Section 109 Powers of Criminal Courts (Sentencing) Act 2000 and s.37 Mental Health Act 1983, when applied to mentally ill offenders, were not incompatible with Art.3 European Convention on Human Rights.Appeal from the judgment of the Court of Appeal (see R v Drew (2002)) that s.109 Powers of Criminal Courts (Sentencing) Act 2000 and s.37 Mental Health Act 1983 were not incompatible with Art.3 European Convention on Human Rights. The appellant had a history of criminal activity and drug abuse. In 1999 he committed an offence of wounding with intent to cause grievous bodily harm. That was a "serious offence" for the purposes of s.109 of the 2000 Act. 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 he manifested psychotic symptoms and was admitted to psychiatric hospital. Two approved consultant psychiatrists recommended the making of a hospital order under s.37 of the 1983 Act with a restriction on his release under s.41, on the basis that he was suffering from schizophrenia and would be a serious danger to the public if released. However the appellant had in 1995 committed another serious offence for the purposes of s.109 and the sentencing court therefore imposed a life sentence under s.109 in the absence of any exceptional circumstances. Eight days after being sentenced the appellant was transferred from prison to hospital under ss.47 and 49 of the 1983 Act. The appellant appealed to the Court of Appeal arguing that the imposition of an automatic life sentence on a mentally ill defendant was "inhuman or degrading treatment or punishment" contrary to Art.3 of the Convention. The Court of Appeal held that the introduction of the statutory assumption that an offender within s.109 presented such a serious and continuing danger to the public that a hospital order under s.37 with a restriction order would afford inadequate protection did not infringe the appellant's Convention rights. The assumption was rebuttable and an offender sentenced to life imprisonment could receive appropriate medical treatment. The appellant appealed.HELD: (1) As a matter of national law it could not be wrong in principle to pass a sentence of imprisonment on a mentally disordered defendant who was criminally responsible and fit to be tried. That was clear from s.37 of the 1983 Act itself under which imprisonment could be imposed if a hospital order was not the most suitable method of disposing of the case, as for instance where there was an element of culpability which merited punishment (R v Birch (1989) 11 Cr App R (S) 202). That was consistent with the jurisprudence of the European Court of Human Rights. (2) There would be strong grounds for challenging the compatibility of s.109 of the 2000 Act with Art.3 of the Convention if its effect, read with s.37 of the 1983 Act, was to deny a mentally disordered defendant qualifying for an automatic life sentence the medical treatment that his condition required, but s.47 of the 1983 Act gave the Home Secretary power to transfer a defendant to hospital, as was done in this case, and the Home Secretary was obliged to act compatibly with the Convention. (3) The effects of the eight days spent in prison by the appellant following sentence were of insufficient severity to engage Art.3 of the Convention. (4) Section 109 did not apply to someone in relation to whom it was established that there would be no need for protection in the future (R v Offen (2001) 1 WLR 253). Therefore the imposition of an automatic life sentence under s.109 would not contravene Convention rights if the courts applied the section so that it did not result in offenders being sentenced to life imprisonment when they did not constitute a significant risk to the public. That approach applied equally to mentally disordered defendants. (5) Thus the complaint of arbitrariness and excessive punishment under Art.3 and Art.5 of the Convention was met, first, by the court's release from the obligation to impose a life sentence where a defendant was shown not to be dangerous and, secondly, where a life sentence was passed, by the imposition of a minimum term reflecting the culpability of the individual defendant (R v Lichniak (2002) 3 WLR 1840). (6) Interpreted in accordance with Offen (supra), s.109 did not lack an objectively justifiable protective purpose.Appeal dismissed.

[2003] UKHL 25

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