Assessments in Police Custody and for Bail

Once charged with an offence, an accused must either be released on police bail or held in police custody for a court to decide if they should be released on bail or further remanded in custody. If bail is not granted by the court, they are remanded to prison. Psychiatric reports may be requested in relation to applications for, or the granting of, bail or ordered as a requirement of bail. Residence at a psychiatric hospital may be made a bail condition. The main issues to be addressed in bail reports are set out in Box 7.2.

For such a report, it is necessary to consider and address some of the exceptions to a person’s right to bail (Box 7.3). In Ireland, the fundamental consideration is the likelihood of the accused attempting to evade justice (The People (Attorney General) v O’Callaghan [1966] IR 501), although considerably modified by the Bail Act 1997.

At the accused’s first appearance before the magistrates or equivalent court, the court needs an accurate diagnosis, a detailed description of the accused’s condition and a prognosis so that the court is sufficiently confident, in appropriate cases, to grant bail.

Where an alleged offence involves a particular person or class of person and it appears to have arisen as a consequence of some specific psychiatric condition, the psychiatrist has to consider whether the accused is likely to commit further offences, particularly involving the original complainant or others with whom they are perceived, perhaps as a result of delusions, to have something in common, or interfere with witnesses, particularly the complainant.

There may be a case for offering psychiatric admission and, in the case of someone who can give informed consent to admission and comply with bail conditions, the court may be willing to grant bail because hospital treatment will make it less likely that they will commit further offences or interfere with witnesses.

For a person at court, have regard to their mental health needs and consider how they ought to be met, whether on bail or in custody. If there is a need for out-patient or community treatment, arrangements can be made to facilitate this in the event of bail being granted, but for a remand in custody, identify the need for treatment as a matter to be addressed by the prison healthcare service. So, designate one copy of the report for either the general practitioner or the prison medical officer. Consider sending it by email. Similar considerations apply to notifying the prison where there is an urgent need for hospital admission. Perhaps a bed is not available or the magistrates are not willing to allow the person to go to a bed of the level of security considered appropriate.

If bail is granted, conditions may be attached and in particular to facilitate an enquiry into the person’s mental condition. There may be a requirement to attend for this purpose as an out-patient, or to reside as an in-patient, at a particular place and to comply with any directions which may be given.

If it is a bail condition to be admitted to a psychiatric hospital, pay careful regard to the wording of the bail conditions. They should incorporate requirements to obey the directions of the doctor or nurse in charge and comply with hospital rules. This is a statutory requirement in Scotland. Draw up a list of rules, including, for example, compliance with hospital policies concerning personal searches, alcohol and drug screening and following the advice of the clinical team. Obtain written agreement in the form of a contract. A patient who breaches this contract or insists on leaving when refused permission to do so may be in breach of their bail conditions. Appropriate wording and written consent should overcome any objections to notifying the police that the person is about to be discharged for failure to comply with the hospital rules. If the police cannot be informed, they will not be able to consider an arrest for breach of bail and there will be a risk of further offences on bail or interference with witnesses. Local arrangements should ensure police cooperation when a patient is being discharged under such circumstances. If there is no urgency, identify a discharge date, preferably at least three working days away, and notify the court and the patient’s solicitor so that a date can be set for a hearing to consider the breach of bail.

For someone who might not comply with bail conditions, courts in most jurisdictions (Ireland excluded) have the power to remand a person to hospital for assessment. It is not an alternative to a remand on bail with a condition of residence in a psychiatric hospital, but an alternative to a remand to prison, so essentially a provision for obtaining a psychiatric report which could not be obtained by a remand on bail.

In England and Wales, for a remand for assessment (MHA 1983, s 35) an AMP must have reason to suspect that the person is suffering from mental disorder within the meaning of the MHA 1983, s 1. Only reasonable suspicion is needed. Its purpose is to inform the court as to issues such as FTP and disposal; its purpose is not to compel assessment for evidential purposes at the behest of the prosecution (R (M) v Kingston Crown Court [2014] EWHC 2702 (Admin)). It cannot be used to impose treatment, but response to treatment may be part of the assessment. A person remanded under s 35 can be prevented from leaving the hospital, but, if admitted to an unlocked ward, it needs to be fairly certain that they will comply with the requirement to stay in the hospital. If such cooperation can be expected, then arguably the criteria for s 35 are not met; it would not be impracticable to obtain the report if they were remanded to the hospital as a condition of bail. Thus, remands under this section are more likely to be to locked hospital facilities, as physical security may be necessary.

