Mentally Disordered Offenders
Principle
Key documents
The key documents with set out the Service's policy in dealing with cases in which the defendant has a mental disorder are:
- The Code for Crown Prosecutors (the Code);
- Home Office Circular 66/90 - Provision for Mentally Disordered Offenders;
- Home Office Circular 12/95 - Mentally Disordered Offenders: Inter Agency Working.
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 it is needed in the public interest for example because of the seriousness of the alleged offence or the -likelihood of re-offending. Information about the person's condition and the availability of any suitable alternatives to prosecution will - be relevant and will need to be considered.
Medical reports
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 accused'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. You may need to evaluate carefully a suggestion that continuing the criminal proceedings will significantly worsen the defendant's condition.
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 worsening of the defendant's condition, it may be appropriate to obtain an independent medical report.
However, where you are satisfied that the probable effect on the defendant's mental health outweighs the public interest considerations in favour of a prosecution in that particular case, the proceedings should be terminated.
Guidance
Definition of mental disorder
Section 1(2) Mental Health Act 1983 (Archbold, 5-563) defines mental disorder as " mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind."
The category of mental disorder described as "mental illness" accounts for the majority of people detained in hospital under the MHA. Whether a person is placed in this category is entirely a matter for clinical judgment. Most patients with mental health problems who are in hospital have been admitted as informal patients and are not detained under the MHA.
The exclusions in section 1(3) of the MHA prevent a person from being regarded as having a mental disorder only by reason of promiscuity or other immoral conduct, sexual deviancy or dependence on drugs or alcohol.
These are legal definitions that are used specifically for the purposes of the MHA and will generally not be used by psychiatrists except in the context of action under the MHA. Medical reports will usually include a psychiatric diagnosis of the patient's mental illness or disorder.
Admissibility of confessions
Defendants who have a significant mental disorder or are otherwise mentally vulnerable may make confessions which are untrue. Archbold 15-275-280 and 15-397
If the police have any suspicion or are told in good faith that a person may have a mental disorder or is otherwise mentally vulnerable or is mentally incapable of understanding the significance of questions or replies, the person is to be treated as if he or she were mentally disordered or otherwise mentally vulnerable. Archbold 15-397
The leading cases are:
R v Mackenzie 96 Cr.App.R 98
R v Campbell [1995] 1 Cr.App.R 522
R v Bailey [1995] 2 Cr.App.R 262
Diversion and public interest considerations
Home Office Circular 66/90 requires that certain avenues of diversion for mentally disordered offenders such as cautioning and/or admission to hospital or support in the community should be considered before deciding that prosecution is necessary.
In considering whether a prosecution is necessary in the public interest, the following factors may have a bearing on your decision:
- the police or Social Services have used their powers under sections 135 or 136 Mental Health Act 1983;
- the offender has been -admitted to hospital -for assessment or treatment under sections 2 or 3 Mental Health Act 1983;
- the offender has been admitted to hospital as an informal patient under section 131 Mental Health Act 1983;
- an order for guardianship under section 7 Mental Health Act 1983 has been made.
The circular advocates that wherever possible mentally disordered offenders should receive care and treatment from health and social services rather than the penal system.
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. The fact that a person is detained under the MHA does not prevent a prosecution.
If you decide not to prosecute, but formal action by the police is required, it might be appropriate for a caution to be given. The criteria in the Cautioning Guidelines, refer to Cautioning and Diversion, elsewhere in this guidance, apply equally to mentally disordered offenders. However, it can be a difficult area because of the requirements that the accused:
- admits the offence and
- understands the implications of the caution and
- agrees to the caution.
A caution -will not be appropriate if there is any doubt about the truthfulness of any admissions made - or because of the defendant's level of understanding. In such cases, - the only alternative to prosecution is to take no further action. The police should be alerted to the - inappropriate use of cautioning.
In taking the decision as to whether a prosecution is in the public interest, you will require as much relevant information as possible.
It may be appropriate to consider the views of the patient's psychiatrist as an apparently minor offence may form part of a disturbing pattern of behaviour that may point in favour of prosecution. A prosecution may also be appropriate in order for a patient to accept responsibility for his or her actions but should never be pursued solely for an order under MHA to be made.
The views of the victim should also be sought and taken into account in the decision making process.
The standard and form of information required to establish mental disorder
Information about a person's mental disorder may be required at various stages in the prosecution process, including:
- The decision to charge.
- The decision to prosecute.
- Fitness to plead.
- Sentence.
Prosecutors should be clear why information is needed and should be proactive in obtaining it. HO Circular 12/95 regards cooperation between criminal justice agencies and health and social care services as essential. Good relations at local level will facilitate information gathering.
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 court assessment 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.
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.
Procedure
Relations with other agencies
Home Office Circular - 12/95 recognises the need for co-operation between the many different agencies responsible for the care and treatment of the mentally disordered because the inter agency approach is the most effective.
The principles upon which the Crown Prosecution Service will regulate its involvement are as follows:
- The Crown Prosecution Service will seek to be represented at an appropriate level of seniority on any inter-agency committee set up to devise and agree procedures to comply with the recommendations of the Home Office Circular, and will seek to agree a policy on diversion with Chief Officers of Police locally;
- Procedures contemplating access to information held in CPS files other than information which would be disclosed by way of Advance Information or Pre-Sentence Information should receive careful scrutiny. It will not be appropriate to hand the complete file over to any person enquiring into the circumstances of the offence of the offender;
- You will not take part in inter-agency case conferences or discussions about how to proceed in individual cases except where asked for advice by the police in a normal way, using the usual channels;
Responsibilities of the police
The responsibilities of police set out in Home Office Circular 12/95 include:
- The police may have been advised of the defendant's condition and prognosis by the Social Services, Probation Service, psychiatrists or other professional, who may advocate a particular approach or disposal. They 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.
