Mental Health: Suspects and Defendants

• Principles
• Flagging
• Wider Legal Context – ECHR and Equality Act 2010
• The Civil Framework
• The Decision to Prosecute
• Diversion from prosecution
• Remand for defendants with a mental disorder
• General Case Management and Progression
• Trial Procedure
• Resuming a prosecution when a patient becomes fit to plead
• Sentencing
• Further information about specific conditions
•  

Principles

This guidance identifies the principles relevant to the decision to prosecute, and any prosecution which follows, of individuals who have disorders, disabilities, impairments, injuries and diseases, which relate both to the brain and the mind, including:

• a mental disorder, as defined by the Mental Health Act 1983 (MHA 1983)
• a learning disability
• a learning difficulty
• Autism Spectrum Disorder
• an acquired brain injury
• dementia, or
• other mental health, cognitive or neuro-diverse conditions

The fact that someone has a mental health condition or disorder may have a bearing on the decision to prosecute, but it may not.

Individuals with the same underlying mental health condition or disorder may be affected in different ways. The nature, extent and effect of the condition on an individual, together with the circumstances of the particular offence/s, should be considered on a case-by-case basis before making a charging decision. 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 subsequent 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 overall impact on the individual concerned.

Outside the ambit of this guidance, prosecutors should have regard to the mental functioning of a suspect or defendant even where this is not reflected in a recognised condition: when assessing the suspect's 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.

Flagging

Cases involving a suspect or defendant with a mental health condition or disorder should be flagged accordingly on Case Management System (CMS). The use of the flag is not limited solely to any condition that was existing at the time an offence was committed but should also be added at any point during the proceedings where it is identified or a prosecutor is informed that a suspect or defendant has a mental health condition or disorder.

Wider Legal Context – ECHR and Equality Act 2010

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."

Section 6 of the Equality Act 2010 (EA 2010) states that a person has a disability for the purposes of the Act if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. However, certain conditions are not to be regarded as impairments for the purposes of the EA 2010. They include alcohol dependency or addiction, a tendency to set fires, steal or physically/sexual abuse others, voyeurism and exhibitionism: see the Equality Act 2010 (Disability) Regulations 2010.

The EA 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; and
• a public sector equality duty (PSED): section 149

The PSED means the CPS as a public authority should 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 defendant's 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 MHA 1983 which covers compulsory admission to hospital, guardianship and community treatment orders. That a suspect or defendant is subject to these provisions, and their compliance with them, are factors to be taken into account when considering the decision to prosecute, the continuation of proceedings and/or an offender's bail status.

The provisions include:

Admission for assessment (section 2 MHA 1983)

Section 2 of the MHA 1983 allows a person to be admitted and detained in a hospital if they are suffering from a mental disorder of a nature or degree which warrants their detention for at least a limited period 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.

Admission for treatment (section 3 MHA 1983)

Section 3 of the MHA 1983 provides that a person can be admitted and 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, that they should receive such treatment and it cannot be provided unless they are detained in hospital, and two doctors agree that appropriate medical treatment is available.

Informal admission (section 131 MHA 1983)

Also known as "voluntary admission" section 131 MHA 1983 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.

Discharge

There are several 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 a patient's 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 make any relevant review or bail decisions after being provided this information by the police. This means taking into account the likelihood of discharge, if the fact a suspect or defendant has been detained is material to the prosecutor's decision. Prosecutors should be aware that a suspect or defendant's status may change upon review by the responsible clinician and that, if the statutory criteria for detention are no longer met, the patient may be discharged.

Community Treatment Orders

Following treatment in hospital under section 3 MHA 1983, a responsible clinician can order that a person is discharged under a Community Treatment Order (section 17A MHA 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 to hospital (section 17E MHA 1983) if, for example, they stop taking required medication or their mental health condition deteriorates.

Guardianship (section 7 MHA 1983) 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

Material available for a charging decision

Prosecutors must apply the Director's Guidance on Charging. The investigator must notify the prosecutor that the suspect's mental health condition or disorder may be a live issue. This must be done clearly in the request for early advice or for a charging decision, stating the grounds on which it is based and drawing the prosecutor's attention to any relevant material. 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 material to be provided in relation to a suspect's mental health condition or disorder may include, but is not limited to, the following:

• the Mental Health and Neurodevelopmental (MHND) Checklist for pilot Areas
• 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 about the suspect's condition
• any information provided by Young People's Services
• any information and/or risk assessments conducted by a Local Authority or Youth Offending Team, e.g. Assessment, Intervention and Moving On (AIM)
• any examination by the Force Medical Examiner
• any Education and Health Care Plan
• any information provided as part of an educational or clinical psychologist report
• any Autistic Diagnosis Observation Schedule (ADOS) Assessment
• 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; and
• details of any defence raised to the allegations and how this came about

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 including the name of the person providing them, when they provided this information, and the basis on which they were able to do so.

The prosecutor 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 question is what is required in order to apply the Code for Crown Prosecutors.

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 evidence 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 prosecutor 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 prosecutor 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, such a request is not clear about what the evidential and/or public interest relevance of such evidence might be. 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, a prosecution may nonetheless proceed even where a defendant is likely to be found not guilty by reason of insanity, or is unfit to plead.

Prosecutors should record clearly their consideration of the suspect's mental health in terms of the evidential and public interest stages of the Code for Crown Prosecutors, whether they decide to charge, set an action plan or to take no further action. Mental health conditions do not provide a carte blanche for criminal culpability or an automatic exemption from liability. 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, it may not be possible to obtain details on a suspect's condition from their medical records or by way of assessment.

A medical professional may:

• refuse to provide medical records – especially if the suspect does not consent to their release
• 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 – they may be able to comment professionally on some matters and not others

There is no pre-charge power to compel the production of medical records, unless, exceptionally, the second set of access conditions in Schedule 1 Police and Criminal Evidence Act 1984 are met – i.e., there is some other statutory provisions to obtain medical records prior to the 1984 Act, preserved by it.

