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Mental Health: Victims and Witnesses

Updated: 25 April 2023|Legal Guidance

Introduction

This guidance identifies the principles relevant to victims and witnesses with mental health conditions or disorders, namely:

  • 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
  • Other mental health, cognitive or neuro-diverse conditions.

Further information about such conditions can be found below under Further Information about Specific Conditions.

See the Special Measures guidance which addresses issues of competence, special measures in general to assist witnesses to give their evidence as well as specific topics such as familiarisation meetings and intermediaries.

This guidance seeks to address a wide range of conditions which comprise disorders, disabilities, impairments, injuries and diseases, which relate both to the brain and the mind. The term "mental health conditions or disorders" will therefore be used as a non-stigmatising, non-technical terms, but terminology which focuses those who use this guidance on recognised conditions. Outside the ambit of this guidance, prosecutors will more broadly have regard to the mental functioning of victims and witnesses even where this is not reflected in a recognised condition, recognising neurodiversity, the variations in the human brain regarding sociability, learning, attention, mood and other mental functions.

The fact that someone has a mental health condition or disorder may be relevant to their status as a victim or witness, but it may not. For this reason, prosecutors should approach each case on its own facts and merits and assess the nature, extent and effect of the condition on an individual, together with the circumstances of the particular offences. Mental health conditions or disorders are not always a constant: they may fluctuate, including being different at the time of an alleged offence to the 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, overall with substance misuse. Where this is the case, it will be important to understand the combined impact on the behaviour and capabilities of the individual concerned.

Other relevant legislation and policy to consider in this field includes:

  • The duty of a public authority to: (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Equality Act 2010, (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it: section 149 of the Equality Act 2010.
  • The Code of Practice for Victims of Crime
  • CPS Legal Guidance on Prosecuting Crimes Against Older People
  • CPS Legal Guidance on Disability Hate Crime and other crimes against Disabled People
  • The duty to treat disability hate crime as an aggravating factor at sentence: section 66 of the Sentencing Act 2020) which applies to all convictions on or after 1 December 2020), which imposes a duty on the courts to increase the sentence for any offence aggravated by hostility based on the victim's disability or presumed disability
  • Joint agency guidance on Victim Personal Statements.

The Social Model of Disability

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 to improve a victim or witness' evidence 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 their condition.

Obtaining relevant information

The CPS should, through the police, seek relevant information about any mental health condition the victim or witness has, to inform:

  • An assessment of the evidence, including competence, credibility and reliability
  • The following of reasonable lines of enquiry
  • The support the victim and witness may need in the court process
  • The information the court should consider at sentence.

This is so whether the matter is raised by the victim or witness themselves or is apparent from other material. Information may come from a range of sources,. Prosecutors should be proactive in identifying potential sources of information. Victims and witnesses have the right to expect to be consulted personally. Information should be obtained with the victim or witness’ consent and handled sensitively, for example regarding medical counselling records, and examination of a mobile phone. Although information may come from a range of sources, it should be considered objectively. Family and support workers, for instance, may have their own interests or subjective judgements of the individual's reliability or capacity to handle the court process, and upon receipt of such information prosecutors should have regard.

Pre-trial interview

A prosecutor may also consider a pre-trial witness interview. Such interviews are conducted by prosecutors for the purpose of assisting them to assess the reliability of a witness's evidence or to understand complex evidence. There can be particular sensitivities in conducting pre-trial witness interviews with vulnerable witnesses. In reaching a decision to hold such a pre-trial interview, prosecutors must give careful consideration to the age and degree of vulnerability of the witness. The prosecutor should also take account of the support needs of the witness at any such interview. More detailed information is available in the pre-trial witness interviews Legal Guidance.

Expert report

A prosecutor may further consider seeking an expert report concerning a victim or witness. This is not with a view to relying upon the report as evidence but in order to inform an assessment of reliability and credibility and/or to inform what measures will assist the victim or witness to give evidence. The instructions must focus the expert's attention on the issues in the case and be clear as to the questions to which an answer is requested and as to the opinion sought. At all times the Criminal Procedure Rules and Criminal Practice Directions and CPS Guidance Booklet for Experts must be adhered to.

Prosecutors should consider holding a conference with the expert where this might assist in the presentation of the issues. It is important to record the key points of the conference and to reflect its contents and to ensure the expert agrees this record. Questions which may be asked of an expert may include:

  • What is the nature and extent of the witness's mental health condition or learning disability?
  • How do the symptoms of this condition manifest themselves in respect of this particular individual?
  • Could the nature or extent of the witness's mental health condition or learning disability affect their understanding, perception or recollection of an incident?
  • To what extent would their understanding, perception or recollection be affected in comparison to someone without this condition?
  • If it could affect their understanding, perception or recollection, in what specific ways might it do so?
  • Does the witness's condition and its effect on their understanding, perception or recollection also affect their credibility/reliability? If so, to what extent?
  • How might the nature or extent of the witness's mental health condition or learning disability affect their ability to give evidence and withstand cross-examination, particularly with reference to their response to questioning and cross-examination, concentration and attention, ability to communicate and interaction with other people?

