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Prosecution of offenders with mental health problems or learning disabilities

This report presents the findings from the research the CPS has completed into its role in cases involving offenders with mental health problems or learning disabilities. Seven recommendations designed to provide the basis for further consideration and action on behalf of the CPS are proposed.

Christine Magill and Vanessa Rivers
Strategy and Policy Directorate
Research Team
Crown Prosecution Service

June 2010

Contents

Executive Summary

  1. Introduction
  2. Evidence Base
  3. Strategic And Policy Context
  4. Research Aim And Methods
  5. Offenders, Offences And Outcomes
  6. File Review: Findings
  7. Focus Groups: Findings
  8. Summary And Recommendations
  9. Conclusion
  10. Glossary
  11. References

Acknowledgements

The Crown Prosecution Service (CPS) has prepared this report with help and co-operation from many individuals internal, as well as external, to the organisation.

First, thanks are due to the police officers, court staff, health professionals, and our own prosecutors, who kindly participated in the focus groups. All participants took time out to attend these events. Their contribution allowed a valuable insight, which the final analysis reflects.

Second, our thanks to Liz Hulme (CPS Devon and Cornwall) for her conscientious efforts in reviewing more than 60 CPS files and to Tracy Easton (Chief Crown Prosecutor) for supporting Liz in completing this exercise.

Third, special thanks to Rose Thompson (CPS West Midlands) for her significant input to this work. Despite her many other commitments, Rose responded positively to requests for help from the researchers. Credit is also due to Mark Paul (CPS West Midlands) who, alongside Rose, helped to quality assure the findings from the case file review.

Fourth, thank you to the Chief Crown Prosecutors who gave permission for their respective Areas to take part in this research. Thank you also to their support staff who helped to collate case files for the review.

Finally, thanks to our colleagues in other government departments and agencies for their help with the research. Glyn Thomas, Brenda Evans, Gillian Ormston, Kevin Ryan and Inspector Michael Brown all deserve a special mention.

Without the individuals listed above, the research simply would not have happened. We are grateful for all their support.

Executive Summary

Introduction

In November 2009, the Health and Criminal Justice Programme Board published its National Delivery Plan (Department of Health, 2009). The National Delivery Plan incorporates a full Government response to the recommendations flowing from Lord Bradley's earlier review of people with mental health problems or learning disabilities in the Criminal Justice System (Bradley Report, 2009a). It sets out a strategic framework and five cross-departmental objectives. The latter are underpinned with key deliverables for relevant Government Departments, including the Crown Prosecution Service (CPS).

The National Delivery Plan includes two deliverables for the CPS, one of which is for the CPS to 'conduct research into the role of prosecutors and their decision-making in cases involving mentally disordered offenders and those with learning disabilities by March 2010' (Department of Health, 2009: 37).

The CPS has now completed its research. This report presents the findings from the research. Recommendations for further consideration on behalf of the CPS are also presented.

Terminology

The CPS recognises that terminology in this area is a complex and sensitive issue. For the purposes of this report, the terms 'offenders with mental health problems or learning disabilities' and 'mentally disordered offenders' are used. The term 'offenders with mental health problems or learning disabilities' is used by Lord Bradley in his review (Bradley Report, 2009a) and throughout 'Improving Health, Supporting Justice' (Department of Health, 2009), which incorporates the National Delivery Plan. It is the term used in this report when referring to the wider policy context. The statutory definition of 'mentally disordered offenders' is used when referring to prosecutors' decision-making. The first recommendation flowing from the research is around terminology:

1. The CPS should consider whether there is a need to revisit its current Guidance on Mentally Disordered Offenders to reconsider its use of terminology and whether there is a need to adopt the term 'offenders with mental health problems or learning disabilities' as used in Lord Bradley's review and the National Delivery Plan.

Research Aim and Methods

The research explored the role of the CPS in relevant cases with a focus on two themes: 1) prosecutors' decision-making; and 2) information sharing and exchange. Methods used included a review of CPS case files and focus groups with relevant practitioners. The review explored prosecutors' decision-making in 65 case files involving adult mentally disordered offenders sampled from four CPS Areas. Focus groups brought together 27 practitioners (for example, the police, prosecutors, mental health practitioners, and magistrates' and Crown Court staff) with relevant knowledge and experience. In total, four focus groups, one in each of the four Areas, were held.

Key Findings and Recommendations

The research illustrated the incompleteness of data recorded on CPS electronic data systems on offenders' disability. All 65 case files included in the review involved a mentally disordered offender. However, offenders' disability was recorded as 'Unknown' in all except two of the cases.

2. The CPS should continue to take forward work with the police to improve the completeness of monitoring data on the disability of offenders.

Findings suggest there is little need for further training of prosecutors to assist them in making charging/initial review decisions in cases involving mentally disordered offenders. For instance, in the large majority of cases reviewed, the decisions taken at charging/initial review were in accordance with the evidential and public interest stages as set out in the Code for Crown Prosecutors (CPS, 2004).

3. CPS Areas should continue to deliver training locally, using a nationally agreed package, to their prosecutors as required.

Focus group findings suggest there is scope for improving mutual awareness and understanding of, and links between, CPS and relevant partner agencies. For example, focus group participants reported an absence of links, and where links did exist, these tended towards the informal, ad hoc and were reliant on the commitment of 'local champions'. The need for enhanced understanding and awareness on behalf of criminal justice agencies in relation to practice and policies followed by health practitioners, and vice versa, is also identified.

4. CPS Areas should consider establishing contact and fostering better links with local Primary Care Trusts, to increase awareness of criminal justice needs and to facilitate prosecutors' understanding of the nature of local services.

5. Any CPS training delivered locally should consider incorporating presentations from, or workshops in collaboration with, representatives from other relevant partner agencies, such as Health Professionals.

Findings suggest that there is a need for enhanced communication with partner agencies on the role of the CPS in relevant cases. For instance, focus group participants pointed to the tensions between health and criminal justice agencies on issues such as data protection and confidentiality.

6. The CPS should consider providing information to relevant partner agencies to enhance the understanding of CPS policy, with a specific emphasis on confidentiality and data protection issues.

There was some, albeit limited, evidence from the research to suggest a limited use of Conditional Cautions in cases involving mentally disordered offenders.

7. The CPS should revisit its guidance to see if there is scope more clearly to set out the circumstances when it would be appropriate to issue a Conditional Caution in cases involving 'mentally disordered offenders' (including offenders with learning disabilities).

Conclusion

This report presents the findings from the research the CPS has completed into its role in cases involving offenders with mental health problems or learning disabilities. Completion of this research fulfils the CPS' commitment to the first deliverable in the National Delivery Plan (Department of Health, 2009). Seven recommendations designed to provide the basis for further consideration and action on behalf of the CPS are proposed.

1. Introduction

In November 2009, the inter-departmental Health and Criminal Justice Programme Board published its National Delivery Plan (Department of Health, 2009). The Plan incorporates a full Government response to the recommendations flowing from Lord Bradley's review of people with mental health problems or learning disabilities in the Criminal Justice System (CJS) that was published earlier in April 2009. The review looked specifically at the extent to which such offenders could, in appropriate cases, be diverted from prison and the barriers to such diversion (Bradley Report, 2009a).

The National Delivery Plan sets out a strategic framework and five cross-departmental objectives. The objectives are underpinned with key deliverables for relevant Government departments, including the Crown Prosecution Service (CPS).

There are two deliverables in the plan for the CPS:

  • to 'conduct research into the role of prosecutors and their decision-making in cases involving mentally disordered offenders and those with learning disabilities by March 2010' (Department of Health, 2009: 37); and
  • 'review the use of conditional cautions for individuals with mental health problems or learning disabilities, and [will] issue guidance to advise relevant agencies by October 2010' (Department of Health, 2009: 38).

The CPS has now completed its research. The research focused on two key themes: 1) prosecutors' decision-making; and 2) information sharing and exchange between the CPS and relevant partner agencies.

This report presents the findings from the research. Recommendations designed to provide the basis for further consideration and action on behalf of the CPS are proposed.

Report Structure

The remainder of the report is structured as follows:

Section 2 considers definitional issues and provides a brief synopsis of the existing evidence base;

Section 3 details the strategic and policy context;

Section 4 outlines the research aim and methodology, and considers the limitations associated with the adopted approach;

Section 5 reports on descriptive data on offenders, offences and outcomes for the cases included in the case file review;

Section 6 provides an overview of the findings from the case file review;

Section 7 considers the findings from the focus groups held as part of the research;

Section 8 summarises the key findings from the research and sets out recommendations;

Section 9 concludes the report.

A Glossary and Reference list are included at the end of the report.

2. Evidence Base

There has been increasing attention given to how the CJS deals with people with mental health problems or learning disabilities, especially offenders. The expanding evidence base is summarised below in a brief synopsis that seeks to identify some of the key issues considered particularly pertinent to the present research.

Definitional Issues

Debate around definition is a common theme in the literature on mental health and the CJS. As Peay (2007: 496) states: 'mentally disordered offenders do not represent some single easily identifiable group'. A number of definitions exist and different sectors apply various, sometimes disparate, terms. As a recent Inspectorate Report commented: '[n]o one definition is universally accepted' (Criminal Justice Joint Inspection, 2009: 7). There are similar definitional issues in relation to learning disabilities (see Bradley Report, 2009a: 19).

Lord Bradley's review considered issues around definition in detail. He acknowledged the variety of terms used by different sectors and set out to keep the definition informing his review as broad as possible. As such, the Bradley review covered all people with mental health problems from depression and anxiety through to personality disorder and psychosis (Bradley Report, 2009a: 17). The review adopted the term 'offenders with mental health problems', based on Nacro's definition:

Those who come into contact with the criminal justice system because they have committed, or are suspected of committing, a criminal offence, and who may be acutely or chronically mentally ill...It also includes those in whom a degree of mental disturbance is recognised, even though it may not be severe enough to bring it within the criteria laid down by the Mental Health Act 1983 (now 2007) (cited in Bradley Report, 2009a: 17).

Lord Bradley also considered the experience of people with learning disabilities (including learning difficulties). Here again, the challenges linked to defining the different groups are considered at some length (Bradley Report, 2009a: 17). Lord Bradley referred to the lack of consensus in defining boundaries between learning disability, borderline learning disability and learning difficulty. For the purposes of his review, Lord Bradley accepted the Government's Valuing People White Paper (Department of Health, 2001) definition, which was also used by the Prison Reform Trust's No One Knows programme of work. The review defined learning disability as:

A significantly reduced ability to understand new or complex information, to learn new skills (impaired intelligence), with a reduced ability to cope independently (impaired social functioning), which started before adulthood, with a lasting effect on development (cited in Bradley Report, 2009a: 19).

The CJS often uses the term 'mentally disordered offender'. The legislative framework defines 'mental disorder' as 'any disorder or disability of the mind' (section 1(2) Mental Health Act 1983, as amended by section 1 of the Mental Health Act 2007). The statutory definition includes, for example, clinically recognised mental disorders such as: personality disorders, eating disorders, autistic spectrum disorders, mental illness such as depression and bipolar disorder, schizophrenia, and learning disabilities. The term 'Learning Disability' is defined as meaning a 'state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning' (section 1(3) Mental Health Act 1983, as amended by section 1 of the Mental Health Act 2007). The amended statutory definitions came into force on 3 November 2008.

The CPS recognises that terminology in this area is a complex and sensitive issue, and that views on the most appropriate terms will vary across individuals, groups and agencies. For the purposes of this report, the terms 'offenders with mental health problems or learning disabilities' and 'mentally disordered offenders' are used. The term 'offenders with mental health problems or learning disabilities' is used by Lord Bradley in his review (Bradley Report, 2009a) and throughout 'Improving Health, Supporting Justice' (Department of Health, 2009). It is the term used in this report when referring to the wider policy context. The statutory definition of 'mentally disordered offenders' is used when discussing prosecutors' decision-making and within this definition are offenders with learning disabilities.

The CPS recognises that not all readers of this report will agree with the use of the term 'mentally disordered offender' and it is the subject of recommended further action for the CPS at the close of this report. However, at present the term 'mentally disordered offender', as based on the statutory definition, is used in CPS guidance to describe a person who has committed or is suspected of committing a criminal offence, who has a disability or disorder of the mind and it covers a range of disabilities and disorders.

It should also be noted that the term 'offender' is used to refer to 'suspect' and 'defendant'.

Statistics and Monitoring

There are a number of sources for statistics on offenders with mental health problems or learning disabilities. Despite this, determining actual numbers is no easy task. Different sources provide different estimates. For example, one survey estimated that 2 per cent of detainees were treated by the police as mentally disordered (Phillips and Brown, 1998). Another survey reports a different picture – it found that in the 12 months before entering prison, about 20 per cent of male prisoners, both remand and sentenced, had received help or treatment for a mental or emotional problem. The proportion among female prisoners was double - 40 per cent (Office for National Statistics, 1998).

The differences in estimates may be the result of differing definitions and terminology. It is also important to bear in mind that estimates will reflect circumstances at different points in the criminal justice system. For example, at the earliest stages, under-representation of incidence is probable for reasons linked to identification (Peay, 2007: 504).

The Ministry of Justice (MoJ) publish annual statistics summarising information about people subject to a restriction order (restricted patients) admitted to, detained in or discharged from psychiatric hospitals (high security and other hospitals which admit mentally disordered offenders). The most recent publication in this series reports that many of the figures are the highest observed in the last decade (MoJ, 2010).

Monitoring the disability of offenders was introduced in the CPS in April 2007. Whether an offender is 'disabled', 'not disabled' or 'disability is unknown' can be recorded on the CPS' national electronic Case Management System (CMS) and Management Information System (MIS). However, the category does not distinguish between physical and mental disability.

Note: Further explanation on CMS and MIS is contained in the Glossary at the end of this report.

Offenders' Experiences

A recently completed review of existing evidence (MoJ, 2009b) helpfully summarises key findings in relation to experiences of adults with mental health problems:

  • adults with mental health problems are over-represented in populations of offenders;
  • adults with mental health problems are more at risk of crime victimisation than the general population;
  • there is inconsistent but mainly supportive evidence about the effectiveness of so-called criminal justice 'diversion' schemes in terms of preventing offending or improving mental health, however, more research is required; and
  • there is evidence that prejudicial attitudes within the criminal justice system may result in negative justice outcomes for adults with mental health problems and decisions being based on an incorrect understanding of mental health problems (MoJ, 2009b: iv-v).

Research has also identified the difficulties people with learning disabilities encounter upon entry to the CJS. People with learning disabilities are, for example, unlikely to be identified; suffer from poorer general health, particularly with regard to mental health; and, finally, likely to struggle with police questioning and cautions (Loucks, 2007: 2).

3. Strategic And Policy Context

In this section, an overview of the strategic and policy context informing the research is summarised. The CPS approach to charging and prosecuting mentally disordered offenders, as well as CPS guidance, is considered.

The Health and Criminal Justice Programme Board

The inter-departmental Health and Criminal Justice Programme Board was established to take forward recommendations contained within Lord Bradley's review of people with mental health problems or learning disabilities in the Criminal Justice System (Bradley Report, 2009a).

Two deliverables are identified for the CPS and worded as follows in the Programme Board's National Delivery Plan:

  1. to 'conduct research into the role of prosecutors and their decision-making in cases involving mentally disordered offenders and those with learning disabilities by March 2010' (Department of Health, 2009: 37); and
  2. 'review the use of conditional cautions for individuals with mental health problems or learning disabilities and [will] issue guidance to advise relevant agencies by October 2010' (Department of Health, 2009: 38).

The second deliverable flows directly from Lord Bradley's review (see Bradley recommendation 7) and so follows his scope and terminology. The present research, which focuses on prosecutors' decision-making, meets the CPS' commitment to the first deliverable.

