Regina v. Drew (Appellant) (On Appeal from the Court of Appeal (Criminal Division)).

A mentally disordered offender who is fit to be tried and criminally responsible may lawfully receive a punitive sentence. Mental illness may mitigate culpability without extinguishing it.

The automatic life sentence for a second serious offence is compatible with articles 3 and 5 of the European Convention on Human Rights when interpreted to exclude an offender who presents no significant future risk. For a dangerous offender, the sentence has an objectively justifiable protective purpose. The minimum term must reflect individual culpability.

The statutory scheme does not itself deny necessary treatment because a life prisoner may be transferred to hospital. A failure to transfer a prisoner who requires hospital treatment may be challenged separately where the resulting suffering reaches the article 3 threshold.

The appellant, who suffered from schizophrenia, pleaded guilty to wounding with intent after earlier convictions for two serious offences. Two psychiatrists recommended a hospital order under section 37 of the Mental Health Act 1983, coupled with an indefinite restriction order. The Recorder nevertheless had to impose life imprisonment under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, because no exceptional circumstances were found.

The appellant's condition deteriorated in prison after an interruption in his medication. Eight days after sentence, the Home Secretary transferred him to hospital under sections 47 and 49 of the 1983 Act.

The Court of Appeal dismissed his appeal: [2002] 2 Cr App R (S) 189. The issue before the House was whether the interaction of sections 109 and 37, when applied to a mentally ill but criminally responsible offender, was incompatible with article 3, or article 5, of the European Convention on Human Rights.

1. Appeal dismissed unanimously. The Appellate Committee, in its considered opinion agreed nemine dissentiente, held that sections 109 and 37 of the Powers of Criminal Courts (Sentencing) Act 2000 and the Mental Health Act 1983 were compatible with articles 3 and 5 of the European Convention on Human Rights.

2. Per the Committee, it is wrong to punish a person who is unfit to be tried or not responsible by reason of insanity. That principle did not govern the appellant. He was fit to plead, did not rely on insanity and admitted an offence requiring an intention to cause grievous bodily harm. His mental illness could mitigate culpability, but did not extinguish criminal responsibility. National law therefore permits imprisonment of a mentally disordered offender where punishment or public protection makes a hospital order unsuitable.

3. Section 109 must be read in accordance with R v Offen [2001] 1 WLR 253. An offender who establishes that he presents no significant future risk falls within the exceptional-circumstances provision and need not receive an automatic life sentence. That construction answers the objection that the scheme may impose arbitrary or excessive punishment.

4. Where future danger exists, an automatic life sentence has an objectively justifiable protective purpose. A hospital patient becomes entitled to release when the medical conditions authorising detention cease, and recall is governed by medical grounds. By contrast, a life prisoner's release is determined judicially by the Parole Board upon a broader assessment of danger, and the prisoner remains subject to indefinite recall. The minimum term separately reflects the offender's individual culpability.

5. The statutory scheme would raise a serious article 3 issue if it necessarily denied a mentally disordered prisoner required medical treatment. It did not do so because section 47 of the 1983 Act empowered the Home Secretary, who was obliged to act compatibly with the Convention, to transfer such a prisoner to hospital. A prisoner denied necessary hospital treatment and suffering serious consequences could seek judicial review of a failure to transfer. The appellant's eight-day interruption in medication did not attain the severity required by article 3.

6. Per the Committee, sentencing courts should give appropriate weight to the different release and recall regimes governing restricted hospital patients and life prisoners. The Committee was not persuaded that any significant change to the prevailing practice favouring hospital orders was desirable. It nevertheless invited further consideration of extending the hybrid-order power in section 45A to forms of mental disorder beyond psychopathic disorder.

1. House of Lords: The appeal was dismissed unanimously. The House affirmed that the statutory sentencing and hospital-order scheme was compatible with articles 3 and 5 of the Convention: [2003] UKHL 25.

2. Court of Appeal (Criminal Division): The appellant's challenge to the life sentence was rejected. The court held that Parliament could require life imprisonment for defined offenders presenting a serious and continuing danger, subject to a rebuttable assumption of dangerousness: [2002] 2 Cr App R (S) 189; [2002] Crim LR 220.

3. Crown Court at Cardiff: The Recorder imposed life imprisonment under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, with a minimum term of two years and eight months. He would otherwise have made a hospital order with an indefinite restriction order.