Updated 30/10/08

Mentally Disordered Offenders

•  Principle
• Guidance
  • Key documents
  • Code for Crown Prosecutors
  • Definition of Mental Disorder
  • The Decision to Prosecute
  • Mens Rea
  • Admissibility of Confessions
  • Diversion and Public interest Considerations
• Procedure
  • Fitness to Plead
  • Fitness to Plead in the Crown Court
  • Fitness to Plead in the magistrates courts (including youth courts)
• Trial Procedure
  • Use of Live Link for Mentally Disordered Offenders
  • Remands for Reports
  • Remands for Treatment
  • Interim Hospital Orders
  • Discontinuance

Principle

The CPS uses the term mentally disordered offender to describe a person who has a disability or disorder of the mind and has committed or is suspected of committing a criminal offence. This term covers a range of offences, disabilities and disorders.  A mental disorder may be relevant to:

•  The decision to prosecute or divert; 
•  Fitness to plead; and
•  Sentencing/Disposal.

There is no presumption either in favour of or against the prosecution of a mentally disordered offender. Each case must be considered on its merits, taking into account all available information about any disorder, and its relevance to the offence, in addition to the principles set out in the Code for Crown Prosecutors. 

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Guidance

Key documents

The key documents with set out the Services policy in dealing with cases in which the defendant has a mental disorder are:

1. The Code for Crown Prosecutors (the Code);
2. Home Office Circular 71/1984;
3. Home Office Circular 66/90 Provision for Mentally Disordered Offenders;
4. Home Office Circular 12/95 Mentally Disordered Offenders: Inter Agency Working; and
5. NHS/SMS/CPS Memorandum of Understanding on the Effective Prosecution of cases involving Violence and Abuse Against any Member of NHS Staff (July 2008)

Other relevant documents include:

1. Mental Health Act 1983;
2. Mental Health Act 2007;
3. Explanatory Notes to the Mental Health Act 2007;
4. Mental Health Act Revised Code of Practice ( Department of Health 2008);
5. Reference Guide to the Mental Health Act 1983 (Department of Health 2008); and
6. Police and Criminal Evidence Act 1984 Code of Practice: Code C Detention, Treatment and Questioning of Persons by Police Officers.

 

The Code for Crown Prosecutors

The Code explains that there is a balance to be struck between the public interest in diverting a defendant with significant mental illness from the criminal justice system and other public interest factors in favour of prosecution including the need to safeguard the public.
 
If there is significant evidence to establish that a defendant or suspect has a significant mental illness, a prosecution may not be appropriate unless it is needed in the public interest for example because of the seriousness of the alleged offence or the likelihood of re-offending. Information about the persons condition and the availability of any suitable alternatives to prosecution will be relevant and will need to be considered.
 
If proceedings have been started or are being considered and the CPS is provided with a medical report which states that the strain of criminal proceedings may lead to a considerable worsening of the defendants mental health, the implications of the report should be considered very carefully.
 
This is a difficult field because in some cases the defendant may have become disturbed and depressed by the mere fact that his or her conduct has been discovered, and any suggestions that continuing the criminal proceedings will significantly worsen the defendants condition should be evaluated carefully. In serious cases where a prosecution is plainly needed unless there is clear evidence that continuing the case would be likely to result in a permanent deterioration in the defendants condition, it may be appropriate to obtain an independent medical report. Where the prosecutor is satisfied that the probable effect on the defendants health outweighs the public interest considerations in favour of a prosecution, the case should be discontinued and full reasons recorded on the file.

 
Definition of Mental Disorder

Section 1(2) Mental Health Act 2007 amends section 1(2) Mental Health Act 1983 and provides a new definition of mental disorder as any disorder of disability of the mind.

The former categories of mental disorder (mental illness, mental impairment, severe mental impairment and psychopathic disorder) are abolished and the single definition applies throughout the Mental Health Act 1983.

