Mental Health: Suspects and Defendants with Mental Health Conditions or Disorders

|Legal Guidance

Principles

This guidance identifies the principles relevant to the decision to prosecute, and any prosecution which follows, of individuals who have:

  • A mental disorder, as defined by the Mental Health Act 2007
  • A learning disability
  • A learning difficulty
  • Autism Spectrum Disorder
  • An acquired brain injury
  • Dementia
  • Other mental health, cognitive or neuro-diverse conditions.

Further information about such conditions can be found at Annex A. This guidance therefore seeks to inform the decision to prosecute in respect of a span of conditions which comprise disorders, disabilities, impairments, injuries and diseases, which relate both to the brain and the mind.

Outside the ambit of this guidance, prosecutors will more broadly have regard to the mental functioning of a suspect or defendant even where this is not reflected in a recognised condition: when assessing the individual suspects mens rea; when considering their maturity - in the case of young adults who continue to mature into their mid-twenties - and in recognising neurodiversity, the variations in the human brain and the mental functions of suspects and defendants.

There is a very wide span of mental health conditions or disorders, and each will impact on individuals in different ways. The fact that someone has a mental health condition or disorder may be relevant to the offence, but it may not. For this reason, prosecutors should approach each case on its own facts and merits and assess the nature, extent and effect of the condition on an individual, together with the circumstances of the particular offences. Mental health conditions or disorders are not always a constant: they may fluctuate, including being different at the time of an alleged offence to the different stages of any prosecution.

While some mental health conditions or disorders are distinct and easily defined, there are also crossovers and individuals may have a number of related conditions. For example, autism is often diagnosed alongside other conditions, such as learning disabilities and/or difficulties. Multiple complex issues may be involved, for instance, personality disorder or post-traumatic stress disorder, combined with substance misuse. Where this is the case, it will be important to understand the combined impact on the behaviour and capabilities of the individual concerned.

Context

Article 6 of the European Convention on Human Rights (ECHR) protects the right to a fair trial and provides for certain minimum rights for those charged with a criminal offence. Article 14 of the ECHR prohibits discrimination in the enjoyment of convention rights. Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with ECHR rights.

Article 13 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD), adopted 2007, provides:

"States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages."

The Equality Act 2010 provides for:

  • A duty not to discriminate on grounds of disability: sections 13, 14, 15 and 19
  • A duty to make reasonable adjustments: section 20
  • A public sector equality duty, to have due regard to the need to (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it: section 149.

This requires public authorities to identify disadvantages that disabled defendants may experience, and consider what steps could remove or minimise them, or what adjustments could be made.

This guidance addresses the critical issue of effective participation below. A better appreciation of discrimination, reasonable adjustments and the public sector equality duty can be assisted by considering the social model of disability. The social model of disability may be understood to mean that the prejudice, discrimination and social exclusion experienced by many disabled people is not the inevitable result of their impairments or medical conditions, but rather stems from specific barriers imposed by the way society is organised that they experience on a daily basis. These barriers can be environmental (inaccessible buildings and services), attitudinal (stereotyping, prejudice and discrimination), and organisational (inflexible policies, practices and procedures).

Using the social model can help prosecutors to dismantle or reduce the effects of those barriers and improve the safety and security of victims and witnesses. Different ethnic groups have different rates and experiences of mental health problems. This too reflects different cultural and socio-economic contexts and access to culturally appropriate treatments, and underlines the importance of moving from a perspective of people being fixed with particular conditions to one which considers their experience of the way in which society is organised. So, for instance, measures to secure the defendants effective participation might better be viewed, sought and expressed, as removing barriers created by the physical layout and language of a courtroom, than measures required because of a defendants condition.

The Civil Framework

Prosecutors should have an awareness of Part II of the Mental Health Act 1983 which covers compulsory civil admission to hospital, guardianship, and community treatment orders. The existence of a "civil section" and compliance with any community treatment orders are factors to be taken into account when considering the decision to prosecute, the continuation of proceedings and/or an offenders bail status.

Sections 2 - 5 of the Mental Health Act 1983 provide for a procedure for compulsory hospital admission. The most common types of compulsory civil detention are:

  1. Admission for assessment (section 2). This allows for a person to be admitted and detained in hospital if they are suffering from a mental disorder and they need to be detained for assessment (or for assessment followed by treatment) for their own health and safety or the protection of other people. An application must be supported by the written evidence of two doctors. An admission under section 2 lasts for up to 28 days and cannot be renewed or extended. Following assessment within the 28 day period, a person can be detained under section 3, or remain as a voluntary patient.
  2. Admission for treatment (section 3). This provides that a person can be detained if they are suffering from a mental disorder, and it is necessary for their own health and safety, or the protection of other people, and treatment cannot be provided unless they are detained in hospital, and two doctors agree that appropriate medical treatment is available. Initial detention is for up to six months, which can then be renewed by a further six months, followed by annual reviews.
  3. Informal admission (section 131). Also known as “voluntary admission”, section 131 allows those aged over 16 who require treatment for a mental disorder to either be admitted to, or remain in hospital, on a voluntary basis. People admitted informally are “patients”, and in contrast to sections 2 and 3 above, are not “detained”.

Discharge

There are a number of possible ways in which a person who has been subject to a section can be discharged. Both the timing of, and trigger for, any discharge depends upon the type, and age, of, detention. It will occur when either a patients responsible clinician deems the patient suitable for discharge, or the patient is discharged by a Tribunal, or the patient is discharged by the Hospital Managers. Prosecutors should be satisfied that they know the current detention status of any suspect or defendant, and should not make any relevant review or bail decisions without being provided with this information by the police.

Community Treatment Order

Following treatment in hospital under section 3 (not section 2) Mental Health Act 1983, a responsible clinician can order that a person is discharged under a Community Treatment Order (s17A Mental Health Act 1983) if that person is suffering from a mental disorder, which requires medical treatment, and it is necessary for their health or the protection of others that they receive treatment. A person subject to a Community Treatment Order can be recalled (s17E) if, for example, they stop taking required medication or their mental health condition deteriorates.

Guardianship (section 7) enables some patients who have a mental disorder, and who require treatment outside of hospital without having been admitted, to be subject to some supervision or control within the community. Guardians are either a local authority or any other person accepted by the local authority.

The Decision to Prosecute

The decision to prosecute must have careful regard to the material which is available (available, because it is in the possession of the investigator), and whether or not further material should be obtained before it can be made. Before addressing the structure of a decision itself, the following is offered as guidance as to the approach to take to the information available for a charging decision, when a suspect's mental health condition or disorder is a live issue.

Material available for a charging decision

The police or the CPS may make the decision to charge, applying the Directors Guidance on Charging. The first question is to ensure that the investigator has identified to the decision-maker that the suspect's mental health condition or disorder may be a live issue. This must be done clearly in the request for a charging decision and it must state the grounds on which it is based. This information may potentially come from different sources: not only the suspect, but their friends, family, defence representative or a professional involved in their treatment or care.

The investigator must also ensure that any relevant material relating to the suspect's mental health condition or disorder in their possession is drawn to the attention of the decision maker. Where written copies of documents are available they should be included in the pre-charge submission. Where only verbal accounts or reports are available, these should be detailed in full along with sufficient information in order to understand the account or report provided: the name of the person providing them, when they provided this information, and the basis on which they were able to do so.

The material to be provided in relation to a suspect's mental health condition or disorder may include:

  • Details of the mental health condition or disorder that the suspect is believed to have and the basis / rationale for this assessment
  • Any information provided by the suspect as to their condition
  • Details of any medication being taken and any information as to whether the suspect was actually taking that medication at the time of the alleged commission of the offence
  • Details of any other treatment the suspect is currently undergoing and how long this has been in place
  • Any information provided by friends or family in regard to the suspect's condition
  • Any examination by the Force Medical Examiner
  • The availability of, and any assessment by, Liaison and Diversion
  • Any other medical or mental health assessment or medical treatment which has taken place whilst the suspect was in custody
  • Any hospitalisation of the suspect since arrest
  • Whether the suspect was interviewed in the presence of an appropriate adult and the rationale for doing so or not
  • Any concerns raised by the Solicitor representing the suspect or the appropriate adult in the interview of the suspect or at any other time
  • Details of any admissions or partial admissions made by the suspect and the context of those admissions whether in the interview or at any other time
  • Details of any defence raised to the allegations and how this came about.

The decision maker should consider the information available and decide whether a decision to prosecute can be made or whether further information should be sought. That the suspect's mental health condition or disorder has been raised as an issue is not in and of itself a basis for seeking further information. The basis for doing so should be founded in the two-stage test for prosecution in the Code for Crown Prosecutors: is there sufficient evidence for a realistic prospect of conviction? If so, is a prosecution required in the public interest? Therefore asking: is there sufficient information available to address the evidential and public interest stages?

At the evidential stage, it may be that sufficient information is available about the suspect's mental health and that the evidence of the mental element required for the offence and any likely defence is clear. For instance, there may be other evidence in the case of a deliberate and intentional act by the suspect which is incompatible with self-defence, and the information available in respect of the suspect's mental health (even if potentially relevant to the public interest) does not afford a defence. In this case, further information is unlikely to assist the assessment of the evidence. If however further information is to be sought, then the decision maker should set out what element of the evidential stage is in issue when seeking that information. It may concern the act or omission alleged (actus reus); the mental element (mens rea); the reliability of any confession relied upon; any defence raised.

At the public interest stage, it may be that sufficient information is available about the suspect's mental health and that the information available to determine the public interest is clear. The offence may in all the circumstances be too serious, for instance, for diversion. If however further information is to be sought, then the decision maker should set out how the further information may affect the assessment to be conducted at this stage. Is no further action or diversion a potential outcome?

A request for further information should therefore articulate whether it is related to an assessment of the evidence in the case, or the public interest, or both, and how. Precision is needed to inform any further investigation of this issue. A request for evidence as to capacity for instance, lacks precision. Whilst this term appears elsewhere in mental health law and in some criminal offences, it is not a term which makes clear whether it is focused on the evidence (the mental element of a crime or a potential defence) or the public interest. A prosecution does not have to prove as part of the evidence the suspect's capacity. It implies that a prosecution would not proceed if the suspect lacks capacity: as will be discussed below, this may be the case but it may not be.

The Threshold Test

Particular considerations may apply in respect of the Threshold Test: see part 5 of the Code. The Five Conditions of the Threshold Test are as follows:

  • There are reasonable grounds to suspect that the person to be charged has committed the offence.

Here, too, there must be a careful assessment of the evidence and whether or not the suspect's mental health, on the available information, is relevant to the evidential requirements of the case.

  • Further evidence can be obtained to provide a realistic prospect of conviction.

Here, too, there must be precision in what further information is to be sought, its relevance to the evidence/public interest, and the timescale for its provision.

  • The seriousness or the circumstances of the case justifies the making of an immediate charging decision.

This should be considered objectively: whether or not the suspect has a mental health condition or disorder, does the nature of the case and its facts merit an immediate decision?

  • That there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976, and in all the circumstances of the case it is proper to do so.

Prosecutors should not accept, without careful enquiry, any unjustified or unsupported assertions about risk if release on bail were to take place. Prosecutors may consider:

  1. Whether any alternatives to detaining the suspect have been considered, in particular under section 2 of the Mental Health Act 1983 (admission to hospital for assessment) or under section 136 of the Mental Health Act 1983 (detaining the suspect at the police station for the purpose of enabling examination by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care).
  2. Where one of the grounds relied on under the Bail Act for withholding bail is that the suspect should be kept in custody for their own protection, specific details of any suicide or other indication of self-harm along with any information relating to previous suicide attempts or self-harm should be provided (or specific details of any threats of violence / harm towards the suspect and any action taken in relation to those threats). A risk assessment should demonstrate why this ground is said to be made out.
  • It is in the public interest to charge the suspect.

