant] under either Article 3 or Article 5 of the European Convention. We accept that a sentence of imprisonment does carry a certain stigma. It is ... a public statement that the offender is a deliberate wrongdoer who deserves punishment, but we do not accept that the stigma should not be applied to those convicted of serious crimes but who suffer from mental illness, given that in every case they would only have been convicted at all because they were fit to plead and have been demonstrated at trial to have had at the material time the necessary mens rea. Although ... this Court has consistently encouraged the use of both hospital and restriction orders, it has always been open to Parliament to say, as it did in 1997, that in certain defined cases there is an assumption that the offender presents such a serious and continuing danger to the safety of the public that a hospital order with a restriction order will afford inadequate protection, and there must therefore be a sentence of life imprisonment. Given that a sentence of life imprisonment does afford greater protection to the public, and that the assumption is rebuttable, and that there is no evidence to show that an offender sentenced to life imprisonment will not receive appropriate medical treatment, we find it impossible to see how the introduction of the statutory assumption can be said to have infringed the [applicant’s] Convention rights.” The applicant appealed to the House of Lords, arguing that it was wrong in principle to impose a punitive sentence of imprisonment on someone who was mentally ill and not fully criminally culpable, and that the imposition on him of the automatic life sentence was therefore contrary to Articles 3 and 5. Lord Bingham of Cornhill, giving the judgment of the Appellate Committee, observed that the applicant’s mental illness could properly be relied on as mitigating the criminality of his conduct, but not as absolving him of all responsibility for it. There would be strong grounds for challenging the compatibility of the automatic life sentence with Article 3 of the Convention if its effect were to deny a mentally disordered defendant the medical treatment which his condition required, but this was not a necessary result, since section 47 of the 1983 Act gave the Home Secretary power to transfer a defendant sentenced to life imprisonment to a hospital, and since the Home Secretary was obliged to act compatibly with the Convention and was subject to judicial review. In the present case, the Home Secretary acted very promptly. Although the interruption of the applicant’s medication during the eight days following his sentence caused him ill effects, these were not of sufficient severity to engage Article 3. In March 1996 the Government issued a White Paper entitled Protecting the Public: The Government’s Strategy on Crime in England and Wales, (Cm 3190). Chapter 10 was headed “Automatic Life Sentences for Serious Violent and Sex Offenders” and explained their reasons for requiring indeterminate sentences for dangerous criminals: “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. 10.4. The great advantage of the life sentence is its flexibility. It recognises that there are two separate considerations: the length of time the offender should serve as punishment for the offence he or she has committed (the tariff), and the question whether he or she can safely be released at the end of that period. However courts make very little use of the discretionary life sentence. In 1994, for example, 434 offenders were convicted of rape or attempted rape, but only 12 were sentenced to life imprisonment. In 1994, 217 offenders were convicted of a second serious violent or sexual offence, but only 10 received a discretionary life sentence. 10.5. This does not necessarily mean that the sentences imposed on violent and sex offenders are too lenient: long sentences are frequently imposed on offenders convicted of violent and sex offences . . . . But if a determinate sentence is imposed the offender must be released once that sentence has been served, even if there is every reason to believe that he or she will commit further serious offences. That has led to a number of tragic cases where offenders convicted of violent or sex offences have been released only to repeat their offences almost immediately. 10.6. It is essential that the public receives proper protection from serious, dangerous and persistent offenders. Long sentences are not sufficient, of themselves, to provide that protection: before potentially dangerous offenders are released an assessment must be made to see whether they still pose a risk. If an offender cannot safely be released he or she must continue to be detained – if necessary indefinitely. 10.7. This proposal is not designed to increase the time such offenders spend in prison as punishment for the offences they have committed. That will continue to be the responsibility of the trial judge, who will be expected to set a tariff appropriate to the seriousness of the offence, just as the judge would if he or she were imposing a determinate sentence. This will enable the risk presented by the offender to be assessed towards the end of the tariff, when it will be known in the case of a sex offender, for example, whether that offender had undertaken the sex offender treatment programme, and how he or she had responded to it. The proposal will ensure that when the tariff ordered by the court expires, offenders who represent a real risk to the public are not released unless and until the Parole Board is satisfied that it is safe to do so. Once released, they will remain on licence and subject to recall in the same way as other life sentence prisoners.” It was said to be one of the key elements of the Government’s proposal (paragraph 10.10) that: “the court will also have discretion not to pass the automatic life sentence in genuinely exceptional cases. This is intended to allow for occasional quite unforeseeable circumstances where it would plainly be unjust and unnecessary to impose the life sentence. But it should be emphasised that this provision will be designed to cover only genuinely exceptional cases. The court will be required to explain what were the exceptional circumstances which justified some other sentence in place of a life sentence . . . .” The chapter concluded, in paragraph 10.11: “10.11. Too often in the past, those who have shown a propensity to commit serious violent or sex offences have served their sentences and been released only to offend again. In many such cases, the danger of releasing the offender has been plain for all to see – but nothing could be done, because once the offender has completed the sentence imposed, he or she has to be released. Too often, victims have paid the price when the offender has repeated the same offences. The Government is determined that the public should receive proper protection from persistent violent or sex offenders. That means requiring the courts to impose an automatic indeterminate sentence, and releasing the offender if and only if it is safe to do so.” Section 109(1)-(4) of the 2000 Act, which gave effect to the above recommendations, provides 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. Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”). The court can make a hospital order only if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder and that: “the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37 (2) (a) (i)), “the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37 (2) (b) (ii)). Section 41 of the 1983 Act empowers a court to make a restriction order (with or without limit of time) at the same time as it makes a hospital order. The restriction order gives the Secretary of State, inter alia, increased powers over the movement of a patient and may be made if it appears to the court having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if still at large, that it is necessary for the protection of the public from serious harm to make the order. A restriction order also confers a power to recall or conditionally discharge a patient at any time and restricts the powers of the Mental Health Review Tribunal to order release more narrowly than in the case of an ordinary mental patient. The Home Secretary may by warrant under section 47(1) direct the transfer of a defendant who is sentenced to a term of imprisonment but whose mental condition requires treatment in hospital to a named hospital. Such a transfer direction has the same effect as a hospital order (section 47(3)) and may under section 49 be coupled with a restriction order. These are the powers exercised by the Home Secretary in the applicant’s case. The situation which arises where neither a sentence of imprisonment nor a hospital order, on its own, appears appropriate in the case of a particular offender was dealt with in the Government’s White Paper (“Protecting the Public”) mentioned above (Chapter 8, “Sex Offenders and Mentally Disordered Offenders”): “8.12. The Government proposes changes in the arrangements for the remand, sentencing and subsequent management of mentally disordered offenders to provide greater protection for the public and to improve access to effective medical treatment for those offenders who need it. The central change, if adopted, would be the provision of a ‘hybrid order’ for certain mentally disordered offenders for whom the present form of hospital order is unsatisfactory, particularly those who are considered to bear a significant degree of responsibility for their offences. The order would enable the courts, in effect, to pass a prison sentence on an offender and at the same time order his immediate admission to hospital for medical treatment. 8.13. The hybrid order, together with other proposals amending the detail of the Mental Health Act 1983, would substantially increase the flexibility of arrangements for dealing with mentally disordered offenders at all stages from remand through to rehabilitation. In particular, it would enable the courts to deal with some of the most difficult cases in a way which took proper account of the offender’s need for treatment; the demands of justice; and the right of other people to be protected from harm. 8.14. Existing sentencing arrangements for offenders who are mentally disordered require the court to decide either to order the offender’s detention in hospital for treatment, or to sentence him to imprisonment, or to make some other disposal. In some cases, an offender needs treatment in hospital but the circumstances of the offence also require a fixed period to be served in detention. This may be because the offender is found to bear some significant responsibility for the offence notwithstanding his disorder, or because the link between the offending behaviour and the mental disorder is not clear at the time of sentencing. The hybrid disposal would be a way of enabling the requirements of sentencing in such cases to be met. Under the order, an offender would remain in hospital for as long as his mental condition required, but if he recovered or was found to be untreatable during the fixed period set by the court, he would be remitted to prison. The hybrid order was recommended for use in sentencing offenders suffering from psychopathic disorder by the Department of Health and Home Office Working Group on Psychopathic Disorder. The Government is considering whether it might be made available in respect of offenders suffering from all types of mental disorder currently covered by mental health legislation.” Legislative effect was given to this proposal by section 45A of the 1983 Act, inserted by section 46 of the 1997 Act. So far as relevant the section provides: “ (1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law – (a) the conditions mentioned in subsection (2) below are fulfilled; and (b) except where the offence is one the sentence for which falls to be imposed under section 2 of the Crime (Sentences) Act 1997, the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment (‘the relevant sentence’) in respect of the offence. (2) The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners – (a) that the offender is suffering from psychopathic disorder; (b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and (c) that such treatment is likely to alleviate or prevent a deterioration of his condition. (3) The court may give both of the following directions, namely – (a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a ‘hospital direction’); and (b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a ‘limitation direction’). (4) A hospital direction and a limitation direction shall not be given in relation to an offender unless at least one of the medical practitioners whose evidence is taken into account by the court under subsection (2) above has given evidence orally before the court. (5) A hospital direction and a limitation direction shall not be given in relation to an offender unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment, or of some other person representing the managers of the hospital that arrangements have been made – (a) for his admission to that hospital; and (b) for his admission to it within the period of 28 days beginning with the day of the giving of such directions; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety. (8) Section 38(1) and (5) and section 39 above shall have effect as if any reference to the making of a hospital order included a reference to the giving of a hospital direction and a limitation direction. (9) A hospital direction and a limitation direction given in relation to an offender shall have effect not only as regards the relevant sentence but also (so far as applicable) as regards any other sentence of imprisonment imposed on the same or a previous occasion. (10) The Secretary of State may by order provide that this section shall have effect as if the reference in subsection (2) above to psychopathic disorder included a reference to a mental disorder of such other description as may be specified in the order.” This section confers a power exercisable in the case of those upon whom automatic life sentences were required to be imposed under section 2 of the 1997 Act and (by virtue of paragraph 1(4) of Schedule 11 to the 2000 Act) section 109 of the 2000 Act, but the section applies only to those suffering from psychopathic disorder since the power conferred by subsection (10) to extend the application of the section to other descriptions of mental disorder has not been exercised in England and Wales. In contrast, in Scotland section 59A of the Criminal Procedure (Scotland) Act 1995, inserted by section 6(1) of the Crime and Punishment (Scotland) Act 1997, provides for a disposal by means of a sentence of imprisonment and an allied hospital order in any appropriate case, whatever the nature of the mental disorder.