Is not amendment No. 617 to be called on clause 141?

Very sharp indeed, Mr. Grieve.

I beg to move amendment No. 617, in

clause 141, page 79, line 28, leave out subsection (2).

Subsections (1) and (2) cancel each other out. Subsection (1) says that in the case of a mentally disordered offender

''the court must obtain . . . a medical report before passing a custodial sentence'',

but subsection (2) says that the court need not do that if it does not think that it is necessary. One wonders why both those subsections are in the clause at all.

As a matter of practice, I find it extraordinary to consider a situation in which a mentally disordered offender is sentenced without a psychiatric report

having been obtained. I cannot think of any instance in my time at the Bar in which that has happened. When I read the provisions, I wondered whether there might be cases in which even though a medical report was not being prepared for that hearing, another one was available to the court. However, that already seems to be covered in subsection (1). If the medical report is three weeks to a month old I should have thought that it would be perfectly reasonable for the court to obtain it without commissioning a new one. If that is the anxiety, subsection (2) is unnecessary. On the face of it, I find subsection (2) rather worrying and I should like the Minister to explain it. If it is necessary, I wonder whether there is any reason to keep subsection (1). Read together, they amount to a lack of any requirement for a medical report. I do not think that that is a good idea.

The hon. Gentleman has, I confess, raised the same questions about subsections (1) and (2) that I raised when I first read them. I hope that I shall be able to offer him the reassurance that I was offered. He is right. There are circumstances in which a report will already be available. Mental health legislation might be the reason for that, such as when a court has remanded the person to hospital for treatment under section 36 of the Mental Health Act 1983. Alternatively, there might, for example, be enough information in the pre-sentence report or from some other medical source. That aspect of the matter is in part dealt with by the definition of the term ''medical report'' in subsection (6). Some other information, falling outwith the definition in subsection (6)—provided, for example, by a psychologist—might be available, and the court might consider it sufficient to enable it to reach a judgment in dealing with a mentally disordered offender.

I accept the point that the hon. Gentleman makes, because it is very hard to conceive of circumstances in which the court could proceed without any information in the form of a medical report. However, in that very small number of circumstances in which alternative information was available, and in which it was therefore not necessary for the court to comply with the requirement of subsection (1) that it ''must obtain and consider'' a medical report, it would be a waste of the time and resources of the court, and the medical practitioner concerned, for a further report to be produced and considered. Subsections (1) and (2) together, notwithstanding the first appearance of incompatibility between them, therefore result in the court retaining a discretion not to obtain a report when it did not consider one necessary.

I wanted to hear the Minister's explanation before commenting. I should have subscribed to the amendment, but for some reason I overlooked it and I apologise to the hon. Member for Beaconsfield for that, because I agree with it.

Having listened to the Minister I am still not entirely satisfied. Let us consider the question of the court satisfying itself that the medical report available to it, in whatever form, conforms to subsection (6); that excludes anything that could not be construed as a medical report, and it is the first requirement. I do not

understand how a court could satisfy itself that it had met that requirement, yet not be satisfied that it had complied with subsection (1), which simply provides that the court ''must obtain and consider'' a report. The court obviously would have obtained the report, and considered it, in order to meet the requirements of subsection (6).

To say that subsection (2) is otiose would be wrong: it is perverse, on any normal reading. The Minister has clearly satisfied himself that that is not the case, on the basis of the advice that he has been given, but he must be fairly easily satisfied.

That may or may not be the case, but it is for others to judge. It may help the hon. Gentleman if I explain that one other item of information that satisfied me on this matter was the fact that this is a re-enactment of section 82 of the Powers of Criminal Courts (Sentencing) Act 2000.

In that case, if the original enactment was so deficient as to bring in this perversity, this is a splendid opportunity for us to act as a revising Chamber. I see no reason to maintain subsection (2) if it serves no useful purpose. I do not understand how, under any normal construction of the words, subsection (2) serves a useful purpose, but I shall be interested to know the opinion of hon. Member for Beaconsfield.

I am not surprised to hear that the provision is derived from some earlier piece of legislation. I seem to spend my time in Committee—not only in this Committee but when I was in Committee on the Proceeds of Crime Bill—discovering that all the matters to which I objected most originated in the 1980s and 1990s.

Bad drafting is obviously a perennial problem. Drafting tends to replicate itself because it is an incremental process. I shall not take great issue on this, but I do feel that to include subsection (2) is a bit barmy. The Minister might wish to ask whether it might not be straightened out a bit. Quite apart from anything else, if he is really trying to say that there are circumstances in which a medical report may not be necessary, that could all be done in one subsection. The two subsections do not need to be mutually contradictory, as that, on the face of it, is an absurdity. Will he ask his officials to rectify whatever failure may have taken place in the past, so that people who read the 2000 Act and this Bill do not think that the law is an ass? That is what it looks like when one reads subsections (1) and (2).

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 141 ordered to stand part of the Bill.