It is likely that if condition three (seriousness) is met then that is likely to be a significant factor tending in favour of a prosecution but all factors relevant to the public interest should be taken into account.

All five conditions of the Threshold Test must be met before the Threshold Test can be applied. Where any of the conditions are not met, there is no need to consider any of the other conditions, as the Threshold Test cannot be applied and the suspect cannot be charged. If there is no prospect of the case ever meeting the evidential stage of the Full Code Test, it must be the subject of no further action.  If there are further reasonable lines of enquiry the police must then decide whether to:

  • Detain the suspect to allow the case to be investigated further;
  • Release the suspect under investigation or on bail.

As with all Threshold Test cases, a dialogue between investigator and prosecutor should take place if it is considered that an immediate charge might not be appropriate. This may include seeking an extension to the PACE clock or, in the case of suspect's with mental health conditions or disorders, exploring alternatives to custody which would provide for the assessment and immediate care or treatment of a suspect not ready for charge.

Where the police have made the decision to charge the suspect themselves using their emergency powers, the impact of the suspect;s mental health on the evidential and public interest tests should be explained in the Inspector’s rationale for authorising charge which should be included when the case is referred to CPS for ratification. This should also contain a full assessment of the risks and reasons why the suspect is not suitable for bail, and why detention and assessment under section 2 or section 136 of the Mental Health Act 1983 is not appropriate.

In conclusion, it is very important for decision makers to be alive to mental health conditions or disorders at the point of charge. The suspect’s mental health condition or disorder may be a highly relevant factor in some charging decisions, and where information can be obtained this should ordinarily be obtained before a charging decision is made. The charging decision should detail the information considered, and include a clear rationale and explanation for the decision taken; whether this is to charge, set an action plan or to take no further action. Mental health conditions do not provide a carte blanche for criminal culpability, an automatic exemption from liability, and in the case of serious offending its relevance may be to sentencing and disposal rather than to the decision to prosecute. A thinking approach is required when considering what information is required and in explaining the purpose (evidential and/or public interest factors) for which it is sought.

Where further information is sought, the following should be noted:

  • A medical professional may refuse to provide medical records, and the suspect may not consent to their release. There is no pre-charge power to compel the production of medical records unless the second set of access conditions in Schedule 1 Police and Criminal Evidence Act 1984 (legislation pre-dating that legislation) provides for such a power of compulsion. Medical professionals have a duty of confidentiality which their profession confirms is an important duty and one subject to limited exceptions.
  • A medical professional may be willing to assess a patient for a clinical matter, such as admission to hospital, but not for the purposes of establishing their mens rea, and may be able professionally to comment on some matters and not others. A medical professional is entitled to understand the rationale for the matters on which their opinion is sought.
  • A medical professional cannot be compelled to undertake an assessment, nor can a suspect.

If an investigator is unable to obtain further material, this should be recorded in writing and explained to the prosecutor. If the prosecutor believes there is a lawful power to obtain such material they should state the measure to be taken.

If no further material can be obtained then the decision must be taken on the information available. A suspects mental health condition or disorder may only become apparent or better understood post-charge. The section on case management below emphasises the importance of addressing this effectively once proceedings are in motion.

The following is proposed as a structure for reviewing a case where a suspects mental health condition or disorder is a live issue, in accordance with the Code for Crown Prosecutors.

Evidential stage: introduction

At the evidential stage, a prosecutor will consider if there is sufficient evidence for a realistic prospect of conviction. This means both whether there is sufficient evidence to prove that the suspect did the act or omission alleged ("actus reus"), and that they had the state of mind required for the offence alleged (";mens rea"). Proof of both or either may rest on confession evidence, and as such a prosecutor should consider its admissibility and the weight to be attached to it. Further, a prosecutor will consider whether a suspect is likely to raise a viable defence and if so what the prospects are of disproving it beyond reasonable doubt.

Actus reus

A prosecutor should begin with an objective assessment of the evidence concerning the act or omission of the offence alleged. The suspects mental health condition or disorder may be a live consideration but as with all suspects, the prosecutor must be satisfied of the evidence concerning the act or omission alleged.

Mens rea

In order to prove that a suspect is guilty of a criminal offence, a prosecutor must often also prove that the suspect had a particular mens rea when committing the offence: for example, intention, or recklessness, as to a consequence of the suspects action or omission; or knowledge, or belief, or suspicion, of circumstances in which those actions or omissions take place. There are a number of ways in which a suspects particular and individual mental state may be relevant to whether a prosecutor can prove that they had the mens rea for the offence alleged. This can range from a diagnosed mental health condition or disorder, to evidence that a suspect (without proof of a condition) did not, for instance, appreciate or turn their mind to a risk which was present in a case.

The evidence of mens rea may come from tangible evidence, for instance if the suspects thoughts are recorded in a document or in electronic communications, or if they provide an account of their thought process in a police interview (see below). Often, however, it will rest solely or heavily on inference. A suspect who lashes out in a heated confrontation may be deemed to be reckless as to an assault on a person who is struck; a suspect who repeatedly and continuously lashes out may be deemed to intend to assault. Proof of mens rea by inference is proof nonetheless.

Prosecutors should have regard to the evidence in the case, whether that is expert evidence of a mental health condition or disorder, the suspects account in interview, or any other direct or inferential evidence of mens rea. Prosecutors should consider first whether it is admissible. The evidence must be scrutinised as to how and why it is said to bear on the suspects mental state at the time of the alleged offence. See for example Henry [2005] EWCA 1681 where expert evidence of the defendants suggestibility that fell short of demonstrating very low IQ or mental illness was not admissible either as to lack of intent or in support of the defendants credibility in advancing this defence in evidence. It is not generally permissible for an expert witness to give evidence as to the credibility of the defendant or their defence, save in respect of confessions. See also Chard (1972) 56 Cr. App. R. 268: absent evidence of insanity or mental illness (or, it is submitted, other recognised condition), expert evidence as to intent was inadmissible.

If the evidence relevant to mens rea is admissible, prosecutors should consider objectively what weight to attach to it.

  • When considering the weight to attach to a suspects account, as in every case, prosecutors will consider carefully the credibility of any explanation, firstly on its own terms and secondly in terms of the other evidence in the case. Prosecutors will consider whether any other material is available or could be available in support of it. This evaluation should come before an assessment of any expert evidence. It may be that the suspects account places the relevant considerations to the trial issue before the jury more clearly than expert evidence can. It may be that this account identifies other issues in the case, e.g. alibi, or other dispute of fact which the jury will have to determine.
  • When considering the weight to attach to expert evidence, prosecutors will consider to what mens rea requirement of the offence alleged it is said to be relevant. Does it take the suspects account of a mental state of, for instance, anxiety or fear any further? Or will it serve only to confuse the jury with medical terminology which is secondary to the suspects own explanation? Should the jury first be determining other disputes of fact before considering the suspects mental state? Does it relate to the material time (where time has elapsed between offence and expert report)? What opportunity has the expert had to assess the suspect? What other material did the expert have to hand? Has the expert considered other possibilities, such as deception by the suspect, and why have they been discounted? Does the report comply with the Criminal Procedure Rules? Is it appropriate to accept these conclusions or should a second expert be instructed?

Ultimately, prosecutors must apply this assessment to the relevant mens rea for the offence alleged which are not obscure or expert terms; they are concepts which are either ordinary words which do not benefit from elaboration or paraphrase, such as "intent", or words whose definition has been provided for by law, such as"recklessness".

Intent or recklessness may be present and whilst there may be evidence of intoxication, or a mental health condition or disorder, that must act so as to negate the intent or recklessness to amount to a defence: Kingston [1995] 2 A.C. 355. Similarly, the suspects mental ill health must be shown to have been such that they did not know a fact, or foresee a consequence, or other mental element required for guilt. Mental health conditions or disorders, where nonetheless the mental element for the crime alleged remains, will not provide for acquittal on the basis of an absence of mens rea.

Confession evidence

Part of the evidence against a suspect, in respect of an act or omission and/or the mental element required (for instance, accepting presence at the scene of the crime, or accepting that they intended the outcome which followed), may come from a statement they have made which is wholly or partly adverse to them: "confession evidence". This may come from a suspects police interview but applies to any statement relied upon wholly or adverse to them, for instance, documents they have written, electronic communications they have sent.

When assessing confession evidence in a case involving a suspect where their mental health condition or disorder is a live issue, prosecutors should consider:

  • Whether safeguards have been observed, for instance about questioning provided for by PACE Code C, and if not the likely prospect of evidence being excluded pursuant to section 78 Police and Criminal Evidence Act 1984.
  • Whether the confession has been obtained by oppression or in consequence of anything said or done which was likely to render the confession unreliable, and if so, the likely prospect of evidence being excluded pursuant to section 76 Police and Criminal Evidence Act 1984, noting also the need for special caution in section 77.
  • At any rate, what weight to attach to the confession taking into account evidence concerning the suspect's mental health. This means assessing the interview in its totality: not just the admissions but what the entire exercise indicates about the suspect's state of mind.

Defences

Having considered the actus reus and mens rea a prosecutor will consider any likely viable defence. It is not possible to consider every potential defence provided for. In general, where a person's genuine (even if mistaken) belief provides for a defence - for instance, that a person consented to criminal damage pursuant to section 5(2)(a) Criminal Damage Act 1971 - mental ill health leading to that genuine belief will support that defence. Where, however, there is an objective test of reasonableness - for instance, reasonable belief in consent for a sexual offence - mental ill health will not make a non-reasonable state of mind any more reasonable: M A B v The Queen [2013] EWCA Crim 3.

Three potential defences available across the criminal law are considered below: self-defence or defence of another, duress and automatism. In each case, once they have properly been raised, the prosecution must disprove them beyond reasonable doubt. Therefore when assessing whether there is a realistic prospect of conviction, prosecutors will need to consider the prospect of disproving these defences beyond reasonable doubt. Thereafter this guidance will address the two defences to murder, loss of self-control and diminished responsibility

Defence of self or another

Self-defence, defence of property, defence of another person and the prevention of crime are available as defences to crimes committed by the use of force or otherwise unlawful physical contact. See more generally the CPS Legal Guidance on self-defence and the prevention of crime.

This defence comprises two limbs:

  1. did the suspect genuinely (even if mistakenly) believe that force was needed in the circumstances as they understood them, in self-defence, defence of property, defence of another person or in prevention of a crime?
  2. If so, did the suspect use reasonable force in so doing?

In assessing the first (subjective) question, a suspect's mental health will be relevant. The suspect may be able to give evidence about their own mental state (their perceptions and how they processed them) and may also explain their own mental ill health at the time of the offence. Expert evidence is also admissible, but only if it assists the jury with the issue of genuine belief once the suspect's account and the other evidence in the case have been considered: Ibrahim [2014] EWCA Crim 121; Martin [2001] EWCA Crim 2245. However, a mistaken belief in the need to defend oneself or another will not allow for a claim of self-defence where induced by voluntary intoxication, including proximate voluntary intoxication which has induced poor mental health causing the mistaken belief: Taj [2018] EWCA Crim 1743.

The second question, however, is an objective one. When deciding whether a defendant has used reasonable force in self-defence, prosecutors should not have regard, and should invite the court to disregard, whether the suspect had a psychiatric condition and the effect that had on the degree of force used: Martin (which suggested that expert evidence might be possible in exceptional circumstances), Canns [2005] EWCA Crim 2264 and Oye [2013] EWCA Crim 1725 (which could not conceive of such circumstances).

Duress

Duress is a common law defence to all crimes except murder, attempted murder and treason involving the death of the sovereign: Gotts [1992] 2 AC 412. See the CPS Legal Guidance more generally.

The question of whether a threat or circumstances compelled a person to act as they did involves the application of an objective test: would the threat or circumstances have had that effect on a person of reasonable firmness? However, one exception to this objective assessment is that a jury is entitled to consider whether a suspect's mental health made them more susceptible to the threat or circumstances causing their will to be wholly over-borne: Bowen [1996] 2 Cr App R 157. In accordance with Bowen, prosecutors should apply, and invite the court to apply, the reasonable firmness test unless expert evidence, duly scrutinised as to its admissibility (see elsewhere in this guidance), provides evidence of a "recognised condition"(and nothing less than this) relevant to susceptibility to threats or circumstances.