If a medical professional is asked for their opinion about a suspect's condition, they are entitled to understand the rationale (explained in terms of the evidence or public interest) for the matters on which their opinion is sought. A medical professional cannot be compelled to undertake an assessment, nor can a suspect.

Where an investigator is unable to obtain further material, this should be recorded in writing and explained to the prosecutor, who may provide advice if they believe there is a lawful power to obtain such material.

When no further material can be obtained, the charging decision must be taken on the information available. Further information about a suspect's mental health condition or disorder may also only become available post-charge. The section on case management below emphasises the importance of addressing this effectively, once proceedings are in motion.

In summary, it is very important for prosecutors to be aware of mental health conditions or disorders at the point of charge, and to consider carefully what, if any, relevance this has to the evidence, and the public interest stages set out in the Code for Crown Prosecutors.

The suspect's mental health condition or disorder may be a highly relevant factor in some charging decisions and in others it may not. Where possible, information should be obtained before a charging decision is made, but only where it is demonstrably relevant: it may not be possible to obtain and may only become available post-charge.

The Threshold Test

In limited circumstances where the Full Code Test is not met, the Threshold Test may be applied: see part 5 of the Code for Crown Prosecutors. If the prosecutor concludes that the Threshold Test is met, including condition 4 (there are continuing substantial grounds to object to bail and in all the circumstances of the case it is proper to do so) then the defendant should be remanded in custody to appear in court. They can then be transferred to hospital if they urgently need treatment, by direction of the Secretary of State, but they must first be remanded in custody. See section 48 of the Mental Health Act 1983 and the legal guidance on Bail, especially the section on defendants with mental health conditions and disorders. In these cases, the Custody Time Limit (CTL) continues to run notwithstanding the defendant is detained in a hospital not a prison.

When considering whether there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976, 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, but only where these would address the bail risk. These include section 2 of the MHA 1983 (admission to hospital for assessment) or section 136 of the MHA 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); and
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

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 suspects 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. This should be included when the case is referred to CPS for review along with 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 MHA 1983 is not appropriate.

It is of critical importance to note that these powers only last as long as the legal requirements for detention are met and will result in the defendant's release when they are not. If there are Bail Act grounds to refuse bail, prosecutors must oppose bail: a transfer direction can be considered thereafter.

Evidential stage: introduction

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

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 prosecutors should consider its admissibility and the weight to be attached to it. Further, prosecutors should consider whether a suspect is likely to raise a viable defence and if so, what the prospects are of disproving it beyond reasonable doubt. What consideration needs to be given to each will depend on a case-by-case basis and each heading may or may not be relevant depending on the offences alleged and the evidence. However, this structure is proposed so that prosecutors are alert to different elements of the evidential stage where mental health conditions or disorders may be relevant.

Actus reus

The suspect's mental health condition or disorder may be a live consideration but as with all suspects, prosecutors must be satisfied that there is sufficient evidence to prove the act or omission alleged.

Mens rea

There are several ways in which a suspect's mental state may be relevant to whether a prosecutor can prove that they had the mens rea for the offence alleged.

The evidence of mens rea may come from tangible evidence, for instance if the suspect's 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 has a heated confrontation with another person, makes an angry remark and strikes the other person may (at the least) be deemed to be reckless as to causing them an injury. A suspect who repeatedly and continuously strikes another person, for instance, may be deemed to intend to cause injury.

Whatever the source of the evidence, it must be scrutinised to assess how and why it is said to bear on the suspect's mental state at the time of the alleged offence. See for example R v Henry [2005] EWCA Crim 1681. In this case, expert evidence concerned the defendant’s suggestibility, but it fell short of demonstrating very low IQ or mental illness. This was deemed inadmissible, both in support of the defendant's defence of lack of intent, and in support of the defendant’s credibility in advancing this defence. 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 R v 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, including:

• the credibility of any explanation provided by the suspect, both on its own terms and in the context of other evidence in the case. It may lack credibility on its own terms, when analysed as an explanation. Its credibility may lie with other issues in the case, e.g. alibi, or other dispute of fact which the jury will have to determine. Before considering expert evidence, prosecutors should first consider whether any other material is available or could be available to support the suspect's explanation; and
• the weight to attach to expert evidence, and the extent to which it is relevant to the mens rea for the alleged offence. Does it take the suspect's 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 suspect's own explanation? Should the jury first be determining other disputes of fact before considering the suspect's mental state? Is the evidence relevant to the time of the offence (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?

Confession evidence

Part of the evidence against a suspect, in respect of an act or omission and/or the mental element required may come from a statement they have made which is wholly or partly adverse to them. The suspect may make such a statement in their police interview but it applies equally to any statement relied upon wholly or adverse to them, for instance, documents they have written and/or 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 (PACE 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 PACE 1984, noting also the need for special caution in section 77 PACE 1984; and
• 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

Prosecutors should refer to the Confession, Unfairly obtained Evidence and Breaches of PACE legal guidance for further information.

Appropriate Adults

Prosecutors should be aware of the PACE Code requirements relating to the identification of vulnerable suspects and the appropriate adult safeguard. These are primarily set out in Code C for criminal matters and Code H for terrorism matters.

Vulnerable persons

The police must secure an appropriate adult if, at any time, an officer has any reason to suspect that a person whom they have detained in custody, or who attends an interview under caution voluntarily, may be a ‘vulnerable person’ as defined in Code C 1.13(d)/Code H 1.13(d).

The appropriate adult must be secured as soon as is practicable if one or more of the vulnerability factors may apply, unless there is clear evidence to dispel that suspicion (Code C 1.4, 3.15/Code H 1.10, 3.17).

While this will often be due to a mental health condition or disorder as defined in the MHA 1983 Code of Practice, PACE Code C, note 1G/PACE Code H, note 1G is explicit that this is not a requirement.

On each occasion, the police must make reasonable enquiries to ascertain what information is available that is relevant to any of the above factors. The seriousness of the offence is not a factor. The appropriate adult is a mandatory procedural safeguard imposed on police and, unlike the right to legal advice, cannot be waived by the person suspected of an offence.

