Share Article: Mental Health and the Criminal Justice System – still in need of reform?

The law relating to those people suffering from mental health conditions remains in urgent need of reform.

There has been some progress. The Sentencing Guidelines Council (the body that sets out sentencing guides for Judges) is considering new sentencing guidelines, for offences committed by those people suffering from a mental illness, whilst the Crown Prosecution Service has introduced new guidelines for prosecutors on dealing with prosecutions.

However new legislation has yet to be introduced, even though the Law Commission has been looking at reforms of both the rules relating to fitness to plead and the insanity defence since 2013.

At present, therefore the law remains based on cases from the 19th century, R v Pritchard 1836 dealing with fitness to plead and M’Naghten 1843 dealing with the insanity defence. The tests, set out by the courts following those cases, still form the basis of how cases are conducted now. Clearly this is an area that needs updating therefore.

Fitness to plead

At present, where a person is believed to be unwell, the test applied is quite basic and simply asks whether they understand the allegations and whether they can give instructions to their lawyers.

The recommendations for reform include a modernisation of the test, to bring it into line with modern psychiatric and psychological thinking. The test would be more centred on the person’s decision making capacity. A statutory entitlement to the assistance of intermediaries and reforming the process in the Magistrates’ and Youth Courts is also being considered.

Insanity defence

The existing system requires the prosecution to prove the offence took place and the person was responsible for the physical act. The person accused, must then prove that they were not guilty by way of insanity.

This is a complex process based of proving they were suffering from a disease of the mind and that they either did not know what they were doing and/or did not know what they were doing was wrong. Due to the complex nature of this system, there are very few successful insanity defences.

The recommendation for reform, is that a new defence is enacted of not criminally responsible by reason of a recognised medical condition. The aim is to considerably simplify the process of establishing lack of capacity and to remove the stigma of relying on a defence which uses terms such as insanity. It would also make the law applicable to those with learning difficulties.

Sentencing guidelines

The current guidelines, used by Judges in sentencing cases, make little reference to the effects of suffering a mental illness. The effect is only recognised as part of the mitigating factors, when deciding sentence. In other words the starting point for the length of sentence is decided first and then, potentially reduced, if there is found to be issues of mental illness.

Clearly the effects of mental illness should be considered in much greater depth from the beginning. The reform suggested, is to bring in new guidelines for sentences specifically dealing with those suffering from mental illness. This would allow Judges to approach sentences with the effects of the condition at the forefront of their considerations, rather than as the second part of the sentencing process.

Whilst the above reforms are welcome they are not the law yet. At present the system remains a mixture of complex legislation and case law. It is essential therefore, that those who are suffering from mental illness, receive specialist advice at every stage in the process. From the police station, to court proceedings, it is essential that the effects of any mental health condition are considered.

In the police station representation and advice is essential, as is the representation in court by people with knowledge of the process. It is important that the potential defences are considered and put forward on behalf of those suffering from mental illness. Our specialist team at Freemans Solicitors of litigators and criminal defence advocates can advise throughout the proceedings.

How we can assist

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then get in touch with our Crime Team on 020 7935 3522 or  or in an emergency please call our 24/7 number 07973 259382 and let us help.

Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.

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