Automatism

Automatism is a common law defence, where the person's consciousness was so impaired that they were acting in a state of physical involuntariness. The suspect, in other words, totally lost control of the ability consciously to control their actions and as such cannot be held culpable for the actions or omissions which followed.

There are generally two types of automatism:

  • Insane automatism, which is the result of an internal cause or disease of the mind, which provides for the special verdict of not guilty by reason of insanity, and the limited orders the court may make (see below) following such a verdict in the Crown Court (such a finding amounting to a total defence in the magistrates' court);
  • Sane or non-insane automatism, which results from causes other than a disease of the mind, namely external factors which led to a loss of control, and which amounts to a complete defence resulting in acquittal.

Examples of insane automatism (internal cause or disease of the mind) include epilepsy: Bratty [1963] AC 386; Sullivan [1984] AC 156, 172, hyperglycaemic state due to not taking insulin for diabetes Hennessy (1989) 89 Cr.App.R. 10, sleepwalking R v. Burgess (1991) 93 Cr. App.R. 41, arteriosclerosis: Kemp [1957 1 QB 399. The reference to insanity in this context is a legal one and not a medical one, and accordingly can often be quite misleading.

Examples of non-insane automatism (external cause) include: reflex to being attacked by a swarm of bees: Kay v. Butterworth (1945) 61 T.L.R. 452, a blow to the head causing concussion: Hill v Baxter [1958] 1 QB 277, an injection of insulin: Quick [1973] QB 910. Sleepwalking may also occur from external causes.

The areas which a prosecutor may scrutinise will include: was there a total loss of control or was control merely impaired? Could the suspect have reasonably foreseen the condition? Were there any sign of its onset? What could have been done to avoid it? Was it self-induced? The prosecution should seek expert evidence on this question: "I do not doubt that there are genuine cases of automatism, but I do not see how the layman can safely attempt, without the help of some medical or scientific evidence, to distinguish the genuine from the fraudulent" per Devlin J. in Hill v Baxter (1958) 1 Q.B. 277, 42 Cr. App. R. 51.

Partial defences to murder: loss of control

Section 54 of the Coroners and Justice Act 2009 provides for a partial defence to murder of "loss of control" such that a person is to be convicted of manslaughter, and not murder. See further the CPS legal guidance on this topic. The partial defence is made out if they kill another person but raise sufficient evidence of the following, to be determined by a Judge considering each of the criteria in turn, and these propositions are not disproved beyond reasonable doubt by the prosecution:

  • The person's acts and omissions in killing resulted from a loss of self-control (such loss not being attributable to voluntary intoxication);
  • The loss of self-control had a qualifying trigger, defined by section 55 (fear of serious violence, or things said or done which constituted circumstances of an extremely grave character and caused the person to have a justifiable sense of being seriously wronged, or a combination of both)
  • A person of the same sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of that person, might have reacted in the same or a similar way. The reference to circumstances is to all circumstances, save to exclude those whose only relevance to the person's conduct is that they bear on the suspect's general capacity for tolerance or self-restraint.

In Rejmanski [2017] EWCA Crim 2061, the Court held that the potential relevance of mental ill health is fact-specific to all three questions. Care must be taken to assess, as against each of the criteria for loss of self-control, what the legitimate and non-legitimate relevance of evidence of mental ill health is and, in turn, whether the defence is to be left to the jury. In relation to the third criterion, evidence that the mental disorder acted so as to reduce the person's capacity for tolerance and self-restraint will not be admissible. The suspect may instead raise diminished responsibility. If, however, the mental disorder had other relevance, for instance it was a matter about which the suspect had been taunted, that evidence will be admissible in support of loss of self-control.

Partial defences to murder: diminished responsibility

Section 2 of the Homicide Act 1957, as amended, provides that a person is liable for conviction for manslaughter and not murder if they kill another person, or are party to the killing of another person, but prove, on the balance of probabilities, that they were suffering from an abnormality of mental functioning which must (i) arise from a recognised medical condition; (ii) substantially impair the suspect's ability to understand the nature of their conduct, form a rational judgment and/or exercise self-control (as to jury directions on "substantially impair", see Golds [2016] UKSC 61); and (iii) provides an explanation for their acts or omissions in killing.

Voluntary acute intoxication cannot found diminished responsibility: Dowds [2012] EWCA Crim 281. In cases where a defendant who suffered from a mental abnormality was also intoxicated the correct approach is for the jury to ignore the effects of intoxication and to ask whether the defendant's other condition(s) of mental abnormality substantially impaired their responsibility for the killing: Dietschmann [2003] UKHL 10. A defendant who wishes to rely on the partial defence must either demonstrate that the intoxication was involuntary or that notwithstanding the voluntary intoxication, the recognised medical condition substantially impaired responsibility for the killing: Joyce, Kay [2017] EWCA Crim 647.

Evidential stage: conclusion

If, at this stage, the prosecutor is satisfied that there is a realistic prospect of conviction, they will proceed to consider the public interest stage. If they are not satisfied that there is a realistic prospect of conviction the case must not be charged.

It is appropriate at this stage - the point at which an evidential stage conclusion has been reached and the public interest stage is to be considered - to address two separate issues which have some areas of overlap: insanity, and fitness to plead. Either or both may occur in a case: a suspect may or may not have been insane at the time of the offence, and may or may not be unfit to plead at the time of the trial.

The Code for Crown Prosecutors provides that a realistic prospect of conviction includes a special verdict of not guilty by reason of insanity: paragraph 4.6. A prosecutor who is satisfied that there is a realistic prospect of conviction shall remain so satisfied notwithstanding a likelihood that the suspect will obtain a special verdict. Further, a prosecutor who is satisfied that there is a realistic prospect of conviction shall remain so satisfied notwithstanding a likelihood that the suspect will be found unfit to plead. However, the likelihood of both or either is bound to be relevant when assessing whether a prosecution is required in the public interest.

The rationale for the relationship between the Code for Crown Prosecutors and the insanity and fitness to plead provisions set out above is as follows:

  • If a prosecutor did not authorise a charge in every case in which a likelihood of insanity or the suspect being found unfit to plead was present, because there was no realistic prospect of conviction solely on the basis that the outcome would be a special verdict or a finding that the defendant did the act or omission alleged and thus not a conviction, it would frustrate these provisions. No cases, in fact, would proceed to a special verdict or a hearing at which it is determined that the defendant did the act or omission alleged. Parliament has provided for these procedures and the orders available in respect of them. See, in relation to insanity, R (on the application of Johnson) v CPS [2019] EWHC 317 (Admin).
  • If, however, a prosecutor were to authorise charge without being satisfied that there was sufficient evidence for a realistic prospect of conviction then those who were insane at the material time or unfit to plead when the case came to trial would be in a worse position than those not in this position. They would be charged when those who are sane or fit to plead would not be charged.
  • As to the actus reus, the prosecution must always be able to satisfy the court of this and no prosecution should proceed without a prosecutor being able to satisfy a court of it.
  • As to the mens rea, proof of this may in practice be displaced by consideration of the issue of insanity, and is not required in a fitness to plead hearing, but there must nonetheless be evidence satisfying the mental element alleged. No prosecution should take place on the basis of an accident or mere negligence, for instance, where intent and recklessness are required. Objective evidence is required to raise mistake, accident or self-defence when enquiring as to whether the defendant did the act alleged: Wells [2015] EWCA Crim 2.

Insanity

Section 2 of the Trial of Lunatics Act 1883 provides:

"Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his action at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict that the accused is not guilty by reason of insanity."

The following falls to be addressed:

  • What does "insane" mean?
  • How is the special verdict reached?
  • What are the implications of the special verdict?

What does "insane" mean?

To establish the common law defence of ";insanity", it must be clearly proved that, at the time of committing the act, the suspect was labouring under such a "defect of reason", from a "disease of the mind", as

  1. not to know the nature and quality of the act being done (a delusion, for instance where a suspect believes they are cutting a slice of bread when in fact they are cutting a throat), or,
  2. that the suspect did not know what was being done was wrong ("wrong" meaning contrary to the law - Johnson [2007] EWCA Crim 1978): M'Naghten's Case (1843) 10 Cl & F 200).

"Insanity" thus has a legal definition, to be assessed by a prosecutor and thereafter, if appropriate, by the court applying the M'Naghten criteria. It incorporates conditions such as sleepwalking, psychomotor epilepsy, diabetes and arteriosclerosis where the M'Naghten criteria are met; but not, conversely, severe mental illness, or expert evidence diagnosing the suspect as "insane", unless the M'Naghten criteria are met. It may be permanent, temporary, organic or functional, but must not come from an extraneous cause (which would amount to non-insane automatism): Sullivan [1984] A.C. 156.

Insanity does not mean an absence of mens rea. A suspect who lashes out in a confrontation causing injury is likely to be reckless as to an assault albeit they are insane if they do so labouring under a delusion as to the nature, quality or wrongness, of what they are doing. A suspect who repeatedly and continuously lashes out in a confrontation causing injury is likely to intend an assault albeit they are insane if they do so labouring under a delusion as to the nature, quality or wrongness, of what they are doing. Insanity can be a defence to a strict liability offence or an offence with an objective element, if the person comes to be doing what is criminal because of a delusion as to its nature and quality: Loake v DPP [2017] EWHC 2855 (Admin).

How is the special verdict reached?

The prosecution cannot accept a plea of insanity: R. v. Crown Court at Maidstone, ex p. London Borough of Harrow [2000] 1 Cr.App.R. 117, DC. It must be reached by the court: by a jury in the Crown Court pronouncing the special verdict or by a finding of not guilty in the youth or magistrates' court. The tribunal of fact must be satisfied by the prosecution so that they are sure that the defendant did the act or omission alleged, and must be satisfied by the defendant on the balance of probabilities that the defendant was insane at the time of the offence. Defendants are presumed to be sane and should only be held otherwise where cogent evidence demonstrates insanity (in the Crown Court, the evidence of two or more registered medical practitioners is needed, at least one of whom should be approved: section 1 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991).

What are the implications of a verdict of insanity?

Where a court has reached a verdict of insanity, the court must make one of the following orders:

(a) a hospital order (with or without a restriction order);

(b) a supervision order; or

(c) an order for absolute discharge:

Section 5(1)(a) and (2) Criminal Procedure (Insanity) Act 1964. In the magistrates' court it may be raised as a defence and if established, the defendant is entitled to be acquitted as a result of such a verdict (although an order pursuant to section 37(3) Mental Health Act 1983 may be made in an appropriate case): Loake.

Fitness to plead

Insanity concerns a person's mental state at the time of the alleged offence. Fitness to plead concerns whether a person can participate in a criminal trial at the time they come to be prosecuted. See below for the procedure and relevant law. As with insanity, the prospect of this procedure (which differs in the Crown Court and magistrates' court) does not impact on whether or not there is a realistic prospect of conviction, but it will need to be addressed when considering public interest factors.

Public interest stage

The Code for Crown Prosecutors provides the framework in which a public interest decision is to be made. It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. In some cases the prosecutor may be satisfied that the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal rather than bringing a prosecution.

The factors in paragraphs 4.14(a) to (g) of the Code set out factors tending in favour and against prosecution.

Alongside the other factors relevant to a suspect's culpability, the Code provides for this in relation to a suspect's mental health:

"Prosecutors should also have regard to whether the suspect is, or was at the time of the offence, affected by any significant mental or physical ill health or disability, as in some circumstances this may mean that it is less likely that a prosecution is required. However, prosecutors will also need to consider how serious the offence was, whether the suspect is likely to re-offend and the need to safeguard the public or those providing care to such persons."

