Consultation on the CPS Legal Guidance on Mentally Disordered Offenders - Summary of Responses

|Publication

This is a summary of responses to the public consultation undertaken by the Crown Prosecution Service (CPS) on the revised legal guidance prepared to update its current Mentally Disordered Offenders legal guidance, and a statement of the revisions proposed which will form the finalised guidance to be issued.

We launched a 12-week public consultation on the proposed revised guidance on 12 March 2019. The purpose of the consultation was to provide interested persons with an opportunity to provide comments and to ensure the final version of the guidance was informed by as wide a range of views as possible.

The Consultation

The consultation was published on the CPS website and asked five questions:

Question 1
Do consultees agree or disagree with the proposed factors to be taken into account by prosecutors at the public interest stage? Do consultees propose any further factors to be taken into account at this stage?

Question 2
Do consultees agree or disagree that the new section on diversion from prosecution sets out the right factors for prosecutors to consider?  Is there anything else that should be taken into account?

Question 3
Do consultees agree or disagree that the guidance clearly and accurately sets out the procedures for fitness to plead?

Question 4
Do consultees agree or disagree that the information in Annex A covers the main features of conditions which prosecutors should be aware of when dealing with these cases? Is there anything else that should be taken into account?

Question 5
Do you have any further comments on the revised mental health conditions and disorders legal guidance?

Method of Analysis

We received 57 responses, all of which have been analysed. Whilst this summary intends to address the responses received, whether their broad nature or specific suggestions, it is not possible to set out or address each and every point made by respondents.

Summary of Responses to Specific Questions

All of the responses received were constructive and the large majority positive. At the outset however it is important to recognise those which were broadly less positive, including:

a.    One respondent indicated that significantly more was required in respect of the CPS’ Equality Act 2010 duties. We have reflected this in greater detail about this legislation and the inclusion, as suggested, of the social model of disability and intersectionality with race. We have further reflected this in improvements to the guidance on effective participation and diversion. We maintain that mental health conditions and disorders must continue to be dealt with in the terms of the public interest stage of the Full Code Test set out in the Code for Crown Prosecutors.

b.    One respondent suggested that prosecutors continue to lack an understanding of mental health and have insufficient specialism or expertise to deal with such cases. The CPS maintains that all of its prosecutors should be trained to take decisions in these cases given the prevalence of conditions. Whilst prosecutors benefit from better understanding about mental health in general, the central responsibility they have, as reflected in the guidance, is to make decisions according to the Code for Crown Prosecutors. The guidance, the consultation and the further revisions made have focused on this. We will consider how to take forward broader observations about the legal framework in which prosecutors operate, and their training, elsewhere.

c.    One respondent suggested that the guidance lacked examples of how it was to be applied to individual cases, suggesting it could have indicated that certain cases (more minor public order offences) should not be prosecuted where mental health is an issue and that there should be a presumption of diversion in cases where mental health is a live issue. The CPS maintains that it is important that the Code and this guidance sets out principles to apply in every case but that it should be recognised that individual cases are unique to their facts and that examples risk being misconstrued as template to follow in every such similar case. The CPS cannot undertake not to prosecute certain types of cases nor to have a blanket rule about diversion irrespective of seriousness.

Question 1

Do consultees agree or disagree with the proposed factors to be taken into account by prosecutors at the public interest stage? Do consultees propose any further factors to be taken into account at this stage?

There was broad agreement with the balancing exercise provided for by the Code for Crown Prosecutors and the guidance provided in relation to suspects and defendants with mental conditions.

Some respondents questioned the reference to “deterrence”. This reference relates in particular to deterrence in general rather than in relation to the specific offender, and that it may include those who did not have a mental condition at the time of the offence. The counter-balancing consideration, namely the impact of prosecution on the defendant, has been emphasised, including reference to both the proceedings and any likely sentence.      

Other respondents emphasised the care that needed to be taken in assessing whether or not a nominal penalty was likely: in some cases it was highly relevant to the future of the defendant’s care and wider safeguarding for a case to proceed to its conclusion.

There was encouragement for more factors provided for by the Code to be explicitly included, particularly the emphasis on taking into account the views of a victim and safeguarding those who care for suspects and defendants.

Specific changes as a result of feedback

The clarification that “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” has been added so as not to penalise those whose condition is not susceptible to treatment or who do not engage (for whatever reason).

The overarching Code consideration, that not all cases where there is sufficient evidence to prosecute will result in prosecution, has been included, with the proviso that a prosecution will usually follow unless the public interest factors tending against prosecution outweigh those in favour.

The views of a victim, particularly in cases which feedback indicated are relevant to suspects with a mental condition, namely those involving people serving the public and those caring for them, has been added.

Question 2

Do consultees agree or disagree that the new section on diversion from prosecution sets out the right factors for prosecutors to consider? Is there anything else that should be taken into account?

Respondents supported the emphasis on considering diversion in appropriate cases. The separate guidance on conditional cautioning was referenced by a number of respondents. This has now been updated, condensed and included in the guidance so it is readily available. It remains important to ensure that all suspects understand the allegation they are accepting and the consequences when a conditional caution is proposed. However the previous emphasis on restraint where the suspect has a mental health condition or disorder has been replaced by emphasising the importance that an understanding of its consequences is in fact achieved, particularly with reasonable adjustments.

