Mental Health and Fair Trial

On 15 September 2016 JUSTICE launched a Working Party on Mental Health and Fair Trial, chaired by Sir David Latham, with the assistance of Linklaters’ pro bono team and 12 legal and medical professionals: Anthony Burton CBE; Professor Nigel Eastman; Julia Krish; Commander Christine Jones; Dr Eileen Vizard; Jan Jones; HHJ Sean Enright; Natasha Lloyd-Owen; Carolyn Taylor; Dr Kulvinder Manik; Jennifer McDermott; and Kris Venkatasami. JUSTICE staff Jodie Blackstock and Zoë Chapman supported the work of the Working Party.

This is a topic that has attracted a lot of interest from many of our members, as well as from the Lord Chief Justice and experts in various fields. JUSTICE has long been concerned that the criminal justice system is not suitably designed to accommodate people with mental health or learning difficulties. Its underlying principle of bringing perpetrators of crime to justice, and justification for infringing the liberty of members of society based on punishment, deterrence and rehabilitation fail starkly when mental illness is introduced. This is because excuse for criminal acts resulting from mental disorder is often missed or ignored; effective participation of defendants in their case is inhibited by illness or development related communication difficulties; and sentencing programmes are inappropriate for the underlying causes of or contributions to criminal activity.

As we as a society begin to understand mental illness better, we at JUSTICE feel strongly that it is time for the criminal justice system to recognise the volume of suspects and defendants with mental health concerns in its midst; evolve and accommodate their needs; and enable the right to a fair trial to be effectively protected.

The Working Party developed robust and practical recommendations for reform that can be tested with relevant practitioners, working towards creating a system with:

  • A significant increase in diversion away from criminal liability, whether pre-charge or pre-trial;
  • A capacity-orientated trial process for those who cannot be diverted;
  • Normative standards based on equality principles for the conduct of criminal proceedings involving those with mental illness or learning difficulties.

The final Mental Health and Fair Trial report was published on 27 November 2017. It 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.

Read the full Mental Health and Fair Trial report.

This Working Party was generously supported throughout by Linklaters LLP, which hosted the final report launch event on 27 November in London.

Fundraising for the Working Party

We are very pleased to have reached our £40,000 fundraising target for this working party, including over £20,000 raised by runners from across the legal profession, as well as their clients, who took part in the Royal Parks Foundation Half Marathon in October 2016. See some photographs and more information about the event here.