The Code for Crown Prosecutors

The CPS approach to charging and prosecuting mentally disordered offenders is set out in the Code for Crown Prosecutors (CPS, 2010a) and the CPS guidance on the same. A new 6th edition of the Code was published in February 2010. This included new text and updates sections of the 5th edition of the Code, which was published in 2004.

The research in this report is based on the 5th edition of the Code (CPS, 2004). This edition was current at the time when the cases that are the subject of this report were under consideration for charging by the CPS. However, the changes from the 5th to the 6th edition of the Code should not have had made any material difference to the decisions made on the cases included in this research.

Prosecutors in making their decisions about whether a person should be charged with a criminal offence and if so what that offence should be, are bound by the Code for Crown Prosecutors (the Code) which must be read alongside the Director's Guidance on Charging (CPS, 2007). In those cases where the police determine the charge, which are usually less serious and complex cases, they apply the same provisions.

The Code has two stages. The first is the evidential stage. The prosecutor must be satisfied that there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge. This means that a jury or a bench of magistrates or a judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the alleged charge. If the case does not pass the evidential stage, it must not go ahead, no matter how important or serious the offence may be.

The second is the public interest stage. If the case has passed the evidential stage, the prosecutor must decide if a prosecution is needed in the public interest. There are a number of public interest factors set out in the Code both for and against prosecution. Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case is determined on its own facts and merits, and prosecutors must decide each public interest factor in the circumstances of each case and go on to make an overall assessment of the public interest. It is possible that one factor may outweigh a number which tend in the opposite direction. Amongst the public interest factors to be considered, the Code says that the CPS, where necessary, should apply Home Office guidelines about how to deal with mentally disordered offenders. Prosecutors must balance the desirability of diverting a defendant with significant mental illness from the criminal justice system with the need to safeguard the general public (CPS, 2004: para. 5.10).

CPS Guidance

The CPS guidance on 'Mentally Disordered Offenders' (CPS, 2008) is used in conjunction with the Code. The guidance is part of the set of legal guidance for prosecutors available on the CPS website, and it is regularly checked and updated to reflect changes in legislation, case law and practice. The guidance explains that an offender's mental disorder may be relevant to:

  • the decision to prosecute or divert;
  • fitness to plead; and
  • sentencing/disposal.

The current research is primarily concerned with the first aspect, that is, the decision to prosecute or divert, and so further explanation is provided on this aspect here.

The guidance states that there should be no presumption either in favour of or against the prosecution of a mentally disordered offender; that each case must be considered on its merits taking into account all available information about any disorder, and its relevance to the offence, in addition to the principles set out in the Code.

The guidance emphasises how important it is that prosecutors have information and evidence about any mental disorders at the earliest opportunity in order to review a case in accordance with the Code. The police have certain responsibilities, as set out in Home Office Circular 12/95, to provide such information (Home Office, 1995). However, the guidance acknowledges that information about the offender may come from a variety of sources not just the police. Prosecutors are advised to consider whether the information supplied is sufficient upon which to base their decision and when the information is inconclusive or out of date, further information should be sought. The guidance additionally points out that prosecutors must be satisfied the information is reliable before taking any decision based upon it.

Conditional Cautions

Conditional Cautions were introduced by sections 22 to 27 of the Criminal Justice Act 2003. In appropriate cases they can be used as a means to divert from court those whose offending is serious enough to warrant prosecution, but who are prepared to admit their offence and agree to undertake rehabilitative or reparative activities as a condition of being cautioned. Conditional Cautions tend to be used for a wide range of more minor offences, such as destroying or damaging property, theft and common assault.

Unlike the simple caution, the decision whether or not to offer a Conditional Caution can only be taken by a prosecutor, either when considering whether to charge or on review of a case charged by the police. The Code for Crown Prosecutors explains the principles to be applied in balancing factors for and against prosecution. The Code of Practice for Conditional Cautions and The Director's Guidance on Conditional Cautions detail the procedures to be adopted. The new edition of the Director's Guidance on Conditional Cautions (CPS, 2010b) was published in January 2010 and updates certain sections of the previous edition; the present research is based on the previous edition.

Specifically, a Conditional Caution may only be given if a prosecutor considers that there is sufficient evidence to prosecute and the offender admits the offence and agrees to a Conditional Caution being imposed. If the Conditional Caution is not accepted, or the offender fails to comply with the conditions, then the case will be referred back to a prosecutor to make a decision on prosecution for the original offence.

4. Research Aim And Methods

The research consisted of two methodological strands: a review of CPS case files; and focus groups with practitioners. A more detailed explanation of each strand is provided in this section. Limitations to consider in the interpretation of the research findings are also considered. First, the research aim and scope is outlined.

Research Aim and Scope

The key aim of the research is to explore the CPS' role in cases involving offenders with mental health problems or learning disabilities. The research focuses on two themes:

  1. prosecutors' decision-making in cases involving mentally disordered offenders; and
  2. information sharing and exchange between the CPS and partner agencies.

The research findings are designed to inform any future policy considerations into the need to revisit current guidance and training in this area. The research also meets one of the two key deliverables for the CPS as set out in the inter-departmental Health and Criminal Justice Programme in the National Delivery Plan (Department of Health, 2009) implemented further to the Bradley Report (Bradley Report, 2009a).

In terms of scope, the research focused on adults only. The reasons for this approach are linked to differences in manifestation and identification of mental health issues amongst children and young people as well as differences in the approach taken in the criminal justice system between adults and youths.

The CPS' duties on assisting the court in the sentencing process (for example, reminding the court of its powers when sentencing following conviction) were not specifically considered in the research. Neither was its role in making an order following a finding that an offender is unfit to plead or is found 'not guilty by reason of insanity'.

Finally, the research focused on only those relevant cases brought to the attention of the CPS. Cases dealt with by the police, or otherwise diverted from the formal system without referral to the CPS, sat outside the scope of the research.

CPS Case File Review

The research was conducted in four selected CPS Areas. Areas were purposively selected to reflect a geographical cross-section (metropolitan and non-metropolitan) as well as varying caseloads. Case files were identified from respective caseloads in each of the four Areas for inclusion in the case file review. The following three selection criteria informed the case file identification:

  1. if the case involved a mentally disordered offender (Note: Case files with multiple offenders were excluded from the review. It was felt that to include such files would add further complexity to the review process and the subsequent analysis);
  2. if the case is finalised (so not 'live') with finalisation recorded between 1 January and 30 June 2009; and
  3. if the case involves an adult offender.

Various approaches were used to identify a sufficiently sized, and as varied as possible, sample of suitable CPS case files.

Searches were completed on CPS internal electronic systems, namely, CMS and MIS.

Note: Further explanation on CMS and MIS is contained in the Glossary provided at the end of this report.

Referrals from, and information on specific cases, were also invited from internal, and other, sources. For example, participating CPS Areas were invited to review their caseloads and send details on any cases meeting the selection criteria for consideration. Colleagues in Her Majesty's Court Service (HMCS) were also asked to identify cases from their systems. To identify cases where the offender was diverted from prosecution by way of a Conditional Caution, a final trawl on CPS electronic systems was completed. There were around 400 cases resulting in a Conditional Caution identified in the four Areas between January and March 2009. Case details were individually examined on CMS against the selection criteria. In total, 13 suitable cases were identified using this method.

The four CPS Areas were asked to retrieve the relevant case files. In total, 65 case files met the selection criteria and were sent in response. These case files ultimately formed the sample of cases reviewed as part of the research.

A CPS prosecutor nominated on the basis of her experience in handling relevant cases, and her training, conducted the case file review. Her role was to review the decision-making in the sample, based on the material contained within the files, and record the responses on a specially designed pro-forma. In addition, specialist prosecutors completed a separate peer review exercise on a sub-sample (23 per cent or 15 out of 65) of the case files included in the review. The peer review fulfilled a quality assurance function and assisted in addressing any inconsistencies or ambiguities in the findings.

Descriptive data on selected variables, such as offender demographics, offence characteristics and case outcomes, were also recorded. This information provides the wider context in which to place the findings from the case file review and, as such, is included in the report.

