Mentally Disordered Offenders
- Fitness to Plead
- Fitness to Plead in the Crown Court
- Hospital Order under section 37 Mental Health Act 1983 (with a restriction order under section 41 if necessary)
- Fitness to Plead in the Magistrates' Courts (including Youth Courts)
- Resuming a Prosecution
- Resumed Prosecutions: Custody Time Limit
- Resumed Prosecutions: Review considerations
- Trial Procedure
- Fitness to Plead
The CPS uses the term "mentally disordered offender" to describe a person who has a disability or disorder of the mind and has committed or is suspected of committing a criminal offence. This term covers a range of offences, disabilities and disorders. A mental disorder may be relevant to:
- The decision to prosecute or divert;
- Fitness to plead; and
Each case must be considered on its merits, taking into account all available information about any mental health problem, and its relevance to the offence, in addition to the principles set out in the Code for Crown Prosecutors. The Code explains that there is a balance to be struck between the public interest in diverting a defendant with significant mental illness from the criminal justice system and other public interest factors in favour of prosecution including the need to safeguard the public.
If there is significant evidence to establish that a defendant or suspect has a significant mental illness, a prosecution may not be appropriate unless the offence is serious or there is a real possibility that it may be repeated.
If proceedings have been started or are being considered and the CPS is provided with a medical report which states that the strain of criminal proceedings may lead to a considerable worsening of the defendant's mental health, the implications of the report should be considered very carefully.
This is a difficult field because in some cases the defendant may have become disturbed and depressed by the mere fact that his or her conduct has been discovered, and any suggestions that continuing the criminal proceedings will significantly worsen the defendant's condition should be evaluated carefully. In serious cases where a prosecution is plainly needed unless there is clear evidence that continuing the case would be likely to result in a permanent deterioration in the defendant's condition, it may be appropriate to obtain an independent medical report. Where the prosecutor is satisfied that the probable effect on the defendant's health outweighs the public interest considerations in favour of a prosecution, the case should be discontinued and full reasons recorded on the file.
The key documents with set out the Service's policy in dealing with cases in which the defendant has a mental disorder are:
- Code for Crown Prosecutors (the Code);
- Home Office Circular 71/1984 - Sections 35, 36, 38 and 40(3) of the Mental Health Act 1983: Implementation
- Home Office Circular 66/90 - Provision for Mentally Disordered Offenders;
- Home Office Circular 12/95 - Mentally Disordered Offenders: Inter Agency Working;
- Joint Working Agreement between the Association of Chief Police Officers, the Crown Prosecution Service and NHS Protect and
- Diverting offenders with mental health problems and/or learning disabilities within the National Conditional Cautioning Framework.
Information about specific conditions can be accessed at the following sites:
- National Autistic Society:
Section 1(2) Mental Health Act 2007 amended section 1(2) Mental Health Act 1983 and defines mental disorder as "any disorder or disability of the mind."
The former categories of mental disorder (mental illness, mental impairment, severe mental impairment and psychopathic disorder) were abolished and the single definition applies throughout the Mental Health Act 1983.
Examples of clinically recognised mental disorders include personality disorders, eating disorders, autistic spectrum disorders, mental illnesses such as depression, bi polar disorder and schizophrenia, and learning disabilities.
"Learning disability" means "a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning." (section 2(3) Mental Health Act 2007 inserts a new subsection 1(2A) into the Mental Health Act 1983.)
Dependence on alcohol or drugs does not come within the meaning of "mental disorder" for the purposes of the Mental Health Act 1983 (section 1(3)). However, mental disorders which accompany or are associated with the use of or stopping the use of alcohol or drugs, even if they arise from dependence on those substances, may come within the meaning of "mental disorder" for the purposes of the Mental Health Act 1983.
Section 1(3) Mental Health Act 1983 was also amended to remove the former exclusion preventing a person from being regarded as having a mental disorder only by reason of promiscuity or other immoral conduct or sexual deviancy. This is because promiscuity and "other immoral conduct" are not clinically recognised as mental disorders.
Prosecutors will need information and evidence about any mental health problems at the earliest opportunity in order to review the case in accordance with the Code for Crown Prosecutors.