Examples of clinically recognised mental disorders include personality disorders, eating disorders, autistic spectrum disorders, mental illnesses such as depression, bi polar disorder and schizophrenia, and learning disabilities.

Learning disability means a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning. (section 2(3) Mental Health Act 2007 inserts a new subsection 1( 2A) into the Mental Health Act 1983.)

Dependence on alcohol or drugs does not come within the meaning of mental disorder for the purposes of the Mental Health Act 1983 (section 1(3)).  However, mental disorders which accompany or are associated with the use of or stopping the use of alcohol or drugs, even if they arise from dependence on those substances, may come within the meaning of mental disorder for the purposes of the Mental Act 1983.

Section 1(3) Mental Health Act 1983 has also been amended to remove the former exclusion preventing a person from being regarded as having a mental disorder only by reason of promiscuity or other immoral conduct or sexual deviancy has been removed. This is because promiscuity and other immoral conduct are not clinically recognised as mental disorders.

Sexual orientation i.e. bisexuality, heterosexuality and homosexuality is not sexual deviancy nor a clinically recognised mental disorder and falls outside the scope of the Mental Health Act 1983.

Some sexual preferences are clinically recognised as mental disorders, and remain within the scope of the Mental Health Act 1983.

 

The Decision to Prosecute

Prosecutors will need information and evidence about any mental disorders at the earliest opportunity in order to review the case in accordance with the tests in the Code for Crown Prosecutors.

Information may come from the police, who have the following responsibilities set out in Home Office Circular 12/95:

• where the police have been advised of the defendants condition and prognosis by the Social Services, Probation Service, psychiatrists or other professional, who may advocate a particular approach or disposal, the advising agency should be encouraged to set out their views in writing. Where this is not possible, the police should summarise any views expressed to them orally;
• the police should include on the file a brief summary of their reasons for starting proceedings or their views as to whether the suspect should be prosecuted;
• the CPS should be informed if the defendant has been seen by a psychiatrist or arrangements have been made to have him or her assessed;
• if the police want to release the defendant on unconditional bail on the understanding that he or she will accept certain conditions (such as treatment or residence) they should be advised to keep the period of bail to a minimum. Preferably, the defendant should be bailed to the next available court for bail arrangements to be reviewed as soon as possible. Any informal conditions should be clearly stated on the CPS file;
• if there is a bail information scheme operating, advice from outside agencies regarding factors in favour of bail or available placements should be passed to the CPS via the Bail Information Officer. Where such procedures are not operating, such information should be given in writing by the authorised person via the police. It is important that any such information or advice from outside agencies is reliable, accurate and authoritative. You should avoid being lobbied in court with sensitive and important information given orally.

Information about the offender may come from a variety of sources and not just from the police. Information from some sources such as a relative, friend or gaoler may give rise to concerns that should prompt further investigation.
 
Many courts have schemes to facilitate the process of assessment and the provision of constructive and coherent reports to the courts. Where such a scheme is available, the offender should be referred to it for investigation and a report.
 
In the absence of such a scheme, prosecutors must consider whether the information supplied is sufficient upon which to base their decision. A recent report from a psychiatrist, community psychiatric nurse or social worker may provide sufficient information about the offenders mental disorder to allow the prosecutor to decide whether a prosecution is in the public interest. When the information is inconclusive or out of date, further information should be sought.
 
It will not usually be necessary for the information about the defendants mental state to be in the form of a statement before it can be considered. However, the information should be in writing and prosecutors must be satisfied that it is reliable before taking any decision based on it. All such information should be kept on the CPS file.

 
Mens rea

Every person of the age of discretion is, unless the contrary is proved, presumed by law to be sane and to be accountable for his actions: R v Layton (1849) 4 Cox 149.  Archbold 17-74. The onus is on the defence to establish insanity at the time of the offence on the balance of probabilities.

In all other cases, unless there is statutory authority to the contrary, the onus is on the prosecution to establish mens rea beyond all reasonable doubt, whether generally or when particular issues arise (Woolmington v DPP [1935] A.C.462) Archbold 17-5.