Where the opinion of the expert is that the witness's mental health condition or learning disability does not affect the reliability or credibility of their account then, in the absence of special circumstances (see below) the report:

  • Cannot be served as part of the prosecution case as 'oath helping' or to bolster the witness's credibility/reliability;
  • Should appear, properly described, on the schedule of non-sensitive unused material but may not fall to be disclosed by way of provision of the report.
  • If the defence challenge the witness's evidence on the grounds that their mental health condition or learning disability makes them unreliable or if they raise the issue of the witness's competence to give evidence the expert’s report may be served (and the expert called) as rebuttal evidence.

Exceptionally the report might be neutral on the issue of credibility/reliability but contain factual passages which satisfy the disclosure test. For example, the report might refer to an account of events given by the witness which is inconsistent with their statement. In these circumstances the relevant extract should be separately disclosed. Where the opinion of the expert is that the witness's mental health condition or learning disability does or might affect the reliability/credibility of their account then it will be undermining material for the purpose of the CPIA test and must be disclosed if the case proceeds.

The victim or witness is entitled to know what the report contains and how the CPS proposes to use it.

Disclosure

Notwithstanding the points above, police and prosecutors should further consider whether to obtain material which is not in their possession as part of their obligations concerning disclosure such as medical records, counselling records,  or examination of a witness' digital device where it is anticipated to contain relevant information). This requires an assessment as to whether obtaining this material constitutes a reasonable line of enquiry. If it does, an explanation should be given to the victim or witness as to why this is so and their informed consent sought to provision of the material. A patient will usually expect material such as medical records to be confidential. Their Article 8 ECHR right to a private and family life is likely to be engaged accordingly the rationale for a request must be well-founded. The simple fact that such material exists, and that the victim or witness may have a mental health condition, does not in itself constitute a reason. The issues in the case and what is known about the likely relevance of the records material should be taken into account.

The prosecutor must consider very carefully, if the victim or witness refuses to consent, how to proceed. It is unlikely to be appropriate either in principle or in law (pre-charge) to compel provision of the material: it may be "excluded material" within the meaning of section 11 PACE 1984, see further R v Central Criminal Court ex p Brown (The Times 7 September 1992). Subject to the reason for withholding consent, a prosecution is unlikely to be able to proceed if relevant material exists which it is unable to obtain.

The victim or witness may consent to provision of the material to the police and prosecution and, where appropriate, the defence. It must nonetheless be handled sensitively and only disclosed to the extent that an accurate and sufficiently full entry on the schedule of unused material requires it, or provided to the defence to the extent that the disclosure test is met. It is important (see below) to ensure that if qualified consent is given in the first instance, that further consent is sought before disclosure to the defence is made.

The victim or witness may provide qualified consent to provision of the material. They may permit the police and prosecution to review it but not to its provision to the defence. It should therefore be handled as sensitive material. If the disclosure test is not met, then no disclosure is to be made. If the disclosure test is met, the attached table at Annex A sets out the potential next steps.

The defence may seek access to the material although the prosecution position as to its relevance and disclosability (if applicable) should have been established by this stage. Article 8 ECHR requires as a matter of procedural fairness that notice of the application be given to the witness and that they are given an opportunity to be heard: The Queen (on the application of TB) v Stafford Combined Court[2006] EWHC 1645 (Admin) If prosecutors are made aware of a defence application for a summons for a third party to disclose material in their possession, careful thought should be given about the care and treatment of the witness to whom the material relates. In particular, prosecutors should consider how the witness will be notified of the application, their right to be heard and any practical arrangements that the CPS can make to facilitate this.

There may be occasions where the prosecutor cannot represent the interests of the witness relating to issues of disclosure. The witness may not want the CPS to represent them, or may have secured their own representation. It may be that the prosecutor agrees with the defence application, or has insufficient information to make any proper representation. Prosecutors should refer to the detailed guidance in the Director’s Guidance on Charging 6th Edition, Attorney General’s Guidance on Disclosure 2022 and revised Codes of Practice under CPIA 1996, and the legal guidance concerning Disclosure.

The decision to prosecute

The Code for Crown Prosecutors, when considering the question of evidential sufficiency, requires prosecutors to consider (Rule 4.8):

Is the evidence reliable?