Information may come from the police, who have the following responsibilities set out in Home Office Circular 12/95:
- Where the police have been advised of the defendant's condition and prognosis by the Social Services, Probation Service, psychiatrists or other professionals, who may advocate a particular approach or disposal, the advising agency should be encouraged to set out their views in writing. Where this is not possible, the police should summarise any views expressed to them orally;
- The police should include on the file a brief summary of their reasons for starting proceedings or their views as to whether the suspect should be prosecuted;
- The CPS should be informed if the defendant has been seen by a psychiatrist or arrangements have been made to have him or her assessed;
- If the police want to release the defendant on unconditional bail on the understanding that he or she will accept certain conditions (such as treatment or residence) they should be advised to keep the period of bail to a minimum. Preferably, the defendant should be bailed to the next available court for bail arrangements to be reviewed as soon as possible. Any informal conditions should be clearly stated on the CPS file;
- If there is a bail information scheme operating, advice from outside agencies regarding factors in favour of bail or available placements should be passed to the CPS via the Bail Information Officer. Where such procedures are not operating, such information should be given in writing by the authorised person via the police. It is important that any such information or advice from outside agencies is reliable, accurate and authoritative. You should avoid being lobbied in court with sensitive and important information given orally.
Information about the offender may come from a variety of sources and not just from the police. Information from some sources such as a relative, friend or gaoler may give rise to concerns that should prompt further investigation.
Many courts have schemes to facilitate the process of assessment and the provision of constructive and coherent reports to the courts. Where such a scheme is available, the offender should be referred to it for investigation and a report.
In the absence of such a scheme, prosecutors must consider whether the information supplied is sufficient upon which to base their decision. A recent report from a psychiatrist, community psychiatric nurse or social worker may provide sufficient information about the offender's mental disorder to allow the prosecutor to decide whether a prosecution is in the public interest. When the information is inconclusive or out of date, further information should be sought.
It will not usually be necessary for the information about the defendant's mental state to be in the form of a statement before it can be considered. However, the information should be in writing and prosecutors must be satisfied that it is reliable before taking any decision based on it. All such information should be kept on the CPS file.
Every person of the age of discretion is, unless the contrary is proved, presumed by law to be sane and to be accountable for his actions: R v Layton (1849) 4 Cox 149. Archbold 17-74. The onus is on the defence to establish insanity at the time of the offence on the balance of probabilities.
In all other cases, unless there is statutory authority to the contrary, the onus is on the prosecution to establish mens rea beyond all reasonable doubt, whether generally or when particular issues arise (Woolmington v DPP  A.C.462) Archbold 17-5.
Prosecutors should be mindful of the mens rea requirements of specific offences and consider the impact of a mental disorder on the offender's ability to form the necessary mens rea. An independent medical report may be helpful.
Although people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self incriminating. Care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person's mental state or capacity. Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted wherever possible (Note 11C PACE Code C).
A person who is mentally disordered or otherwise mentally vulnerable must not be interviewed regarding their involvement in a criminal offence or asked to provide or sign a written statement under caution or record of interview in the absence of an appropriate adult (Paragraph 11.15 PACE Code C).
A confession by a mentally disordered offender may be excluded under section 76 or 78 Police and Criminal Evidence Act 1984. Archbold 15-354 - 15-373.
Where a confession is made (in the absence of an appropriate adult) by a "mentally handicapped" person i.e. one who is "in a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning"; this is not excluded by the court; and the case depends wholly or substantially on that confession, the jury must be warned of the special need for caution before convicting in reliance on that confession (section 77 Police and Criminal Evidence Act 1984).
A case should be withdrawn from the jury if:
- The prosecution case depends wholly upon confessions;
- The defendant suffers from a significant degree of mental handicap; and
- The confessions are unconvincing to a point where a jury, properly directed could not properly convict upon them.
(R v Mackenzie 96 Cr. App.R.98 CA)
Both the Code for Crown Prosecutors and the Core Quality Standards (Standard 3) state that alternatives to prosecution will be used, where appropriate, to gain speedy reparation for victims and to rehabilitate or punish offenders.
Once a decision is taken that there is enough evidence to justify a prosecution, prosecutors should consider whether there is a suitable out of court disposal as an alternative to prosecution that is appropriate to the seriousness and consequences of the offending, and meets the aims of rehabilitation, reparation or punishment. (CQS 3.1)
Diversion may mean diversion from prosecution by way of a caution or conditional caution or diversion from the criminal justice system altogether.
A caution or conditional caution will not be appropriate if there is any doubt about the reliability of any admissions made or if the defendant's level of understanding prevents him or her from understanding the significance of the caution or conditional caution and giving informed consent. There is no definition of or restriction on the particular form of mental or psychological condition or disorder that may make an admission unreliable (R v Walker  Crim L.R. 211).