Accordingly, in reaching decisions to prosecute in cases where mental health or disability is a live issue should firstly consider any evidence concerning the nature and degree of the defendant's mental ill health or disability, and the relationship between this and their conduct, and reach a preliminary view on culpability. Prosecutors should also consider the impact of a prosecution where there is evidence of its likely interaction with a suspect's mental health, particularly in a case where there is evidence that it can be exacerbated, or it is degenerating.

Prosecutors should then turn to consider:

  • The seriousness of the offence
  • The likelihood of repetition
  • The need to safeguard the public or those providing care

Seriousness is not made out simply where the outcome of proceedings is likely to result in more than a nominal/minor penalty. It requires an assessment of the overall seriousness of the offence which will depend on the facts and merits of each individual allegation. Violent, sexual or offences involving weapons, save for the most minor, are likely to be serious; dishonesty or public order offences may require more careful assessment. The Code provides at 4.14(b) and (c) for considerations relevant to seriousness, namely an assessment of culpability and harm.

An assessment of the likelihood of repetition should be informed by evidence addressing the following if possible:

  • Any history of similar and/or recent behaviour
  • Any proposed treatment of the suspect, the aim of that treatment and its potential impact on offending behaviour
  • The suspect's history of engagement with, and response to, treatment
  • The suspect's current response to treatment

An absence of susceptibility to treatment, and/or engagement with treatment, is an absence of a factor tending against prosecution, rather than a factor tending in favour.

The evidence should also address the risk of causing harm to others. A prosecution is more likely to be in the public interest where the risk of harm to others through reoffending is high.

Prosecutors should consider what weight to attach to seriousness, likelihood of reoffending and the need to safeguard and reach a conclusion considering these in the round.

Prosecutors should also take into account any evidence of an adverse impact on the suspect's health or disability of a prosecution. It does not serve public confidence in the administration of justice to pursue proceedings which are likely to have a significant detrimental impact on the health of the defendant, including the proceedings themselves as well as any likely sentence.

Prosecutors should take into account the views expressed by the victim about the impact that the offence has had. The circumstances of the victim are highly relevant, including whether the victim was a person serving the public at the material time and whether the victim was the subject of a hate crime.

The likelihood of a nominal penalty or other order (in particular, if that is the likely outcome of a not guilty by reason of insanity verdict, a finding that a defendant who is not fit to plead did the act alleged, or of the court ordering treatment which the defendant is already receiving) will not necessarily be determinative. Prosecutors should have regard to the following:

  • Deterrence may legitimately and importantly be achieved by subjecting the suspect's conduct to scrutiny in proceedings conducted in open court and formally recording the outcome;
  • This must be balanced against an assessment of the impact of doing so upon the defendant. That impact may be detrimental to the defendant which will tend against prosecution; there may be evidence that it will assist to ensure the defendant takes responsibility for their actions and does not appear to excuse them. Deterrence may also be secured by means other than court proceedings;
  • Justice may be achieved for victims by the formal finding of a court, following the hearing of evidence in open court, that a defendant has done the acts alleged, even if not guilty by reason of insanity or being unfit to plead. The views of victims must where possible be taken into account. These should be informed by the purpose and likely outcome of any hearing;
  • Public confidence in the administration of justice may be upheld in finding a defendant did the acts alleged against him through the mechanism provided by Parliament to provide a legal defence for, or accommodate, accused persons who have serious mental health conditions or disorders. It may have a wider importance to the community and public at large in hearing the allegations and having them tested; and
  • There is a public interest in a judicial determination of allegations and in hearing the evidence of complainants in a case.

Prosecutors should test the suggestion that a nominal penalty is likely, in appropriate cases. For instance, a defendant's treatment may be ongoing whether a prosecution follows or not and so any further order may appear to be nominal. However, the finding of a court of the commission of a crime during the course of that treatment may inform the future treatment and management of an offender than if the case is not proceeded with. A finding or conviction can have a bearing on forensic risk assessments of a patient, as without such a finding or conviction it may be argued, for example at a tribunal hearing where discharge is sought, that there is no evidence of the commission of an alleged offence. Prosecutors may also have regard to other orders which may be available upon conviction, including restraining orders (also available upon acquittal – but not where the defendant is unfit to plead or following a special verdict) and criminal behaviour orders. Prosecutors should consider carefully the position where a defendant has been receiving treatment for a long period of time, the hospital order will continue but no further treatment is required, as to whether a prosecution remains proportionate.

Where a nominal penalty is likely but a prosecution is nonetheless to follow this must be clearly set out when authorising charge and explained to the court. Cases should be kept under continuing review, and if there is a change of circumstance particularly a decision is likely to be revisited, but equally it is important to proceed with cases and avoid unnecessary adjournments where, notwithstanding a likely nominal penalty, a prosecution is to proceed. See further the CPS legal guidance on nominal penalties.

Diversion from prosecution

The Code for Crown Prosecutors provides:

"Out-of-Court Disposals

7.1 An out-of-court disposal may take the place of a prosecution if it is an appropriate response to the offender and/or the seriousness and consequences of the offending.

7.2 Prosecutors must follow any relevant guidance when asked to advise on or authorise an out-of-court disposal, including any appropriate regulatory proceedings, a punitive or civil penalty, or other disposal. They should ensure that the appropriate evidential standard for the specific out-of-court disposal is met including, where required, a clear admission of guilt, and that the public interest would be properly served by such a disposal."

A conditional caution will not be appropriate if there is any doubt about the reliability of any admissions made or if the suspect's level of understanding prevents them from understanding the significance of the conditional caution and giving informed consent. This is the case with any offender.

A mental health condition or disorder should however not render a suspect ineligible for conditional cautioning. When such a disposal appears to be in the public interest, information and advice should be sought from the Liaison and Diversion Service liaison or other reliable source, and any suitable steps should be taken to enable an offender with mental health issues to understand the significance of the caution and give informed consent. This may include assisting the police to articulate the requirements clearly, either in the terms in which it is expressed or in consider alternative means of communicating. An admission in police interview is not required provided the suspect admits the offence at a later stage and agrees to diversion: prosecutors should be especially mindful of this when considering the position of a person with a mental health condition in a police interview. Fundamentally, effective diversion should be as available to those with mental health conditions as with all defendants.

Conditional cautions

Prosecutors should consider in appropriate cases whether issuing a conditional caution meets the public interest in a case. They should do so in accordance with the Director's Guidance on Adult Conditional Cautions or Youth Conditional Cautions. They should be aware of rehabilitative, community resolution or restorative initiatives available on a local basis, making enquiries through the police where appropriate to establish the position.

Conditional Cautions are intended to be a swift and effective means of dealing with straightforward cases. Wherever possible, the decision to administer a Conditional Caution should be made as early as possible and while the offender is still in custody, although in some cases they may need to be bailed. Information may come to light after charge and notwithstanding the case is before the court, defendants who on this new information ought to receive a Conditional Caution should be offered this disposal.

The imposition of a Conditional Caution is a serious matter. It forms part of the offender's criminal record and may be cited in subsequent court proceedings. Prosecutors should be careful not to 'up-tariff' an offence in a misplaced effort to provide assistance to an offender. For example, it would not be appropriate to authorise a Conditional Caution in circumstances where no further action or another form of diversion is available.

Conditions attached to a conditional caution may be reparative or rehabilitative.

Priority consideration should be given to reparation or compensation for the victim of crime in a manner that is acceptable to the victim. Individual victims should, where possible, be consulted and suitable conditions canvassed. Any conditions involving the participation of a victim including receiving a letter of apology from the offender or making a claim for compensation, should not be required unless the victim has been consulted and agrees. Payment of financial reparation should only be included where the victim has requested this.

Rehabilitative conditions are designed to tackle offending behaviour and rehabilitate the offender. Where it appears that the offending behaviour is linked to an underlying problem (whether a mental health condition or disorder or something such as drugs or alcohol which is triggering it) and a suitable scheme is operating locally which is able to take referrals and provide therapy and/or counselling, conditions designed to encourage attendance at such schemes should be considered. They must be clear in terms of what is expected, for instance, the number of sessions to be attended over a period of time. This is so that the police and the offender are clear what constitutes compliance and non-compliance, particularly as non-compliance may result in prosecution.

Where a conditional caution is inappropriate, prosecutors may consider other alternatives, such as restorative justice, community resolutions, Penalty Notices for Disorder. There is a separate framework for those under 18: see the Youth Justice legal guidance. Otherwise, the only alternative diversion to prosecution is to take no further action.

Liaison and Diversion Service

Prosecutors should be aware of what local Liaison and Diversion (L&D) services are in place so they may advise the court appropriately, if the court enquires as to whether an assessment has taken place or could take place. They may be available both in custody and the court to inform the decision to charge and/or to proceed with a prosecution.

L&D services identify people who have mental health, learning disability, substance misuse or other vulnerabilities when they come into contact with the criminal justice system as suspects, defendants or offenders. The service can then support people through the early stages of the criminal system pathway, refer them for appropriate health or social care or enable them to be diverted away from the criminal justice system into a more appropriate setting, if required. Thus diversion from prosecution may occur or treatment/assistance concurrent to a prosecution may follow.

L&D services aim to improve overall health outcomes for people and to support people in the reduction of re-offending. The main services that L&D practitioners offer are:

Identification:Criminal justice agencies working at the police and court stages of the pathway are trained to recognise possible signs of vulnerability in people when they first meet them. They then alert their local L&D service about the person.

Screening:Once someone is identified as having a potential vulnerability, the L&D practitioner can go through screening questions to identify the need, level of risk and urgency presented. It also helps determine whether further assessment is required.

Assessment:Using approved screening and assessment tools an L&D practitioner will undertake a more detailed assessment of the person's vulnerability. This provides more information on a person's needs and also whether they should be referred on for treatment or further support.

Referral:The L&D practitioner may refer someone to appropriate mainstream health and social care services or other relevant interventions and support services that can help. A person is also supported to attend their first appointment with any new services and the outcomes of referrals are recorded. L&D services will also provide a route to treatment for people whose offending behaviour is linked to their illness or vulnerability.

L&D services record all information about a person's health needs and share these with relevant agencies so they can make informed decisions about case management, sentencing and other orders.

Regional NHS England contacts can be found here and case studies with videos on how the scheme works can be found here.

In Wales, there is no national Liaison and Diversion service but there are local diversion protocols in place, for example in Cardiff where there is a Liaison and Diversion Scheme Protocol between Cardiff and Vale UBH and South Wales Police. Prosecutors should also be aware of the NHS Wales Anti Violence Collaborative.

Remand for defendants with a mental disorder

Remand for reports

Section 35 Mental Health Act 1983 sets out the provisions for the magistrates' court and the Crown Court to remand a defendant to hospital in order for a mental condition report to be prepared. In the magistrates' court, this is post-conviction or a finding of fact or with the defendant's consent; in the Crown Court the remand may be at any stage.

A person can be remanded if the court is satisfied, on the written or oral evidence of a registered medical practitioner, that there is reason to suspect that the accused person is suffering from a mental disorder and the court is of the opinion that it would be impracticable for a report on his mental condition to be made if they were remanded on bail.

A court shall not remand an accused person unless it is satisfied that arrangements have been made for the defendant's admission to hospital within seven days of the remand.

The court can direct that the person is conveyed to and detained in a place of safety (as defined by section 135 Mental Health Act 1983) pending admission to hospital provided that arrangements have been made for his admission to hospital within seven days of the remand (section 35(4) Mental Health Act 1983).

If the remand is before a conviction then the Custody Time Limit will continue to run and it may be necessary to apply to extend the Custody Time Limit pending the preparation of a report.

Remand for treatment

Section 36 Mental Health Act 1983 contains the provisions for an accused to be remanded to hospital for treatment, pending trial or sentence. This applies only to defendants appearing in the Crown Court. In the magistrates' court there is provision in section 37(3) to make a hospital order in respect of a defendant who has not been convicted.