Children

In addition to being at an earlier stage of cognitive development than adults, there is a high prevalence of neurodiversity amongst children, which may be undiagnosed. The PACE definition of a "vulnerable person" applies to suspects of any age. However, Code C requires that all children have an appropriate adult, whether or not they meet the PACE definition of a vulnerable person.

Role of the appropriate adult

The appropriate adult safeguards the rights, entitlements, and welfare of children and vulnerable persons throughout a period of detention or during a voluntary interview.

The police must advise the appropriate adult that they are expected, amongst other things, to:

• provide non-legal support, advice, and assistance
• check on fair and proper treatment, informing a senior officer if necessary
• assist with communication; and
• ensure the protection and understanding of rights and entitlements

A person has the right to speak to their appropriate adult in private at any time. These consultations are confidential under common law but do not attract legal professional privilege.

The appropriate adult has the right to ask for a solicitor to attend even if the person has declined legal advice. Police must action this as if it were a request from the person themselves. A person may choose to consult with their solicitor in the absence of their appropriate adult. However, the presence of an appropriate adult at a conversation which would otherwise attract legal privilege does not destroy that privilege (A Local Authority v B [2008] EWHC 1017 (Fam).

Involvement of appropriate adults in PACE processes

Police must involve appropriate adults in a wide range of procedures and processes, as defined in the PACE Codes. For example, this includes during:

• the explanation of the person's rights and entitlements
• whenever the person's consent is requested or given
• some strip or intimate searches and samples
• fingerprint taking and some other identification procedures
• some drugs tests
• interviews (unless urgent and authorised under Code C 11.18/Code H 11.11)
• reviews or extensions of detention
• pre-charge bail to enable a CPS charging decision (if present); and
• charging, or diversion

The types of involvement and exceptions are complex. However, the physical presence of the appropriate adult is often required, including but not limited to during interviews, non-urgent strip searches, and samples taken for identification purposes (See PACE Code D 2.15).

Appropriate adults in interviews

Appropriate adults are not simply an observer in interviews. They are expected to be an active participant, addressing the vulnerability risk factors set out in Code C 1.13(d)/Code H 1.13(d), including the risk of a vulnerable person providing unintentionally unreliable or self-incriminating information. They must ensure that: a person fully understands their rights, including the right to say nothing when questioned unless they want to as per the caution; that the interview is conducted fairly, and police do not abuse their position; and that the person understands and is understood. See Code C 11.17/Code H 11.10 and R v Martin Lewis [1995] WL 1084724.

However, appropriate adults may not unreasonably obstruct proper questions being put, or responses being recorded (see Code C 11.17A). Unsolicited confessions made to an appropriate adult will not fall to be excluded under section 76 PACE nor will inculpatory statements made to an appropriate adult automatically be rendered inadmissible under section 78 PACE (see R v Ward [2018] EWCA Crim 1464).

Implications for prosecutors

Where police have recorded the need for an appropriate adult, this provides a strong indication to prosecutors that (in the case of an adult) the person was mentally vulnerable at the time of the detention or voluntary interview – although not necessarily at the time of the offence.

Where there are concerns regarding possible mental health conditions, disorders, or other factors relevant to Code C 1.13(d)/Code H 1.13(d), but the appropriate adult safeguard was absent, limited or ineffective, prosecutors should consider the following potential implications:

• Article 6 of the ECHR, Article 13 of the UNCRPD (and in relation to children, Article 40 UNCRC) apply at the investigative stage. Appropriate adults are a key procedural accommodation supporting the right to a fair trial and access to justice
• the presence (or absence) of an appropriate adult may impact on the weight to be attached to any statements made by the suspect at the police station and/or their admissibility
• the failure of police to secure an appropriate adult can engage section 76 PACE (Confessions), section 77 (Confessions by mentally handicapped persons) and section 78 (Exclusion of unfair evidence)
• the words "anything said or done" in section 76 are wide enough to include the interviewing of a vulnerable person (PACE Code C) without the presence of an appropriate adult (R v Gill [2004] EWCA Crim 3245). The absence of an appropriate adult might therefore render any confession made at that time unreliable (R v Wilding [2010] EWCA Crim 2799). This includes where the appropriate adult is unable to discharge the responsibilities of the role – for example due to having a low IQ themselves (R v Morse [1991] Crim LR 195) or because they are estranged from the person they are meant to support (DPP v Blake [1989] 89 Cr. App. R. 179)
• appropriate adults are an "independent person" for the purposes of section 77 PACE. This means that where a confession has been made in the presence of an appropriate adult there is no requirement for the court to warn the jury of a need for special caution before convicting the defendant see R v Kenny (David) [1994] Crim LR 284; and R v Lamont [1989] Crim LR 813
• the failure of police to secure an appropriate adult may also lead to the exclusion of evidence under section 78 PACE. For example, in Miller v DPP [2018] EWHC 262 (Admin) the Court held that evidence should have been excluded under section 78 PACE where the defendant (who had learning difficulties and autism) was not provided with an appropriate adult and was later convicted of refusing to provide a specimen of blood in breach of section 7 of the Road Traffic Act 1988. The court highlighted how the appropriate adult would have had a calming influence and would have enabled the defendant to understand the purpose of obtaining the specimen and the consequences of failing to comply with the request

Defences

Having considered the actus reus and mens rea a prosecutor should consider any likely viable defence. This guidance is not able to cover the full range of defences available across the breadth of the criminal law and prosecutors must consider the defences specific to each case. In general, where a person's genuine (even if mistaken) belief amounts to 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: R v B [2013] EWCA Crim 3.

Three potential defences are considered below: self-defence or defence of another, duress and automatism. In each case, once they have properly been raised, the burden is on the prosecution to rebut them to the criminal standard of proof. Therefore, when assessing whether there is a realistic prospect of conviction, prosecutors will need to assess 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

Prosecutors should refer to 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 to be; and
2. if so, was the force used reasonable?

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: R v Ibrahim [2014] EWCA Crim 121; R v 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: R v Taj [2018] EWCA Crim 1743.