Prosecutors should consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity.

Is the evidence credible?

Prosecutors should consider whether there are any reasons to doubt the credibility of the evidence.

Competence

Where a victim or witness has a mental health condition, the prosecution may first need to consider whether they are competent to give evidence, and then proceed to consider questions of reliability and credibility.

Section 53 of the Youth Justice and Criminal Evidence Act 1999 provides that a person is not competent to give evidence in criminal proceedings if it appears to the court that they are not a person who is able to (a) understand questions put to them as a witness, and (b) give answers to the questions which can be understood.

If this is, or may be, in issue, it is one of the matters above on which relevant evidence should be sought. This does not require a person to understand all questions or give intelligible answers to all questions. The judge has to consider if there is a common and comprehensible thread to the victim or witness’ responses to questions. 100% or near 100% mutual understanding between questioner and questioned is not a pre-condition of competence. See Sed [2004] EWCA Crim 1294.

It is important to ensure that there is a clear focus on the test in section 53. In DPP v R [2007] EWHC 1842 (Admin), the complainant had learning difficulties and answered a number of questions with the response that she could not recall the incident. Those answers were however perfectly intelligible. The court held that this did not amount to lack of competence to give evidence.

If however competence is in issue prosecutors must consider every adjustment which could reasonably be made to assist the victim or witness to understand the questions asked and to provide answers to those questions which can be understood.

Credibility and reliability

If a witness is competent then they are in the same position as all witnesses: there may often be matters which the jury will need to consider in respect of credibility and reliability when assessing the weight to give to a victim or witness' evidence. This was expressed, in the context of a finding that a child witness was competent, as follows:

"... The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child. If competent, as defined by the statutory criteria, in the context of credibility in the forensic process, the child witness starts off on the basis of equality with every other witness" R v B [2010] EWCA Crim 4.

Real care must be taken with a suggestion that a person's mental health condition affects their credibility and reliability such that there is insufficient evidence to proceed. The Code requires prosecutors to make this assessment and in all the circumstances the evidence must be credible and reliable but it would be rare where the evidence to be given is credible for a mental condition not to be a matter for weight to be assessed by the jury rather than a matter determinative of the evidential stage.

The clearest demonstration of the importance of the care to be taken is B v DPP [2009] EWHC 106 (Admin). B had been seriously assaulted: part of his ear was bitten off. In the circumstances, the only likely trial issue - self-defence being discounted - was the identity of the attacker. B gave a coherent and credible account of who that person was. The attacker was identified in an ID parade. The details of the assault given by B were verifiably correct. B had a history of psychotic illness which included holding paranoid beliefs about certain people and suffering auditory and visual hallucinations. On any view, these symptoms have an apparent relevance to credibility and reliability - many mental health conditions will have even less relevance. Even where seemingly relevant, as here, further investigation and scrutiny was merited.

There was no evidence that B had held such beliefs or hallucinated about his alleged attacker. The prosecution had not investigated this general possibility any further and reliance upon it had led to an irrational decision to stop the case. There was no basis on that evidence alone to conclude that a jury was likely to reject B's account.

Public interest

The public interest in prosecuting cases where there is sufficient evidence and the victim has a mental health condition is reflected in the Code (para 4.14 c)):

  • The circumstances of the victim are highly relevant. The more vulnerable the victim's situation, or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required.
  • This includes where a position of trust or authority exists between the suspect and victim [which includes where that trust or authority arises from the victim having a mental health condition]
  • It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victim's actual or presumed ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or if the suspect targeted or exploited the victim, or demonstrated hostility towards the victim, based on any of those characteristics.

Certain offences are specifically provided for to protect victims with mental health conditions. Section 44 of the Mental Capacity Act 2005 creates the offence of ill-treating or wilfully neglecting a person who lacks capacity and in respect of whom the suspect has been granted a lasting power of attorney. Section 127 of the Mental Health Act 1983 creates a similar offence in respect of staff at hospitals or care homes in relation to patients. Prosecutors should ensure that, whatever the outcome of a police investigation, the appropriate regulator is aware of any such allegations.

Support for victims and witnesses

Some people who have mental health conditions and disorders who are victims of, or witnesses to, criminal offences may be reluctant to report the crime, because they fear the consequences of reporting.

For example, they may think that they will be deemed to be unreliable witnesses; that they will not be taken seriously; that they may be victimised. They may be in a care setting and fear for their future safety or security. They may be embarrassed, or afraid that their personal medical history will become public knowledge. They may be fearful of the court process. Any of these, or other, factors may prevent a crime being reported, a witness coming forward or supporting a case through to court. Through the way in which the CPS reviews and handles a case, it will try to ensure that a person with mental health conditions has the confidence, knowledge and support to enable the necessary action to be taken to prevent further offences and to hold the offender accountable.

