Effective participation of mentally vulnerable defendants in the English magistrates’ courts: The crucial role of liaison and diversion
| Published date | 01 June 2022 |
| Author | Helen Howard |
| Date | 01 June 2022 |
| DOI | http://doi.org/10.1111/hojo.12470 |
Received: 14 June 2021 Accepted: 3 September 2021
DOI: 10.1111/ho jo.12470
ORIGINAL ARTICLE
Effective participation of mentally vulnerable
defendants in the English magistrates’ courts:
The crucial role of liaison and diversion
Helen Howard
Senior Lecturer in Law, Teesside
University
Correspondence
Helen Howard, Senior Lecturer in Law,
Teesside University.
Email: h.a.howard@tees.ac.uk
Abstract
Mentally vulnerable defendants who are unable to effec-
tively participate in their trial in the magistrates’ courts
are unprotected by the law relating to unfitness to plead.
The conveyor-belt justice offered in the magistrates’
courts means that these defendants are at risk of being
overlooked. This article aims to demonstrate that, in
addition to police custody suites, a permanent presence
of Liaison and Diversion (L&D) teams within all English
magistrates’ courts is crucial to the protection of vul-
nerable defendants who are unable to effectively partici-
pate in their trial. Moreover, the presence of L&D teams
within all magistrates’ courts might provide a more prag-
matic and compassionate solution than legal reforms to
those vulnerable individuals who are unable to under-
stand the trial process. This improvement is achievable
given the cost efficiencies highlighted by the RAND
Europe Outcome Evaluation, published in April 2021.
KEYWORDS
effective participation, liaison and diversion, magistrates’ courts,
mentally vulnerable defendants, unfitness to plead
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or
adaptations are made.
© 2022 The Authors. The HowardJournal of Crime and Justice published by Howard League and John Wiley & Sons Ltd
Howard J. Crim. Justice. 2022;61:203–220. wileyonlinelibrary.com/journal/hojo 203
204 THE HOWARDJOURNAL OF CRIME AND JUSTICE
1 INTRODUCTION
Mentally vulnerable defendants who are unable to effectively participate in their trial in the mag-
istrates’ courts are unprotected by the law relating to unfitness to plead (M(John)[2003] EWCA
Crim 3452), which applies only in the Crown Court (Law Commission, 2016, ch. 7). The protec-
tion of vulnerability should lie at the heart of our societal values. Regrettably, this protection is
often lacking towards suspects or defendants who are mentally vulnerable and areappearing only
before the magistrates’ court. Tosome degree, this is understandable, given the volume of work in
the magistrates’ courts, and particularly where harm has been caused to a victim (Peay & Player,
2018, p.939). This should not mean, however,that these defendants are not deserving of protection
and support, especially given that vulnerability permeates throughout the criminal justice process
(Asquith, Bartkowiak-Théron & Roberts, 2016, p.162). The criminal justice system is known to
deplete the resilience of suspects and defendants in ‘myriad ways’ (Dehaghani, 2021, p.265),with
mental vulnerability being only one such form of susceptibility.In the absence of a ‘comprehensive
definition of vulnerabilities’ (Revolving Doors Agency & Centre for Mental Health, 2019,p.25),for
the purpose of this article ‘mentally vulnerable defendants’ will be defined in the broadest sense
to include suspects or defendants suffering from any mental disorder,personality disorder, autism
spectrum disorder or learning difficulty which might compromise their ability to stand trial. This
definition reflects the inclusive approach of the JUSTICE (2017) report towards defining men-
tal vulnerability (pp.15–16). The need for a definition is a significant issue, but requires a more
detailed exposition outside of the scope of this article. Other issues requiring deeper examination
elsewhere include the Criminal Justice Liaison Service in Wales, and the youth courtsin England
and Wales;while many of the issues discussed below will be relevant to the former, the latter raises
countless additional issues relating to vulnerability, which cannot be addressed by way of a brief
overview.
The Law Commission for England and Wales has proposed that any legal reform relating to
unfitness to plead should be equally applicable in the magistrates’ courts (Law Commission, 2016,
ch. 7). On closer examination of the Law Commission’sproposals, it has been argued that extend-
ing any reform of the law on unfitness to plead into the magistrates’ courts might be unworkable
due to time pressures and the paucity of legal aid funding, and that policy changes might be more
effective (Howard, 2021). Given the scarcity of options available to a defendant who is unable to
understand the trial process, and given also the increased move towardsvirtual hearings, now ‘is a
particularly important time to consider the defendant’s participatory role’(Owusu-Bempah, 2020,
p.610). This article will suggest that the work of the Liaison and Diversion (L&D) service is cru-
cial in this regard. While the remit of the national L&D model does not include advising on issues
of effective participation, it will be submitted that, in preference to enacting potentially unwork-
able legal reforms, the L&D service uniquely offers the support needed by mentally vulnerable
defendants who are unable to withstand the trial process in the magistrates’ courts. Whether by
recommending diversion or providing essential information to the defendants, their legal repre-
sentatives or the court, this supplementary support should be commended and entrenched by the
provision of a permanent L&D presence in all English magistrates’ courts.
The current scope and implementation of the national model for L&D will be examined,
addressing the largely successful deployment of L&D teams within police custody suites, as well
as focusing on the need for L&D provision in the magistrates’ courts in order to close some of the
unavoidable gaps. Subsequent to this, a sample of views taken from L&D teams working within
the Tees, Esk and Wear Valleys NHS Trust (TEWV) will be analysed. While these views drawon a
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