Crime and Punishment (Scotland) Act 1997: A Survey of Sentencers’ Views concerning the Scottish ‘Hybrid Order’

Abstract

The Crime and Punishment (Scotland) Act 1997 introduced the hospital direction (HD), often termed the ‘hybrid order’ because it allows courts to simultaneously send a mentally disordered offender to hospital and impose a prison sentence, to be completed after hospital discharge. It is the first measure that explicitly allows the imposition of a prison sentence for an offender meeting criteria for detention under the Mental Health (Scotland) Act 1984. A previous survey showed that psychiatrists in Scotland favoured the principle of a hybrid order (Darjee et al., 2000). In this study all Scottish Sheriffs (n=110) and High Court Judges (n=26) were surveyed for their views on the HD. Of the 56 respondents 19 felt unable to participate largely due to lack of experience in sentencing mentally disordered offenders. Respondents felt the HD was a useful measure, but, in contrast to Scottish Office guidance, indicated that psychiatrists should recommend it directly if they considered that it was an appropriate disposal. Respondents viewed the HD as primarily an incapacitating measure and most respondents hoped that it would encourage psychiatrists to admit ‘psychopaths’ although Scottish psychiatrists do not favour the hospitalisation of offenders with primary personality disorders. It is concluded that in its current form and with current guidance the HD is difficult to use, as there are no criteria to differentiate it from a hospital order (HO) and psychiatrists cannot recommend it. Further, recent legislation that makes public safety the primary concern when deciding on the discharge of restricted patients in Scotland, erodes the utility of the HD as an incapacitating measure. However following the Reports of the Millan and MacLean Committees in Scotland, the role of the HD may be strengthened and clarified.