Mental Disorder and Criminal Law
| Author | Michael Butler |
| Pages | 269-291 |
Chapter 25
Mental Disorder and Criminal Law
25.1 INTRODUCTION
This chapter provides a summary overview of criminal law and procedure from the perspective of mentally disordered participants. In particular, it considers the challenges presented to the criminal process as a result of the involvement of those with mental disorder and the various ways in which the process is adapted to take account of their vulnerabilities and needs. It reviews all aspects of the criminal process from arrest through to sentence. While focussing in the main on the mentally disordered suspect or defendant, the chapter also considers matters affecting mentally disordered witnesses and victims of crime.
25.2 DETENTION IN A POLICE STATION
25.2.1 Diversion to hospital from the police station
Anyone who is detained in a police station following arrest and who is in need of treatment for a mental disorder should be considered for admission to hospital (1983 Code, para 33.2). Any such admission may then take place on a voluntary basis or under the MHA 1983. In the normal course of events, if a suspect requires immediate admission to hospital before a police investigation is complete, he will be bailed to return to the police station at a later date under section 37(2) of the PACE 1984.
25.2.2 Relevant provisions of the Police and Criminal Evidence Act 1984
While a mentally disordered suspect is at the police station, provisions concerning his treatment are contained in the PACE Code C. In summary:
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• If an officer has any suspicion or is told in good faith that a person of any age may be mentally disordered, or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such (para 1.4).
• If a detainee is mentally disordered or otherwise mentally vulnerable, the custody officer must, as soon as practicable, inform the detainee’s appropriate adult and ask the adult to come to the police station (para 3.15).
• The appropriate adult should be a relative, guardian or other person responsible for their care or custody, or someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not a police officer or employed by the police (para 1.7).
• The custody officer must make sure that a detainee who appears to be suffering from a mental disorder receives appropriate clinical attention as soon as reasonably practicable (para 9.5).
• A caution should only be administered to a mentally disordered detainee in the presence of an appropriate adult (para 10.12).
• Before a detainee is interviewed, the custody officer should consult with a health care professional in order to assess whether the detainee is fit enough to be interviewed. This means ‘determining and considering the risks to the detainee’s physical and mental state if the interview took place and determining what safeguards are needed to allow the interview to take place’ (para 12.3). In this respect, the custody officer and health care professional should have regard to PACE Code C, Annex G (Fitness to be interviewed), which provides, inter alia, that a detainee may be at risk in a police interview if it is considered that (para 2):
(a) conducting the interview could significantly harm the detainee’s physical or mental state;
(b) anything the detainee says in the interview about their involvement or suspected involvement in the offence about which they are being interviewed might be considered unreliable in subsequent court proceedings because of their physical or mental state.
• Except in urgent cases, a mentally disordered detainee must not be interviewed, or asked to sign a written statement regarding his involvement in a criminal offence, in the absence of an appropriate adult (para 11.15).
• Because of the risk of unreliable evidence when interviewing mentally disordered detainees, it is important to obtain corroboration of any facts admitted wherever possible (Notes for Guidance, 11C).
25.3 DECISION TO PROSECUTE
As with any other suspect, the decision whether to prosecute a mentally disordered suspect will be taken by the Crown Prosecution Service (CPS). When making a decision in the case of a mentally disordered suspect, however, government guidance indicates that the CPS should have particular regard to the views of relevant mental health professionals and any other available information regarding the suspect’s mental health.
Home Office Circular 12/95 (Mentally disordered offenders: inter-agency working) requires that, ‘where offences have allegedly been committed by mentally disordered people, the question of public safety and any relevant information about the person’s history are taken fully into account in deciding whether to charge’, and CPS legal guidance, Mentally Disordered Offenders (www.cps.gov.uk/legal/l_to_o/mentally_disordered_offenders), suggests that:
Where the police have been advised of the defendant’s condition and prognosis by the Social Services, Probation Service, psychiatrists or other professionals, who may advocate a particular approach or disposal, the advising agency should be encouraged to set out their views in writing. Where this is not possible, the police should summarise any views expressed to them orally.
Where the suspect is already receiving treatment, the CPS legal guidance advises that the prosecutor should obtain:
• medical reports from the responsible clinician to explain the nature and degree of the disorder or disability, and any relationship between the disorder and the treatment and behaviour of the offender; and
• any other relevant information from hospital staff about the treatment and behaviour of the patient, including the treatment regime and any history of similar and recent behaviour.
Following consultation, any decision then taken by the CPS on whether to prosecute should be in accordance with the principles set out in The Code for Crown Prosecutors (7th edn, January 2013).
The decision involves a two-stage test:
• Is there sufficient evidence to provide a realistic prospect of conviction (the evidential test)?
• Is a prosecution required in the public interest (the public interest test)?
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Evidential test
The evidential test calls for a consideration of whether the Crown will be able to prove all elements of the offence alleged. In the case of a mentally disordered suspect, this may require particular consideration of whether the suspect was capable of forming the mens rea required for the commission of the offence. As with other elements of the offence, the burden of proving the required mens rea falls on the Crown, which must establish it beyond reasonable doubt. A psychiatric opinion may, therefore, be called for to consider, for example, whether a mentally disordered suspect was capable of forming a dishonest intention to permanently deprive (theft) or forming an intention to cause grievous bodily harm (section 18 of the Offences Against the Person Act 1861).
The burden on the Crown to prove mens rea must be distinguished from the quite separate issue of insanity, which may be raised by the defendant as a common law defence to the offence alleged. Where insanity is raised as a defence, the burden of proving it falls on the defendant (see para 25.7).
The evidential test also calls for consideration of whether the Crown’s evidence will be regarded by a court as reliable and admissible.
As far as reliability is concerned, reference has already been made (see para 25.2.2) to PACE Code C, Notes for Guidance, 11C, which highlights the importance of obtaining corroboration of any fact admitted by a mentally disordered suspect in interview. Absent any corroborative evidence, a prosecution based solely on the confession of a mentally disordered suspect may proceed, but there are bound to be concerns. Section 77(1) of the PACE 1984 requires a Crown Court judge to remind the jury of the ‘special need for caution’ before convicting a defendant where the case against the defendant depends wholly or substantially on a confession by him and the court is satisfied that he is mentally handicapped and that the confession was not made in the presence of an independent person. There is a similar requirement on magistrates to remind themselves of the special need for caution when faced with such evidence in summary trials (section 77(2)).
There may also be an issue as to the admissibility of any confession made by a mentally disordered suspect. Under section 76(2)(b) of the PACE 1984, a court may rule inadmissible any evidence of a confession where satisfied that the confession was or may have been obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render the confession unreliable. Under section 78 of the PACE 1984, a court also has a general discretion to exclude evidence if satisfied having regard to all the circumstances, including the circumstances in which the evidence was obtained,
that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
In R v B [2012] EWCA Crim 1799, the defendant was found unfit to plead in the light of expert evidence of a learning disability which prevented him from being able to instruct his legal team, understand the nature of the charge, understand the difference between a plea of guilty and not guilty, and understand the right to challenge a juror. At the subsequent trial on the facts, the defendant was found to have committed the sexual act alleged, a finding based largely on a confession made in interview. The Court of Appeal set aside this finding, holding that the...
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