Focus Groups

Four focus groups were convened for the purposes of the research (one in each of the four participating Areas) in September/October 2009. The aim of the focus groups was to gain an insight into information exchange and sharing, and liaison between the CPS and partner agencies at a local level when handling cases involving offenders with mental health problems or learning disabilities. The groups brought together practitioners (such as the police; prosecutors; mental health practitioners; and magistrates' and Crown Court staff) with relevant knowledge and experience.

Participants were recruited using a snowballing technique through established contacts. The size of the focus groups ranged from six to eight participants, with 27 participants in total across the four focus groups.

Focus group discussions were semi-structured and lasted around two hours. All the discussions were recorded and subsequently transcribed. The transcripts were then processed using recognised techniques recommended as part of a 'framework analysis' approach (see Krueger, 1994). This approach facilitated the identification of key themes from participants' responses to questions asked in the focus groups.

Limitations

Due to the challenges inherent in identifying cases using CPS electronic data systems, and the means via which relevant CPS case files were ultimately identified, the resulting case sample for this research is not intended to be representative of CPS caseloads. There is, for example, inevitably an over-representation of discontinued cases. This is a limitation and it should be borne in mind when making observations or drawing inferences based on findings from the review.

It is important to acknowledge that the focus group discussions reflect only the experiences and knowledge of those individuals present on the day. Similarly, the focus groups involved individuals from some agencies and not others (for example, the judiciary and defence solicitors). The findings emerging from the focus groups are therefore limited in these respects.

The research looked at the role of prosecutors in relevant cases and this informed the research design and methods. Service users, and voluntary organisations representing individuals with mental health problems or learning disabilities, did not participate in the focus groups. The research findings and recommendations were, however, shared with representatives from the community, including people with disabilities, at the report drafting stage. Further consultation will take place upon taking forward the recommendation on definition and terminology (see Recommendation 1) as proposed in this report, if it is accepted.

5. Offenders, Offences And Outcomes

In this section, an overview of the descriptive data on offenders, offences and outcomes for the case files included in the case file review is presented. In interpreting this data, it is important to bear in mind that the sample is not intended to be representative for reasons outlined above.

Offender Details

All 65 offenders were adults.

Fifty-one out of the 65 offenders were male as opposed to just 14 who were female.

In terms of age, offenders were reasonably equally distributed (Note: Age calculation is based on offender’s age at the date of case file registration). Ages ranged from 18 to 70. Offenders were most likely to be aged 25 to 34 or 18 to 24. A breakdown of the various age bands is shown in Table 5.1 below.

Table 5.1: Offender Age

Age band 
 Number 
18 - 24
16
25 - 34
20
35 - 44
13
45 - 64
13
65+
3
Total
65

The CPS records ethnicity using the 16+1 ethnicity classification.

Note: Further explanation on the 16+1 ethnicity classification is contained in the Glossary provided at the end of this report.

Here the data has been presented using six categories due to low numbers. Ethnicity was either not specified or not provided for 10 offenders. Of the remaining 55 offenders: 37 were recorded as White; 12 were recorded as Black or Black British; four recorded as Asian or Asian British; and one recorded as Mixed. The remaining offender was recorded under the 'Other' ethnicity category.

Whether an offender is disabled or is not disabled or disability is unknown should be recorded on CMS. All 65 cases files included in the review involved offenders with mental health problems and/or learning disabilities. However, in only two out of the 65 case files was the offender's disability recorded. The disability of the offenders in all other cases was recorded as 'Unknown'. To address this gap, additional information was collected from the case files.

Sources of information on an offender's mental health or learning disability varied across the case files. In 37 out of the 65 case files, there was a report (or letter) from a psychiatrist or psychologist, of which 33 were able to provide a clear statement of the diagnosis in relation to the offender's mental health. As such, a clear statement of diagnosis was not available in 32 of the case files either because it was too early to offer a specific diagnosis at that stage or the information was only of a general nature. However, in all these cases, information was available from other sources within the case file (such as the MG3 form or the proposed letter of discontinuance) to indicate the offender's mental health issue. For example, one case file did not contain any psychiatrist or psychologist reports to provide a clear diagnosis but there was information contained in the MG3 form to confirm that the offender had been diagnosed with schizophrenia, as corroborated in statements from witnesses, who were the parents of the offender.

Table 5.2 shows a more detailed breakdown on the mental health issues experienced by offenders involved in the case files reviewed where a clear diagnosis was available. Offenders were most commonly recorded with a condition categorised as Schizophrenia, Schizotypal and Delusional Disorders – 14 offenders in the cases reviewed were in receipt of such a diagnosis. Two were also diagnosed with a learning disability. Other, much less frequent, mental disorders identified amongst offenders included: Mood Disorders, such as depression and bipolar affective disorder; Personality Disorders; and Organic Mental Disorders, such as dementia. Seven cases involved offenders with a learning disability.

Table 5.2: Breakdown on Offenders' Mental Health/Learning Disability

Category (a) Number
Schizophrenia, schizotypal and delusional disorders (b)
14
Mood Disorders (e.g. depression)
5
Personality Disorders 
4
Organic Mental Disorders (e.g. dementia)
3
Learning Disability
7
Limited/non-specific information on mental disorder diagnosis (c)
32
Total
65

Notes:

(a) Categories for mental disorders are based on The ICD-10 Classification of Mental and Behavioural Disorders (WHO, 1993)

(b) This category includes two offenders who were also diagnosed with having a learning disability. This reflects the specific disorders, namely Schizophrenia and Schizoaffective Disorder.

(c) This category includes all cases where no definitive source was available on the case file or where no firm diagnosis was reported or where the information was generally unclear.

Offence Characteristics

Where a case against an offender is charged and finalised the Principal Offence Category is recorded on CMS. The Principal Offence category indicates the most serious offence charged at the time of finalisation. This information was recorded in 52 out of the 65 case files. Of the remaining 13 case files, 11 were dealt with by way of a Conditional Caution; the last two cases were finalised at the pre-charge stage.

Table 5.3 below shows a more detailed breakdown on the Principal Offence Categories recorded for the 52 cases.

Table 5.3: Finalised Cases: Principal Offence Categories

Offence Type Number
Offences against the Person
20
Criminal Damage
12
Public Order Offences
8
Sexual Offences
3
Theft and Handling
3
Motoring Offences
3
All Other Offences
2
Robbery
1
Total
52

Offences in relation to the 11 Conditional Caution cases were also explored. A detailed breakdown is shown in Table 5.4 below.

Table 5.4: Conditional Cautions: Offences

Offence Type Number
Criminal Damage
4
Offence against the Person
3
Theft
2
Other Offences
2
Total
11

In the remaining two cases dealt with pre-charge, one involved criminal damage and the other an alleged threat to kill.

In seven out of the 65 case files, the offence(s) occurred in an institutional setting, such as a psychiatric ward, care home or sheltered housing. The Principal Offence was recorded in six of the cases; all of which were recorded as 'Offences against the Person'. In three of the cases, the offender assaulted other residents/patients. In the remaining three cases, the offence was against a member (or members) of staff. The final case, which was dealt with pre-charge, involved an alleged threat to kill a member of staff.

A psychiatrist or psychologist report/letter was available in all seven case files. Learning disability was specifically identified in four of the seven cases. One of these four was an offender with a schizoaffective disorder and a moderate learning disability. Personality disorder was specifically diagnosed in a further two cases. In the remaining case file, no clear diagnosis of the offender's mental disorder was available on the case file.

Outcomes

  • In 46 cases, the CPS either advised no further action at the pre-charge stage (two cases) or a decision was taken to discontinue the case at a later stage in the proceedings (44 cases).
  • In 11 cases, the offenders were diverted from prosecution by way of a Conditional Caution.
  • Seven cases went to trial and were finalised at court.
  • In the final case, the prosecution was unable to proceed to trial and charges were ordered to lie on file.

