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 (trigger warning for the hyperlink that follows) and this post intends to focus on nothing other than a key decision for the judge at the criminal trial of Jonty Bravery who pleaded guilty to attempted murder following the attack. Last week, the judge heard argument from lawyers and opinion from psychiatrists about whether the defendant should be hospitalised or imprisoned, after his guilty plea. A legal decision of this kind sits solely with the trial judge, who must consider reports from experts and hear the legal arguments, before reaching their decision. On the one hand, the defendant has a history of mental health issues of a kind which convinced two forensic psychiatrists to provide a medical recommendation for admission to hospital which would allow 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 like a judge, to determine whether to lean towards two consultant 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 between experts and because, the fact of a 2-to-1 split does not necessarily mean the judge must or 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 reasoning behind the decision. To me, it seems to be this –
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 2033 at the earliest. The judge and at least one psychiatrists stated their view he may never, in fact, be released regardless of the building chosen to detain him to protect the public. 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 after one year of detention, to consider his release from the MHA – and he would have an annual right to do so again, every year after that. Concern was expressed by the judge about using this legal right as a platform to attempt to manipulate the system and seemed to err away from hospital as the sentencing option, in part to prevent that scenario.
Furthermore, despite the defendant being sentenced to imprisonment, this does not preclude his transfer to hospital under s47 of the Mental Health Act, if the prison authorities and their psychiatrists believe there is reason to suppose hospital would be a more effective environment. 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, 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 and offers some prospect of treatment over the long term sounds a touch inhumane, at face value. However, nothing prevents the defendant being transferred to hospital 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. And remember: the psychiatrists were equivocal about the prospect for treatment – all agreed it could be attempted in either location; two indicating hospital would be best 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.
My own view here, given 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 is looking to ensure that the legal framework governing the defendant’s detention is the most appropriate one to ensure detention for public protection, whilst correctly identifying that any fears that prison is a counter-intuitive option for a defendant with such obvious and serious mental health problems can be allayed by the proper use of transfers under s47/49. The judge has just prevent the possibility that in 7yrs time, for example, a MH Tribunal concludes something which pushes in the direction of discharge, there would be understandable disquiet that it was even being considered. 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