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 then proceed at a later date when the condition of the defendant has improved.

Remand considerations for defendants with a mental disorder

When a defendant appearing before the court is subject to an order or arrangement under Part II of the Mental Health Act 1983, or an existing s37 or 37/41 hospital order, prosecutors should ensure that they are in possession of the following information from the police or L&D services before addressing the court in relation to bail:

  • Information as to the type of any current admission to hospital, including when this is due to be reviewed (discharge by the responsible clinician is more likely under the civil regime than section 37/41);
  • An up-to-date MG7 "Remand in Custody Application" from the police;
  • An up-to-date risk assessment, if applicable.

Prosecutors should ensure that the court is in possession of all relevant information at every hearing at which bail is considered and be alert to the possibility that a defendant who would otherwise have been the subject of an application to remand into custody could be released from hospital whilst criminal proceedings are ongoing.

Where a defendant is to be tried in the magistrates' court and is subject to a Custody Time Limit of 56 days, prosecutors should invite the court to set a date within the CTL for a trial or finding of fact hearing: there may need to be an adjournment or adjournments during which time the defence will seek a medical report but sight must not be lost of the CTL. The CTL will cease when a court begins enquiring into the facts of a case at a "finding of fact" hearing.

Where a defendant is remanded to a hospital, prosecutors should seek if possible to assist the court and the management of the defendant by ensuring that any order specifies the unit as well as the hospital to which the order applies, particularly if a medium or high security unit is appropriate for the remand.

Case Management

Where the defence indicate that a report is to be obtained in respect of their client, a trial date (which may become a finding of fact hearing) should nonetheless be identified and a case management hearing set down in the interim to ensure the report has been obtained and whether or not it is to be served upon the prosecution. All parties should ensure that progress is made with the obtaining of a report and avoid unnecessary hearings, seeking directions and providing updates to the court in correspondence instead. Notwithstanding the fact that the CPS will consider the specific facts and merits of a case subject to the duty of continuing review, prosecutors may need to indicate an intention to proceed with the case even if a finding of fact hearing is to follow and that a custody time limit extension may be sought. Prosecutors should draw the court's attention to statutory provisions for timescales - such as those in section 11(2) Power of Criminal Courts (Sentencing) Act 2000.

Prosecutors should note the provisions of Criminal Practice Direction I General Matters: 3P Commissioning Medical Reports, in particular the court's power to commission of its own volition; the importance of the prosecution and other parties' informed representations on this matter; the need for precision as to the matters it will address; and the timescales and procedure provided for effective case management.

Where a defendant is charged with a serious offence, it may be appropriate with the agreement of the defence and the court to seek a first hearing and Plea and Trial Preparation Hearing on the same date, if both can be effective whereby the Crown Court judge sits as a magistrates' court for the first hearing pursuant to section 66 Courts Act 2003. This may be appropriate in cases where the defendant is seriously ill in order to avoid them attending two separate venues unnecessarily on two separate occasions.

Allocation or sending must take place with the defendant present. Every effort to secure reasonable adjustments should be made for the defendant to participate effectively at such hearings. Whilst the sending may be a formality, the court will seek to ensure that the defendant or otherwise their representative can make representations as to venue where the offence may be tried in the magistrates'; court or the Crown Court.

Trial Procedure

Fitness to plead in the Crown Court

There are, however, cases where defendants are not fit to plead and to participate in their criminal trial.

In the Crown Court, the approach is set out in s4 and 4A Criminal Procedure (Insanity) Act 1964. The question of fitness to plead shall be determined as soon as it arises, unless the court is of the opinion that it is expedient to do so and it is in the interests of the accused to postpone consideration of fitness to be tried until any time up to the opening of the case for the defence (ss 4(4) and (4(2)).

A judge must determine if the defendant is fit to plead. This is a determination on the balance of probabilities if the defendant raises the issue, or if they contest it then it is for the prosecution to satisfy the court beyond a reasonable doubt (R v Robertson [1968] 1 WLR 1767). There must be written or oral evidence by two or more registered medical practitioners, at least one of whom is approved by the Secretary of State, that the defendant is incapable of:

  1. understanding the charges;
  2. deciding whether to plead guilty or not;
  3. exercising the right to challenge jurors;
  4. instructing solicitors and counsel;
  5. following the course of the proceedings; and/or
  6. giving evidence: section 4 and 4A Criminal Procedure (Insanity) Act 1964 as amended and R v John M [2003] EWCA Crim 3452, following Pritchard [1836] EWHC KB 1)

Modifications to the trial process and special measures may be relevant to this assessment (seeEffective Participation, above).

If the judge finds the defendant to be fit to plead, then the trial proceeds. Medical evidence is only required for a determination of unfitness. A judge can determine that a defendant is fit to plead without receiving medical evidence on the point (R v Ghulam (Habib) [2009] EWCA Crim 2285). If the judge finds the defendant to be unfit to plead, then a jury will determine whether or not the defendant did the act or made the omission alleged, without consideration of the defendant's mens rea. The distinction is not always clear-cut. However, defences based on mens rea (lack of intent, diminished responsibility) are therefore not to be left to the jury: Grant [2001] EWCA Crim 2611, whereas self-defence, mistake or accident can be where objective evidence raises them as an issue: Antoine [2001] 1 AC 340. This hearing is not a trial: section 4A(2)A provides that upon a finding of unfitness that a trial should "not proceed or further proceed".

If not satisfied to the criminal standard, the defendant shall be acquitted; otherwise the defendant upon such a finding shall receive one of the orders outlined in section 5(2) Criminal Procedure (Insanity) Act 1964:

(a) a hospital order (with or without a restriction order);

(b) a supervision order (with or without a treatment and/or resident requirement); or

(c) an order for his absolute discharge.

Note the reference to orders. The hospital order with restriction is not a disposal. It pauses the criminal prosecution until such time that the defendant is fit to plead. In this circumstance, the Secretary of State has a power to remit the case back to court for a criminal trial.

The case of Norman [2008] EWCA Crim 1810 stressed the need for careful case management once fitness to plead has been raised, to ensure that full information is provided to the court, to avoid delay and to consider who most appropriately should be appointed to put the case for the defence.

Fitness to Plead and the magistrates' court and youth court

The Criminal Procedure (Insanity) Act 1964 does not apply in the magistrates' court and youth court.

In R (P) v Barking Youth Court [2002] EWHC Admin 734, the High Court said that the statutory framework for dealing with issues of fitness to plead in the magistrates' court is set out by a combination of s37(3) Mental Health Act 1983 and s11(1) Power of Criminal Courts (Sentencing) Act 2000. A youth court is a magistrates' court within the meaning of section 37(3) Mental Health Act 1983 which provides:

"Where a person is charged before a magistrates' court with any act or omission as an offence and the court would have power, on convicting him of that offence to make a Hospital or Guardianship order under subsection (1) above in his case as being a person suffering from mental illness or severe mental impairment, then if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him."

Section 11(1) PCC(S)A 2000 provides:

"If, on the trial by a magistrates' court of an offence punishable on summary conviction with imprisonment, the court -

  1. is satisfied that the accused did the act or made the omission charged, but
  2. is of the opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined, the court shall adjourn the case to enable a medical examination and report to be made, and shall remand him".

A remand is either for three weeks in custody or four weeks if on bail (section 11(2) PCC(S)A 2000.

Section 37(3) applies only to those defendants with a 'mental disorder', and so does not, for example, apply to those defendants with a learning disability whose behaviour is not associated with abnormally aggressive or seriously irresponsible conduct (section 1(2A) and (2B) Mental Health Act 1983). It does not apply to non-imprisonable offences. It is unlikely to be in the public interest therefore to prosecute a defendant who is unfit to plead and faces a non-imprisonable allegation. The only available disposals under section 37(3) are a hospital order or a guardianship order. Prosecutors must articulate the rationale for proceeding where such orders are not likely but the imprisonable allegation is to be proceeded with on public interest grounds.

In Barking the court said that the procedure is first to determine whether P did the acts alleged, and if so, then to consider, in the light of such reports as they may think necessary, whether the case is one for an order under section 37(3) of the Mental Health Act 1983. If the court finds that that the defendant did the act then it should consider whether to seek further medical evidence with a view to making an order under the 1983 Act. Note that these provisions apply to summary only and either way offences.

It is permissible for a hearing which begins as a criminal trial to switch to a 'fact finding' inquiry (see Crown Prosecution Service v P [2007] EWHC 946 (Admin), where the High Court held that where the court decided to switch from a criminal trial into an inquiry as to whether or not the defendant has done the act, it might consider the switch at any stage). Equally, a court may hold a full criminal trial where, having determined that a 'fact finding' inquiry is appropriate, further evidence becomes available to indicate that this is the appropriate course.

It is likely that the court process will have the following features in common with the procedure in the Crown Court:

  1. Issues relating to unfitness to plead should be raised as an issue before the trial;
  2. The defence will provide evidence concerning the defendant's mental health condition. Unlike the Crown Court, this need not be the written or oral evidence of two registered medical practitioners and further such evidence should be obtained following any finding made. At this stage there must simply be sufficient evidence to merit the prosecution and court being alive to the possibility of the alternative procedure being followed;
  3. The prosecution will review the case, particularly in the light of the likelihood of a hospital or guardianship order;
  4. A criminal trial or 'fact finding' inquiry will take place, taking into account the evidence before the court;
  5. If the defendant is found to have committed the act, the court considers whether or not further medical evidence is required to make an order under s37(3);
  6. If the defendant is found not to have committed the act, then a 'not guilty' verdict is recorded.

Notwithstanding what was said in Barking, there will be cases where no hospital or guardianship order will be appropriate. This amplifies the importance of effective participation and clarity about the public interest in prosecution.

Effective Participation

The starting point should be that a defendant should, wherever possible, face a normal criminal trial. This engages the right to a fair trial and provides for a robust and open consideration of the evidence with the broadest range of outcomes available at sentence. Every effort should be made, using reasonable adjustments, to ensure a defendant can wherever possible participate effectively in such a trial. Departing from this should be a last resort.

Prosecutors should be aware of measures to assist vulnerable defendants, including defendants with a mental disorder, in the court process. The primary responsibility lies with the court and the defence but prosecutors should, consistent with their duty to the court, be aware of these measures and be ready to draw them to the attention of the court and/or defence if necessary.

Reasonable Adjustments

Criminal Practice Directions 2015 1 General Matters 3D-3G merit consideration: "...the court is required to take 'every reasonable step' to encourage and facilitate the attendance of witnesses and to facilitate the participation of any person, including the defendant (CrimPR 3.9(3)(a) and (b)). This includes enabling a witness or defendant to give their best evidence, and enabling a defendant to comprehend the proceedings and engage fully with his or her defence. The pre-trial and trial process should, so far as necessary, be adapted to meet those ends."

Under the Equality Act 2010 where defendants meet the definition of disability, as set out in section 6(1) of the Act, prosecutors should be aware that they may be entitled to reasonable adjustments under section 20 of the Act. The Equality Act 2010 requires public authorities, including courts, to seek to ensure that discrimination against disabled people does not occur. They can do this by making reasonable adjustments. These adjustments will be based on the individual's needs, and may include things like specialist communication support.

Prosecutors should also be aware that reasonable adjustments may need to be made by the court in order to realise the right to access justice under Article 6 of the European Convention on Human Rights, as incorporated by the Human Rights Act 1998, and Article 13 of the United Nations Convention on the Rights of Persons with Disabilities.

Live Links

A live link is defined in section 33B Youth Justice and Criminal Evidence Act 1999 (inserted by section 47 of the Police and Justice Act 2006) as "an arrangement by which the accused, while absent from the place where the proceedings are being held, is able to see and hear a person there, and to be seen and heard by the judge, justices, jury, co accused, legal representatives and interpreters or any other person appointed by the court to assist the accused."