However, it should not be assumed that all mentally disordered offenders are ineligible for cautioning or conditional cautioning. When such a disposal appears to be in the public interest, information and advice should be sought from the liaison and diversion scheme or other reliable source, and any suitable steps should be taken to enable a mentally disordered offender to understand the significance of the caution and give informed consent.
See also Diverting Offenders with Mental Disorders and/or Learning Disabilities within the National Conditional Cautioning Framework.
Where a caution or conditional caution is inappropriate, the only alternative to prosecution is to take no further action.
In considering whether the public interest requires a prosecution, prosecutors should enquire whether:
- the police or Social Services have used their powers under sections 135 or 136 Mental Health Act 1983;
- the defendant has been admitted to hospital for assessment or treatment under sections 2 or 3 Mental Health Act 1983;
- the defendant is receiving supervised community treatment under a Community Treatment Order made under section 17A Mental Health Act 1983;
- the offender has been admitted to hospital as an informal patient under section 131 Mental Health Act 1983; or
- an order for guardianship under section 7 Mental Health Act 1983 has been made.
A prosecution is less likely to be needed if the offender is already receiving treatment that the court is likely to order on conviction, but the provision of such treatment does not prevent a prosecution.
Prosecutors should inform their decision by additional information, including:
- medical reports from the responsible clinician to explain the nature and degree of the disorder or disability, and any relationship between the disorder and the treatment and behaviour of the offender; and
- any other relevant information from hospital staff about the treatment and behaviour of the patient, including the treatment regime and any history of similar and recent behaviour.
Where the patient is alleged to have assaulted a member of staff, prosecutors should refer to the Joint Working Agreement between the Association of Chief Police Officers, the Crown Prosecution Service and NHS Protect.
However, the existence of a mental disorder is only one of the factors to be taken into account when deciding whether the public interest requires a prosecution. Prosecutors will need to balance the offender's health, welfare and treatment needs with the seriousness and /or persistence of the offending behaviour. A prosecution must not be pursued solely to treat and manage a mental disorder or to provide a complete forensic history.
The following factors should be taken into account:
- the views of a mental health professional on the probable impact of a prosecution on the offender's health;
- any proposed treatment, the aim of that treatment and its potential impact on offending behaviour;
- the likely impact of a prosecution on future offending. A prosecution may have the effect of confronting the offender with their behaviour and taking responsibility for his actions. A prosecution may not be necessary where the risk of reoffending is low;
- the risk of causing harm to others. A prosecution is more likely to be in the public interest where the risk of harm to others through reoffending is high;
- past offending history, especially whether the offender has been diverted previously, and if so, whether his previous response to diversion is known;
- the need for treatment and whether treatment is already being provided under the Mental Health Act 1983 either in hospital on a compulsory (sections 2 and 3) or informal basis (section 131) or under a Community Treatment Order (section 17A);
- the offender's current response to treatment and any history of engagement and response to treatment.
The purpose of this procedure is to strike a fair balance between the need to protect a defendant, who has, in fact, done nothing wrong but is unfit to plead at his trial, and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea (R v Antoine  1 AC 340).
The procedure is set out in the Criminal Procedure (Insanity) Act 1964 as substantially amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and by sections 22, 24, 25, Schedule 2 and the provisions in respect of unfitness to plead and insanity in Schedules 10 and 11 to the Domestic Violence, Crime and Victims Act 2004 for all defendants arraigned after 31 March 2005. Transitional provisions are set out at paragraph 8 of Schedule 12 to the 2004 Act.
The procedure has two stages:
- Whether the offender is under a disability i.e. whether he is "unfit" to plead (section 4 Criminal Procedure (Insanity) Act 1964) ; and if so
- Whether he did the act or made the omission charged against him (section 4A Criminal Procedure (Insanity) Act 1964).
1. Whether the offender is under a disability
The question of fitness to plead may be raised before arraignment by the prosecution, defence or Judge.
In the majority of cases it is likely that the defendant will respond to medical treatment and the trial will take place within a reasonable period .The defendant may be remanded to hospital for a report on his medical condition (section 35 Mental Health Act 1983) or for treatment (section 36 Mental Health Act 1983) while he is awaiting trial. Archbold 5-891 - 5-892.
In cases of serious or enduring disorder, the issue of fitness to plead should be determined.
If there is a reasonable chance that the prosecution case will be successfully challenged, the issue of fitness to plead should not be determined before arraignment, but postponed until a time before the defence case is opened (Archbold 4-170). This may result in a conclusive verdict of acquittal and avoids the need for the issue of unfitness to be determined at all.
