The Parliamentary Under-Secretary of State for Justice (Jeremy Wright)
I congratulate the hon. Member for Islington South and Finsbury (Emily Thornberry) on securing this debate and on the way she has presented the case on behalf of her constituents. As she says, she and I have corresponded about the case of Benjamin Anabah, whose victim was the sibling of her constituents, who I know are here to hear what she had to say on their behalf. I, too, want to record my deepest sympathies for them, for all that they have been through.
As the hon. Lady said, Benjamin Anabah is now subject to a restricted hospital order. It might help if I say a word or two about the broader issues she has raised about the sentencing regime in such cases. As she made clear, the management of mentally disordered offenders is a complex area, and it can be difficult for victims to understand why individuals convicted of very serious offences are not serving long prison sentences. However, as she also knows, it has been the policy of successive Governments that mentally disordered people who commit offences should receive treatment for their disorder in hospital. When presented with medical evidence that a convicted offender requires treatment in hospital under the Mental Health Act 1983, the courts have wide discretion to deal with the case as they consider appropriate under the circumstances.
As the hon. Lady says, one option is to impose a hospital order, which diverts the offender from the criminal justice system. Offenders sentenced to hospital orders are detained for as long as they require treatment in hospital; there is no minimum period to be served. In making a hospital order, the court is making a clear decision that the offender should be diverted into the hospital system for treatment and not be punished in the criminal justice system. When making a hospital order, the higher courts may also impose a restriction order, which requires evidence that additional controls are necessary for the protection of the public from serious harm. The restriction order gives my right hon. Friend the Secretary of State for Justice controls over the offender’s access to the community and the level of security in which the offender is held. In exercising these powers, priority is always given to the protection of the public. This, of course, was the option taken in Mr Anabah’s case.
As the hon. Lady also says, another option open to the court is the hospital direction under section 45A of the Mental Health Act 1983. This disposal was introduced in 1997, but at that time, as she said, could be imposed only on offenders with a diagnosis of psychopathic disorder. This, of course, is not the case now, because the Mental Health Act 2007 abolished the separate categories of mental disorder. Accordingly, since the 2007 Act was commenced, offenders with any form of mental disorder can be dealt with by means of the hospital direction. That option was therefore available to the court sentencing Mr Anabah—but not one that the sentencing judge decided to take.
Emily Thornberry
The advantage of an order under section 45A is that someone who is mentally ill can go into hospital and his condition can be managed there; indeed, he could come out the other side and be cured. He would then have to face the punishment that the public and victim’s family certainly expect someone to suffer.
Jeremy Wright
Yes, I agree. That is exactly the effect of a section 45A direction. I can entirely understand why that is, of course, a preferable option from a victim’s point of view. I would repeat, however, that it is for the individual sentencing judge, who must be cognisant of those options—I shall come back to the hon. Lady’s point about guidelines—to decide what the most appropriate sentencing choice should be in each circumstance. It is difficult for all of us to second-guess the decision that the sentencing judge made, so long as he or she was fully cognisant of the options before him or her. As the hon. Lady says, it is quite right that, if the offender recovers to the extent that treatment is no longer required under a section 45A direction, the individual will be returned to prison until the sentence is concluded.
Guidance issued to the courts—the hon. Lady made reference to it—that has been endorsed by the appeal courts is clear that a hospital direction will be indicated if the offender presents a risk to the public for reasons above and beyond the mental disorder. None the less, courts must look, as I say, at the full circumstances of the case and form their own view of the most appropriate sentence.
Emily Thornberry
I would like to put another point on the record. I have perhaps had the advantage over the Minister of reading the sentencing remarks. My concern, which I shared with the family, is that the judge did not seem specifically to have directed his mind to the possibility of a section 45A order. That is one reason why we are so concerned about the lack of prominence given to it in the guidance.
Jeremy Wright
I understand the hon. Lady’s point about the guidance. I hear what she says about guidance to prosecutors—and I will, of course, see whether we can improve it. On this case, however, it is difficult for either the hon. Lady or me entirely to second-guess the judgment of the sentencing judge, but I would have thought that the judgment that really needs to be made in such cases is whether the offence is a direct result of the mental illness, in which case a hospital order might be appropriate, or whether the defendant is culpable for the criminal act but also has a mental disorder that could be subject to treatment, in which case a hospital direction might be more appropriate. I understand her point about the guidance. As she says, some guidance is already in existence, but we will look at whether we can improve the guidance, particularly to prosecutors, who are there to advise the sentencing judge on his or her sentencing options.
I should say that offenders subject to hospital directions receive the same type of treatment as those detained under hospital orders. This will usually include medication and psychological therapies as well as interventions to address other risk factors such as substance use. The difference is that the offender can be sent to prison should they recover to the extent that treatment in hospital is no longer required. In 2012, courts made 290 restricted hospital orders and 14 hospital directions.
I understand that victims of all offences, and in particular those that involve the loss of life, may find it difficult to accept that an offender is not being punished for the offence committed. I also acknowledge that uncertainty about the time that will be spent in hospital for treatment can cause anxiety and concern, but when the courts have made a clear decision to divert the offender to a psychiatric hospital for compulsory treatment, it follows that the offender may be detained only for as long as treatment is needed. It would be quite wrong to detain people in psychiatric hospital for any longer than their mental health requires.