No Further Action/Discontinued Cases: In six out of 46 cases proceedings were discontinued for evidential reasons and 38 cases discontinued on public interest grounds. There was insufficient information on one case file to determine why the case was discontinued. The final case involved two separate charges and was subsequently discontinued on evidential and public interest reasons respectively. There was not enough evidence to proceed with the first charge. In relation to the second charge, the offender had been sectioned under s3 of Mental Health Act 1983 (as amended by Mental Health Act 2007).

In three out of the six cases discontinued for evidential reasons, these reasons were witness-related, notably where the main witness(es) withdrew their support and it was deemed inappropriate to compel the witness to attend court. In a further three cases, there was insufficient evidence to provide a realistic prospect of conviction.

The most frequently (18 out of 38) recorded public interest reason for discontinuing the case was deterioration in the offender's mental health which resulted in his/her admission to hospital for treatment, for example, under different sections of the Mental Health Act 1983 (as amended by the Mental Health Act 2007). Of these 18 cases, there was information collected from three cases confirming that the admission for hospital treatment was a result of sentencing for a separate offence.

Of the remaining 20 cases discontinued for public interest reasons:

  • eight were discontinued as it was considered likely that a nominal penalty would be secured were the case to continue (for example: the Judge indicated that if the offender was convicted of offences, no further penalty would be imposed due to the time already spent in custody);
  • five were discontinued due to the improbability of securing any constructive outcome for the offender (for example, the offender had already started recovery treatment or had since been re-housed away from the victim);
  • three were discontinued due to difficulties in proving the requisite mental element;
  • another two were discontinued as the offender was not well enough to cope with the trial and the likely effect on the offender's health outweighed the public interest factors in favour of prosecution;
  • one was discontinued as the offender did not have the mental capacity to enter a plea to the offence(s) charged and would be unable to follow and understand the court proceedings; and
  • in the final case, proceedings were discontinued due to the long delay between the offence taking place and the date of the re-trial.

Conditional Cautions: The 11 cases diverted from prosecution by way of a Conditional Caution were explored to identify conditions attached to the disposal and any non-compliance. In none of the 11 cases were conditions placed on the offender found to be linked to their mental health.

Table 5.5 shows a more detailed breakdown on the conditional caution conditions imposed on the offender.

Table 5.5: Breakdown on Conditional Caution Conditions

Conditions  Number 
Pay compensation to the victim
8
Write a letter of apology to the victim
6
Attend/complete a detox/alcohol rehabilitation programme
4
Not to commit any further offence during a fixed time period 
3
Not to attend a football match for three months 
1
Inform police if unable to comply with conditions/address change
1
Total
23 (a)

Note (a): Nearly all cases stipulated more than one condition so total based on number of conditions: two had one condition; seven had two conditions; one had three conditions and one four conditions.

Further analysis on CPS electronic systems indicated that the Conditional Cautions had been successfully completed in all cases. In other words, no evidence was found to indicate non-compliance on behalf of any of the offenders within six months of the date of offence.

Finalised at Court: Of the seven cases finalised at court, three resulted in a custodial sentence (sentences were 21 months, 24 months and 7 years respectively), two cases ended with the offender detained under s37 Mental Health Act 1983 (Hospital Order) (of which one had a Section 41 Mental Health Act 1983 (Restriction Order) attached); one case resulted in a 'not guilty' verdict for reasons of insanity (the offender was issued a two year Supervision Order with specified treatment); and in the final case the offender was given a 12 month Community Order with a six month intensive supervision order programme.

Charges ordered to lie on file: In this final case, public interest considerations (notably the vulnerability of the offender and the victim) resulted in a decision not to proceed to trial. However, the offender was not acquitted of the offences. The charges remained on file due to the seriousness of the offence, not to be proceeded with, without leave of the court, or the Court of Appeal.

6. File Review: Findings

In this section, the main findings from the case file review are presented. The findings are grouped under the following four headings: prosecutors' decision-making; information at charging/initial review; information at court; and timeliness.

Prosecutors' Decision-Making

Of the 65 CPS case files included in the review, 48 cases were referred to the CPS for a charging decision and, further to an initial review/charging decision, were then pursued with view to prosecution. In the very large majority of these case files, the decisions taken at charging/initial review were taken in accordance with the evidential and public interest stages of the full Code Test set out in the Code for Crown Prosecutors (CPS, 2004).

The evidential stage was found to be correctly applied in all but two out of the 48 cases. In the two cases where the charging/initial review decision was not considered to have been made in accordance with the evidential stage set out in the Code, the CPS subsequently amended the errors in both cases in a timely manner. One of these cases was overcharged in the first instance, as there was not enough evidence on a number of the charges that would have provided a realistic prospect of conviction. In the other case, the prosecutor re-considered the initial decision upon realising that the offence should be amended to an indictable only offence and was therefore no longer appropriate for an out-of-court disposal as initially considered.

For the public interest stage, the charging/initial review decision was considered to have been made in accordance with the public interest stage set out in the Code in 39 out of the 48 cases. Of the remaining nine cases, there were three where the public interest stage was not found to have been properly applied, of which all three contained information to show that the prosecutor neglected to make any enquiries regarding the offender's mental disorder to inform the public interest decision (as outlined in paragraph 5.10 of the 5th edition of the Code). In the final six cases it was clear that the prosecutor was aware of the offender's mental disorder, however, no explicit or specific reference to this was stipulated in the public interest section of the charging decision.

Information at Charging/Initial Review

In this section, information on offenders' mental disorders at the charging/initial review stage is explored. Of the 65 case files included in the review, 48 were referred to the CPS for a charging decision and, further to an initial review/charging decision, were pursued with view to prosecution.

In these cases, prosecutors were more likely to be alerted to possible mental disorders at the charging/initial review stage than not (based on material contained in Form MG3). Information was available in 47 out of the 48 case files. In 27 case files, some information on the offender's mental disorder was available to the prosecutor. In 20 case files, the prosecutor was not alerted to any such issues at this stage.

Note: Further explanation on Form MG3 is contained in the Glossary provided at the end of this report.

The nature of the information available to prosecutors at the charging/initial review stage varied in nature and detail from one case file to the next. In 15 out of 27 relevant case files the information tended to be minimal and rather general. So, for example, it would be noted that there were possible mental disorder issues or that the offender had made threats to commit suicide or seen a Forensic Medical Examiner.

Note: Further information on the role of FMEs in this context is available in the Glossary provided at the end of this report.

In the remaining 12 of the 27 case files, the information was more definitive and specific. In most such instances, the prosecutor received information indicating the offender was detained under the Mental Health Act 1983. Other examples include those offences that occurred in an institutional setting where the offender was a resident or a patient. This meant that information on an offender's mental disorder was more readily available at the charging/initial review stage.

For the remaining 17 out of 65 cases included in the case file review, 11 were diverted from prosecution by way of a Conditional Caution. In all these cases, the police alerted prosecutors to possible relevant mental health problems and/or learning disabilities at the charging/initial review stage. However, the quality of this information tended to be sparse and not overly detailed or definitive. For example, in one case the offender stated that he had 'psychiatric issues'. Four further cases were police charging decisions.

Note: The Director’s Guidance on Charging (CPS, 2007) provides details, with exceptions, of cases in which the police may determine a charge without reference to the CPS (for example, certain road traffic offences).

None of these four cases contained information about possible mental health problems and/or learning disabilities at the charging/initial review stage. The final two cases were finalised pre-charge; both contained information about possible mental disorders at the initial review stage.

Information at Court

Findings in this section only relate to those cases which proceeded to court. As such, the 11 cases finalised by way of a Conditional Caution and the two cases finalised pre-charge are excluded from this analysis.

As mentioned above, there were 20 case files where the prosecutor was not alerted to an offender's mental disorder at the charging/initial review stage. A further four cases were police charging decisions, of which none contained information about possible mental disorders at the initial review stage.

In 12 of these 24 cases, the prosecutor was first alerted to an offender's disorder at the court stage: either through information provided in open court - often by the defence (7 out of 12); observations made from the offender's behaviour during the court hearing (3 out of 12); or by a letter sent from the NHS (2 out of 12).