The issue of fitness to plead will be decided by the Judge not the jury (ss 4 (5) Criminal Procedure (Insanity) Act 1964) on the written or oral evidence of two or more registered medical practitioners, at least one of whom must be duly approved under section 12 Mental Health Act 1983.
2. Section 4A - did the defendant do the act or make the omission?
If the Judge finds that the defendant is unfit to plead, the jury will decide whether the defendant did the act or made the omission charged against him. (ss 4A (2) Criminal Procedure (Insanity) Act 1964).
Prosecutors should consider the extent and nature of the evidence that needs to be adduced to satisfy the jury that the defendant did the act or made the omission charged. Failure to do so will result in the acquittal of the defendant. If there is objective evidence which raises the issue of mistake, accident or self defence, then the jury should not find that the defendant did the act unless satisfied beyond reasonable doubt that the prosecution has disproved that defence (R v Antoine  UKHL 20). In many cases, the defence will agree that relevant statements can be read pursuant to section 9 Criminal Justice Act 1967. Where live evidence is necessary, prosecutors should inform the court before the Judge considers the issue of fitness to plead. This will facilitate effective case management, especially the warning of witnesses, and will enable the court to proceed to the second stage of the procedure without delay.
NB. Custody Time Limits
Section 11A Prosecution of Offences Act 1985 states that the start of a trial on indictment shall be taken to occur at the time when a jury is sworn to consider the issue of guilt or fitness to plead. There has been no amendment following the introduction of the two stage procedure to reflect that it is now the Judge who determines fitness to plead. A jury will only be sworn to determine whether or not the defendant committed the act or made the omission charged if the Judge makes a finding of unfitness.
Prosecutors should raise this issue with the Judge and invite him or her to declare that the Custody Time Limit stopped when he or she determined fitness to plead, irrespective of the finding. If the Judge is not inclined to consider the issue, then prosecutors are advised to continue to monitor any Custody Time Limit to the point where a jury is sworn.
If the jury finds that the defendant did the act or made the omission, the court shall make one of the orders set out in Section 5 of the Criminal Procedure (Insanity) Act 1964 below.
Prior to making one of the orders, the court can remand the defendant to hospital for reports (section 35 Mental Health Act 1983), or for treatment (section 36 Mental Health Act 1983) Archbold 5-891- 5-892. An interim hospital order (section 38 Mental Health Act 1983 and section 5A Criminal Procedure (Insanity) Act 1964) may also be made Archbold 5-893 and 4-175b.
If the offender becomes fit to plead after the findings of unfitness (s4) and that the act was done or the omission made (s4A), but before an order is made under section 5, the court should not continue to make an order under section 5, despite the use of the word "shall" in section 5. A second section 4 hearing should be held, and if the Judge finds the defendant to be fit to plead, then an order for his arraignment should be made. (Hasani v Blackfriars Crown Court  EWHC 3016 Admin)
Section 24 of the 2004 Act replaces section 5 Criminal Procedure (Insanity) Act 1964 with a new section 5 and 5A, which sets out the three disposal options when a defendant is found unfit to plead or not guilty by reason of insanity
The court will have no power to order admission to a psychiatric hospital unless there is medical evidence that justifies detention on the grounds of mental disorder.
Section 37 Mental Health Act 1983 as amended by section 4(5) Mental Health Act 2007 sets out the criteria which enable both the Crown Court and a magistrates' court to order hospital admission or guardianship.
Criteria for making a Hospital Order:
- The defendant must be:
- convicted of an offence punishable with imprisonment, other than murder; or
- found unfit to plead and to have committed the actus reus or made the omission in Crown Court proceedings; or
- charged but not convicted of an imprisonable offence triable summarily and found to have committed the actus reus or made the omission in magistrates' court proceedings.
- The Court must be satisfied on the written or oral evidence of two doctors, at least one of whom must be approved under section 12 Mental Health Act 1983, that :
- the defendant is suffering from a mental disorder of a nature or degree which makes it appropriate for the defendant to be detained in hospital for medical treatment; and
- appropriate medical treatment is available.
- The Court is of the opinion, having regard to all the circumstances, including the nature of the offence and the character and antecedents of the defendant, and to the other available methods of dealing with the defendant, that a hospital order is the most suitable method of dealing with the case.
- The Court is satisfied on the written or oral evidence of the approved clinician who would have overall responsibility for the defendant's case, or of some other person representing the managers of the relevant hospital, that arrangements have been made for the defendant to be admitted to that hospital within the period of 28 days starting with the day of the order.
