Sentencing of mentally impaired offenders – the Northern Ireland “black hole”
It has long been established that some offenders are not “fit” to stand trial. The criminal justice process is complex. Those suffering from certain mental health conditions or severe learning difficulties may not, for example, be able to properly instruct solicitors and barristers or undergo the rigours of cross examination in a court of law. Thankfully the system allows for an alternative procedure wherein a jury must decide if the alleged offender has committed the acts or crimes as alleged.
If it is established the offender has “committed the acts” a bespoke sentencing regime is open to the trial judge under Part III of the Mental Health (NI) Order 1986. The offender can be sentenced in a number of ways which might include a guardianship order requiring treatment in the community or alternatively a Hospital Order. Those subject to a Hospital Order will have their detention reviewed by an independent panel, the “Mental Health Review Tribunal” (MHRT) who will determine when they can be released back into the community. Release can be in the form of absolute or conditional discharge. The type of release depends on the risk posed by the individual.
HHD solicitors are currently involved in one such case which has raised serious issues regarding the release of patients sentenced in this way. The present case is the first of its kind in Northern Ireland and highlights a “legal lacuna” in respect of patients suitable only for conditional discharge.
In 2018, the Supreme Court in Secretary of State for Justice v MM [2018] UKSC 60 determined that the Mental Health Act does not permit either the First Tier Tribunal (the equivalent to our MHRT) nor the secretary of state to impose conditions amounting to detention or a deprivation of liberty upon a patient deemed suitable for conditional discharge. In essence, any condition that would be imposed would amount to a deprivation of liberty.
Charlene Dempsey, Solicitor Advocate at HHD solicitors, who is instructed in this matter states that “In our case, the MHRT have conceded that as a result of this decision they are powerless to release our client despite concluding he “no longer meets the criteria for detention”. The net result is, there is a patient currently detained in a mental health facility who simply should not be there. It was never the trial judges’ intention that this patient would be detained indefinitely. The law at that time ensured that his detention would be reviewed at regular intervals by an independent judicial panel in the form of the MHRT who could direct release – that is now not the case”.
Section 24 of the Mental Capacity Act (NI) 2016 legislates for a Court, upon application, to impose conditions on a person which amount to a deprivation of liberty. Crucially, this only extends to persons who are considered not to have capacity. The Supreme Court referred to the fact there was a lack of specific legislative provision when dealing with captious patients. Due to the infringement of a patients’ article 5 right to liberty, the Supreme Court decided that specific legislative provision would be required. To date no legislative changes have been made in England and Wales or Northern Ireland.
This case is currently before the High Court’s Family Division in Northern Ireland. All parties involved in this case have a duty not only to the patient at the heart of this case but to the many other patients who will fall into this legal “black hole”. If you have any queries regarding a criminal defence matter, feel free to contact one of our experienced legal team at HHD solicitors enquiries@hhdsolicitors.com
Charlene Dempsey – Associate Solicitor