In Scotland, a similar provision exists under the Criminal Procedure (Scotland) Act 1995 (CP(S)A)), s 52D for an assessment order. Box 7.4 sets out the issues to be addressed in a report recommending such an order. The significant differences are that the doctor providing the evidence for making the order does not have to be an ‘approved’ registered medical practitioner (RMP) (under the Mental Health (Care and Treatment) (Scotland) Act 2003, s 22) and the purpose of the order is to determine if the criteria for a treatment order are met.

Northern Ireland has a similar provision in the Mental Capacity Act (Northern Ireland) 2016 (MCA(NI)), s 164(1). An order for a medical report where the accused has, or is reasonably suspected of having, a mental disorder (defined in s 305 as ‘any disorder or disability of the mind’) requires evidence from an AMP (i.e. a medical practitioner approved by the Regulation and Quality Improvement Authority (s 253)).

Discontinuance of Proceedings

Once a person has been summonsed, arrested on warrant or charged by the police, a prosecuting authority takes over. The Code for Crown Prosecutors (CPS 2013) in England and Wales identifies some common public interest factors tending for and against prosecution. One relates to the mental health of the accused (Box 7.5) as is also the case in the Isle of Man. Such evidence may make a prosecution less likely, subject to the victim’s views. In general, it will be in the public interest to prosecute even if an accused is mentally disordered. A similar consideration applies to victims. Proceedings can be discontinued under the Prosecution of Offences Act 1985, s 23 by withdrawal of the case or simply offering no evidence.

In Ireland, discontinuance is brought about by the Director of Public Prosecutions entering a nolle prosequi (see below). There is also provision under the Probation of Offenders Act 1907 to dismiss the charge or order a conditional discharge in certain summary cases where ‘having regard to the character, antecedents … health or mental condition of the person charged … it is inexpedient’ to punish the person or it is expedient to release the offender on probation without recording a conviction.

In the Isle of Man, the Attorney General would usually offer no evidence should it elect to discontinue proceedings and in the Court of General Gaol Delivery it is also possible for the prosecution to offer a nolle prosequi (see below).

Box 7.6 sets out matters to be considered in a report on discontinuance. But many people will be unhappy about being charged with a criminal offence and anxious about going to court. This is not the same as ‘significant mental … ill-health’. Likewise, threats to commit suicide, if the prosecution goes ahead, have to be evaluated with the utmost caution lest the prosecution is manipulated into discontinuance where there is no real suicide risk.

Nolle Prosequi

In a number of jurisdictions, but not Scotland, the prosecution has a power to stop or ‘stay’ a prosecution by the entry of a nolle prosequi. It is a power with which the courts may not interfere. It brings the criminal process to an end, but it does not prevent subsequent indictment for the same offence. In reality, however, it usually heralds the end of the prosecution.

A nolle prosequi is now usually directed to be entered where the accused cannot be produced to plead or stand trial owing to physical or mental incapacity which is expected to be permanent. Pay particular regard to severity and prognosis. Relatively severe forms of intellectual disability and some forms of dementia might be grounds.

Abuse of Process

Courts can also stay proceedings to protect the legal process from the abuse into which it might fall without such powers; it is a limited discretionary power to prevent a prosecution proceeding. It applies where it will be impossible to give the accused a fair trial, or in the particular circumstances it offends the court’s sense of justice and propriety to be asked to try the accused, or a trial will undermine public confidence in the criminal justice system and bring it into disrepute (Warren v Attorney-General for Jersey [2011] UKPC 10). In cases of potential unfairness, the accused needs to be seriously prejudiced; there has to be a real risk that a fair trial could not be had. In Ireland, it is less a case of abuse of process than a requirement of constitutional justice.

This power may be exercised where the fairness of the trial would be compromised because the proceedings were going to be ‘oppressive and vexatious’ for the accused, such as where the accused is too ill to be tried or for their trial to continue. This could risk bringing the justice system into disrepute. Fairness might be compromised where an accused, as a result of memory impairment, cannot give an account of events because they can no longer relate to the events at the relevant time (Jackson and Johnstone 2005). In R v L [2013] EWCA Crim 991, where three adolescents had been trafficked to work in cannabis farms and one adult for the purpose of sexual exploitation, the court indicated that an abuse of process application would be likely to succeed where the trafficked person ‘was under levels of compulsion which means that in reality culpability was extinguished’.