In just eight of 24 cases, the prosecutor was first alerted to an offender's mental disorder prior to the court stage: either through further information collated and submitted by the police (4); a report from the defence (3); or by information submitted by a psychiatrist (1).

In the final four cases it was unclear from the information available on the case file when the prosecutor was first alerted to any mental disorder (that is, pre-court or at court).

Timeliness

Part of the case file review involved an assessment as to whether or not the cases in the review were dealt with in a timely manner. An answer was returned in 62 out of the 65 case files. In 42 out of 62 cases, the reviewer indicated based on material in the case file that the case was dealt with in a timely manner.

In the remaining 20 case files, the reviewer felt that the prosecutors could have dealt with proceedings in more of a timely manner. A more pro-active approach on behalf of the CPS in dealing with the case was the most frequently recorded explanation for this view (for example, the case materials indicated a delay in following up relevant information or in instructing an expert witness). This explanation was reported in 10 of the 20 cases. Other explanations included:

  • in five cases there were delays in prosecutors' decision-making to discontinue the case (for example, in one case the decision to discontinue was taken some three months after receipt of a report upon which the decision was based);
  • in another five cases there were delays flowing from other stages of the process, such as the courts or police (for example, in one case delays were caused by a number of hearings in the magistrates' court pre-committal); and
  • in the final case there was an unavoidable delay - the case involved an alleged offence of non-compliance with a Conditional Caution which relied on the police informing the CPS of non-compliance after a two month period.

Note: The total number of explanations does not sum to 20 as one case had two explanations for why the case was not dealt with in a timely manner.

7. Focus Groups: Findings

In this section, the findings from the focus groups held with practitioners are presented. Key themes to emerge from discussions are summarised under six headings: wider issues and challenges; information sharing and exchange; protocols and links; out-of-court disposals; ideas for future consideration; and, finally, what is working well.

Wider Issues and Challenges

The focus groups held with criminal justice and health practitioners clearly demonstrated the particular challenges that offenders with mental health problems or learning disabilities present for different agencies. Focus group participants identified a number of examples to illustrate these challenges.

The problem of identifying offenders with mental health problems or learning disabilities was a common issue raised in all four focus groups. As one participant observed: 'There must be an awful lot that actually go through the system that they [Forensic Medical Examiners] don't identify because they [offenders] haven't identified [their mental health issues] to us' (Police Custody Officer). Another participant commented: 'I'm sure there are people coming right through the system who are never identified' (Deputy Justice Clerk). The identification of offenders with learning disabilities attracted particular comment: '...it is asking a lot for people who aren't health professionals to identify it [a learning disability]...expecting every person who comes through to be identified is a big, big ask' (Offender Health/Registered Nurse). Another participant commented: '...I think the problem that we've had is [identifying] those people that have got learning disabilities and the not quite so telling psychiatric issues or mental issues' (Court Manager).

Another issue, identified mostly by court staff, was sentencing of offenders with mental health problems or learning disabilities. As one participant explained: 'How do we sentence...this person is under an order. What appropriate sentence can we come up with?' (Deputy Justice Clerk). Another commented: 'We've had incidences...where the Pre-Sentence Report has quite clearly stated that the defendant has had mental health or learning disabilities throughout their life, but the judges, because there's no mention of it beforehand, they're very limited in their sentencing' (Legal Advisor). The need for a better understanding in relation to the decision-making informing prosecutions was another common issue for court staff: 'I think magistrates are certainly concerned about these people coming though the system' (Deputy Justice Clerk).

Other common issues aired in the focus group discussions included: challenges linked to the provision of psychiatric reports; concerns around risk assessments and recording risk; and, from police officers, concerns around the availability of appropriate adults to support suspects in interviews.

Note: Further information on the role of Appropriate Adults is available in the Glossary provided at the end of this report.

Views from participants on how the criminal justice system deals with offenders with mental health problems or learning disabilities were not specifically invited. However, the discussions did elicit views on this subject. No common theme materialised. There was an element of frustration from certain participants. As one participant commented:

'But we've seen time and time again where we've put things back to the arresting officer and said, "Look, we can tell you this person has been on our panel records five times. Every time it's...no proceeding, because he's known to services because he's got mental health issues." Well actually, he's getting away with it' (Approved Mental Health Practitioner/Manager).

However, such views were balanced with comments from other participants along the following lines:

'The prisons are flowing full of people that are suffering from a range of complex mental health problems and if we don't think at the earliest possible stage which does mean us [i.e. police]...about not sticking people through a system...I think it should be of concern' (Police Inspector).

Information Sharing and Exchange

Focus group participants were asked to share their experiences in relation to how information on an offender's mental health or learning disability usually came to their attention. Participants explained that there are occasions where it is clear from the outset that there are issues, such as, where an offender is residing in an institution at the time of the offence (or allegation), or where an individual is known as a repeat offender. Such occasions aside, however, experiences varied across the different criminal justice agencies.

Police Officers explained that often they relied on the individuals themselves: '...we do have a risk assessment we conduct on the individuals as they come in. But it's very much reliant on their honesty' (Police Custody Officer). Participants also referred to the role of the Forensic Medical Examiner. As one explained: '...if we do arrest him [an offender] and take him to the police station, we are then in the hands of the police medical examiner' (Criminal Justice Unit Manager - Police). Another commented: '...we can make observations but we're not trained healthcare professionals' (Police Custody Officer).

As for CPS staff, information sources varied, however, the defence was identified most frequently as the source and, therefore, the court stage as when a mental disorder is usually first identified as an issue. As one participant explained: '...very often it's in court when the defence raise it' (CPS Prosecutor). Others reported occasions when the information came to light at later stages in the process:

'I have sat in plea and case management...[where]...the defence counsel will come in and say to the judge, "I'm very sorry, it's the first day I've met Mr X today, although my solicitors have met him before, having now myself sat down and talked with him, I'm very concerned". So...you do have them where they can get as far as that and still nobody's picked up that there is actually a problem' (CPS Crown Advocate).

'I have to say, sometimes the first time that we know...that somebody has mental health issues, is when we see the Pre-Sentence Report' (CPS Crown Advocate).

Court staff also most often identified defence solicitors as the source of information on an offender's mental disorder: '...you're dependent almost entirely on defence solicitors' (Deputy Justice Clerk); '...it usually tends to be when the defence bring it to our attention' (Deputy Crown Court Manager). However, court staff also identified a range of other sources via which the information may come to light, including: the offender's family; Community Psychiatric Nurses (Note: Further information on the role of CPNs in this context is available in the Glossary provided at the end of this report); the Probation Service; the CPS; the Prison Service; and legal advisors or ushers who observe the offender's behaviour or demeanour in the court setting. One participant summed up the situation thus:

'It tends to come in from various sources...so it may be that it's come from the CPS because they're aware and they flag it up to us. It may be that the defence let us know that their client has a problem or issues or whatever. It may be that the Probation Service has picked it up. It may be the Prison [Service] that tell us, because they're concerned about them being brought out' (Crown Court Manager).

Information sharing and exchange across different agencies presented particular challenges. Focus group participants identified different barriers which they felt inhibited effective information exchange. Many of these barriers were perceived to flow from the tensions around linking together different agencies with sometimes contrasting perspectives, priorities, structures, ethos and cultures: 'community mental health teams ... view the public interest perhaps very differently to the way the police and CPS would often view it' (Police Inspector). This led many participants to highlight and explore differences between health and criminal justice practitioners, with one participant commenting: 'There's a blur between the therapeutic and the intervention side' (CPS Duty Prosecutor).

One particular area of concern was around issues linked to data protection and confidentiality. It was felt that such issues were a real barrier to effective information sharing and exchange. A need to clear up confusion around the Data Protection Act and confidentiality guidelines amongst some health practitioners was identified '...there tends to be a reluctance on the part of some health professionals to act within the Data Protection Act which will normally allow disclosure to police and CPS' (CPS Prosecutor).

Existing Local Practices: Protocols and Links

Focus group participants were asked to what extent there were local links and/or information sharing protocols between the different criminal justice agencies and health services in their respective areas. The situation varied from one area to another. However, some general themes did emerge from the analysis.