Prosecutors should not make assumptions about the support needs of a victim or witness who has mental health issues and/or a learning disability. The starting point is finding out what, if any, support needs might assist.

Where a victim or witness is accompanied by a carer or advocate or intermediary, the CPS will take care to address remarks to the victim or witness rather than to the person accompanying them. It is inappropriate to assume that, because someone needs a support worker with them, they are unable to understand questions or participate in discussions.

Court proceedings themselves may have an adverse effect on the mental health of the victim or witness and may exacerbate a pre-existing condition. A court familiarisation visit may help to reduce the anxiety of the victim or witness on the day of the trial.

The victim or witness should be protected from unwarranted or irrelevant attacks on their character; the court's intervention should be sought where cross examination is considered to be inappropriate or oppressive. This may include improper use of medical or psychiatric records to discredit the victim or witness. Prosecutors must subject the proposed use or use of such lines of cross-examination to scrutiny and raise with the Judge where appropriate any challenge to their forensic merit. Language may need to be tailored or the style of communication addressed to meet the needs of victims or witnesses with mental health conditions. Court procedures should be explained thoroughly and carefully without being patronising.

Special Measures

Any witness whose quality of evidence is likely to be diminished because they:

  • are suffering from a mental disorder (as defined by the Mental Health Act 1983);
  • have a significant impairment of intelligence and social functioning; or
  • have a physical disability or are suffering from a physical disorder

is, pursuant to section 16 and 18 YJCEA 1999, eligible for the special measures provided for in sections 23 to 30 YJCEA 1999. Special measures can take a number of different forms and the separate CPS legal guidance on Special Measures provides more detail. Special measures can include screens to shield the victim or witness from the defendant, giving evidence via a live link or a remote link site, being cross-examined in a pre-recorded video and the removal of wigs and gowns. Prosecutors should consider whether an intermediary is required to support victims and witnesses with mental health conditions or disorders to aid their understanding and to ensure effective communication.

The role of an intermediary is to facilitate communication between the witness and the police, prosecution and defence legal teams and/or the court to ensure that the communication process is as complete, coherent and accurate as possible. The intermediary is impartial and neutral and their duty is to the court. Prosecutors should ensure that special measures sought are discussed and identified and an application lodged at an early stage. Victims and witnesses should be kept up to date as to the special measures which are being sought and on any rulings of the court.

Reasonable Adjustments

In addition to special measures, any measures which would assist a victim or witness at court should be considered and brought to the attention of the court for consideration as a reasonable adjustment to be made for a person with a disability pursuant to sections 6 and 20 of the Equality Act 2010.

Residential care settings

In cases where the victim and the offender are in the same residential care setting it will be good practice for the prosecutor to make enquiries about arrangements for their care during the course of proceedings. The information may help to inform decisions about bail conditions, for example, to avoid the potential for witness intimidation.

If the incident occurred in a residential care setting the police should be advised to ensure that any material generated in other investigations (e.g. disciplinary) should be retained for disclosure purposes. In assessing the public interest in pursuing investigation and prosecution, the fact that internal sanctions have been or will be applied must not be assumed to be sufficient to meet the justice of the case.

Victim Communication and Liaison (VCL) scheme

Where it has been determined that the offence was aggravated by hostility based upon disability and a prosecutor decides to discontinue a charge involving a victim with a mental health condition or disorder issues and/or a learning disability, or to make a substantial alteration to the charge, a meeting to discuss the reasons must be offered to the victim.

Sentencing

Section 66 of the Sentencing Act 2020 (which applies to all convictions on or after 1 December 2020) imposes a duty upon courts to increase the sentence for any offence aggravated by hostility based on the victim's disability (or presumed disability). Our Policy and Guidance on Prosecuting cases of Disability Hate Crime explains in detail the procedure where section 66 of the Sentencing Act 2020 applies.

Further, where there is a risk of further offending, prosecutors should consider what ancillary orders it may be appropriate to apply for, for example, Criminal Behaviour Orders or restraining orders, including restraining orders on acquittal (please refer to the Legal Guidance on Criminal Behaviour Orders and Restraining Orders).

In appropriate cases (e.g. when a care worker working in a registered care home has been dismissed, transferred or suspended on grounds that they have caused harm or risk of harm to a vulnerable adult) the police should be asked to check that the necessary referral has been made to the Disclosure and Barring Service to place the person on the barred list. The list contains the names of care workers who have harmed a vulnerable adult, or placed a vulnerable adult at risk of harm, whether or not in the course of their employment. These people are then barred from working in a care position with vulnerable adults.

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:

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

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Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

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