Written evidence submitted by the CPS (MHB0077)

Introduction

The Joint Committee on the Draft Mental Health Bill have issued a Call to Evidence seeking views on how the draft Bill could be improved, or how potential issues could be resolved. Below is the Crown Prosecutions response regarding the question:

 

Summary Response

The CPS recommends the introduction of a statutory framework in the magistrates’ and youth courts for determining a defendant’s capacity to participate effectively, comparable to that of the Crown Court, in accordance with the Law Commission 2016 report ‘Unfitness to Plead’.

 

Background

In 2016, the Law Commission published a report titled ‘Unfitness to Plead’ which included a range of recommendations for CPS, Judiciary, and other statutory partners.

The report highlighted that, whilst the current law relating to unfitness to plead addresses what should happen when a defendant who faces prosecution is unable to engage with the process because of their mental or physical condition, the law is outdated and inconsistently applied, leading to unfairness across the criminal justice system.

The current rules for defining “unfitness” were formulated in 1836 and do not take any account of modern medical understandings of capacity.

Report recommendations included:

 

Chapter 7 ‘Effective participation in the magistrates’ and youth courts’ of the report recommended introducing into the magistrates (including youth) courts procedures to address capacity to participate effectively in trial (10.57). The recommendation sought to create a statutory framework, in summary jurisdiction, for determining a defendant’s capacity to participate effectively, comparable to that of the Crown Court.

The CPS has continued to engage with Ministry of Justice and Department for Health and Social Care colleagues in support of this recommendation, however it is our understanding that a statutory framework will not feature in the Draft Mental Health Bill.

Draft Mental Health Bill White Paper

The White Paper set out the government’s proposal to reform mental health legislation, referenced as one of the most ambitious programmes England has ever known to transform mental health care.

In response to the Independent Review of the Mental Health Act, the White Paper set out 154 recommendations on matters such as decision making, advocacy and patient engagement.

Recommendation 129 of the Independent Review stated: Magistrates' courts should have the following powers, to bring them in line with Crown Courts: remand for assessment without conviction under section 35 of the Mental Health Act (MHA);remand for treatment under section 36 of the MHA; the power to commit a case to the Crown Court for consideration of a restriction order following an 'actus reus' finding; the power to hand down a supervision order following an 'actus reus' finding (where a person is not fit to enter a plea, but has been found to have committed the offence) under S1a of the Criminal Procedure (Insanity) Act.

The Governments response stated: We recognise that the powers available in the magistrates' court to divert defendants towards appropriate support are currently limited. We will consider the proposed changes alongside the wider reforms suggested by the Law Commission in their 'Unfitness to Plead' report. This recommended greater alignment between the Crown Court and magistrates' courts in managing defendants who lack capacity to participate effectively in a criminal trial. We need to consider both sets of recommendations together, as such, we will defer our final decision on this to a later date.

The Law Commission report was published in 2016, and the CPS has been engaged with the Ministry of Justice on this matter since 2011. Despite regular engagement, no statutory framework has been introduced, protracting the issues faced by Prosecutors and Mental Health Casework Section in magistrates’ and youth courts daily. There are no widely reported issues of the Crown Court statutory framework.

 

CPS Legal Guidance

As an interim measure, until such a time that a statutory framework for unfitness to plead in the magistrates’ and youth court is introduced, the CPS have made significant revisions to the Mental Health: Suspects and Defendants with Mental Health Conditions and Disorders Legal Guidance.

The revised Legal Guidance is due for publication in November 2022 and has adopted the following best practice to provide clarity and consistency regarding this issue.

It is our position that the Draft Mental Health Bill could be amended to introduce a statutory framework, building on the below Legal Guidance:

 

CPS Legal Guidance: Suspects and Defendants with Mental Health Conditions and Disorders

Fitness to Plead: the magistrates' court and youth court

The law

The Criminal Procedure (Insanity) Act 1964 does not apply in the magistrates' court and youth court.