Section 33A of the Youth Justice and Criminal Evidence Act (also inserted by section 47 of the Police and Justice Act 2006), provides that a defendant aged 18 and over may give evidence in criminal proceedings in the magistrates' court and the Crown Court using a live link if:

  • They suffer from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise have a significant impairment of intelligence and social function; and
  • For that reason they are unable to participate effectively in the proceedings as a witness giving oral evidence in court; and
  • Use of a live link would enable them to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise (s33A (5) Youth Justice and Criminal Evidence Act 1999 as inserted by section 47 of the Police and Justice Act 2006); and
  • The court is satisfied that it is in the interests of justice for the defendant to give evidence through a live link.

A youth defendant may give evidence in criminal proceedings in the youth court, magistrates' court and the Crown Court using a live link if:

  • Their ability to participate effectively in the proceedings as a witness giving oral evidence is compromised by their level of intellectual ability or social functioning; and
  • Their ability to participate effectively would be improved by giving evidence over a live link (section 33A(4) Youth Justice and Criminal Evidence Act 1999 as inserted by section 47 of the Police and Justice Act 2006); and
  • The court is satisfied that it is in the interests of justice for the youth to give evidence through a live link.

The defence must apply for a live link direction, which prevents the defendant from giving oral evidence in the proceedings in any manner other than through a live link (section 33A(6)). The court may discharge a live link direction at any time if it appears in the interests of justice to do so of its own motion or on application by any party (section 33A(7)). The court must give reasons in open court for giving or discharging a live link direction or for refusing an application for or the discharge of a live link direction. Those reasons must be recorded on the register of proceedings where the decision was made in the magistrates' court (section 33A(8)).

Prosecutors should be aware that when suspects appear for the first time by a video link (as distinct from a live link i.e. technology used other than for the defendant to give evidence) it may be harder to identify any mental health condition or disorder at an early stage. Prosecutors should take a proactive role in proceedings, raising any concerns about the video link, particularly if it would hinder rather than assist the case management of mental health issues or the Liaison and Diversion Service process.

Intermediaries

Legislation providing for the use of an intermediary by the accused is not yet in force (section 33BA YCJEA 1999 inserted by section 104 of the Coroners and Justice Act 2009), however the Criminal Practice Direction 2015 Division 1, General Matters sets out key principles for dealing with vulnerable people in court (3D - 3G).

Criminal Practice Direction 3.D2 states, "many other people giving evidence in a criminal case, whether as a witness or defendant may require assistance: the court is required take every reasonable step to facilitate the attendance of witnesses and to facilitate the participation of any person, including the defendant... This includes enabling a witness or defendant to comprehend the proceedings and engage fully with his or her defence...and the pre-trial, and trial process should be adapted as necessary to meet those needs"

In C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) it was held that the court has an inherent power to appoint an intermediary to assist a defendant to prepare for the trial in advance of the hearing and during the trial so that s/he can participate effectively in the trial process. However there is no presumption that defendant will be so assisted, and even where an intermediary would improve the trial process, appointment is not mandatory, and judges are expected to deal with specific communication problems faced by any defendant or any individual witness (whether a witness for the prosecution or the defence) as part and parcel of their ordinary control of the judicial process (R v Cox [2012] EWCA Crim 549).

There is also merit in an application to appoint a support worker or other companion who can provide assistance when it has not been necessary to appoint an intermediary, as a defendant may still benefit from some additional support to understand proceedings (CPD I General matters 3F.12 and 3F.13)

The Advocate's Gateway has produced a toolkit on the effective participation of young or otherwise vulnerable defendants, providing practical best-practice assistance to advocates.

Criminal Practice Direction 3E.3 further states that whilst discussion of ground rules is required in all intermediary trials, in cases without an intermediary ground rules hearings are good practice in all young witness cases and in other cases where a witness or defendant has communication needs.

Other special measures are within the court's discretion, including:

  • Arranging for the defendant to visit the court room before the court hearing or trial so the person can feel familiar with it
  • Using simple, clear language that can be easily understood
  • Holding the hearing or trial in a court room in which all participants are on the same, or almost the same level
  • Allowing the defendant to sit with members of their family and/or other supporting adults and in a place where they can easily communicate with their solicitor
  • Restricting attendance by members of the public and reporters;
  • Screening the defendant, particularly where this is linked to a condition such as ADHD where it would significantly enhance the defendant’s participation in a trial;
  • Removal of wigs and gowns;
  • The use of communication aids.

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 Mental Health Casework Section in the Public Protection Group at HMPPS will inform by letter the local Chief Crown Prosecutor, the hospital manager receiving the prisoner and 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 MHA 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 the HMPPS Mental Health Casework Section who are responsible for the administration of Section 48 orders. Prosecutors should note that when corresponding with HMPPS, patients are no longer assigned a named case manager according to the patient's surname. All casework related e-mails (including to a named member of staff) should be sent to:

Where the procedure under Section 23 of the Prosecution of Offences Act 1985 is used to discontinue some but not all charges, a copy of the Notice of Discontinuance should be sent to the hospital concerned, making it clear that the proceedings are continuing.

In cases where a defendant is remanded in custody to the Crown Court awaiting trial and a section 48 order is made a letter will be sent to the Chief Clerk of the court where the defendant's case is to be heard. This will be copied to the local Chief Crown Prosecutor.

The precise way in which a case may be disposed of in the Crown Court may vary according to circumstances, and be subject to discussions between the relevant parties. Any action taken which results in the disposal of the case against the defendant should be addressed to the Mental Health Casework Section by emailing mhcsmailbox@justice.gov.uk.

For all casework queries please contact one of the numbers listed below:

  • 07812 760 274
  • 07812 760 582
  • 07812 760 523
  • 07812 760 356
  • 07812 760 230

These numbers will be covered at all times between 9am and 5pm, Monday to Friday.

If you have difficulty, please ring the Ministry of Justice switchboard on 020 3334 3555 and ask for the Mental Health Casework Section.

In cases of emergency outside normal office hours (9am to 5pm, Monday to Friday) please call 0300 303 2079, followed by written confirmation sent by email.

Resuming a prosecution

This section explains the powers and responsibilities of the Secretary of State for Justice, the CPS and Her Majesty's Courts & Tribunals Service (HMCTS) when a restricted patient becomes fit to plead and sets out the procedure to be followed when a prosecution is resumed. The fitness to plead procedure merely suspends a prosecution until the defendant is able to enter a plea and stand trial. It is essential that criminal proceedings are resumed and determined swiftly when the Secretary of State remits the patient for trial.

The law

Section 5(1)(b) and (2) of the Criminal Procedure (Insanity) Act 1964 provides that where a person has a finding made that they are under a disability and that they did the act or omission charged, the court shall make:

  1. a hospital order (with or without a restriction order);
  2. a supervision order; or
  3. an order for his absolute discharge.

Section 5A(4) of the same provides for an express power for the Secretary of State for Justice to remit for trial a person who becomes fit for trial while detained in hospital under a hospital order and a restriction order made under section 5(2)(a) Criminal Procedure (Insanity) Act 1964.

Section 5A(4) also provides that "on a person's arrival at the court" the hospital and restriction order will "cease to have effect";. It is HMPSS'; view that, when read with the provisions of the Mental Health Act 1983, this cessation occurs when a judge makes another, discrete and subsequent, order for remand (whether on bail or in custody) or orders the proceedings to come to an end, for instance by ordering the charges to lie on file or that a not guilty verdict be entered.

Section 4A(2) Criminal Procedure (Insanity) Act 1964 provides that a finding of unfitness will have the effect that the trial "shall not proceed or proceed further". Although the fitness to plead procedure can result in an acquittal, a finding that the offender did the act or made the omission charged is not a conviction and does not amount to the determination of a criminal charge. It does not preclude a full trial of the accused if s/he becomes fit to be tried: R v H [2003] UKHL 1. A finding that the accused did the act or omission alleged is neither a conviction nor an acquittal: Chinegwundoh [2015] EWCA Crim 109.

This guidance concerns the position where the Secretary of State remits a patient who has been subject to a hospital order with a restriction order. Where other disposals are ordered, remittal to court is not available: S v The Queen [2014] EWCA Crim 2648. Any other decision to commence a subsequent prosecution is outside this guidance, other than to indicate that such a decision would need to be made in accordance with the Code for Crown Prosecutors and the principles governing abuse of process.

Role of The Mental Health Casework Section (MHCS)

The Mental Health Casework Section (MHCS) will keep the issue of a patient's fitness to plead under review, and will obtain the current opinion of the responsible clinician at least once a year. The Secretary of State for Justice will notify the CPS when the responsible clinician has determined that a restricted patient is now fit to plead. The MHCS will also provide the CPS with the responsible clinician's report which will address, so far as possible, those factors relevant to the decision to resume proceedings set out below.

MHCS will also ensure that where the CPS is not going to resume a prosecution, the responsible clinician has considered, and where appropriate, put in place suitable arrangements for the lawful ongoing detention and treatment of the patient under Part II Mental Health Act 1983 powers, once the case has been remitted to court and a final disposal made.

Role of the Crown Prosecution Service (CPS)

The decision whether to continue the prosecution lies solely with the CPS who will take the decision, having re-reviewed the case, in accordance with the principles set out in the Code for Crown Prosecutors and other relevant legal guidance. Prosecutors will have particular regard to the following factors:

  1. The current availability of evidence, including exhibits, and unused material;
  2. The current admissibility of evidence, including evidence which may not have been admissible at the time of the original finding;
  3. The views of any victims and witnesses;
  4. The seriousness of the offence;
  5. The risk of reoffending and the risk of harm;
  6. The impact of a prosecution on the health of the victim, witnesses and defendant;
  7. The length of any delay between the offence, resumption of fitness to plead and the likely trial date;
  8. The fact that the offender was suffering from significant mental ill health at the time of the offence;
  9. The effect of the hospital treatment on the offender's mental health and behaviour;
  10. The likely sentence or order of the court on conviction;
  11. The duration of the hospital order/restriction order, and whether it is commensurate with the seriousness of the offending;
  12. Whether the public interest can now be satisfied by an out of court disposal, which the offender accepts and with which he can comply.

The responsible clinician should provide so far as possible:

  1. an opinion on the likely mental state of the patient at the date of the offence;
  2. the patient's response to treatment provided;
  3. any further proposed treatment, the aim of that treatment and its potential impact on offending behaviour;
  4. whether the patient is likely to continue to be detained in hospital under the Mental Health Act 1983;
  5. the likely impact of a prosecution on future offending. A prosecution may have the effect of confronting the offender with their behaviour and taking responsibility for his or her actions. A prosecution may not be necessary where the risk of reoffending is low;
  6. the risk that the patient is likely to pose in terms of reoffending and causing serious harm;
  7. probable impact of a prosecution on the offender's health;
  8. any previous response to treatment provided when the offender had been diverted from prosecution for another offence.The fact that a hospital order combined with a restriction order was deemed necessary in the circumstances of the case may be a relevant but not a determinative factor (relevant to assessing seriousness); the fact that the patient has now received treatment as a result of which they are fit to plead may be relevant but not determinative (relevant to likelihood of re-offending).

Remission

The MHCS shall inform the CPS that it intends to remit the patient's case for trial and shall at the same time provide a copy of the responsible clinician's report, addressing points 8(a) to (h) above. The MHCS will apply, to the relevant court, for a listing for mention no less than 60 days thereafter for the case to be remitted to court. The MHCS will inform the patient and the patient's solicitor (or last known solicitor) and the CPS of this date.

Listing for Mention

A balance has to be struck between permitting the CPS sufficient time to re-review the case and a directions hearing in relation to the resumed case. The patient does not need to attend this first hearing and it will be listed "For Mention (Defendant Excused)". This does not prevent the defendant however from attending. The CPS will endeavour to communicate its decision before the hearing to all parties but otherwise shall propose the next steps and timescale for the case and future decision-making.