Prosecutors should be mindful of the mens rea requirements of specific offences and consider the impact of a mental disorder on the offenders ability to form the necessary mens rea. An independent medical report may be helpful.

Admissibility of Confessions

Although people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self incriminating. Care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a persons mental state or capacity. Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted wherever possible (Note 11C PACE Code C).

A person who is mentally disordered or otherwise mentally vulnerable must not be interviewed regarding their involvement in a criminal offence or asked to provide or sign a written statement under caution or record of interview in the absence of an appropriate adult (Paragraph 11.15 PACE Code C).

A confession by a mentally disordered offender may be excluded under section 76 or 78 Police and Criminal Evidence Act 1984. Archbold 15-354 15-373.

Where a confession is made by a mentally handicapped person i.e. one who is in a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning in the absence of an appropriate adult is not excluded, and the case depends wholly or substantially on that confession, the jury must be warned of the special need for caution before convicting in reliance on that confession (s77 Police and Criminal Evidence Act 1984).

• A case should be withdrawn from the jury if:
• The prosecution case depends wholly upon confessions;
• The defendant suffers from a significant degree of mental handicap; and
• The confessions are unconvincing to a point where a jury, properly directed could not properly convict upon them.
  (R v Mackenzie 96 Cr. App.R.98 CA)

 

Diversion and Public Interest Considerations

The Code for Crown Prosecutors states that alternatives to prosecution should be considered when deciding whether a case should be prosecuted. Rehabilitative, reparative and restorative processes can be considered, and alternatives to prosecution for adult offenders include a simple caution and conditional caution (paragraphs 8.1 and 8.2).

The National Standards for Cautioning require that the following conditions are met before a simple caution may be administered by the police:

• there is a realistic prospect of conviction;
• the offender admits the offence; and
• the offender (or appropriate adult) understands the significance of a caution and gives informed consent to being cautioned.

The National Standards for Conditional Cautioning require that the following conditions are met before a conditional caution may be administered:

• there is enough evidence to bring charges and it is in the public interest to do so;
• the offender has admitted the offence and is aged 18 or over;
• the offender agrees to accept the caution and to carry out the conditions;
• the most likely outcome of attending court would have been a small fine, compensation, conditional discharge or a community penalty at the lower end of the scale; and
• the use of reparative or rehabilitative conditions is felt to be the most effective way of dealing with the offending behaviour and/or recompensing the victim.

A caution or conditional caution will not be appropriate if there is any doubt about the reliability of any admissions made or if the defendants level of understanding prevents him or her from understanding the significance of the caution or conditional caution and giving informed consent. It should not be assumed that all mentally disordered offenders are ineligible for cautioning or conditional cautioning, but there is no definition of or restriction on the particular form of mental or psychological condition or disorder that may make an admission unreliable ( R v Walker [1998] Crim L.R. 211).

Where a caution or conditional caution is inappropriate, the only alternative to prosecution is to take no further action. In considering whether the public interest requires a prosecution, prosecutors should enquire whether:

• the police or Social Services have used their powers under sections 135 or 136  Mental Health Act 1983;
• the defendant has been admitted to hospital for assessment or treatment under sections 2 or 3 Mental Health Act 1983;
• the defendant is receiving supervised community treatment under a  Community Treatment Order made under section 17A Mental Health Act 1983;
• the offender has been admitted to hospital as an informal patient under section 131 Mental Health Act 1983; or
• an order for guardianship under section 7 Mental Health Act 1983 has been made.

However, the existence of a mental disorder is only one of the factors to be taken into account when deciding whether the public interest requires a prosecution. The seriousness or the persistence of the offending behaviour, the views of the victim and any responsible clinician should also be considered. 
 
