I’m sure most people heard of the sickening attack on a young boy at the Tate Modern in 2019 – I don’t intend to cover the details as they are widely available elsewhere. Trigger warning for the hyperlink that follows: this post intends to focus on nothing other than the key decision for the judge at towards the end of the criminal trial where Jonty Bravery pleaded guilty to attempted murder. Last week, the judge heard argument from lawyers and expert opinion from several psychiatrists about whether the defendant should be hospitalised or imprisoned. A legal decision of this kind sits solely with the trial judge, who must consider those reports and opinions from experts as well as hear the broader legal arguments, before reaching a decision. On the one hand, the defendant has a history of serious mental health issues of a kind which convinced two forensic psychiatrists to provide a medical recommendations for admission to hospital – this allows the judge to consider various kinds of order under Part III of the Mental Health Act, usually a (restricted) hospital order. On the other hand, one forensic psychiatrist provided opinion that he felt there was little to be gained by hospitalisation over prison.
Difficult and sensitive matters, of course – how is a legal officer such as a judge to determine whether to lean towards two forensic psychiatrists recommending one approach; or another advising something else? This is precisely why these things must be legal decisions: there can be a difference of opinion amongst experts and the fact of a 2-to-1 split does not necessarily mean the judge should go with the majority vote – what they are precisely saying and why they are saying it becomes relevant. I would recommend you read the judge’s published sentencing remarks, if you’re very interested in the detailed reasoning behind the decision. To me, it seems to go like this —
- All three experts and the court were agreed, the defendant is dangerous, the public need protecting from any potential for a repeat of such a heinous crime.
- No argument was offered that the defendant’s mental state directly caused the crime – the attack was premeditated and no argument was offered to suggest the defendant was claiming to have been insane.
- A certain level of mental health care and support is available in prison as well as in Broadmoor – so which is most appropriate for him in his particular context and why?
- Two psychiatrists suggested that treatment in Broadmoor was available and this this might offer some hope in the future that risk of further offending could diminish.
- The other suggested that whilst this might be true, the treatment on offer was far from guaranteed to ‘work’ and that in any event, something very similar was available in prison.
- The judge’s comments show she was think about the wider legal context and the future management of risk – this is what’s most important to me in terms of understand this sentencing.
PRISON v HOSPITAL
The defendant was sentenced to life imprisonment for attempted murder, within a minimum tariff of 15yrs. He cannot be considered for release from prison by the Parole Board until 2034/5 at the very earliest. The judge and at least one psychiatrists stated their a view in court that he may never, in fact, be considered safe for released, regardless of which building they initially chose to detain him. Protection of the public may ultimately be achieved only by ongoing detention and this will require careful assessment in the future. If the defendant had been sentenced to a restricted hospital order (s37/41 MHA), he would have the right to apply to a Mental Health Tribunal six months after sentence and then after every further year of detention, to consider release from the MHA. Concern was expressed by the judge about using this legal right as a platform to attempt to manipulate the system and seemed inclined to err away from hospital as the preferred sentencing option, for the most part to prevent that very scenario emerging. In fairness, could you imagine the victim’s families anxiety if they learned of an application to seek hospital discharge six months after sentencing and every year after that?! It would be unconscionable as they still lived daily with the effects of the attack.
Furthermore, despite the defendant having been sentenced to imprisonment, that would not preclude his transfer to hospital under s47 of the Mental Health Act. Where prison authorities and their psychiatrists believe there is reason to suppose hospital has become necessary and would be a more effective environment, they may apply to the Secretary of State for Justice for a prisoner’s transfer. But this next point is crucial: a prisoner transferred to hospital under s47 (with restrictions on discharge under s49 MHA) cannot apply to a Mental Health Review tribunal for discharge and once hospital treatment is no longer required, they are ‘remitted’ as a prisoner back to custody under section 50 MHA. This is what happened to Peter Sutcliffe (the Yorkshire Ripper) – he was found guilty of murders and attempted murders, then imprisoned for life. Several years later, a view was taken he should be transferred to hospital (under s47/49) and decades later still, he was remitted under s50 back to prison where he remains to this day. Nicola Edgington is another example: she was convicted of a second homicide in 2011 and sentenced to prison. She was quite quickly transferred to the women’s high secure unit at Rampton Hospital where she remains. If Rampton ever reach a view that ongoing hospital care is not appropriate, they cannot discharge her because she is a convicted prisoner – they would arrange to remit her to prison to complete her sentence.
So on one level, the idea of imprisoning a seriously dangerous offender who has a number of identified and overlapping mental health conditions when two psychiatrists argue it’s necessary sounds a little inhumane if it were able to offer some prospect of treatment over the long term. However, nothing prevents the defendant being transferred to hospital from prison more-or-less immediately if that is thought best, and doing it this way prevents the defendant from being able to make applications for discharge from hospital in a way that would be legally possible had he been given a hospital order as a sentence. This is what happened to Nicola Edgington: transfer shortly after sentence. Remember: the psychiatrists were equivocal about the prospects for treatment – all agreed it could be attempted in either location; two indicating hospital would be preferred although far from guaranteed to be successful; the other took the view it made little difference but that transfer to hospital could occur, if necessary.
The only question I have, unaddressed by the sentencing remarks: is why not consider or apply an order under section 45A MHA, known as a ‘hybrid order’? – this would mean immediate hospitalisation (as per two expert recommendations) and would still involve a criminal sentence (life with a minimum of 15yrs). If treatment complete before 15yrs, then transfer to prison, completion of sentence and Parole Board oversight of release. If treatment not complete at 15yrs, Parole Board review of whether to release and if not, ongoing detention in hospital until it is complete; OR if Parole Board recommend release, then discharge from hospital governed on clinical grounds by doctors. Use of these orders is increasing and I wondered why not in this case?
My own view here: given there was a guilty plea and a criminal conviction for an attempted murder offence at the upper end of the scale of the seriousness scale, the judge was looking to ensure the legal framework governing detention was the most appropriate one to ensure public protection. She correctly identified that any fears of prison being the counter-intuitive option for a defendant with obvious mental health problems was allayed by the proper use of transfers under s47/49. The judge just prevented the possibility that in 7yrs time, for example, a Mental Health Tribunal could conclude something which pushes in the direction of discharge, there would be understandable disquiet that it was even being considered. Worth remembering that discharge of a ‘restricted’ patient would be subject to Ministry of Justice authorisation, but it would still create a debate which may be considered premature. Many people were appalled at the prospect of ‘just’ 15yrs in prison, given what’s known about the offence and its impact on a victim chosen at random for his obvious vulnerability to resist the attack.
One final point: yet again, this shows something which continues to pervade our considerations at the overlap of mental health and criminal justice – that a defendant cannot be arrested, charged, prosecuted in court and sentenced to imprisonment when they are ‘sectionable’. This isn’t true, it was never, ever true and it’s being seen in practice here – on occasion, the criminal justice system is the only route and occasionally the necessary route, to balancing off the right of vulnerable people who have offended with the right of the public to be protected from serious harm. Nothing in this is easy and no choice is ideal: in keep with most criminal justice considerations that are attempting to prevent or reduce the risk of harms to us all.
My heart goes out to the young French boy who has suffered live-altering injuries and to his parents and family whose lives have also been irrevocably altered. I can’t actually imagine the utter terror that consumed them in an instant when they were enjoying a holiday in another country or begin to comprehend how to start coming to terms with such an event. I can only wish them all the love in the world and hope the young lad does recover as much of what’s he’s lost as possible and they can build their lives again.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown OBE, 2020
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk