Mental Health and Fair Trial

Suspects and defendants with mental ill health or learning disabilities need to be better identified and supported, in order to ensure their right to a fair trial in England, argues a JUSTICE report published on 27 November 2017.

Around one in four adults in the UK are diagnosed with a mental illness during their lifetime and many more will experience changes in their mental well-being. Three quarters of people with mental health problems receive no support at all. The available evidence suggests that people in the criminal justice system are far more likely to suffer from mental health problems than the general population.

Mental Health and Fair Trial, the result a JUSTICE working party which started work in September 2016, argues that from first contact with the police through to sentence, there remain fundamental problems with the English justice system’s response to mental health. Left unaddressed the fair trial rights of many defendants may be undermined.

Mental Health and Fair Trial makes 52 recommendations on the following aspects of the criminal justice process:
1. The investigative stage – Mental health experts, not police officers, should be identifying people with vulnerability as a result of mental ill health or learning disability and those identified should have access to proper support.
2. Decision as to charge or prosecution – A specialist prosecutor should be appointed for each Crown Prosecution Service area who must make the charging decision in cases of vulnerability, assisted by up-to-date guidance and assessments.
3. Pre-trial and trial hearings – Trial processes can be bewildering and incomprehensible for those with mental ill health and learning disabilities. Magistrates’ courts, youth courts and the Crown Court should have a dedicated mental health judge with enhanced case management powers and responsibility for a case progression protocol.
4. Legal capacity tests – A capacity based test of fitness to plead and fitness to stand trial, placed on a statutory footing should be available in all courts and the “insanity” defence should be amended to a defence of ‘not criminally responsible by reason of a recognised medical condition’.
5. Disposal and sentencing – A Sentencing Guideline on mental health and vulnerability should be created and a broader range of disposals made available to sentencers to meet the needs of the case.

The Lord Chief Justice, Lord Burnett of Maldon, speaking at the report’s launch said, ‘Underpinning these proposals is a common thread – the concern that courts and the legal profession are not being provided with sufficient training and guidance to enable them to carry out their roles effectively, whether case management, trial management or sentencing.

‘The report as a whole provides a rich seam of material, as indeed do all the reports provided by JUSTICE, for policymakers and others. I’m sure it will play a leading role in developing our approach to vulnerable defenders and witnesses. It is for that reason that I welcome its publication with great pleasure.’

Director of JUSTICE, Andrea Coomber, said, ‘JUSTICE has long been concerned that the criminal justice system is not suitably designed to accommodate people with mental health or learning difficulties.

‘There are still fundamental problems with the criminal justice system’s response to vulnerability and too few people receive reasonable adjustments to enable them to effectively participate in their defence. But that is not to say that practitioners in the criminal justice system are not aware of the problem. We are impressed by the efforts being made to create an integrated criminal justice and mental health sector. We hope that this report will build on that and bring about change for some of the country’s most vulnerable people.’

The Mental Health and Fair Trial Working Party was chaired by Sir David Latham, with the assistance of Linklaters’ pro bono team and 12 JUSTICE members: John Briant, Inspector Michael Brown OBE, Anthony Burton CBE; Professor Nigel Eastman; HHJ Sean Enright; Jan Jones, Registered Intermediary; Julia Krish; Natasha Lloyd-Owen; Dr Kulvinder Manik; Jennifer McDermott; Carolyn Taylor; Kris Venkatasami, Deputy Chief Crown Prosecutor; and Dr Eileen Vizard CBE. JUSTICE staff Jodie Blackstock and Zoë Chapman supported the Working Party.

This Working Party was generously supported throughout by Linklaters LLP, who also hosted the launch of Mental Health and Fair Trial on the 27 November, in London.

Read the full Mental Health and Fair Trial report.

Read the press release about the report written before the launch event and after.

Find out more about the Mental Health and Fair Trial Working Party.