The second question 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: see Martin (which suggested that expert evidence might be possible in exceptional circumstances), R v Canns [2005] EWCA Crim 2264 and R v 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: R v Gotts [1992] 2 AC 412. Prosecutors should refer to the relevant CPS legal guidance on Duress and Necessity.

The question of whether a threat or circumstances compelled a person to act as they did involve 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: R v 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, 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. It is available where the person's consciousness was so impaired that they were acting in a state of physical involuntariness and had lost the ability to consciously control their actions such that they cannot be held culpable for the actions or omissions which followed.

There are generally two types of automatism:

1. Insane automatism: this results from an internal cause or disease of the mind. In the Crown Court, if established, it results in a special verdict of not guilty by reason of insanity being returned. The court has a limited range of orders it can make upon such a verdict (see below). In the magistrates' court this is a complete defence which, if proved, results in acquittal. The reference to insanity in this context is a legal one (see below) and not a medical one. Prosecutors apply the legal definition of insanity when making prosecution decisions.
   
   Examples include epilepsy: R v Bratty [1963] AC 386; R v Sullivan [1984] AC 156, hyperglycaemic state due to not taking insulin for diabetes: R v Hennessy (1989) 89 Cr. App. R. 10, sleepwalking: R v Burgess (1991) 93 Cr. App. R. 41, arteriosclerosis: R v Kemp [1957] 1 QB 399.
2. Sane or non-insane automatism: this results from causes other than a disease of the mind, namely external factors which led to a loss of control. This amounts to a complete defence and therefore it results in acquittal.
   
   Examples include reflex to being attacked by a swarm of bees: Kay v Butterworth (1945) 61 TLR 452, a blow to the head causing concussion: Hill v Baxter [1958] 1 QB 277, an injection of insulin: R v Quick [1973] QB 910. Sleepwalking may also occur from external causes, and this defence has been raised in sexual offence cases, sometimes described as "sexsomnia".

The areas which a prosecutor may scrutinise include whether:

• there was a total loss of control or control was merely impaired
• the suspect could have reasonably foreseen the condition
• there was any sign of its onset
• anything could have been done to avoid it; and
• whether it was self-induced

On the latter point, prosecutors should be ready to argue that automatism cannot be raised as a defence where it results from self-induced intoxication. This is not a settled question of law in England and Wales although the Scottish High Court of Justiciary has held that the defence is not available in these circumstances: Finegan v Heywood, The Times, May 10 2000.

It is essential that this defence is robustly challenged. First, a judge has to decide whether, as a matter of law, a proper evidential foundation has been raised for the defence to be put to the jury. This is likely to involve the defence adducing expert evidence:

"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 QB 277, 42 Cr. App. R. 51.

Such evidence for the defence should almost always be analysed by an expert for the prosecution. Even when there is sufficient evidence for the defence to be left to the jury, this defence can be robustly challenged in the evidence before the jury, including on the grounds outlined above.

There may be other circumstances in which such automatism is raised as part of a defence rather than a defence in itself, for instance, in respect of the actions of the victim. This too should be subjected to robust scrutiny in the same way.

Partial defences to murder: loss of control

Section 54 of the Coroners and Justice Act 2009 creates a partial defence to murder of "loss of control" such that a person is to be convicted of manslaughter, and not murder. It does not operate to absolve the defendant of liability completely. It is not a general defence and exists only for the offence of murder. For further details prosecutors should refer to the CPS legal guidance on Homicide - Murder and Manslaughter.

Section 54(5) CJA 2009 clarifies the burden of proof for loss of control. Sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. It is a matter of law and therefore an issue for the judge to decide whether there has been sufficient evidence raised to put the partial defence before a jury. Thereafter, the prosecution retains the legal burden of proving, to the criminal standard, that the defence is not satisfied. Provided the following statutory conditions are met, loss of control should be left to the jury:

• 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); and
• 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

In R v 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 reduced 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 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 (1) arise from a recognised medical condition; (2) 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 R v Golds [2016] UKSC 61; and (3) provides an explanation for their acts or omissions in killing.

Voluntary acute intoxication cannot give rise to a defence of diminished responsibility: R v 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: R v 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: R v Joyce and Kay [2017] EWCA Crim 647.

Evidential stage: relevance of insanity and fitness to plead

The Code for Crown Prosecutors sets out that a prosecution may only proceed where there is a realistic prospect of conviction. Neither the special verdict of not guilty by reason of insanity ("special verdict") nor a finding that "the person did the act or omission alleged" ("a finding") amount to a conviction. However, the Code for Crown Prosecutors provides that "realistic prospect of conviction" should include the special verdict or a finding being the likely outcome of a prosecution: paragraph 4.6.

The rationale for this is set out below:

• parliament has provided for the special verdict or a finding to be the outcome of a prosecution. These provisions would never be used if, every time a prosecutor concluded one of these outcomes (and not a conviction) was the likely outcome, they were bound not to prosecute because there is no realistic prospect of conviction. See, in relation to insanity, R (on the application of Johnson) v CPS [2019] EWHC 317 (Admin)
• however, a prosecutor must still be satisfied that there is sufficient evidence to proceed. Otherwise, those who are insane or not fit to plead would be in a worse position. It must still be more likely than not that a special verdict will be returned, or a finding that the defendant did the act or omission alleged. If the defendant is more likely than not, or as likely, to be acquitted, no prosecution should take place
• 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: R v 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."

What does "insane" mean?

To establish the common law defence of insanity, it must be proved that, at the time of committing the act, the suspect was labouring under such a "defect of reason" arising 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 - R v Johnson [2007] EWCA Crim 1978 and R v M'Naghten [1843] 8 ER 718.

"Insanity" in this context 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): R v Sullivan [1984] AC 156.

Insanity does not mean an absence of mens rea. A suspect who strikes another person in a confrontation causing injury is likely to be reckless as to cause injury 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 strikes another person in a confrontation causing injury is likely to intend to cause injury 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?

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.

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 of not guilty by reason of insanity or by an acquittal in the youth or magistrates' court.

The tribunal of fact must be:

• satisfied by the prosecution to the criminal standard 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

What are the implications of a verdict of not guilty by reason of insanity?