Where inter-agency protocols were in operation and reported as working effectively these tended to be in an institutional setting. For instance, one participant explained:

'So we've got a protocol at [the local psychiatric hospital] that covers that [confidentiality issue] and disclosure of information as well...So we have got a protocol...but it is specific to one [situation], that's a community within itself' (CPS Crown Advocate).

In general, however, participants reported an absence of formal systems to support information sharing and exchange between their respective agencies. There was instead reference to established arrangements or procedures, such as, Multi-Agency Public Protection Arrangements (MAPPA) or Statutory Charging arrangements (including CPS Direct) (Note: Further information on MAPPA and CPS Direct is available in the Glossary provided at the end of this report). For example, as one Police Inspector commented:

'...about information sharing...there's not an agreed mechanism and an effective way of sharing information at the earliest possible stage' (Police Inspector).

Participants from other partner agencies represented at the focus groups largely echoed this viewpoint. For example:

'...when you're outside of that higher level [i.e. MAPPA], it's every man for himself as...so you could have a really good bit of information known, bits and pieces all over the place, and you won't hear it' (Approved Mental Health Practitioner/Manager).

Where links or protocols did exist participants indicated arrangements that tended to be under-developed, informal and ad hoc. As one participant explained: 'We don't have...the formal systems [although] we work very closely with all the other agencies and so...we do tend to get the information we need, even though it's informal' (Crown Court Manager).

Participants also referred to the reliance on local relationships alongside the commitment and interest of individuals. For instance, as one participant commented: 'It's a bolt on, an added extra that people do because they are passionate about it or because they care or have an interest' (District Crown Prosecutor). Another explained:

'It's down to local champions...it falls down to one person's sort of absolute passion and commitment for something, but it's not coming as a requirement from, you know, high up and coming down and being supported' (Approved Mental Health Practitioner/Manager).

The above findings are further substantiated with reference to a clear theme that cut across all four focus groups. This theme encapsulated instances where the focus group setting itself acted as a medium through which links were established or developed between the individual participants. For instance, participants used the focus group to hold partner agencies to account in relation to ongoing operational issues or to request advice or assistance from each other in relation to 'live' issues. Participants also shared key contacts; responded to questions about their respective agencies' practice and/or policy; disseminated guidance as well as information on local pilots or initiatives and existing protocols. The focus group setting also allowed participants the opportunity to explain and clarify the needs and motivations of their respective agencies.

Out-of-Court Disposals

Questions on the use of Conditional Cautions, or other out-of-court disposals, in cases involving offenders with mental health problems or learning disabilities elicited very limited information from focus group participants. Although it is difficult to draw any firm conclusions, what discussion did take place, albeit limited, suggests some tentative findings.

Police Officers, for example, expressed support for out-of-court disposals (such as: fixed penalties, cautions). One participant explained the rationale: 'If the CPS could look at alternative case disposals as opposed to just charging, let's look at cautions, let's look at formal warnings; let's not just say, "Discontinue" because as soon as they're discontinued...no forensic history gets developed' (ex-Police Officer/Criminal Justice Consultant).

As far as Conditional Cautions are concerned, the limited discussion suggests reservations in relation to meeting the necessary criteria to issue a Conditional Caution in such cases. As a participant explained: 'It's a contradiction in terms, in a sense, because you have to have the admission...with mental health though you've got to be very, very careful about that admission' (District Crown Prosecutor). Police Officers expressed similar reservations.

Ideas for Future Consideration

Focus group participants' ideas for future consideration fell into three key themes or areas. Firstly, there was consensus amongst participants, regardless of their agency representation, that there was a need for more information sharing between agencies earlier rather than later in the process. As one participant explained:

'I think we're all agreed that the earlier that the police and the CPS get the information we need we can reduce the number of offenders in court who shouldn't be in court' (CPS Prosecutor).

Another commented: '...the key for me is making sure that things are flagged up at an early stage; that the information is there for us' (District Crown Prosecutor). The same individual also described the importance of information provided to the CPS in relation to those 'low-level offences' dealt with at the Magistrates' Court. The emphasis here flowed from the system in operation, that is, a fast track file; an associate prosecutor; a relative high case volume and, perhaps, no advance sight of the files under review.

The second theme revolved around training for practitioners. Support was expressed for training designed to raise general awareness in relation to mental disorders amongst criminal justice practitioners. However, the most common suggestion for training concerned the need to raise awareness amongst health practitioners in relation to the criminal justice system and processes:

'Bradley talks a lot about training people in the criminal justice service, having training about mental health. But, you know, we're very clear that you need also the other way round, that mental health services need and learning disability services need training about criminal justice, they don't understand it' (Offender Health Manager).

Similarly, one participant commented: 'I think the health service need a massive amount of criminal justice awareness training...about what exactly the police can and can't do...what exactly the criminal justice process is for' (Police Inspector). This point is strengthened with reference to findings reported earlier, namely the use of the focus group setting as a medium via which participants established links and shared their practices and respective policies.

The third, and final, theme for future consideration to emerge from focus group discussions related to data protection and confidentiality. As one participant commented: 'People need a better understanding of disclosure' (CPS Prosecutor). As mentioned earlier, this issue represented a particular barrier for participants to effective information sharing and exchange.

What is Working Well

Participants were invited for their views on what, in their experience, was working well in terms of sharing and exchanging information in cases involving offenders with mental health problems or learning disabilities. Generally speaking, participants' comments were positive and forward looking, albeit couched in an acknowledgement that there remained work to be done:

'We are beginning to communicate with each other and we're beginning to give those in mental health professions an understanding of what we need and what we want from them and an understanding of how we come to make the decisions' (District Crown Prosecutor).

'We're rowing with each other more about it which in a sense is something positive...slowly starting to cause everybody to have to think a bit about it. That's got to be a positive thing even though actually at the minute it's probably characterised by disagreements' (Police Inspector).

Participants referred to examples of initiatives and policies implemented at a local level in response to this question. However, in line with earlier findings, these tended to be at a relatively early stage in terms of their development, with one possible exception, that is, a court diversion and liaison scheme identified in one Area.

8. Summary And Recommendations

In this, the final section of the report, key findings from the case file review and the focus groups with practitioners are summarised. Seven recommendations, based on the findings, are presented which are designed to provide the basis for further consideration and action by the CPS.

Definition and Terminology

The CPS recognises that there are complexities and sensitivities around definition and terminology in this area. For the purposes of this report, the terms 'offenders with mental health problems or learning disabilities' and 'mentally disordered offenders' are used. The term 'offenders with mental health problems or learning disabilities' is used by Lord Bradley in his review and throughout Improving Health, Supporting Justice, and it is the term used in this report when referring to the wider policy context. The statutory definition of 'mentally disordered offenders' is used in relation to the decisions taken by prosecutors and within this definition are offenders with learning disabilities.

The definition of mentally disordered offenders, in this context, covers clinically recognised mental health diagnoses, including learning disabilities. However, it is accepted that the statutory definition does not explicitly refer to learning disabilities and it may be seen therefore as focussing only on people with mental health problems. That is not the intention and not how it is used by the CPS though, which works to the full extent of the statutory definition.

There were similar issues raised around definition and terminology in the course of work by the CPS in 2008 and 2009 to prepare Public Policy Statements for victims and witnesses with mental health issues and/or leaning disabilities. This concluded that separate policies were required for victims and witnesses with mental health issues and for those with learning disabilities (CPS, 2009a; 2009b).

Recommendation 1. The CPS should consider whether there is a need to revisit its current Guidance on Mentally Disordered Offenders to reconsider its use of terminology and whether there is a need to adopt the term 'offenders with mental health problems or learning disabilities' as used in Lord Bradley's review and the National Delivery Plan.