NB. A defendant suffering from a learning disability, as defined in section 2A (4) Mental Health Act 1983 (see Definition of Mental Disorder earlier in this guidance) shall not be considered by reason of that learning disability to be suffering from a mental disorder for the purposes of making a hospital order, unless that learning disability is associated with abnormally aggressive or seriously irresponsible conduct on his part (sections 2A and 2B Mental Health Act 1983 as amended by Mental Health Act 2007).
"Appropriate medical treatment" is defined in section 3(4) Mental Health Act 1983, as amended by section 4(4) Mental Health Act 2007 as " medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case".
"Medical treatment" is defined in section 145(1) and (4) Mental Health Act 1983 as amended by section 7 Mental Health Act 2007 and includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care, as well as medication and other forms of treatment.
Where the Crown Court makes a hospital order it may also make an order under section 41 Mental Health Act 1983, (a restriction order) that restricts the patient's discharge, transfer or leave of absence from hospital without the consent of the Secretary of State. (Archbold 5-898)
The Crown Court can make a restriction order if:
- at least one of the doctors whose evidence is taken into account by the court before deciding to make the hospital order has given oral evidence ; and
- it is necessary for the protection of the public from serious harm for the person to be subject to special restrictions, having regard to:
- the nature of the offence;
- the antecedents of the offender; and
- the risk of the offender committing further offences if set at large.
Where the Crown Court makes a hospital order under section 5(2) (a) Criminal Procedure (Insanity) Act 1964 in respect of an offender found to have committed the actus reus for murder, a restriction order must also be made, whether or not the criteria in section 41 (1) and (2) Mental Health Act 1983 are satisfied: section 5(3) Criminal Procedure (Insanity) Act 1964.
The Supervision Order requires the defendant to be under the supervision of a social worker or probation officer for the period not exceeding 2 years as specified in the Order, and may include a requirement that the offender submits to treatment with a view to improvement of the medical condition and a residence requirement. It is described in section 1A to the Criminal Procedure (Insanity) Act 1964 (Archbold 4-176).
The Crown Court may also make an absolute discharge (Archbold 4-175a).
Section 11(1) Powers of Criminal Courts (Sentencing) Act 2000 and section 37(3) Mental Health Act 1983 enable magistrates' courts to make an order in respect of an either way or summary offence without a trial, provided that the court is satisfied that the defendant did the act or made the omission with which he or she is charged. This procedure is to be used to determine fitness to plead in courts of summary jurisdiction, including the youth court (R (on the application of P) v Barking Youth Court (2002) EWHC 734 Admin).
These provisions also apply where the defendant is unable, by virtue of his mental disorder, to give consent as to mode of trial (R v Lincolnshire (Kesteven) Justices, ex parte O'Conner  1 WLR 335, DL).
The magistrates court has no power to make a restriction order, but where it has convicted a person aged 14 years or more of an offence punishable on summary conviction with imprisonment and it considers that a hospital order and restriction order should be made, it can commit the defendant in custody to the Crown Court to be dealt with for the offence (section 43 Mental Health Act 1983.)
Magistrates' courts may remand a defendant to hospital for reports before making an order under section 37 Mental Health Act 1983.
The procedure under sections 4 and 4A is not one that leads to a conviction and the disposal under section 5 is not a sentence for the purposes of appeal under sections 9 to 11 of the Criminal Appeals Act 1968.
However, the defendant may appeal against:
- a finding that he is unfit to plead (s4) or that he did the act or made the omission charged (s4A) or both : section 15(1) Criminal Appeal Act 1968. Archbold 7-151
- a finding that he is fit to plead if he is subsequently convicted of the offence (section 6(1) (b) Criminal Appeal Act 1968). If this appeal is successful, the Court of Appeal will make a hospital order (with or without a restriction order), a supervision order or an order for the offender's absolute discharge: section 6(2) Criminal Appeal Act 1968. Archbold 7-110
- a hospital order, interim hospital order or supervision order made in the Crown Court under s5 Criminal Procedure (Insanity) Act 1964 : section 16A Criminal Appeal Act 1968 . If this appeal is successful, the Court of Appeal may quash the order and may make any of the orders that the Crown Court could have made : section 16B Criminal Appeal Act 1968 Archbold 7-153b
Section 5A (4) Criminal Procedure (Insanity) Act 1964 gives the Secretary of State an express power to remit for trial a person who becomes fit for trial while detained in hospital under a hospital order and a restriction order made under section 5 (2) Criminal Procedure (Insanity) Act 1964.