Where a court has reached a special verdict, the court must make one of the following orders, by virtue of section 5(1)(a) and (2) Criminal Procedure (Insanity) Act 1964:

• a hospital order (with or without a restriction order)
• a supervision order; or
• an order for absolute discharge

In the magistrates' court insanity 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) MHA 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

Paragraphs 4.9 to 4.13 of the Code for Crown Prosecutors provide the framework to consider whether a prosecution is required in the public interest. 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 cases where mental health or disability is a live issue the prosecutor 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. Care is required where proceedings are likely to have a significant detrimental impact on the health of the defendant, and if they are to continue, in identifying the public interest considerations which merit prosecution.

Prosecutors should then consider the following factors.

1. the seriousness of the offence: seriousness is not made out simply where the outcome of proceedings is likely to result in more than a nominal/minor penalty. It will depend on the facts and merits of each individual allegation. The Code for Crown Prosecutors provides at 4.14(b) and (c) for considerations relevant to seriousness, namely an assessment of culpability and harm
2. the need to safeguard the public or those providing care: a prosecution is more likely to be in the public interest where the risk of harm to others through reoffending is high
3. the likelihood of repetition: an assessment 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.

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 the views expressed by the victim about the impact that the offence has had on them. 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 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. Deterrence may also be secured by means other than court proceedings
• justice may be achieved for victims by the formal finding of a court. The views of victims should be balanced against the purpose and likely outcome of any hearing; and
• public confidence in the administration of justice may be upheld by hearing the evidence of complainants, understanding the legal defence for acts committed by the defendant and seeing how the legal system accommodates accused persons who have serious mental health conditions or disorders

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.

A finding or conviction may also have a bearing on forensic risk assessments of a patient.

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 are nonetheless entitled to consider whether a prosecution remains proportionate where a defendant has been receiving treatment for a long period of time, the hospital order is likely to continue but no further treatment is required.

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. If there is a change of circumstances the decision should 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

Prosecutors should refer to paragraphs 7.1 and 7.2 of the Code for Crown Prosecutors when considering an out of court disposal. Effective diversion should be as available to those with mental health conditions as with all defendants.

Prosecutors should consider in appropriate cases whether diversion meets the public interest in a case. 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.

Diversion 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 diversion 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 diversion. When such a disposal appears to be in the public interest, information and advice should be sought from the Liaison and Diversion Service 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 considering 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.

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 asked for their views 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 included unless the victims’ views have been sought and the victim agrees.

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 drugs or alcohol) and a suitable scheme providing therapy and /or counselling is operating locally and available, 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 diversion 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 Children: Suspect and Defendants legal guidance. Otherwise, the only alternative diversion to prosecution is to take no further action.

Liaison and Diversion Services

Liaison and Diversion (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.

Prosecutors should be aware of what local 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. L&D services may be available both in custody and the court to inform the decision to charge and/or to proceed with a prosecution. A full list of L&D services and regional contact details is available in the NHS.UK L&D Regional Contacts resource page.

Prosecutors are reminded that L&D services are a neutral service and cannot provide witness statements for either the defence or prosecution. L&D services follow NHS guidance on disclosure of information by health and care organisations to the police. Any relevant reports submitted by L&D services are made available to all legal teams with the consent of the suspect or defendant.

The service can then support people through the early stages of the criminal system pathway, refer them for appropriate heath or social care or enable them to be diverted away from the criminal justice system into a more appropriate setting, if required.

L&D services aim to improve overall health outcomes for people and the support people in the reduction of re-offending. Diversion from prosecution may occur, or treatment and assistance concurrent to a prosecution may follow. 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: 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.

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 to hospital for reports

Section 35 MHA 1983 sets out the provisions for the magistrates' court and the Crown Court to remand a defendant to hospital in order for a report to be prepared on their mental condition. 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 to hospital if the court is satisfied, on the written or oral evidence of a registered medical practitioner, that there is reason to suspect that they are suffering from a mental disorder and the court is of the opinion that it would be impracticable for a report on their 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 MHA 1983) pending admission to hospital provided that arrangements have been made for their admission to hospital within seven days of the remand (section 35(4) MHA 1983).

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

In relation to a fact-finding hearing, it used to be the case that the CTL stopped when a jury was sworn to consider the issue of fitness to plead (under the Criminal Procedures (Insanity) Act 1964), but now, following an amendment by section 22 of the Domestic Violence, Crime and Victims Act 2004, the judge makes this finding before a jury is sworn. Whether this finding by the judge ends the CTL is uncertain as the Act made no amendment to clarify when the "start of the trial" is deemed to occur i.e., whether it is when the judge decides the fitness issue or when a jury starts to consider whether the offender committed the act. The judge should therefore be asked if the CTL has stopped: if not, it will have to be monitored until a jury is sworn.

Remand to hospital for treatment

Section 36 MHA 1983 allows an accused to be remanded by the Crown Court to hospital for treatment, pending trial or sentence. 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.

CTLs 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, MHA 1983, or an existing section 37 or section 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; and
• 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 CTL 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 to hear prosecution evidence, either to prove the act or omission alleged, or in considering whether to make a hospital order under section 37(3) MHA 1983. See above for the need to obtain clarity from the judge as to when the CTL ceases in the Crown Court, which may require monitoring until a jury is sworn.

Where a defendant is remanded to a hospital, prosecutors should 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.

General Case Management and Progression

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.

All parties should ensure that progress is made with the obtaining of a report and avoid unnecessary hearings. Directions should be sought, and updates provided to the court via correspondence instead. Prosecutors may need to indicate if there is an intention to proceed with the case even if a finding of fact hearing is to follow and explain that a CTL extension may be sought. The court should be advised that any such indication is subject to the prosecutor's duty of continuing review. Prosecutors should draw the court's attention to statutory provisions for timescales - such as those for the magistrates' court in section 11(2) Power of Criminal Courts (Sentencing) Act 2000.

Prosecutors should note CrimPR 3.10 and CrimPD 1: General Matters (3P Commissioning Medical Reports), in particular the court's power to commission a medical report 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 (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 section 4 – 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 (sections 4(2) and (4(4)).