In R (P) v Barking Youth Court [2002] EWHC Admin 734, the High Court held that the statutory framework for dealing with issues of fitness to plead in the magistrates' court is set out by a combination of section 37(3) MHA1983 and section11(1) Power of Criminal Courts (Sentencing) Act 2000.  A youth court is to be regarded as a magistrates' court within the meaning of section 37(3) MHA 1983 which provides:

"Where a person is charged before a magistrates' court with any act or omission as an offence and the court would have power, on convicting him of that offence to make a Hospital or Guardianship order under subsection (1) above in his case as being a person suffering from mental illness or severe mental impairment, then if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him”.

Section 37(3) Mental Health Act 1983 applies only to those defendants with a 'mental disorder', and so does not, for example, apply to those defendants with a learning disability whose behaviour is not associated with abnormally aggressive or seriously irresponsible conduct (section 1(2A) and (2B) MHA 1983). 

Section 11(1) PCC(S)A 2000 provides:

"If, on the trial by a magistrates' court of an offence punishable on summary conviction with imprisonment, the court -

  1. is satisfied that the accused did the act or made the omission charged, but
  2. is of the opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined, the court shall adjourn the case to enable a medical examination and report to be made, and shall remand him".

A remand is either for three weeks in custody or four weeks if on bail as provided in section 11(2) PCC(S)A 2000.

 

Considerations for prosecutors

Prosecutors should note that these provisions apply to summary only and either way offences that are imprisonable. The only available disposals under section 37(3) are a Hospital Order or a Guardianship Order. Prosecutors must articulate the rationale for proceeding where such orders are not likely but the imprisonable allegation is to be proceeded with on public interest grounds.

Section 37 does not apply to non-imprisonable offences. It is therefore unlikely to be in the public interest to prosecute a defendant who is unfit to plead and faces a non-imprisonable allegation. 

When considering fitness to plead, prosecutors must be take each case on its own facts and progress them in the most appropriate way, and where possible, endeavour to progress cases at first hearing. 

To ensure that cases are dealt with effectively, and in the best interests of all parties involved, prosecutors must remain alert to a defendant's fitness to plead and rigorously apply the Code. Cases cannot be adjourned without realistic prospect of timely progression, and full regard must be had to the appropriate use of the Schedule 1 Bail Act 1976.

 

Procedure

In Barking, the court said that the procedure is first to determine whether the accused did the acts alleged, and if so, then to consider, in the light of such reports as they may think necessary, whether the case is one for an order under section 37(3) of the Mental Health Act 1983. If the court finds that that the defendant did the act, then it should consider whether to seek further medical evidence with a view to making an order.

It is permissible for a hearing which begins as a criminal trial to switch to a 'fact finding' inquiry at any stage (Crown Prosecution Service v P [2007] EWHC 946 (Admin). Equally, a court may hold a full criminal trial where, having determined that a 'fact finding' inquiry is appropriate, further evidence becomes available to indicate that this is the appropriate course.

It is likely that the court process will have the following features in common with the procedure in the Crown Court:

  1. issues relating to unfitness to plead should be raised as an issue before the trial;
  2. the defence will provide evidence concerning the defendant's mental health condition. Unlike the Crown Court, this need not be the written or oral evidence of two registered medical practitioners and further such evidence should be obtained following any finding made. At this stage there must simply be sufficient evidence to merit the prosecution and court being alive to the possibility of the alternative procedure being followed;
  3. the prosecution will review the case, particularly in the light of the likelihood of a hospital or guardianship order;
  4. a criminal trial or 'fact finding' inquiry will take place, taking into account the evidence before the court;
  5. if the defendant is found to have committed the act, the court considers whether or not further medical evidence is required to make an order under s37(3); and
  6. if the defendant is found not to have committed the act, then a 'not guilty' verdict is recorded.

Notwithstanding what was said in Barking, there will be cases where no hospital or guardianship order will be appropriate. This amplifies the importance of effective participation and clarity about the public interest in prosecution.

