EHRM, 07-03-2006, nr. 35679/03

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:

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:

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:

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.

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:

and:

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’):

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:

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.