Regina v Drew

The Appellate Committee considered whether section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, read with section 37 of the Mental Health Act 1983, is incompatible with article 3 of the European Convention on Human Rights when applied to mentally ill offenders. The court held that the statutory scheme does not necessarily breach article 3 provided that: (a) mentally disordered defendants who are not dangerous may be found to be exceptional so as to avoid the automatic life sentence (following the approach in R v Offen); (b) where a life sentence is imposed the sentencing judge may fix a minimum term reflecting culpability; and (c) the Home Secretary has power under section 47 of the 1983 Act to transfer a prisoner to hospital for treatment, so that the statutory regime does not inevitably deprive a mentally ill offender of required medical care. The court rejected the contention that the automatic life sentence necessarily amounts to inhuman or degrading treatment in breach of article 3, and dismissed the appeal.

The appellant, born in 1963, had prior convictions for serious violent offences and in 1999 committed a further woundings offence to which he pleaded guilty. Although fit to plead and not legally insane, he was suffering from schizophrenia and medical opinion was that he would be a danger to the public if released. Under the statutory scheme a life sentence was mandatory where a person had committed two qualifying 'serious offences' (section 109 of the Powers of Criminal Courts (Sentencing) Act 2000), unless exceptional circumstances were shown. Section 37 of the Mental Health Act 1983 permits hospital orders for mentally disordered offenders, but subject to restrictions and limits.

The Recorder would have made a hospital order with restriction but was precluded from doing so by the mandatory life sentence rule and therefore imposed a life sentence with a minimum term of two years and eight months. The appellant suffered deterioration in his mental condition in prison because of interruption to medication, but the Home Secretary authoritatively and promptly transferred him to hospital under sections 47 and 49 of the 1983 Act eight days after sentence.

The appellant argued that imposing an automatic life sentence on a mentally ill offender is "inhuman or degrading treatment or punishment" contrary to article 3 ECHR. The House reviewed the statutory provisions, the Government White Paper background, and the existing authorities on hospital orders and restriction orders. The court framed issues as (i) whether it is wrong in principle to impose punitive imprisonment on mentally ill but criminally responsible offenders, (ii) whether an automatic life sentence necessarily breaches article 3, and (iii) whether sections 109 and 37 are incompatible with article 3.

The Appellate Committee reasoned that imprisonment may be imposed on mentally disordered offenders who are criminally responsible; section 37 itself contemplates imprisonment where hospital order would not be the most suitable disposal. The court emphasised that article 3 would be engaged if the statutory regime inevitably resulted in denial of necessary medical treatment or caused inhuman or degrading suffering. However, the 1983 Act gives the Home Secretary power to transfer prisoners to hospital (section 47), and the Home Secretary is obliged to act compatibly with the Convention; thus the statutory scheme does not inevitably deny treatment. The court accepted the interpretative approach in R v Offen that section 109 should not be applied to a defendant who can be shown not to present a significant future danger (exceptional circumstances). The short interruption to medication suffered by the appellant before transfer did not meet the threshold for article 3 violation. Having weighed the protective purpose of automatic life sentences, the different regimes of release and recall (Parole Board for life prisoners versus medical/review tribunal considerations for patients) and the availability of judicial remedies where treatment is denied, the court concluded that sections 109 and 37 are compatible with articles 3 and 5 and dismissed the appeal.

Appeal dismissed. The House held that sections 109 (Powers of Criminal Courts (Sentencing) Act 2000) and 37 (Mental Health Act 1983), read together, are not incompatible with article 3 ECHR. The court reasoned that the statutory regime does not necessarily deprive mentally disordered offenders of treatment (section 47 transfer powers exist), that an exception exists where a defendant can show he is not a future danger (so the life sentence is not arbitrary, following R v Offen), and that a life sentence with an appropriate minimum term and Parole Board oversight provides a legitimate protective purpose.

Appeal from the Court of Appeal (Criminal Division) ([2002] 2 Cr App R (S) 189; [2002] Crim LR 220) to the Appellate Committee of the House of Lords which dismissed the appeal on 8 May 2003.