The responsible Secretary of State is the Lord Chancellor and Secretary of State for Justice, who conducts regular checks with the responsible clinician on the progress of the offender. The CPS will be consulted by the Secretary of State, through NOMS (National Offender Management Service) when the responsible clinician has advised that the offender is now fit to plead. Reports from the responsible clinician are not routinely supplied, but will be forwarded in high profile cases or on request by the CPS. Prosecutors may need to seek further information from the responsible clinician to determine whether the prosecution should be resumed.
Prosecutors should re review such cases in accordance with the Code for Crown Prosecutors and the principles set out in this Legal Guidance, and have particular regard to the following factors:
- The current availability of evidence, including exhibits, and unused material;
- The current admissibility of evidence, including evidence which may not have been admissible at the time of the original finding;
- The views of the victims and witnesses;
- The seriousness of the offence;
- The risk of reoffending and the risk of harm. The opinion of the responsible clinician should be sought in relation to risk;
- The impact of a prosecution on the health of the victim, witnesses and defendant;
- The length of any delay between the offence, resumption of fitness to plead and the likely trial date;
- The fact that the offender was suffering from significant mental ill health at the time of the offence;
- The effect of the hospital treatment on the offender's mental health and behaviour;
- The likely sentence or order of the court on conviction;
- The duration of the hospital order/restriction order, and whether it is commensurate with the seriousness of the offending;
- Whether the public interest can now be satisfied by an out of court disposal, which the offender accepts and with which he can comply.
Where the Secretary of State exercises his power to remit the offender for trial, the hospital order and restriction order cease to have effect on the offender's arrival at court. The issue of bail will need to be decided, and in addition to a remand in custody or on bail, the court may remand to hospital for further reports (section 35 MHA) or for treatment (section 36 MHA).
Custody Time Limits do not apply to any period of remand in custody after the offender is remitted from hospital. The Custody Time Limit expired when the issue of fitness to plead was determined (see above in this guidance and in Custody Time Limits). The situation is analogous to retrials in that Custody Time Limits do not apply to the period between the termination of the original trial and the start of the retrial: (R v Crown Court at Leeds, ex parte Whitehead TLR 5 July 1999). However, prosecutors should draw to the attention of the trial judge, the words of Auld LJ that the court should be vigilant to protect the interests of an accused in custody by taking steps to fix a speedy retrial.
Legislation is silent on whether there is a power to resume the prosecution of an offender who becomes fit to plead following (i) the making of a hospital order without a restriction order; (ii) a supervision order; or (iii) an absolute discharge (all under section 5 Criminal Procedure (Insanity) Act 1964).
In R v Birch  11 Cr App R (S) 202, the Court of Appeal held that "once the offender is admitted to hospital pursuant to a hospital order without restriction on discharge, his position is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say in his disposal."
However, the comments in Birch referred to the effect of a hospital order made on conviction as an alternative to a custodial sentence. At the time, the only order that could be made following a finding of unfitness was an order for admission to hospital (section 5 Criminal Procedure (Insanity) Act 1964.) The order for admission to hospital and the hospital order were similar but distinctly separate orders.
A supervision and treatment order and an absolute discharge were introduced as alternatives to an order for admission to hospital by the Criminal Procedure (Insanity) Act 1991. The admission order was replaced with a hospital order, with or without a restriction order, and the supervision and treatment order was replaced with a supervision order by the Domestic Violence, Crime and Victims Act 2004. The statutes neither restrict nor reserve the trial of an offender who becomes fit to plead after an order is made.
Section 4A(2) Criminal Procedure (Insanity) Act 1964 provides that a finding of unfitness will have the effect that the trial "shall not proceed or proceed further" (section 4A (2) Criminal Procedure (Insanity) Act 1964. Although the fitness to plead procedure can result in an acquittal, a finding that the offender did the act or made the omission charged is not a conviction and does not amount to the determination of a criminal charge. It does not preclude a full trial of the accused if he becomes fit to be tried. (R v H  UKHL 1)
There is no duty on the responsible clinician or supervising officer to advise the CPS if an offender subject to a hospital order (without a restriction order) or supervision order becomes fit to plead. The CPS is therefore unlikely, in reality, to be made aware of such circumstances. However, such a situation may come to light if a person is subsequently charged with a further offence and their previous fitness to plead becomes known. In such cases, prosecutors should carefully consider whether the public interest requires a prosecution. The fact that the original Judge decided that a restriction order was not necessary for public protection may well indicate that offence was not so serious as to now require prosecution and that the public interest has been satisfied by treatment rather than punishment.