The fact that a person is receiving compulsory treatment under the Mental Health Act 1983, or as an informal patient under section 131 Mental Health Act 1983, does not prevent a prosecution. However, a prosecution must not be pursued solely to treat and manage a mental disorder. The decision to prosecute or divert a patient receiving treatment under the Mental Health Act 1983 should be informed by additional information, including:

• medical reports from the responsible clinician to explain the nature and degree of the disorder or disability, and any relationship between the disorder and the treatment and behaviour of the offender; and
• any other relevant information from hospital staff about the treatment and behaviour of the patient, including the treatment regime and any history of similar and recent behaviour.

Where the patient is alleged to have assaulted a member of staff, prosecutors should refer to the NHS/SMS/CPS Memorandum of Understanding on the Effective Prosecution of cases involving Violence and Abuse Against any Member of NHS staff.    
 

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Procedure

Fitness to Plead

Fitness to Plead in the Crown Court

(Archbold 4-166a to 4-185)

The law on this topic was substantially amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and by sections 22, 24, 25, Schedule 2 and the provisions in respect of unfitness to plead and insanity in Schedules 10 and 11 to the Domestic Violence, Crime and Victims Act 2004 for all defendants arraigned after 31st March 2005. Transitional provisions are set out at paragraph 8 of Schedule 12 to the 2004 Act.

The question of fitness to plead may be raised before arraignment by the prosecution, defence or judge.

In the majority of cases it is likely that the defendant will respond to medical treatment and the trial will take place within a reasonable period .The defendant may be remanded to hospital for a report on his medical condition (section 35 Mental Health Act 1983) or for treatment (section 36 Mental Health Act 1983) while he is awaiting trial. Archbold 5-891 5-892.

In cases of serious or enduring disorder, the issue of fitness to plead should be determined.

If there is a reasonable chance that the prosecution case will be successfully challenged, the issue of fitness to plead should not be determined before arraignment, but postponed until a time before the defence case is opened (Archbold 4-170).  The issue of fitness to plead will be decided by the judge not the jury (ss 4 (5) Criminal Procedure (Insanity) Act 1964.

If the judge finds that the defendant is unfit to plead, the jury will decide whether the defendant did the act or made the omission (ss 4A (2) Criminal Procedure (Insanity) Act 1964).

If the jury finds that the defendant did the act or made the omission, the court must make one of the orders set out in Section 5 of the Criminal Procedure (Insanity) Act 1964 below.

Prior to making one of the orders, the court can remand the defendant to hospital for reports (section 35 Mental Health Act 1983), or for treatment (section 36 Mental Health Act 1983) Archbold 5-891- 5-892.  An interim hospital order (section 38 Mental Health Act 1983 and section 5A Criminal Procedure (Insanity) Act 1964) may also be made Archbold 5-893 and 4-175b.

Section 24 of the 2004 Act replaces section 5 Criminal Procedure (Insanity) Act 1964 with a new section 5 and 5A, which sets out the three disposal options when a defendant is found unfit to plead or not guilty by reason of insanity:

• Hospital Order under section 37 Mental Health Act 1983, with a restriction order under section 41 if necessary. The court will have no power to order admission to a psychiatric hospital unless there is medical evidence that justifies detention on the grounds of mental disorder.

Section 37 Mental Health Act 1983 as amended by ss 4(5) Mental Health Act 2007 sets out the criteria which enable both the Crown Court and a magistrates court to order hospital admission or guardianship.

Criteria for making a Hospital Order

1. The defendant must be:

• convicted of an offence punishable with imprisonment, other than murder; or
• found unfit to plead and to have committed the actus reus or made the omission  in Crown Court proceedings; or
• charged but not convicted of an imprisonable offence triable summarily and found to have committed the actus reus or made the omission in magistrates court proceedings

2.   The Court must be satisfied on the written or oral evidence of two doctors, at least one of whom must be approved under section 12 Mental Health Act 1983, that :

• the defendant is suffering from a mental disorder of a nature or degree which makes itappropriate for the defendant to be detained in hospital for medical treatment; AND
• appropriate medical treatment is available.

3.   The Court is of the opinion, having regard to all the circumstances, including the nature of the offence and the character and antecedents of the defendant, and to the other available methods of dealing with the defendant, that a hospital order is the most suitable method of dealing with the case.