Monitoring Data

The case file review highlighted the challenges inherent in identifying cases involving mentally disordered offenders from CPS electronic data systems. The CPS does not have a specific 'flag' for offenders with mental disorders. Discontinued cases are identifiable under the reason code 'Suspect/Defendant elderly or in significant ill health'. The disability of offenders is recorded. However, there are issues with the completeness of data. All cases included in the review involved a mentally disordered offender. However, in all bar two out of the 65 cases included in the review, the offender's disability was recorded as 'Unknown'.

Recommendation 2. The CPS should continue to take forward work with the police to improve the completeness of monitoring data on the disability of offenders.

Training for Prosecutors

The findings from the research suggest that prosecutors do not require further training to assist them in making charging/initial review decisions in cases involving mentally disordered offenders. For example, the case file review found that, in the large majority of cases, the decisions taken at charging/initial review were in accordance with the evidential and public interest stages as set out in the Code. Therefore, it is recommended that Areas maintain their current level of training to their prosecutors.

Recommendation 3. CPS Areas should continue to deliver training locally, using a nationally agreed package, to their prosecutors as required.

Understanding and Awareness

A key finding flowing from the focus groups held with practitioners was the need to increase agencies' mutual understanding and awareness in relation to the different needs in dealing with cases involving mentally disordered offenders. Participants emphasised that criminal justice agencies would benefit from enhanced understanding and awareness of the practice and policies followed by health professionals and vice versa.

Findings also clearly illustrated the nature of the links between agencies at a local level. Focus groups participants reported an absence of formal links. Where these did exist, arrangements tended towards the informal and ad hoc. Arrangements also tended to rely on the commitment of individuals (or 'local champions'). The case file review indicated occasions where prosecutors might have been more proactive in following up relevant information about mentally disordered offenders.

These findings suggest that there is scope for improvements at a local level in terms of links between CPS and its partner agencies, particularly local Primary Care Trusts. Additional benefits may also flow from incorporating a multi-disciplinary approach to any training that is offered at a local level.

Recommendation 4. CPS Areas should consider establishing contact and fostering better links with local Primary Care Trusts, to increase awareness of criminal justice needs and to facilitate prosecutors' understanding of the nature of local services.

Recommendation 5. Any CPS training delivered locally should consider incorporating presentations from, or workshops in collaboration with, representatives from other relevant partner agencies, such as Health Professionals.

Findings suggest that there is a need for the CPS' role in cases involving mentally disordered offenders to be more clearly explained to its partner agencies. For example, focus group participants pointed to the tensions between health and criminal justice agencies in relation to issues such as data protection and confidentiality. The development of an information leaflet that may be used as a reference point for CPS prosecutors and to share with other agencies may also assist in this respect.

Recommendation 6. The CPS should consider providing information to relevant partner agencies to enhance the understanding of CPS policy, with a specific emphasis on confidentiality and data protection issues.

Conditional Cautions

The relatively small sample of cases included in the review means it is difficult to draw firm conclusions. The exercise to identify suitable cases for the review suggests their use in only a relatively small number of instances. However, a detailed exploration as to the reasons behind this lay outside this scope of this research. Nevertheless, discussions in the focus groups with practitioners, although limited, suggests some reservations in the use of Conditional Cautions in such cases.

Recommendation 7. CPS should revisit its guidance to see if there is scope more clearly to set out the circumstances when it would be appropriate to issue a Conditional Caution in cases involving 'mentally disordered offenders' (including offenders with learning disabilities).

9. Conclusion

The inter-departmental Health and Criminal Justice Programme Board's National Delivery Plan (Department of Health, 2009) set out two deliverables for the CPS:

  • to 'conduct research into the role of prosecutors and their decision-making in cases involving mentally disordered offenders and those with learning disabilities by March 2010'; and
  • 'review the use of conditional cautions for individuals with mental health problems or learning disabilities, and [will] issue guidance to advise relevant agencies by October 2010' (Department of Health, 2009: 37-8).

This report presents the findings from the research the CPS has completed into its role in cases involving offenders with mental health problems or learning disabilities. Completion of the research fulfils the CPS' commitment to the first deliverable in the National Delivery Plan. Seven recommendations, based on the findings from the research are proposed. The recommendations are designed to provide the basis for further consideration and action on behalf of the CPS. The final recommendation also identifies next steps in relation to the second deliverable on Conditional Cautions.

10. Glossary

16+1 Ethnicity Classification: The 16+1 ethnicity classification is a standard classification used in the 2001 Census and adopted by the CPS. This classification includes 16 ethnicity categories and one 'Not Specified' category.

Appropriate Adult: Custody Officers are required under the Police and Criminal Evidence Act 1984 (PACE) Codes of Practice to request an appropriate adult to be present whenever they consider a suspect may be 'mentally disordered or otherwise mentally vulnerable' (see paragraph 11.15 of PACE Code C). Their role is to support, advise and assist detainees in police stations.

CMS: Case Management System. CMS is a national CPS electronic case management system and management information system. It enables better preparation and presentation of the prosecution case by helping CPS staff to manage case information from the time the CPS receives the case file to final disposal. It also supports CPS prosecutors' provision of charging decisions to the police.

CPNs: Community Psychiatric Nurses. CPNs often play a role in court diversion schemes. Such schemes work in a multi-disciplinary way to divert mentally disordered offenders away from the criminal justice system and into care and treatment from health and social care sectors, where appropriate.

CPS Direct: CPS Direct is the national 'out of hours' service that provides charging advice on behalf of the 42 Crown Prosecution Service Areas in England and Wales. CPS Direct staff provide the police with access to 24/7 charging decisions from the CPS. For further information see: www.cps.gov.uk/direct

FMEs: Forensic Medical Examiners. FMEs are usually general practitioners who are appointed to provide their services to the police. It is their role to offer care and forensic assessment of detainees in police custody, assessing suspects and alleged victims of crimes, and interpreting findings for the police, courts and social services.

Form MG3: Report to Crown Prosecutor for charging decision, decision log and action plan.

Form MG5: Case Summary.

MAPPA: Multi-Agency Public Protection Arrangements. MAPPA bring together the Police, Probation and Prison Service to support the assessment and management of the most serious sexual and violent offenders through identifying offenders to be supervised; sharing of information about offenders; and assessing and managing the risk posed by offenders (see MoJ, 2009c).

MIS: Management Information System. MIS is the application used to report upon case-related data entered into CMS. The MIS reports provide the CPS with real-time reports of the work being handled by each unit, allowing managers to obtain a clear picture of how their area or unit is performing.

11. References

Crown Prosecution Service (2004) The Code for Crown Prosecutors. London: Crown Prosecution Service.

Crown Prosecution Service (2011) The Director's Guidance on Charging. London: Crown Prosecution Service.

Crown Prosecution Service (2008) Legal Guidance – Mentally Disordered Offenders. London: Crown Prosecution Service.

Crown Prosecution Service (2009a) Supporting victims and witnesses with mental health issues (PDF format). London: Crown Prosecution Service.

Crown Prosecution Service (2009b) Supporting victims and witnesses with a learning disability (PDF format). London: Crown Prosecution Service.

Crown Prosecution Service (2010a) The Code for Crown Prosecutors. London: Crown Prosecution Service.

Crown Prosecution Service (2010b) The Director's Guidance on Adult Conditional Cautions. London: Crown Prosecution Service.

Department of Health (2001) Valuing people: a new strategy for learning disability for the 21st century. London: Department of Health.

Home Office (2008) PACE Code C 2008. London: Home Office.

Krueger, R.A. (1994) Focus Groups: A Practical Guide for Applied Research. 2nd ed. Thousand Oaks, CA: Sage Publications.

The Rt Hon Lord Bradley (2009a) Lord Bradley's review of people with mental health problems and learning disabilities in the criminal justice system (PDF format). London: Department of Health.

Loucks, N. (2007) The prevalence and associated needs of offenders with learning difficulties and learning disabilities, London: Prison Reform Trust

Ministry of Justice (2009c) MAPPA Guidance, Version 3 (PDF format). London: Ministry of Justice.

World Health Organisation (1993) The ICD-10 Classification of Mental and Behavioural Disorders Diagnostic Criteria for Research, Version for 2007, 10th Revision, Geneva: WHO