The Practice Direction (Criminal Proceedings: Consolidation), para.III.30 (as inserted by Practice Direction (Criminal Proceedings: Further Directions)  1 WLR 1790) applies to trial, sentencing and appeal proceedings in the magistrates' courts and the Crown Court of children under the age of 18 AND adults who suffer from a mental disorder within the meaning of the Mental Health Act 1983 or who have any other significant impairment of intelligence and social function.
The overriding principle is set out at para III.30.3 : A defendant may be young and immature or may have a mental disorder within the meaning of the Mental Health Act 1983 or some other significant impairment of intelligence and social function such as to inhibit his understanding of and participation in the proceedings.
The purpose of criminal proceedings is to determine guilt, if that is in issue, and decide on the appropriate sentence if the defendant pleads guilty or is convicted. All possible steps should be taken to assist a vulnerable defendant to understand and participate in those proceedings. The ordinary trial process should, so far as necessary, be adapted to meet those ends.
In C v Sevenoaks Youth Court  EWHC 3088 (Admin) it was held that the court has an inherent power to appoint an intermediary to assist a defendant to prepare for the trial in advance of the hearing and during the trial so that he can participate effectively in the trial process. This appointment is not made pursuant to a special measures direction under the Youth Justice and Criminal Evidence Act 1999, but is part of the court's duty to take such steps as are necessary to ensure that a youth has a fair trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial.
There may be occasions when the use of an intermediary would improve the trial process, but this does not mean that it is mandatory for an intermediary to be made avaialble. Judges are expected to deal with specific communication problems faced by an defendant or witness as part of their ordinary control of the judicial process. When every sensible step taken to identify a suitable intermediary has been unsuccessful, the next stage is not for the proceedings to be stayed, but for the judge to make an informed assessment of whether the absence of an intermediary would make the proposed trial unfair. It would be most unusual for a defendant who is fit to plead to be found to be so disadvantaged by his condition that a properly brought prosecution would have to be stayed. That would be an unjust outcome where, on the face of the evidence, a genuine complaint has properly been brought against the defendant : R v Cox  EWCA Crim 549.
A live link is defined in section 33B Youth Justice and Criminal Evidence Act 1999 as "an arrangement by which the accused, while absent from the place where the proceedings are being held, is able to see and hear a person there, and to be seen and heard by the judge, justices, jury, co accused, legal representatives and interpreters or any other person appointed by the court to assist the accused."
A defendant aged 18 and over may give evidence in criminal proceedings in the magistrates' court and the Crown Court using a live link if:
- he suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function; and
- he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court; and
- use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise (sec 33A (5) Youth Justice and Criminal Evidence Act 1999 as inserted by section 47 of the Police and Justice Act 2006); and
- the court is satisfied that it is in the interests of justice for the defendant to give evidence through a live link.
A youth offender may give evidence in criminal proceedings in the magistrates' court and the Crown Court using a live link if:
- his ability to participate effectively in the proceedings as a witness giving oral evidence is compromised by his level of intellectual ability or social functioning; and
- his ability to participate effectively would be improved by giving evidence over a live link (sec 33A(4) Youth Justice and Criminal Evidence Act 1999 as inserted by section 47 of the Police and Justice Act 2006); and
the court is satisfied that it is in the interests of justice for the youth to give evidence through a live link.
The defence must apply for a live link direction, which prevents the defendant from giving oral evidence in the proceedings in any manner other than through a live link (sec 33A (6). The court may discharge a live link direction at any time if it appears in the interests of justice to do so of its own motion or on application by any party. (s33A (7) the court must give reasons in open court for giving or discharging a live link direction or for refusing an application for or the discharge of a live link direction. Those reasons must be recorded on the register of proceedings where the decision was made in the magistrates' court, (s33A (8).
Section 35 Mental Health Act 1983 sets out the provisions for the magistrates' court and the Crown Court to remand the defendant to hospital in order for a report on his mental condition to be prepared Archbold 5-891.
The court can direct that the person is conveyed to and detained in a place of safety (as defined by section 135 MHA) pending admission to hospital provided that arrangements have been made for his admission to hospital within seven days of the remand. (section 35(5)MHA).
Custody Time Limits will not normally apply in the Magistrates' Court as the remand will normally follow a conviction. However, they will continue to run in the Crown Court if the remand is before conviction or the start of a trial and in both the Magistrates' Court and Crown Court if the defence have consented to the remand for reports. It may be appropriate to apply to extend Custody Time Limits pending the preparation of a report.
Section 36 Mental Health Act 1983 contains the provisions for an accused to be remanded to hospital for treatment, instead of being remanded in custody, pending trial or sentence. This applies only to defendants appearing in the Crown Court (Archbold 5-892).