Specific changes as a result of feedback

Separate guidance on conditional cautioning has now been updated and incorporated into the guidance. The importance of reasonable adjustments and ensuring where possible that those with mental conditions are eligible for diversion has been amplified and improved.

Question 3

Do consultees agree or disagree that the guidance clearly and accurately sets out the procedures for fitness to plead?

Respondents made a number of important observations which have been reflected in the guidance. These include indicating that any one of the Pritchard criteria may mean a defendant is unfit to plead, not all; clarification of which issues are to be left to a jury and those which are not; a reference to “orders” made not disposals; that reports may follow a finding of fact in the magistrates’ court, not precede it (a point which reflected the practical experience of a number of practitioners, from different roles); that if a hospital order or guardianship order is not going to be imposed that clarity is required about the public interest in such prosecutions in the magistrates’ court.

Respondents more broadly observed that in the magistrates’ court this might be better described as “fitness to plead” or effective participation and that it was not necessarily a satisfactory procedure, especially when an absolute discharge is not available (which has been added to the guidance) or a hospital or guardianship order is not an appropriate disposal.

Specific changes as a result of feedback

We have also reflected the desirability wherever possible of a defendant having a full criminal trial with the safeguards which are attached to this, through effective participation, rather than a procedure following a finding of unfitness.

Question 4

Do consultees agree or disagree that the information in Annex A covers the main features of conditions which prosecutors should be aware of when dealing with these cases? Is there anything else that should be taken into account?

This section is in two parts: the signposting of further information held elsewhere and some basic definitions of some conditions. Respondents welcomed the fact that information was being made available to prosecutors. Where suggestions for links to further authoritative information were made, these have been added. A number of respondents noted that the Sentencing Council is concurrently developing a guideline which includes, at their Annex A, a set of descriptions of conditions. The CPS will work with the Sentencing Council because we recognise that this list reflects at least some of the information consultation responses sought and because it is desirable that there is a common list of conditions relied upon. We will feed in perspectives informed by this consultation to that joint working. We will add these definitions when finalised to the guidance to update it.

One respondent suggested linking to the CPS psychological toolkit on the basis that it could equally inform and understanding of a suspect’s or defendant’s mental health condition, at least from the perspective of those representing them. We agree and have added a link to this toolkit.

We have sought to indicate that the symptoms of these conditions are indicative, and are not experienced by all (nor are they restricted always to those who have these conditions).

Question 5

Do you have any further comments on the revised mental health conditions and disorders legal guidance?

This was not a mere ‘catch-all’ question and in this consultation we saw constructive engagement which became invaluable to improving the guidance. A number of responses disclosed a careful consideration of the relevant law and how it could be better explained, for instance the passages on automatism and insanity, for which we are very grateful. Responses also led to the development of further sections of the guidance:

a.    One respondent noted that there was no guidance on resuming a prosecution, when a person has been unfit, found to have done the act alleged and has been made the subject of a hospital order with a restriction order. This is because this is contained in a separate protocol on which the CPS, HMCTS and MOJ have been working. This section has now been added as it is recognised to be of importance to provide guidance on procedure and practice on this complicated topic.

b.    A number of respondents raised the question of case management and the risk of ‘drift’. Some suggestions for case management have been added in a bespoke section on this topic. We intend to further add to this based on good practice identified by practitioners but consider this merits drawing attention to matters raised in the consultation which, together, made proposals for better “case management”.

c.    A good number of respondents raised the question of the material needed to inform decision-making at the point of charge. There was a combination of emphasis on focused identification of material and avoiding delay in decision-making with unnecessary enquiries or enquiries with little prospect of success, with a clear wish to see the guidance indicate the importance of obtaining and reviewing material to inform charge. A section has been added to outline the points of principle on this important topic. For the reasons outlined, it is difficult to be too prescriptive in this field: such guidance risks trammelling decision-making. The principles however reflect common responses from both the police and prosecutors received in the consultation: that a thinking approach to available material needs to be adopted, that it needs to identify with precision the nature of the material and the issue to which it relates.

A number of responses focused on the terminology used and urged consideration of maturity and neurodiversity more widely. In relation to terminology, the CPS has sought to set out how “mental health conditions and disorders” reflects a wide range of conditions and is intended as a non-stigmatising, non-technical term which nonetheless focuses on recognised conditions. Matters which are not recognised conditions are treated differently by the criminal law and are outwith the ambit of this project, however, we consider it important to acknowledge readily, as we have, the relevance of neurodiversity or immaturity (or indeed other matters, for instance, low IQ).

Next Steps

23.    The new CPS Guidance has now been published. This comprises of two new pages:

Conclusion

24.    We are very grateful to everyone who responded to the consultation. We recognise that there is more work to do on this topic, indeed more widely than the guidance. We will continue to reflect on how to keep the guidance as up-to-date and as effective as possible. We recognise the need for continuing engagement in this field. We wish to acknowledge that the guidance has been strengthened in its clarity and usefulness, in some cases in new and different respects, as a result of the responses received in this consultation.