At the hearing for mention, case management issues will be considered. If the prosecution is not to continue, a date by which proceedings are to be ended and the method by which proceedings are to be ended will be confirmed at the mention hearing at which the defendant is excused. Best practice will be to arrange for the patient to attend for the proceedings to be finalised at a subsequent hearing. This ensures that the defendant is aware that proceedings are at an end, and the court will be addressed on all of the attendant consequences of ceasing proceedings, including that the hospital order with restriction will cease once the judge makes final orders in relation to lie on file or not guilty verdict to be entered; that the defendant will fall to be acquitted; and any ancillary orders which fall to be made or applied for can be considered. Best practice is that the responsible clinician's proposal for any ongoing treatment of the patient is also made clear at this hearing i.e. whether the patient will continue to be detained under civil powers.

If the prosecution is to continue, a date will be set for the patient to attend court and other matters to be considered will include:

  1. clarification that the section 37/41 order will cease once an order for remand on bail or in custody has been made;
  2. whether further information, including medical reports, will be needed for the next date of hearing: the CPS will take the decision to proceed or not on the evidence it has but will keep the decision under review and further time may be needed to seek medical opinion or other relevant material;
  3. whether there are security or other reasons for the case to be heard in a different court or particular court room;
  4. whether additional measures will be needed to enable the defendant to participate in his or her trial. The Court, having set the next date, will inform the relevant hospital and the patient of the date for mention. The Court will consider whether to remand the defendant on bail, with conditions or without, or in custody and best practice will be that the responsible clinician's proposals for any ongoing detention are taken into account in this decision.The hospital is responsible for securing the attendance of the patient at court and should liaise with the court to ensure that appropriate arrangements are made. This will assist the court to ensure that there is a safe and secure environment at court.First appearance at resumed hearingMHCS interpret the section 37/41 order as ceasing to have effect once the court makes an order ending proceedings or to remand on bail or in custody: section 5A(4) Criminal Procedure (Insanity) Act 1964. The patient's responsible clinician should be aware of this so that procedures for detention under the civil provisions of the Mental Health Act can be considered and commenced if the patient is still sufficiently ill as to require compulsory treatment in hospital.

If the prosecution formally offers no evidence or the court orders the charge to lie on the file, the court has no power to make any order under the Mental Health Act 1983, although it may consider other ancillary orders which are appropriate following acquittal.

If the prosecution is resumed, the court will have to consider the issue of bail and its powers include remand to hospital for further reports (section 35 MHA 1983) or for treatment (section 36 MHA 1983), remand in custody or on bail.

Custody Time Limits do not apply to any period of remand in custody after the offender is remitted from hospital. The Custody Time Limit expired when the issue of fitness to plead was determined. The Prosecution of Offences (Custody Time Limits) Regulations 1987 provides an exhaustive list of "preliminary stages of proceedings" during which a CTL will apply. The period between remittal to court under section 5A(4) Criminal Procedure (Insanity) Act 1964 and the trial is not included in this exhaustive list. The situation is analogous to retrials in that Custody Time Limits do not apply to the period between the termination of the original trial and the start of the retrial: R v Crown Court at Leeds, ex parte Whitehead TLR 5 July 1999. However the court should be vigilant to protect the interests of an accused in custody by taking steps to fix a speedy retrial.

Contacts

HQpolicy@cps.gov.uk

MHCSmailbox@justice.gov.uk

Sentencing

Sentencing Principles

The role of the prosecutor at sentence is to assist the court to reach its decision as to the appropriate sentence. This will include drawing the court's attention to:

  • the relevant sentencing guidelines or guideline cases;
  • the aggravating and mitigating features of the offence under consideration;
  • any victim personal statement or other information available as to the impact of the offence on the victim;
  • any statutory provisions relevant to the offender and the offences.

In sentencing offenders with mental health issues, the prosecutor should bring to the court's attention any evidence as to the nature, extent and effect of any mental impairment experienced by the offender at the relevant time.

The prosecutor should ensure that the effect of a sentence is explained in open court by the Judge and assist where an explanation is to be given to a victim of the effect of a sentence passed. The table below should assist.

Before passing a custodial sentence other than one fixed by law on an offender who has, or appears to have a mental disorder, a court must obtain and consider a medical report (section 157 Criminal Justice Act 2003 - unless the court is of the opinion that it is unnecessary to obtain a report in the circumstances of the case). The court must also consider any other information before it which relates to the medical condition and the likely effect of such a sentence on that condition and on any treatment which may be available for it.

For these purposes, a 'medical report' is a report as to the offender's condition made or submitted orally or in writing by a registered medical practitioner who is approved for the purposes of 12 MHA 1983 as having special experience in the diagnosis or treatment of mental disorder.

The Court of Appeal in Vowles (Lucinda) [2015] EWCA Crim 45 gave guidance on the need to strike a balance between ensuring hospital treatment where appropriate and protecting the public. Thomas CJ stated "It is important to emphasise that the judge must carefully consider all the evidence in each case and not, as some of the early cases have suggested, feel circumscribed by the psychiatric opinions. A judge must therefore consider, where the conditions in s.37(2)(a) are met (to make a Hospital Order), what is the appropriate disposal. In considering that wider question the matters to which a judge will invariably have to have regard to include (1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers, (2) the extent to which the offending is attributable to the mental disorder, (3) the extent to which punishment is required and (4) the protection of the public including the regime for deciding release and the regime after release".

This approach was considered further in R v Edwards [2018] EWCA Crim 595 in which the Court summarised the principles to be followed;

  1. First, consider whether a hospital order may be appropriate;
  2. If so, the judge should then consider all sentencing options including a section 45A order;
  3. In deciding on the most suitable disposal the judge should remind himself or herself of the importance of the penal element in a sentence;
  4. To decide whether a penal element to the sentence is necessary the judge should assess (as best they can) the offender's culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions;
  5. A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender's mental illness;
  6. If the judge decides to impose a hospital order under section 37/41, they must explain why a penal element is not appropriate.

Commissioning of reports

The court will be assisted in terms of the defendant's mental health by the Liaison and Diversion scheme and may take such information into account at sentence. However, where a psychiatric report is to be obtained, this is governed by the Criminal Procedure Rules and the Criminal Practice Directions.

Court ordered reports for Sentence - Criminal Procedure Rule 28.8

Criminal Procedure Rule 28.8 applies when a medical report, or information about a hospital or guardianship order, is required by the court for sentencing. In such an instance the court must address a number of points including requesting confirmation that the commission is accepted and the expert will adhere to the timetable. This is catered for in the new standard forms which are available from the Ministry of Justice forms site.

Criminal Practice Direction VII emphasises the importance of the court monitoring progress towards compliance. The relevant rules include:

  • R.10 which provides further guidance on the commissioning of the report;
  • R.16 which states that where a defendant is in custody then the prison (custodian) must also be notified that a report has been ordered to ensure that the preparation can be facilitated;
  • R.6 which suggests that the court should set a hearing to consider the report no more than 6-8 weeks after the request and should not be adjourned before it takes place save in exceptional circumstances (and then only by judicial order with recorded reasons); and
  • R.7 which provides guidance as to what to do if the report is not provided in time.

Court ordered reports other than for sentence

Criminal Procedure Rule 3.28 will apply where, exceptionally, the court chooses to seek a report on a suspected issue of mental ill health other than for sentence rather than depending on the defence to seek such reports as they consider necessary.

This will most commonly arise on a question whether defendant is fit to participate in the trial process under section 4 Criminal Procedure Insanity Act 1964.

Sentencing Disposals

Hospital Order - section 37 Mental Health Act 1983 (the court may not, at the same time as making a hospital order, impose a sentence of imprisonment, impose a fine or make a community order, a youth rehabilitation order, or a referral order. The court may make any other order which it has the power to make, e.g. a compensation order)

Availability

Magistrates'; Court including youth court

  • On conviction of any imprisonable offence; or
  • A case in which the defendant is not convicted but otherwise found to have done the act or made the omission charged.

Crown Court

  • On conviction for any imprisonable offence, other than for an offence where the sentence is fixed by law; or
  • Where a special verdict is returned that the accused is not guilty by reason of insanity or a finding that the defendant is under a disability and that they did the act or made the omission charged against him (Section 5 Criminal Procedure (Insanity) Act 1964.

Conditions

  • The court must be satisfied on the written or oral evidence of two registered medical practitioners that the defendant is suffering from a mental disorder the nature or degree of which makes it appropriate for the defendant to be detained in hospital for medical treatment and appropriate medical treatment is available.
  • And the court is of the opinion having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that it is the most suitable method of disposal for the case (section 37(2)).
  • A hospital order can only be made if the court is satisfied that arrangements have been made for the defendant to be admitted to a hospital within 28 days of the making of the order (section 37(4)).

Effect

A hospital order authorises the detention of a patient in hospital for medical treatment. The order initially lasts for 6 months but can be renewed by the hospital for a further 6 months at a time if the conditions for making the order are still satisfied.

Interim Hospital Orders (section 38 MHA 1983)

Availability

Magistrates' court and Crown Court

Conditions

  • Section 38 Mental Health Act 1983 contains the provisions enabling the Crown Court and Magistrates' courts to make an interim hospital order following conviction for an offence punishable with imprisonment (other than an offence the sentence for which is fixed by law). An interim hospital order is a form of sentence.
  • The court must be satisfied on written or oral evidence of two registered medical practitioners that the defendant is suffering from a mental disorder and that there is reason to suppose that it may be appropriate to make a hospital order.

Effect

The interim order should be for a period not exceeding twelve weeks. It may be further renewed thereafter for 28-day periods, subject to an overall maximum period of twelve months

If an offender is already the subject of a hospital order, or an interim hospital order, a prosecutor should ascertain whether or not a restriction order has been made and when the next review of that order is due to take place, in order to ascertain how long the offender is likely to be subject to that order. This will be particularly relevant in reviewing a case in which an offender if alleged to have committed offences against hospital staff.

Restriction Order (section 41 Mental Health Act 1983)

Availability

Crown Court only

Conditions

  • A hospital order has been made; and
  • at least one of the doctors whose evidence is taken into account by the court has given evidence orally; and
  • If it appears to the court, having regard to:

(i) The nature of the offence

(ii) The antecedents of the offender, and

(iii) The risk of the offender committing further offences

that it is necessary for the protection of the public from serious harm for the person to be subject to a restriction order, namely restrictions on discharge, transfer or leave of absence from of the offender from hospital, without the consent of the Secretary of State

A restriction must also be made where the Crown Court makes a hospital order under section 5(2)(a) Criminal Procedure (Insanity) Act 1964 in respect of an offender found to have committed the actus reus for murder.

Effect

The effect of the restriction order means that the responsible clinician cannot make any decision as to transfer to a different hospital, leave of absence in the community, or discharge without the consent of the Secretary of State.

As with a hospital order without restriction, a detained patient may apply for discharge through a mental health tribunal, but such an application cannot be made within the first six months of an order.

Committal to the Crown Court (section 43 Mental Health Act 1983)

Availability

Magistrates' court and youth court may commit a person to the Crown Court with a view to a restriction order being imposed.

Conditions

  • The offender is aged 14 or over, and
  • Has been convicted (this does not include a finding that the defendant has done the act/made the omission) by the court of an offence punishable on summary conviction by imprisonment and

     

  • The court could make a hospital order under section 37 but having regard to

i) The nature of the offence

ii) The antecedents of the offender, and

iii) The risk of the offender committing further offences if set at large

The court thinks that if a hospital order is made, a restriction order should also be made.

Effect

The Crown Court is required to enquire into the circumstances of the patient's case and either:

  • Make a hospital order (with or without a restriction order) as if the offender had been convicted by the Crown Court rather than by the magistrates' court; or
  • Deal with the offender in some other way the magistrates' court would have been able to originally.