- If the defendant has been seen by a psychiatrist or arrangements have been made to have him or her assessed, the police should inform you.
- 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.
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
The law on this topic was 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 31st March 2005. Transitional provisions are set out at paragraph 8 of Schedule 12 to the 2004 Act.
The issue of fitness to plead will be decided by the judge not the jury. When the judge finds that the defendant is unfit to plead, the jury will decide whether the defendant did the act or made the omission. (sec 22.)
Archbold 4-166. Paragraphs 4-167 to 4-178 of Archbold set out the law governing the procedure, evidence and burden of proof in the Crown Court only..
Section 4 of the Criminal Procedure (Insanity) Act1964 deals with the "finding of unfitness to plead"and section 4A deals with - the "finding that the accused did the act or made the omission charged against him", Archbold 4-617 - 618
For guidance as to when the issue arises and when it should be determined, see Archbold 4--169 and 170.
For guidance as to the burden of proof, verdict and subsequent procedure, see Archbold 4-174.
Section 5 sets out the powers to deal with persons not guilty by reason of insanity or unfit to plead. Archbold 4-175 Sec 24 of the 2004 Act replaces sec 5 Criminal Procedure (Insanity) Act 1964 with a new section 5 and 5A, which sets out the three disposal options where a defendant is found unfit to plead or not guilty by reason of insanity:
- Hospital Order under sec 37 Mental Health Act 1983, with a restriction order under sec 41 if necessary. 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.
- Supervision Order. This is described in detail in Schedule 2 to the 2004 Act, which introduces a new section 1A to the Criminal Procedure (Insanity) Act 1964.
- Absolute Discharge.
This section deals with orders to be made where the accused is unfit to stand trial, but found to have done the act or made the omission charged against him.
Remands for a report on the accused's mental condition
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, 5-567)
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.(sec 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.
Remands of an accused to hospital for treatment
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, 5-568)
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.
Hospital and guardianship orders
Section 37 Mental Health Act sets out the criteria which enable both the Crown Court and a Magistrates' Court to order hospital admission or guardianship. (Archbold, 5-569)
Section 11(1) Powers of Criminal Courts (Sentencing) Act 2000 and section 37(3) MHA enable the Magistrates' Court 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. It can also be used in cases 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 [1983] 1 WLR 335, DL
Where the Crown Court makes a hospital order it may also make an order under Section 41 of the Act, restricting the discharge of the offender from hospital, if it considers that it is necessary for the protection of the public from serious harm. (Archbold, 5-574) and refer to Restrictions on Discharge from Hospital, below in this guidance
Interim hospital orders
Section 38 Mental Health Act 1983 contains the provisions enabling a Crown Court and the Magistrates' Court to make an interim hospital order. (Archbold, 5-569)
This power only exists after conviction and Custody Time Limits do not apply when a court exercises its powers under this section.
The court must be satisfied on written or oral evidence of two registered medical practitioners that the defendant is suffering from one of the stipulated forms of mental disorders 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.
Restrictions on discharge from hospital
Section 41 Mental Health Act 1983 contains the provisions that empower the Crown Court to make a "restriction order" when making a hospital order. (Archbold, 5-574)
The court will have regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if released. If it is necessary for the protection of the public from serious harm, the court can order that the offender be subject to special restrictions either with or without limit of time.
The effect of this is to restrict the patient's discharge, transfer or leave of absence from hospital for a specified or unlimited period without the consent of the Home Secretary.
Magistrates have no power to make a hospital order subject to a restriction order. But section 43 MHA allows an offender aged 14 or over to be committed in custody to the Crown Court so that a hospital order and restriction order can be made. (Archbold, 5-575)
Section 44 of the Act permits the magistrates making a committal under Section 43 to order the defendant be admitted to hospital rather than custody pending his disposal at Crown Court. (Archbold, 5-576)
Discontinuance
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 Home Office, 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 Prison Transfer Group (PTG), Mental Health Unit, Room 224, Home Office, Queen Anne's Gate, London SW1H 9AT 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.
Fitness to plead
In the majority of the cases it is likely that the defendant will respond to medical treatment and the trial will take place within a reasonable period. Alternatively, the defendant's condition may be so serious that it will justify a hearing on the issue of fitness to plead. See Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, above in this section.
The provisions of Section 51 of the Mental Health Act 1983 enable the Crown Court to make a hospital order (with or without restrictions) in the defendant's absence and without convicting him if he or she has been remanded in custody but has subsequently been transferred to hospital for medical treatment.
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 Prison Transfer Group (PTG), Mental Health Unit, Room 224, Home Office, Queen Anne's Gate, London SW1H 9AT. Immediate contact should be made by telephone (0207 273 4000) followed by written confirmation (Fax Numbers 0207 273 3411 or 2172).
Useful references
The Code for Crown Prosecutors
Archbold 5-563
Archbold 15- -275-280
Archbold -15-397
Archbold
R.v. Mackenzie 96 Cr App R.98
R.v. Campbell [1995] 1 Cr.App. R 522
R.v. Bailey [1995]2 Cr.App R 262
Cautioning and Diversion
Archbold 4-167 to 4-178
Archbold 4-167
Archbold 4-618
Archbold 4-169-170
Archbold 4-174
Archbold 4-175
Archbold 5-567
Home Office Circular 66/90
Home Office Circular 93/1991
Home Office Circular 12/95