There is no clear distinction between what nature or degree of mental disorder should lead to an application for a stay and what should lead to an enquiry as to FTP. Inevitably, preparing a report for a stay requires consideration of matters that touch on FTP. If the application is unsuccessful, the defence may then raise the issue of FTP.

A stay is only that, so the court may order the accused to be reassessed later to ascertain whether they have recovered sufficiently to stand trial. It is not unknown for accused persons to fabricate or exaggerate mental disorder in order to postpone, indefinitely, they hope, a criminal trial. Their investigation requires the most careful examination of all the medical records of their treatment after the stay has been granted since, as time goes by, it becomes increasingly difficult to avoid saying or doing something that ‘gives the game away’.

Fitness to Be Interviewed and Reliability of Police Interviews

In England and Wales, the Isle of Man and Northern Ireland, in order to avoid obtaining interview evidence that is subsequently excluded because the prosecution cannot prove beyond reasonable doubt that it was not obtained by oppression or in consequence of anything said or done which was likely to have made it unreliable (Police and Criminal Evidence Act 1984 (PACE), s 76, Criminal Justice Act 1991 (CJA 1991), s 11(2) and Police and Criminal Evidence (Northern Ireland) Order 1989 (PCE(NI)O), art 74, respectively) or because it would have such an adverse effect upon the fairness of the proceedings that, according to the judgment and discretion of the court (R (Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134) it should be excluded (PACE, s 78, CJA 1991, s 13, PCE(NI)O, art 76, respectively), the police apply a number of safeguards set out in Code C of the Codes of Practice of the PACE, the PCE(NI)O and the Police Powers and Procedures Codes Order 2014 (the Manx Codes). In Scotland, the equivalent requirement as to the fairness of the interview is determined according to Lord Hodge’s ruling in HM Advocate v Duncan [2006] HCJ 06:

In England and Wales, it is recognised that although ‘vulnerable persons are often capable of providing reliable evidence, they may, without knowing it or wishing to do so, be particularly prone in certain circumstances to providing information that may be unreliable, misleading or self-incriminating’ (PACE Code C, Note for Guidance 11C; PCE(NI)O Code C, Note for Guidance 11C; similar provision at 11C in the Manx Codes). The England and Wales Code C includes particular provisions relating to persons who ‘may be vulnerable as a result of having a mental health condition or mental disorder’ and the Northern Ireland Code C also makes provision for detainees who have a ‘mental disorder’ or are ‘mentally vulnerable’ (Code C, Note for Guidance 1G). In England and Wales, ‘mental disorder’ means ‘the range of clinically recognised conditions’ described at p. 26, para. 2.5 in the MHA 1983 Code of Practice (PACE Code C, Note for Guidance 1GB) and in Northern Ireland it means ‘any disorder or disability of the mind’ (MCA(NI), s 305), mental vulnerability or communication difficulties. In England and Wales, PACE Code C 1.13(d) states that ‘vulnerable’ applies to any person who, because of a mental health condition or mental disorder:

Code C of the Manx Codes makes similar provisions for those with ‘mental disorder’, defined in the Mental Health Act 1998, s 1(2) as ‘mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind’.

Mental vulnerability probably includes states of extreme emotion and distress (R v Souter [1994] 11 WLUK 101). Gudjonsson et al. (1993) found that a third of suspects were not in a normal mental state while in police custody due to extreme distress or mental disorder which could impair their capacity for rational decision-making or coping effectively with interview and they have suggested that even detainees whose mental health or psychological problems do not amount to actual mental illness or mental disorder are potentially vulnerable to giving misleading or unreliable statements.

In England and Wales, Code C 11.15 provides that ‘[a] … vulnerable person must not be interviewed … in the absence of the appropriate adult’ unless delay might give rise to certain risks (set out in C 11.1) and the interview would not significantly harm the detainee’s physical or mental state (C 11.18). The role of the appropriate adult is to safeguard the rights, entitlements and welfare of the detainee. Code C, 11.15, 11.18 of the Northern Ireland and Manx Codes have a similar provision.

In Ireland, there is a general provision (Criminal Justice Act 1984, (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987, reg 3) that members of the Gardaí should have regard for the special needs of any detainees who may be under a ‘mental disability’ and there is a requirement (reg 12) that the interview must be conducted in a fair and humane manner. The Children Act 2001, s 55 requires the Gardaí to act ‘with due respect for the personal rights of the children and their dignity as human persons, for their vulnerability owing to their age and level of maturity and for the special needs of any of them who may be under a physical or mental disability’. In The People (DPP) v Diver [2005] 3 IR 270, the Supreme Court suggested that if there was a breach of the Regulations the issue was whether it prejudiced the fairness of the accused’s trial.