 

Hospital and Limitation Directions (Section 45A of the Mental Health Act 1983)

Act 1983

Availability

Crown Court

(if offender aged 21 or over and convicted before that court of an offence

punishable with imprisonment (other than murder))

Conditions

  • On the written or oral evidence of two doctors, at least one of whom must be approved under section 12, and at least one of whom must have given evidence orally, that:
  • the offender is suffering from mental disorder of a nature or degree which makes it appropriate for the offender to be detained in a hospital for medical treatment, and
  • appropriate medical treatment is available.
  • The court should consider making a hospital order under section 37,but has decided instead to impose a sentence of imprisonment.
  • The court must be satisfied on the written or oral evidence of the approved clinician who would have overall responsibility for the offender’s case or of some other person representing the managers of the relevant hospital, that arrangements have been made for the offender to be admitted to that hospital within the 28 days starting with the day of the order.

Effect

Hospital and limitation direction patients are detained primarily on the basis of a prison sentence. A limitation direction ends automatically on the patient's "release date". The patient's release date is the day that the patient would have been entitled to be released from custody had the patient not been detained in hospital (the halfway point of a determinate sentence).

If patients are still detained in hospital on the basis of the hospital direction on their release date, they remain liable to be detained in hospital from then on, like unrestricted hospital order patients.

While the limitation direction remains in effect, the Secretary of State may direct that they be removed to prison (or equivalent) to serve the remainder of their sentence, or else release them on licence. This is only possible where the SoS is notified by the offenders responsible clinician, any other approved clinician, or by the Tribunal, that:

  • the offender no longer requires treatment in hospital for mental disorder, or
  • no effective treatment for the disorder can be given in the hospital in which the offender is detained.

When notified in this way by the responsible clinician, or any other approved clinician, the Secretary of State may:

  • direct the offender's removal to a prison (or another penal institution) where the offender could have been detained if not in hospital, or
  • discharge the offender from the hospital on the same terms on which the offender could be released from prison.

If the Tribunal thinks that a patient subject to a restriction order would be entitled to be discharged, but the Secretary of State does not consent, the patient will be removed to prison

This "hybrid order" can be made when sentencing an offender with a mental disorder convicted of an offence (other than one of which the sentence is fixed by law) and the court wishes to combine a hospital order with restrictions with a prison sentence.

In such a case, the Crown Court can give a direction for immediate admission to and detention in a specified hospital "hospital direction" for treatment together with a direction that the offender be subject to the special restrictions set out in a section 41 "limitation direction".

Mental Health Treatment Requirement (section 207 CJA 2003)

As part of a Community Order or Suspended Sentence Order, a Mental Health Treatment requirement means an offender must submit, during a period specified in the order, to treatment by or under the direction of a registered medical practitioner or psychologist with a view to improvement of the offender's mental condition (s207 Criminal Justice Act 2003).

Availability

Magistrates' court and Crown Court

Conditions

  • The offender is convicted of an imprisonable offence;
  • The mental health condition requires and is susceptible to treatment but does not necessitate a treatment under a hospital order;

Effect

The treatment required must be such one of the following kinds of treatment as may be specified in the relevant order -

(a) treatment as a resident patient in a care home an independent hospital or a hospital within the meaning of the Mental Health Act 1983, but not in hospital premises where high security psychiatric services within the meaning of that Act are provided;

(b) treatment as a non- resident patient at such institution or place as may be specified in the order;

(c) treatment by or under the direction of such registered medical practitioner or

registered psychologist (or both) as may be so specified;

but the nature of the treatment is not to be specified in the order except as mentioned in paragraph (a), (b) or (c).

And the court is satisfied that arrangements have been or can be made for the treatment to be specified in the order and that the offender has expressed a willingness to comply with the requirement

Supervision Order

Availability

Crown Court

Conditions

A supervision order enables treatment to be given to the defendant. It is non-punitive and intended to provide a framework for treatment, and is supervised by either a social worker or probation officer in the area where the defendant lives. An order last no more than two years and can include a requirement to be treated by or under a registered medical practitioner. See Section 5(1) and Schedule 1A Criminal Procedure (Insanity) Act 1964

Guardianship order (section 37 Mental Health Act 1983)

Availability

Magistrates' Court

  • Offender aged 16 or over and;
  • convicted by the court of an offence punishable (in the case of an adult) on summary conviction with custody or
  • charged before (but not convicted by) that court with such an offence, if the court is satisfied that the person did the act or made the omission charged

Crown Court

  • Offender aged 16 or over and convicted before that court of an
  • offence punishable with imprisonment (other than murder)

Conditions

The court must be satisfied on the written or oral evidence of two doctors, at least one of whom must be approved under section 12;

  • that the offender is suffering from a mental disorder of a nature or degree which warrants the offender’s reception into guardianship under the Act and;
  • the court is of the opinion having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with the offender, that a guardianship order is the most suitable method of dealing with the case and it is also satisfied that the local authority or proposed private guardian is willing to receive the offender into guardianship

Effect

The guardian may be a local authority, or an individual such as a relative of the patient, who is approved by a local authority

Guardians have three specific powers:

  • The residence power allows guardians to require patients to live at a specified place
  • The attendance power lets guardians require the patient to attend specified places at specified times for medical treatment, occupation, education or training.
  • The access power means guardians may require access to the patient to be given at the place where the patient is living, to any doctor, approved mental health professional, or other specified person.

Absolute discharge

An absolute discharge is an available disposal upon conviction: section 12 Power of Criminal Courts (Sentencing) Act 2000. Section 5 of the Criminal Procedure (Insanity) Act 1964 enables a person who is either not guilty by reason of insanity, or unfit to plead and following a finding of fact, to be made subject to an absolute discharge in the Crown Court even though they do not amount to a conviction. This provision does not extend to the magistrates' court where an absolute discharge may only be ordered following conviction.

Annex A

Information about specific conditions can be accessed at the following sites. Individuals may have one or more than one of these conditions:

The CPS has produced a psychological evidence toolkit for prosecutors in respect of victims and witnesses. Those who represent suspects and defendants may equally have regard to the definitions and considerations set out therein, in respect of the account or evidence a suspect or defendant can give.

Basic definitions

Mental illnesses are mental health conditions involving changes in thinking, emotion or behaviour, or a combination of these. Mental health is just like physical health, everybody has it and needs to take care of it. Mental health problems can affect anyone at any time, currently around one in four people in any given year, and may be overcome or mitigated with treatment. They range from common problems, such as depression and anxiety, to rarer conditions such as schizophrenia and bipolar disorder.

Learning disabilities are permanent and affect the way a person learns new things, understands information and communicates. Learning disabilities occur when the brain is still developing (before, during or soon after birth). A learning disability is a reduced intellectual ability with everyday activities, such as household tasks, socialising or managing money. The level of support someone requires depends on the individual. For example, someone with a mild learning disability may require help in getting a job, while someone with a severe learning disability may need fulltime care and support, and may also have a physical disability. Around 1.5 million people in the UK have a learning disability. It's thought up to 350,000 people have a severe learning disability. This figure is increasing. People with certain specific conditions can have a learning disability too. For example, people with Down's syndrome and some people with autism have a learning disability.

The World Health Organisation (WHO) defines learning disabilities as 'a state of arrested or incomplete development of mind'. Someone with a learning disability also has 'significant impairment of intellectual functioning' and 'significant impairment of adaptive/social functioning'. This means that the person will have difficulties understanding, learning and remembering new things, and in generalising any learning to new situations. Because of these difficulties with learning, the person may also have difficulties with a number of social tasks, for example communication, self-support, awareness of health and safety.

A final dimension to the definition, of a learning disability, is that these impairments are present from childhood, not acquired as a result of accident or following the onset of adult illness or accident. There is still a good deal of debate about the best way to measure 'significant' impairment, and the impact of impairments of social functioning. In order to be detained under the Mental Health Act 1983, "seriously irresponsible or aggressive behaviour" must be associated with the condition.

Learning difficulties are neurological (rather than psychological) and affect the way information is learned and processed, but do not affect intellect. For example, dyslexia is a learning difficulty. Another learning difficulty example is attention deficit hyperactivity disorder (ADHD), which is also neither a mental disorder nor a learning disability as it does not necessarily affect intellect. It is however more common in people with learning disabilities and studies have shown however that those who have ADHD are more likely to commit crime rather than those without it.

Autism (also known as Autism spectrum disorder) is not a mental health condition, it is a lifelong developmental disability that affects how people perceive and experience the world and how they interact with others. Autism is not an illness or disease and cannot be 'cured'. It is a spectrum condition. All autistic people share certain difficulties, but being autistic will affect them in different ways. Some autistic people also have learning disabilities, mental health issues or other conditions, meaning people need different levels of support. All people on the autism spectrum learn and develop. There are currently 700,000 autistic people in the UK, that's more than 1 in 100.

Asperger's Syndrome is on the autism spectrum disorder, but has less severe symptoms and is generally considered to be on the "high functioning" end of the spectrum. There is often not a significant delay in language development as there is with a general ASD diagnosis. People with Asperger's syndrome are of average or above average intelligence. They do not have the learning disabilities that many autistic people have, but they may have specific learning difficulties. They have fewer problems with speech but may still have difficulties with understanding and processing language. Prosecutors should note that while 'Asperger's Syndrome' is not a term used by the medical profession anymore, that people may still refer to themselves as having Asperger's and older medical records and reports may also use that term.

Dementia is caused by diseases of the brain that damage brain cells and cause them to die, or a stroke or series of strokes. Dementia is progressive and irreversible, which means the symptoms gradually get worse over time. How quickly this happens varies from person to person. The symptoms of dementia may include a decline in mental ability, usually with age, which affects memory, thinking, problem-solving, concentration, communication, perception, orientation and movement. Some changes in mood or behaviour may be experienced, including insight into, and ability to control, one’s behaviour. Each person will experience dementia differently Although dementia mainly affects people over the age of 65, younger people can also develop the condition known as young onset dementia. There are more than 40,000 people in the UK with dementia under the age of 65.

There are several types of dementia, and those affected can have a combination of more than one type, such as:

  • Alzheimer's disease is the most common form of dementia (around 60% of diagnoses), although comparatively rare for under-65s. It's thought to be caused by abnormal amounts of proteins in the brain that create plaques and tangles that interfere with and damage nerve cells.
  • Vascular dementia is the second most common form of dementia in the over-65 age group. It's an umbrella term for a group of conditions caused by problems with blood circulation to the brain. Causes can range from small blood clots, to blocked arteries, to burst blood vessels.
  • Frontotemporal dementia is the second most common form of dementia for under-65s. It is a group of conditions caused by the death of nerve cells and pathways in the frontal and temporal lobes of the brain.
  • Dementia with Lewy bodies (DLB), also known as Lewy body dementia, is a common type of dementia estimated to affect more than 100,000 people in the UK.

An acquired brain injury (ABI) is an injury caused to the brain since birth. There are many possible causes, including a fall, a road accident, tumour and stroke. Even after a minor head injury, brain function can be temporarily impaired and this is sometimes referred to as concussion. This can lead to difficulties such as headaches,dizziness, fatigue, depression, irritability and memory problems. While most people are symptom-free within two weeks, some can experience problems for months or even years after a minor head injury. The more severe the brain injury, the more pronounced the long-term effects are likely to be. Survivors of brain injury may have complex long-term problems affecting their personality, their relationships and their ability to lead an independent life. Even with good rehabilitation,support and help in the community, survivors and their families are likely to face uncertain and challenging futures. Some of the behavioural effects, such as decreased inhibition, irritability and aggression, may result in the survivor becoming more likely to come into contact with the criminal justice system.

Personality disorders are increasingly recognised as major mental health issues. They make people think, feel, behave and relate to others very differently from the average person. Symptoms vary depending on the type of personality disorder. A person with borderline personality disorder (one of the most common types) tends to have disturbed ways of thinking, impulsive behaviour and problems controlling their emotions. They may have intense but unstable relationships and worry about people abandoning them. A person with antisocial personality disorder may get easily frustrated and have difficulty controlling their anger. They may blame other people for problems in their life, and be aggressive and violent, upsetting others with their behaviour.