A judge must determine if the defendant is fit to plead. If the defendant raises the issue, this determination is made on the balance of probabilities. If the defendant contests the issue then it is for the prosecution to satisfy the court to the criminal standard (R v Robertson [1968] 1 WLR 1767).

In order to satisfy the court that the defendant is not fit to plead, 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 and R v John M [2003] EWCA Crim 3452, following R v Pritchard [1836] EWHC KB 1)

The prosecutor should consider whether modifications to the trial process or special measures may be sufficient to meet the defendant's needs and therefore ensure that they are capable of the matters listed at 1 to 6 above.

If the judge finds the defendant 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 unfit to plead, then a fact-finding hearing will take place after which the jury will determine whether or not the defendant did the act or made the omission alleged, without consideration of the defendant's mens rea. 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".

The distinction is not always clear-cut, but, in general defences based on mens rea (lack of intent, diminished responsibility) are not to be left to the jury in such circumstances: R v Grant [2001] EWCA Crim 2611. However, where there is objective evidence of self-defence, mistake or accident this can be left to the jury to determine: R v Antoine [2001] 1 AC 340.

If the jury is not satisfied to the criminal standard, the defendant shall be acquitted. If the defendant is found to have committed the acts to the criminal standing the court will impose one of the orders outlined in section 5(2) Criminal Procedure (Insanity) Act 1964:

• a hospital order (with or without a restriction order)
• a supervision order (with or without a treatment and/or resident requirement); or
• an order for his absolute discharge.

Prosecutors should 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. When this occurs, the Secretary of State has a power to remit the case back to court for a criminal trial (see below).

The case of R v 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: the magistrates' court and youth court

The law

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 held that the statutory framework for dealing with issues of fitness to plead in the magistrates' court is set out by a combination of section 37(3) MHA 1983 and section 11(2) Power of Criminal Courts (Sentencing) Act 2000. A youth court is to be regarded as a magistrates' court within the meaning of section 37(3) MHA 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 37(3) MHA 1983 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) MHA 1983).

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 as provided in section 11(2) PCC(S)A 2000.

Considerations for prosecutors

Prosecutors should note that these provisions apply to summary only and either way offences that are imprisonable. 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.

Section 37 does not apply to non-imprisonable offences. It is therefore unlikely to be in the public interest to prosecute a defendant who is unfit to plead and faces a non-imprisonable allegation.

When considering fitness to plead, prosecutors must take each case on its own facts and progress them in the most appropriate way, and where possible, endeavour to progress cases at the first hearing.

To ensure that cases are dealt with effectively, and in the best interests of all parties involved, prosecutors must remain alert to a defendant's fitness to plead and rigorously apply the Code for Crown Prosecutors. Cases cannot be adjourned without a realistic prospect of timely progression, and full regard must be had to the appropriate use of Schedule 1 Bail Act 1976.

Procedure

In R (P) v Barking Youth Court [2002] EWHC Admin 734, the court said that the procedure is first to determine whether the accused 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) MHA 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.

It is permissible for a hearing which begins as a criminal trial to switch to a "fact finding" inquiry at any stage (Crown Prosecution Service v P [2007] EWHC 946 (Admin)). 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. Further such evidence should be obtained following any finding made. At this stage there must simply be sufficient evidence that the alternative procedure may be appropriate
3. the prosecution will review the case. In particular, the prosecution will consider the likelihood of a hospital or guardianship order
4. a criminal trial or "fact finding" hearing 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 section 37(3); and
6. if the defendant is found not to have committed the act, then a "not guilty" verdict is recorded

There will be cases where no hospital or guardianship order will be appropriate and yet prosecution is required in the public interest. This amplifies the importance of effective participation and clarity about what the public interest in prosecuting the defendant is. The following is best practice where this course of action is taken.

1. All prosecutors must seek to arrange an actus reus/trial hearing at the first hearing.
2. If represented, the defendant does not need to attend court for the first hearing.
3. Prosecutors must request court directions that the defence obtain the necessary two reports required if the defendant is to be recommended for a hospital order or guardianship order under section 12 MHA 1983.
4. Prosecutors are reminded that the defence obligation to obtain reports, for the purposes of arguing a particular route for the trial process, is not limited to section 12 MHA 1983 reports. Reports should also address the issue of mental disorder/insanity at the time of the offence so that all stakeholders know the issues in the case. This should be dealt with when the Preparation for Effective Trial Form (PET) form is completed.
5. Prosecutors are also reminded that, under section 37 MHA 1983, a report from the Responsible Clinician with overall responsibility for the defendant must be provided.
6. Clarity over legal questions arising from defence obtained reports will allow the prosecution to obtain expert evidence to address any challenges, which again should be dealt with in the PET form.
7. The court should hear the prosecution case first, then hear evidence for the defence from defence medical experts.
8. Only after the court has heard the defence evidence can it decide if the defendant:

•  
  • is mentally disordered, as defined in the MHA 1983, and can/cannot participate effectively in proceedings; and/or
  • was mentally disordered at the time of the incident

To ensure cases are dealt with expeditiously and fairly, due regard must be given to CrimPR Part 19 – Expert Evidence, CrimPR Part 20 - Hearsay evidence, CrimPD 1: General Matters (3D Vulnerable people in the Courts and 3G Vulnerable defendants), and section 33A Youth Justice and Criminal Evidence Act 1999 - Live Link Directions.

Indictable only offences and linked summary matters

In cases where the defendant has been charged with indictable only offences – and linked summary matters – the case must be sent to the Crown Court regardless of whether the defendant has a mental health condition or disorder. Prosecutors should refer to the CPS legal guidance Allocation of cases and sending to the Crown Court for further detail.

Either-Way Offences – Not Suitable for Summary Trial

For Either-Way offences that are Not Suitable for Summary Trial (NSST), the prosecution must deal with allocation and send the case forthwith, with the defendant in attendance at the court.

