ABSTRACT

One of the striking aspects of executive discretion is how much criticism has been levelled at its very existence in criminal justice decision-making. Executive discretion over mentally disordered offenders has been widely criticized for being overly cautious (Mohan, Murray et al. 1998); and producing arbitrary outcomes (Prins 1993). More specifically in the restricted patient system, executive discretion has been depicted as unwilling to recognize the rights of patients until forced to do so by the European Convention on Human Rights and subsequently the Human Rights Act 1998 (Richardson 2005). The pervasiveness of this opposition underpins much of the broader critique of how mentally disordered offenders are managed by the criminal justice system. For some, the limited ability of the criminal justice system to provide effective intervention for offenders with mental disorder, and the preoccupation with risk that underpins contemporary sentencing policy, means that mentally disordered offenders are ‘dealt with more harshly’ than other offenders (Peay 2002: 747). Others have argued that the failure to treat and manage people with mental illness effectively in the community creates a double disadvantage for mentally disordered offenders, who are both likely to be detained preventively under the Mental Health Act 1983,

and to incur a consequent propensity for double jeopardy (Hawkins 1986; Peay 1993). Finally, the failure to grant decision-making power to the Mental Health Review Tribunal in the transfer and movement of restricted patients prior to their discharge has been criticized for undermining the procedural rights of offenders that are themselves related to the fundamental right to liberty (Richardson 1999).