4.   The Court is satisfied on the written or oral evidence of the approved clinician who would have overall responsibility for the defendants case, or of some other person representing the managers of the relevant hospital, that arrangements have been made for the defendant to be admitted to that hospital within the period of 28 days starting with the day of the order. 

NB.   A defendant suffering from a learning disability, as defined in s2A (4)  Mental Health Act 1983 (see Definition of Mental Disorder earlier in this guidance) shall not be considered by reason of that learning disability to be suffering from a mental disorder for the purposes of making a hospital order, unless that learning disability is associated with abnormally aggressive or seriously irresponsible conduct on his part (section 2A and 2B Mental Health Act 1983 as amended by Mental Health Act 2007).

"Appropriate medical treatment is defined in ss 3(4) Mental Health Act 1983, as amended by ss 4(4) Mental Health Act 2007 as medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case."

"Medical treatment" is defined in section 145(1) and (4) Mental Health Act 1983 as amended by section 7 Mental Health Act 2007 and includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care, as well as medication and other forms of treatment.

Restriction Order

Where the Crown Court makes a hospital order it may also make an order under Section 41 Mental Health  Act 1983, (a restriction order) that restricts the patients  discharge, transfer or leave of absence from hospital without the consent of the Secretary of State. (Archbold 5-898)

The Crown Court can make a restriction order if:

 at least one of the doctors whose evidence is taken into account by the court before deciding to make the hospital order has given oral evidence ; AND

it is necessary for the protection of the public from serious harm for the person to be subject to special restrictions, having regard to:

o the nature of the offence;
o the antecedents of the offender; and
o the risk of the offender committing further offences if set at large.

Supervision Order

The Supervision Order requires the defendant to be under the supervision of a social worker or probation officer for the period not exceeding 2 years as specified in the Order, and may include a requirement that the offender submits to treatment with a view to improvement of the medical condition and a residence requirement. It is described in section 1A to the Criminal Procedure (Insanity) Act 1964 (Archbold 4-176).

Absolute Discharge

The Crown Court may also make an absolute discharge (Archbold 4-175a).

Fitness to Plead in the Magistrates Courts (including Youth Courts)

Section 11(1) Powers of Criminal Courts (Sentencing) Act 2000 and section 37(3) Mental Health Act 1983  enable magistrates courts  to make an order in respect of an either way or summary offence without a trial, provided that the court is satisfied that the defendant did the act or made the omission with which he or she is charged. This procedure is to be used to determine fitness to plead in courts of summary jurisdiction, including the youth court (R (on the application of P) v Barking Youth Court (2002) EWHC 734 Admin)

These provisions also apply where the defendant is unable, by virtue of his mental disorder, to give consent as to mode of trial (R v Lincolnshire (Kesteven) Justices, ex parte OConner [1983] 1 WLR 335, DL).

Restriction Orders

The magistrates court has no power to make a restriction order, but where it has convicted a person aged 14 years or more of an offence punishable on summary conviction with imprisonment and it considers that a hospital order and restriction order should be made, it can commit the defendant in custody to the Crown Court to be dealt with for the offence. ( s 43 Mental Health Act 1983.)

Magistrates courts may remand a defendant to hospital for reports before making an order under section 37 Mental Health Act 1983.

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Trial Procedure

Use of Live Link for Mentally Disordered Offenders

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

A defendant aged 18 and over may give evidence in criminal proceedings in the magistrates court and the Crown Court using a live link if:

• he suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function; and
• he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court; and
• use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise (sec 33A (5) Youth Justice and Criminal Evidence Act 1999 as inserted by section 47 of the Police and Justice Act 2006); and
• the court is satisfied that it is in the interests of justice for the defendant  to give evidence through a live link.