  1. All prosecutors must seek to arrange an actus reus/trial hearing at first hearing.
  2. If represented, the defendant does not need to attend court for first hearing.
  3. Prosecutors must request court directions that defence obtain the necessary two reports required if the defendant is to be recommended for a hospital order or guardianship order under section 12 Mental Health Act 1983.
  4. Prosecutors are reminded that the defence obligation to obtain reports, for the purposes of arguing a particular route for the trial process, is not limited to section 12 Mental Health Act 1983 reports. Obtained reports should also address the issue of mental disorder/insanity at the time of the offence so that all stakeholders know the issues in the case. This should be dealt with when the Preparation for Effective Trial Form (PET) form is completed.
  5. Prosecutors are also reminded that, under section 37 Mental Health Act 1983, for disposal a report from the Responsible Clinician with overall responsibility for the defendant must be provided;
  6. Clarity over legal questions arising from defence obtained reports will allow the prosecution to obtain expert evidence to address any challenges, which again should be dealt with in the PET form. 
  7. The court should hear the prosecution case first, then hear evidence for the defence from defence medical experts. 
  8. Only after the court has heard the defence evidence can it decide if the defendant:

a)      Is mentally disordered, as defined in the Mental Health Act 1983, and can/cannot participate effectively in proceedings, and/or

b)      Was mentally disordered at the time of the incident.

 

To ensure cases are dealt with expeditiously and fairly, due regard must be given to CrimPR No.759 Part 19 – Expert Evidence, Part 20 CrimPR 2020, Criminal Practice Directions 2015 – 3D Vulnerable people in the Courts and 3G Vulnerable defendants, and section 33A Youth Justice and Criminal Evidence Act 1999 - Live Link Directions.

 

Indictable Only Offences and linked summary matters

In cases where the defendant has been charged with indictable only offences – and linked summary matters – the case must be sent to the Crown Court regardless of whether the defendant has a mental health condition or disorder. Prosecutors should refer to the Allocation of cases and Sending to the Crown Court | The Crown Prosecution Service for further detail. 

 

Either-Way Offences – Not Suitable for Summary Trial 

For Either-Way offences that are Not Suitable for Summary Trial (NSST), the prosecution must deal with mode of trial and send the case forthwith, with the defendant in attendance at the court.  

 

Either-Way Offences – Suitable for Summary Trial

For Either-Way offences that are Suitable for Summary Trial (SST), if the court is satisfied that the defendant is unable or unwilling to consent to summary trial, the case should be sent to the Crown Court in accordance with section 20(9)(b) Magistrates Court Act 1980 and section 51 Crime and Disorder Act 1998.

A defendant must consent to summary trial and be in attendance at the court if being sent. It is suggested for the court to record ‘jurisdiction declined’ rather than ‘no indication’. 

The only time this process will not apply is in the very rare instance where:

  1. the defence already have the necessary medical reports; and
  2. the defence ask the court to make a section 37 Hospital Order.

 

Magistrates’ have the power to order medical reports where the conditions in section 37 MHA 1983 are met, even where the defendant has elected jury trial. 

Magistrates also have the power, in appropriate cases, to make a hospital order without convicting or trying the defendant where they are unable to consent to summary trial. R v Lincolnshire (Kesteven) Justices, ex parte O’Conner [1983] 1 WLR 335, confirmed in R v Ramsgate Justices (1985) 80 Cr. App. R. 366.

 

Court Ordered Reports

CrimPR 3.10 will apply where, exceptionally, the court chooses to seek a report on a suspected issue of mental ill health other than for sentence rather than depending on the defence to seek such reports as they consider necessary. This applies to both the magistrates’/youth court and the Crown Court. 

 

Effective Participation

The starting point is that a defendant should, wherever possible, face a normal criminal trial. Departing from this should be a last resort. Every effort should be made, using reasonable adjustments, to ensure a defendant can participate effectively in such a trial. 

Prosecutors should be aware of measures to assist vulnerable defendants, including defendants with a mental disorder, in the court process. The primary responsibility lies with the court and the defence, but prosecutors should, consistent with their duty to the court, be ready to draw them to the attention of the court and/or defence if necessary.

 

 

22 September 2022