Either-Way Offences – Suitable for Summary Trial

For Either-Way offences that are Suitable for Summary Trial (SST), if the court is satisfied that the defendant is unable or unwilling to consent to summary trial, the case should be sent to the Crown Court in accordance with section 20(9)(b) Magistrates Court Act 1980 and section 51 Crime and Disorder Act 1998.

A defendant must be in attendance at the court if the case is being sent. It is suggested that the court records jurisdiction "declined" rather than "no indication".

The only time this process will not apply is in the very rare instance where:

• the defence already have the necessary medical reports; and
• asks the court to make an order under section 37 MHA 1983

Magistrates' have the power to order medical reports where the conditions in section 37 MHA 1983, are met, even where the defendant has elected jury trial.

Magistrates also have the power, in appropriate cases, to make a hospital order without convicting or trying the defendant where they are unable to consent to summary trial. R v Lincolnshire (Kesteven) Justices, ex parte O'Conner [1983] 1 WLR 335, confirmed in R v Ramsgate Justices (1985) 80 Cr. App. R. 366.

Court Ordered Reports

CrimPR 3.10 will apply where, exceptionally, the court chooses to seek a report on a suspected issue of mental ill-health of its own initiative. This applies to both the magistrates'/youth court and the Crown Court.

Effective Participation

The starting point is that a defendant should, wherever possible, face a criminal trial. Departing from this should be a last resort. Every effort should be made, using reasonable adjustments, to ensure a defendant can effectively participate in such a trial.

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 ready to draw them to the attention of the court and/or defence if necessary.

Reasonable Adjustments

CrimPD 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 have a disability as defined 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. These adjustments will be based on individual 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 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 Youth Justice and Criminal Evidence Act 1999 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 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 their evidence or otherwise; and
• the court is satisfied that it is in the interests of justice for the defendant to give evidence through a live link

A child 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; and
• the court is satisfied that it is in the interests of justice for the child 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 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 Youth Justice and Criminal Evidence Act 1999) however the CrimPD 1: General Matters (3D-3G) sets out key principles for dealing with vulnerable people in court.

In C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) it was held that while a youth court had no statutory power to appoint an intermediary, it did have a duty both at common law and under the CrimPR to make such an appointment if it was necessary to ensure that a young defendant could receive a fair trial and participate effectively in the trial process.

The Court in R (OP) v Secretary of State for Justice [2014] EWHC 1944 (Admin) held that there are two distinct types of assistance which may be required and the court should distinguish between them. First, general support, reassurance and calm interpretation. Second, skilled support and interpretation, particularly concerning the defendant's evidence. There is no presumption that a defendant will be assisted by an intermediary. Even where an intermediary would improve the trial process their 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). Particular scrutiny of the individual needs of the defendant and the particular proceedings is required, including whether an intermediary is needed if they are to give evidence or more generally. The court is not bound to accept expert evidence.

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 (CrimPD 1: 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.

CrimPD 1: General matters 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; and
• the use of communication aids

Discontinuance

When a remand prisoner is transferred to hospital by way of an order under section 48 MHA 1983, the HMPPS Mental Health Casework Section at HM Prison and Probation Service (HMPPS) will inform the following persons 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.

Where a decision is taken to terminate all proceedings in the magistrates' court against a defendant who has been hospitalised, a notice of discontinuance should be issued rather than the charges being withdrawn at court in the absence of the defendant.

The prosecutor should send a copy of the discontinuance notice 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: [email protected]

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.

Any action taken which results in the disposal of the case in the Crown Court against the defendant should be addressed to the Mental Health Casework Section by emailing [email protected].

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

• 07812 760274
• 07812 760582
• 07812 760523
• 07812 760356
• 07812 760230

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

Otherwise, Ministry of Justice switchboard should be contacted on 020 3334 3555, asking for the Mental Health Casework Section.

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

Resuming a prosecution when a patient becomes fit to plead

The fitness to plead procedure merely suspends a prosecution until the defendant is able to enter a plea and stand trial. Where the case has been concluded by way of hospital order with a restriction order, and the patient becomes fit to plead, the prosecution may be resumed upon the Secretary of State remitting the case to court. Where other disposals are ordered, remittal to court is not available: R v S [2014] EWCA Crim 2648. The following guidance therefore only applies where a hospital order with a restriction order was ordered.

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". 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 they become 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: R v Chinegwundoh [2015] EWCA Crim 109.

It is therefore essential that criminal proceedings are resumed and determined swiftly when the Secretary of State remits the patient for trial.

Joint guidance has been published by the CPS, HMPPS and Her Majesty's Courts & Tribunals Service (HMCTS) on the procedure to follow with regard to resuming a prosecution when a restricted patient becomes fit to plead.

Key sections of the joint guidance are reproduced below, together with some additional considerations for prosecutors.

The law

Section 5(1)(a) and (2) 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 their 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 HMPPS' view that, when read with the provisions of the MHA 1983, this cessation occurs when a judge makes another, discrete and subsequent, order. This may be a decision to further remand the defendant, whether on bail or in custody. This may be an order that the proceedings are to come to an end, for instance by ordering the charges to lie on file or that a not guilty verdict be entered. The patient must therefore appear in person at the point at which the relevant order is made. Further details on the remission procedure are set out later in this section.

Role of The Mental Health Casework Section (MHCS) when a defendant becomes fit to plead

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 has become 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.

Where prosecutors have questions or concerns regarding the responsible clinician report, they are advised to contact the responsible clinician directly via the contact information contained in the report. Where this information is not available, prosecutors should direct queries to [email protected].

Where the CPS is not going to resume a prosecution, the case will be remitted to court for a final disposal. MHCS will ensure, in advance of such a hearing, that 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 MHA 1983 powers.

The prosecutor's decision as to whether to resume a prosecution once a defendant is fit to plead

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 should 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; and
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 MHA 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; and
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 Procedure – Two Hearing Approach

As set out in CrimPR Part 25, prosecutors should follow a Two-Hearing Approach when considering whether to resume a prosecution, terminate all proceedings or request that the court orders the charge to lie on file.

Whilst the volumes of cases requiring a Two-Hearing Approach are low, the ongoing vulnerability and care for the defendant should be considered. A Two-Hearing Approach ensures that there is no unnecessary attendance by the defendant and that there is an effective hearing which can fully consider remand and the future of the case.