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

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

The defence must apply for a live link direction, which prevents the defendant from giving oral evidence in the proceedings in any manner other than through a live link (sec 33A (6). The court may discharge a live link direction at any time if it appears in the interests of justice to do so of its own motion or on application by any party. (s33A (7) the court must give reasons in open court for giving or discharging a live link direction or for refusing an application for or the discharge of a live link direction. Those reasons must be recorded on the register of proceedings where the decision was made in the magistrates court, (s33A (8)).

Remands for Reports

Section 35 Mental Health Act 1983 sets out the provisions for the magistrates court and the Crown Court to remand the defendant to hospital in order for a report on his mental condition to be prepared Archbold 5-891.

 

The court can direct that the person is conveyed to and detained in a place of safety (as defined by section 135 MHA) pending admission to hospital provided that arrangements have been made for his admission to hospital within seven days of the remand.(section 35(5)MHA.
 
Custody Time Limits will not normally apply in the Magistrates Court as the remand will normally follow a conviction. However, they will continue to run in the Crown Court if the remand is before conviction or the start of a trial and in both the Magistrates Court and Crown Court if the defence have consented to the remand for reports. It may be appropriate to apply to extend Custody Time Limits pending the preparation of a report.

Remands for Treatment

Section 36 Mental Health Act 1983 contains the provisions for an accused to be remanded to hospital for treatment, instead of being remanded in custody, pending trial or sentence. This applies only to defendants appearing in the Crown Court Archbold 5- 5-892.
 
If the remand is before conviction or the start of a trial, Custody Time Limits will continue to apply.
 
This power may be used in cases where the defendant might otherwise be found unfit to plead, to enable a defendant to receive treatment prior to trial, which may proceed at a later date when the condition of the defendant has improved.

Interim Hospital Orders

 Section 38 Mental Health Act 1983 contains the provisions enabling the Crown Court and magistrates courts to make an interim hospital order Archbold 5-893.
 
The court must be satisfied on written or oral evidence of two registered medical practitioners that the defendant is suffering from a mental disorder and that there is reason to suppose that it may be appropriate to make a hospital order.
 
The interim order should be for a period not exceeding 12 weeks. It may be further renewed thereafter for 28-day periods, subject to an overall maximum period of twelve months.

Discontinuance

Where a decision is taken to terminate all proceedings in the magistrates court against such a defendant, a notice of discontinuance should be issued rather than the charges being withdrawn at court in the absence of the defendant.
 
When a remand prisoner is transferred to hospital by way of an order under Section 48 of the Mental Health Act 1983, the Home Office will inform the local Chief Crown Prosecutor by way of letter. At the same time, the hospital manager receiving the prisoner will also be sent notification by the Home Office, as will the Clerk to the Justices for the court where the defendants case is being heard.
 
If it is subsequently decided to discontinue all the proceedings against the defendant, the Medical Records Office of the hospital where the defendant is detained should be immediately informed by telephone. A copy of the discontinuance notice should then be sent to the hospital concerned, and to, Mental Health Unit, Home Office, 2nd Floor, Fry Building, 2 Marsham Street, London SW1P 4DF which has the responsibility for the administration of Section 48 orders.
 
Where the procedure under Section 23 of the Prosecution of Offences Act 1985 is used to discontinue some but not all charges, a copy of the Notice of Discontinuance should be sent to the hospital concerned, making it clear that the proceedings are continuing.
 
In cases where a defendant is remanded in custody to the Crown Court awaiting trial and a Section 48 order is made a letter will be sent to the Chief Clerk of the court where the defendants case is to be heard. This will be copied to the local Chief Crown Prosecutor.
 
The precise way in which a case may be disposed of in the Crown Court may vary according to circumstances, and be subject to discussions between the relevant parties. Any action taken which results in the disposal of the case against the defendant should be notified to Mental Health Unit, 2nd Floor, Fry Building, Home Office, 2 Marsham Street, London SW1P 4DF. Immediate contact should be made by telephone (020 7035 4848) followed by written confirmation (Fax Number 0207 7035 8974) (E-mail public_enquiry.mhu@home office.gsi.gov.uk).

 

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