If the remand is before conviction or the start of a trial, Custody Time Limits will continue to apply.
This power may be used in cases where the defendant might otherwise be found unfit to plead, to enable a defendant to receive treatment prior to trial, which may proceed at a later date when the condition of the defendant has improved.
Section 38 Mental Health Act 1983 contains the provisions enabling the Crown Court and magistrates' courts to make an interim hospital order (Archbold 5-893).
The court must be satisfied on written or oral evidence of two registered medical practitioners that the defendant is suffering from a mental disorder and that there is reason to suppose that it may be appropriate to make a hospital order.
The interim order should be for a period not exceeding 12 weeks. It may be further renewed thereafter for 28-day periods, subject to an overall maximum period of twelve months.
The court should obtain and consider a medical report before passing a custodial sentence on an offender who is or appears to be mentally disordered (section 157 Criminal Justice Act 2003.) The Primary Care Trust in England and the Local Health Board in Wales should also provide the court with information about the availability of facilities for hospital treatment in the area in which the defendant last lived (section 39 Mental Health Act 1983.)
In R v Birch  11 Cr App R (S) 202, the CA set out an approach to sentencing a mentally disordered offender:
- Is a period of compulsory detention apposite? If it is not, or may not be, the possibility of a community order with a mental health treatment requirement should be considered. (Archbold 5-130 and 5-143/144)
- Are the conditions in section 37(2) Mental Health Act 1983 for making a hospital order satisfied? Archbold 5-894 and see Hospital Order above in this guidance. If there is any doubt, the judge may make an interim hospital order under section 38 Mental Health Act 1983 and seek a report on the availability of hospital treatment under section 39 Mental Health Act 1983.
- If the conditions for making the hospital order are satisfied, is the hospital order "the most suitable method of disposing of the case." (section 37 (2) (b) Mental Health Act 1983.
- If so, are the conditions for making a restriction order satisfied? Archbold 5-898 Even if the conditions are satisfied, the court may still pass a custodial sentence. Prison may be most suitable if:
- The offender is dangerous and there is no suitable secure hospital accommodation for him; or
- The sentencer considers that notwithstanding the offender's mental disorder, there is an element of culpability that requires punishment e.g. where there is no nexus between the disorder and the offence or where the defendant's responsibility is diminished rather than extinguished.
- Consideration should be given to making a hospital and limitation direction pursuant to section 45 A and B Mental Health Act 1983 (Archbold 5-907 5-909) before passing a custodial sentence.
Where a decision is taken to terminate all proceedings in the magistrates' court against such a defendant, a notice of discontinuance should be issued rather than the charges being withdrawn at court in the absence of the defendant.
When a remand prisoner is transferred to hospital by way of an order under section 48 of the Mental Health Act 1983, the Home Office will inform the local Chief Crown Prosecutor by way of letter. At the same time, the hospital manager receiving the prisoner will also be sent notification by the Public Protection and Mental Health Group at NOMS as will the Clerk to the Justices for the court where the defendant's case is being heard.
If it is subsequently decided to discontinue all the proceedings against the defendant, the Medical Records Office of the hospital where the defendant is detained should be immediately informed by telephone. A copy of the discontinuance notice should then be sent to the hospital concerned, and to, Public Protection and Mental Health Group, NOMS 2nd Floor, Fry Building, 2 Marsham Street, London SW1P 4DF which has the responsibility for the administration of Section 48 orders.
Where the procedure under Section 23 of the Prosecution of Offences Act 1985 is used to discontinue some but not all charges, a copy of the Notice of Discontinuance should be sent to the hospital concerned, making it clear that the proceedings are continuing.
In cases where a defendant is remanded in custody to the Crown Court awaiting trial and a Section 48 order is made a letter will be sent to the Chief Clerk of the court where the defendant's case is to be heard. This will be copied to the local Chief Crown Prosecutor.
The precise way in which a case may be disposed of in the Crown Court may vary according to circumstances, and be subject to discussions between the relevant parties. Any action taken which results in the disposal of the case against the defendant should be notified to Public Protection and Mental Health Group, NOMS, Grenadier House, 99-105 Horseferry Road, London SW1P 2DD.
Immediate contact should be made by telephone to the relevant caseworker at the Mental Health Unit. Patients are allocated to caseworkers according to the first letter of the patient's surname. In cases of emergency outside normal office hours please phone the Home Office switchboard (202 7035 4848) and choose option 5 to speak to an operator, followed by written confirmation.