Mental Health and Fair Trial

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.

On 27 November 2017 JUSTICE published a Working Party report on Mental Health and Fair Trial chaired by Sir David Latham, with the assistance of Linklaters LLP’ pro bono team and 12 legal and medical professionals.

The challenge

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

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 members of the Working Party were:
Sir David Latham (Chair)
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
Kris Venkatasami
Zoë Chapman – Rapporteur
Jodie Blackstock – Rapporteur

During the implementation phase:
Dame Alison Saunders DCB, former Director of Public Prosecutions

The Report

The Mental Health and Fair Trial report 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.

The report makes 52 recommendations on the following aspects of the criminal justice process:

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.

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.

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.

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’.

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.’

Read the full Mental Health and Fair Trial report

Read media coverage on the report from The Times, The Guardian and The Law Society Gazette.

Implementation Report

In January 2021, we presented our Implementation Report, which describes our progress to date in addressing each of the Working Party’s recommendations.

Almost two thirds of our recommendations have been put in train. However, there is much yet to be achieved before we can be confident that the criminal justice system operates fairly for all defendants with neurodivergent conditions.

JUSTICE looks forward to working with the Government in order to improve further the protection of vulnerable individuals in line with the recommendations of the Working Party.

Executive Summary
Read the full Implementation Report