In England and Wales, Northern Ireland and the Isle of Man, Code C 1.7b states that ‘appropriate adult’, in the case of a mentally disordered or mentally vulnerable person, means:

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  (i) a relative, guardian or other person responsible for their care or custody;

  
  
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  (ii) someone experienced in dealing with mentally disordered or mentally vulnerable persons …

  
  
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  (iii) failing these, some other responsible adult aged 18 or over, but not a police officer or police employee etc.

In England and Wales and Northern Ireland, in the case of a juvenile who is estranged from their parent, the parent should not act as the appropriate adult if the juvenile expressly and specifically objects (Note for Guidance 1B). Also, in Northern Ireland, a person who appears to be mentally disordered or otherwise mentally vulnerable should not be an appropriate adult (Note for Guidance 1B). In Northern Ireland, the police are required to provide the appropriate adult with written guidance as to their role if they require it (Note for Guidance 1AA of Code C of the PCE(NI)O).

In Ireland, detainees suspected of being, or known to be, ‘mentally handicapped’ can only exceptionally be interviewed in the absence of a ‘responsible adult’ who cannot be a member of An Garda Síochána and who, where practicable, has ‘experience in dealing with the mentally handicapped’. ‘Mental handicap’ is not defined and the expression has not been amended in any subsequent revisions of the custody regulations. At best, it must be taken to mean intellectual disability or impairment, as distinct from mental illness or any other form of mental disorder. Solicitors are advised that ‘[i]n circumstances where a client is labouring under a mental or psychiatric disability’, they may request that a psychiatrist or psychologist is contacted to assess the detainee’s fitness to be questioned by Gardaí (Law Society of Ireland 2016). However, there are no specific provisions in relation to fitness to be interviewed (FTBI).

Appropriate adult schemes also exist in Scotland and there is a similar requirement for an appropriate adult to attend if a police officer suspects that someone who is being interviewed has a mental disorder.

‘[A]ny mental or personality abnormalities may be of relevance’ (R v Wilkinson (Court of Appeal Criminal Division, unreported, 25 July 1996)) when considering mental disorder and mental vulnerability, including ‘a personality disorder so severe as properly to be categorised as mental disorder’ (R v Ward (Judith) [1993] 1 WLR 619). But this is not enough as ‘the abnormal disorder must not only be of a type which might render a confession or evidence unreliable; there must also be a very significant deviation from the norm shown’ (R v O’Brien [2000] All ER (D) 62).

Severe personality disorder was the basis of a prostitute’s successful appeal against a robbery conviction (R v Walker [1997] 7 WLUK 689). A psychiatrist gave evidence that she might have elaborated inaccurately on events without understanding the implications of doing so. The conviction was quashed in R v Lawless [2009] EWCA Crim 1308, where psychological evidence showed that the appellant was emotionally unstable, had high levels of compliance and had a pathological dependency on others.

Where the case against an accused with intellectual disability depends wholly or substantially on their confession and the court is satisfied that they are ‘mentally handicapped’ and that the confession was not made in the presence of an independent person, the jury has to be warned to be cautious before convicting in reliance on the confession (PACE, s 77, PE(NI)O, art 78). ‘Mentally handicapped’ means having a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning. R v Silcott [1991] 12 WLUK 49 established that significant impairment of intelligence is not defined by a specific intelligence quotient (IQ) level as the court was ‘not attracted to the concept that the judicial approach to the submissions under section 76(2)(b) should be governed by which side of an arbitrary line, whether at 69/70 or elsewhere, the IQ fell’.

In R v Ali [1999] 2 Archbold News, the appellant had an IQ between 66 and 72. His conviction for drug dealing was quashed on the ground that his admissions and assertions were obviously exaggerated and likely to be unreliable as a result of his intellectual disability. R v Steel [2003] EWCA Crim 1640 is the case of a man convicted of murder in 1979 when a psychiatrist decided that his measured IQ of 67 was probably an underestimate and he was of ‘dull normal intelligence’. The report was not put in evidence. Subsequently, on the basis of his IQ of 74 in 1996 (on the Wechsler Adult Intelligence Scale – Revised) and 65 in 2001 (on the Wechsler Adult Intelligence Scale – 3rd edn), and degrees of suggestibility and compliance ‘near the borderline of abnormality’, his conviction was quashed because ‘his unforeseen abnormally low IQ rendered him particularly vulnerable to interrogation’.