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 the factors set out above.

A balance has to be struck between permitting the CPS sufficient time to re-review the case and holding a prompt initial directions hearing in relation to the resumed case. The CPS will endeavour to communicate its decision to all parties before the first hearing but otherwise should be in a position to propose the next steps and timescale for the case and future decision-making at the hearing.

If it is not possible for the prosecutor to communicate their decision to MCHS within 60 days, MHCS will apply to the relevant court, for a listing for a directions hearing ("the first hearing") to ensure that the remittal process proceeds without delay. The MHCS will inform the patient and the patient's solicitor (or last known solicitor) and the CPS of the listing date.

It will be listed "For Directions – Case Remitted for Trial (Defendant not Required)" in XHIBIT or "Further Case Management Hearing – Fitness to Participate in Trial Process – Defendant not Required" in Common Platform.

At the first hearing, case management issues will be considered, and the judge will give directions as to the future conduct of the case.

The first hearing should take place in the absence of the defendant (CrimPR Part 25). This is so the extant hospital and restriction orders remain in place until the decision on any future proceedings can be finalised. There is no power to prevent the defendant from attending and it is a matter for defence representatives to advise their client in this regard.

Prosecution Continuing or not Continuing

The decision as to whether or not to continue the prosecution should be made at Level E or above. If the prosecution is continuing, a date will be set at the first hearing for a PTPH at which the patient will attend court ("the second hearing"). Other matters to be considered will include:

1. clarification that the section 37/section 41 MHA 1983 order will cease once an order for remand on bail or in custody has been made
2. the issue of bail and the court's powers to remand to hospital for further reports (section 35 MHA 1983) or for treatment (section 36 MHA 1983), remand in custody or on bail. Best practice will be that the responsible clinician's proposals for any ongoing detention are taken into account in this decision so that procedures for detention under the civil provisions of the MHA 1983 can be considered and commenced if the patient is still sufficiently ill as to require compulsory treatment in hospital
3. whether further information, including medical reports, will be needed for the next 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 a medical opinion or other relevant material
4. whether there are security or other reasons for the case to be heard in a different court or particular court room
5. whether additional measures will be needed to enable the defendant to participate in his or her trial; and
6. consideration of the factors outlined in this guidance under "The prosecutor's decision as to whether to resume a prosecution once a defendant is fit to plead", in accordance with the principles set out in the Code for Crown Prosecutors and other relevant legal guidance

The Court, having set the next date, will inform the relevant hospital and the patient.

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.

Prosecutors should note that CTLs do not apply to any period of remand in custody after the offender is remitted from hospital if the defendant was remanded in custody in the first set of proceedings. The CTL expired when the issue of fitness to plead was determined. The Prosecution of Offences Act 1985 and the Prosecution of Offences (Custody Time Limits) Regulations 1987 provide 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 CTLs 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. If this was the first remand in custody then a CTL will apply.

If the prosecution is not to continue, arrangements must then be made for the defendant to attend the second hearing in person for the proceedings to be finalised. This ensures that the defendant is aware that proceedings are at an end. The court can be addressed on all the attendant consequences of ceasing proceedings. This includes that the hospital order and restriction order will cease once the judge makes an order for the counts to lie on file or that a not guilty verdict be entered, and that the defendant is thereby acquitted. The court has no powers to make any MHA 1983 orders but any other appropriate ancillary order which falls to be made or applied for can be considered.

Best practice is that the responsible clinician's proposal for any ongoing treatment of the defendant is also made clear at this hearing i.e., whether the defendant will continue to be detained under civil powers.

Sentencing

Sentencing Principles

In sentencing offenders with mental health issues, the prosecutor should bring to the court's attention any information in their possession 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.

Prosecutors should ensure section 232 Sentencing Act 2020, as appropriate, is considered by the court. 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 (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 section 12 MHA 1983 as having special experience in the diagnosis or treatment of mental disorder.

The Court of Appeal in R v 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 section 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; and
6. if the judge decides to impose a hospital order under section 37/section 41 MHA 1983, 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 CrimPR and CrimPD.

Court ordered reports for sentence

CrimPR 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.

CrimPD V11: Sentencing emphasises the importance of the court monitoring progress towards compliance. The relevant parts of the CrimPD 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

Sentencing Disposals

Prosecutors should refer to the overarching guideline published by the Sentencing Council on sentencing offenders with mental disorders, developmental disorders, or neurological impairments.

Annex C of the guideline sets out the available sentencing disposals, relevant legislation, criteria, and release provisions.

Annex A of the guideline helpfully provides further information about the main classes of mental disorders and presenting features.

Further information about specific conditions

Mental health charity Mind have collated an A-Z of mental health conditions and disorders which can be found on the Mind website. Individuals may have one or more conditions, and further information about specific conditions can also be accessed at the following sites:

• Mind
• Mencap
• Scope
• National Autistic Society
  • Autism: a guide for police officers and staff
  • Criminal Justice guidance
• Dementia UK
• Alzheimer's Society and Dementia friends programme
• Headway, the brain injury association
• The Advocate's Gateway (a series of conditions are addressed)
• Youth Justice Legal Centre legal materials on Autism
• Personality Disorder
• Speech and Language UK
• Rethink Mental Illness (a series of conditions are addressed)
• NHS Health A-Z: Conditions and treatments:
  • Alzheimer's Disease
  • Antidepressants
  • Attention deficit hyperactivity disorder (ADHD) also AADDUK
  • Autism spectrum disorder (ASD including Asperger syndrome)
  • Bipolar disorder
  • Clinical depression
  • Communication Difficulties
  • Dementia guide
  • Dementia with Lewy bodies
  • Down's syndrome
  • Dyslexia
  • Dyspraxia (development co-ordination disorder) in adults and children
  • Generalised anxiety disorder in adults
  • Huntingdon's disease
  • Learning disabilities
  • Personality Disorder
  • Post-traumatic stress disorder
  • Schizophrenia
  • Vascular dementia

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.