The independent Mental Health Tribunal is, therefore, an important safeguard against arbitrary detention. In establishing the tribunal, Parliament imposed on it a statutory duty to discharge a patient if it is not satisfied that the criteria for detention in the Mental Health Act 1983 are met. I understand the point the hon. Lady makes about repeated referrals back to the victim when tribunal hearings become necessary, but I am sure she will understand that it is important that the tribunal keeps a watch on detention to make sure it does not take any longer than it should. While, tragically, risk can never be entirely eliminated, either in relation to offenders released from a prison sentence or offenders discharged from a secure hospital, the system of diversion generally works well in protecting the public, including victims, from further harm, but I again acknowledge that uncertainty about the length of time an offender will be detained can cause anxiety and distress to victims. Victims of serious sexual and violent offences who choose to opt in to the victim contact scheme have a statutory right to make representations about any conditions of discharge that should be imposed for their protection, and will be told once discharge has taken place.
In addition to the provisions of the victim contact scheme, much work has been done to improve the support that those bereaved by homicide can access. Despite current financial restraints, as part of our commitment to supporting the most vulnerable victims and witnesses of crime, the Government are spending £2.75 million on individuals bereaved by murder and manslaughter in 2013-14. The national homicide service, which was set up in 2010, provides families bereaved through homicide with tailored and intensive one-to-one support for as long as they need it. Over 4,000 people have been supported since the homicide service began operating in April 2010, with many of those still being supported.
More generally, the new victims code published on 29 October sets out the information, support and services victims of crime can expect to receive from criminal justice agencies in England and Wales at every stage of the process. Victims who opt in to the victim contact scheme for victims of serious sexual and violent offences will be told if a mentally disordered offender is being considered for discharge, and have a statutory right to make representations about any conditions that they wish to be imposed on the discharge for their protection, such as exclusion zones or “no contact” conditions.
I understand that the hon. Lady has concerns about the community leave part of those orders, and I want to say a few words about that.
Emily Thornberry
There are two points on which I would be very interested to hear the Minister’s comments. First, how can we stop there being community leave without the family knowing about that? Secondly, what is the purpose of community leave? Its purpose is to help an offender get back into the community, but the fact is that this man has a recommendation for deportation. We do not want him back in the community; we want him on the next plane out of the country as soon as he has finished his treatment.
Jeremy Wright
I will certainly try to pick up both those points in the comments I want to make about community leave. Community leave is an important part of the treatment and rehabilitation of mentally disordered offenders. For restricted patients, community leave may be taken only with the consent of the Justice Secretary, and permission will be given only after a thorough risk assessment of the evidence. Permission for escorted leave, during which the offender remains in the custody of escorting staff, may be given some considerable time before that patient is ready for discharge. However, I should make it clear, with particular relevance to Mr Anabah’s case, that the risk of absconding for those subject to a recommendation for deportation will be a relevant factor in determining whether escorted or unescorted leave is appropriate.
Emily Thornberry
On hearing that, the family will want to know the answer to this question. If that is right and the recommendation for deportation was an important factor in deciding whether this person should get escorted leave, why did he get escorted leave for so many months, until we found out about it and got it stopped?
Jeremy Wright
If the hon. Lady will be a little patient, I will come to that. First I want to deal with her point about victims having no statutory right to be told about community leave, because that is the first question she asked me and it is a fair one.
As I have said, community leave is part of treatment. The hon. Lady will recognise that there is a duty to respect the confidentiality of medical treatment. None the less, in certain cases this information can already be disclosed to victims on a discretionary basis. Considerations such as the impact on victims of a chance encounter with an offender or, in cases that attract media interest, hearing about community leave in this way, will be taken into account. However, not least as a result of what has happened in this case—and as a result of the work of my hon. Friend the Member for Witham (Priti Patel), which has been mentioned—I have considered whether the current position goes far enough for the benefit of victims. I have asked my officials to look into making the necessary changes to ensure that there is a presumption that, unless there are exceptional circumstances, victims should be told when community leave is planned, as this is a key development in an offender’s case and sentence.
In Mr Anabah’s case, the decision to give permission for escorted leave was taken after very careful consideration of the clinical evidence provided by the responsible clinician. The decision took into account any known or possible risks to the public and victims, as well as the risk of abscond. As the hon. Lady knows, Mr Anabah’s escorted leave passed off without incident. However, due to the representations made by the Ilumoka family, the responsible clinician has suspended the leave at this time.
As we have discussed in correspondence, there appears to have been confusion about when the hon. Lady’s constituents opted in to the victim contact scheme, and therefore the disclosure to them about any information on community leave. I repeat my apology for the distress this has caused. I understand that a victim liaison officer is now in regular contact with the Ilumoka family.
It is, I am afraid, in the nature of a restricted hospital order that I cannot give any assurances about how long Benjamin Anabah will be detained in hospital, or how his treatment will progress. I can however assure the hon. Lady that the concerns expressed by the Ilumoka family will be taken into account in his future management.
The hon. Lady perfectly fairly raised the immigration aspects of this case, including foreign nationals who are mentally disordered offenders. These individuals do not fall to be automatically deported from the UK under the UK Borders Act 2007. Rather, deportation is considered under the Immigration Act 1971 and is aligned with the offender’s discharge date. All such cases are considered carefully in close liaison with the Ministry of Justice and the hospital authorities. In this case, that means there should not be a gap or hiatus between Mr Anabah’s release from hospital and his removal from this country. I spoke today to those who represent the immigration authorities and they have assured me that they will be in close contact with those administering the hospital order to make every effort to ensure that that is the case.
I hope that is at least to some extent reassuring to the hon. Lady and her constituents, and I am grateful to her for the points she has raised. We will look again at the point about guidance, as I said, and I hope that she understands the seriousness with which we take this case and recognises the changes I have outlined to the notification for victims, which I hope will prevent some of the distress that her constituents have had to endure in relation to this case.
Question put and agreed to.