Personality disorder, specifically psychopathic disorder, and ‘low normal intelligence’ together led to the successful appeal against a murder conviction in R v Harvey [1988] Crim LR 241. Harvey falsely confessed to the murder after hearing her lover’s confession. Her admission was excluded as the prosecution could not prove beyond reasonable doubt that it was not made as a consequence of a child-like desire to protect him.

A combination of factors led to the exclusion of interview evidence under PACE, s 78 in R v Aspinall [1999] Crim LR 741. Aspinall informed the custody officer of his schizophrenia, but was considered fit to be interviewed. He declined a solicitor. He was eventually interviewed thirteen hours after arrest without an appropriate adult. He wanted to get home to his wife and children. Although his own psychiatrist testified that he would probably have been tired, under stress and worried and therefore possibly less able to cope with questions and might have given answers to effect an early release from custody, the interview was admitted. At his successful appeal, it was held that there had been a clear breach of Code C because there was no appropriate adult and:

There will continue to be cases in which expert evidence by psychiatrists and psychologists, as to reliability, will be necessary in order to avoid the mentally disordered and mentally vulnerable being wrongly convicted. The factors identified as relevant when determining the fairness of the interview in Duncan helpfully summarise the issues:

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  the presence of mental disorder;

  
  
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  the format of the interview;

  
  
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  the degree of coercion used to obtain a confession;

  
  
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  the interviewee’s suggestibility;

  
  
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  the interviewee’s level of understanding and comprehension;

  
  
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  if present, the competence of the appropriate adult acting within their role.

Reliability is essentially about the capacity of the detainee for truthfulness and for accuracy unimpaired by mental disorder or mental vulnerability or, where such dangers exist, the steps taken to negate their potential effect on the interview (Ventress et al. 2008). An internal element relates to the detainee and an external element to circumstances or things that are said or done that might affect the detainee. This is reflected in the three considerations in Annex G to Codes C of the PACE and the PCE(NI)O:

Assessment focuses not only on the detainee’s mental state, but on what effect the circumstances and the things said or done by the police may have had. R v Delaney [1988] 8 WLUK 34 was the case of a man whose confession to indecently assaulting a child was the whole basis of the prosecution case. A psychologist gave evidence that he was ‘educationally subnormal’, had an IQ of 80 and his personality was such that he would be ‘subject to quick emotional arousal which might lead him to wish to rid himself of the interview by bringing it to an end as rapidly as possible’. The interviewing police officers deliberately sought to play down the seriousness of the assault and to suggest that he needed psychiatric help. In quashing the conviction, the court found that he might have felt that it was easier to get away from his unpleasant state of arousal by confessing, particularly in the light of the suggestion that what was required was treatment rather than prison.

Box 7.7 is a framework for investigating such cases. One objective is to reconstruct the detainee’s mental and physical state whilst in police custody (Gudjonsson 2003, p. 313) and then to determine the potential reliability or otherwise of the interview. It is advisable to work in tandem with a forensic psychologist.

Central to the assessment are the actual interviews and the circumstances in which they took place. There has to be an analysis of the interviews that demonstrates how the detainee’s mental disorder or mental vulnerability appears to have given rise to unreliability. In Ackerley v Her Majesty’s Attorney General of the Isle of Man [2013] UKPC 26, although expert evidence raised concerns about the procedural course of the investigation of a sexual assault by a man with autism, the court concluded that they did not affect the safety of the conviction. It is a ‘functional test’ and not a ‘state’ test. This is reflected in Annex G of Code C of the PACE and the PCE(NI)O: ‘It is essential healthcare professionals who are consulted consider the functional ability of the detainee rather than simply relying on a medical diagnosis, e.g. it is possible for a person with severe mental illness to be fit for interview.’

There has to be evidence in, or outside, the interviews themselves of things said or done, that can be demonstrated to question reliability: ‘the real criterion must simply be whether the abnormal disorder [sic] might render the confession or evidence unreliable’ (O’Brien); ‘a causal link between what was said or done and the subsequent confession had to be shown’ (R v Goldenberg [1988] 5 WLUK 173).

Where someone with a mental disorder or mental vulnerability has not been afforded the assistance of an appropriate adult, or where the appropriate adult has not intervened at all, or appears to have failed to intervene when they should, it will be necessary to say how the interview would have been different, had they intervened.

Work with complete transcripts and an audiotape or videotape of the interview. Pauses, tension, shouting or distress may be evident. The police’s edited transcript does not always fully convey the way in which the accused communicates. Determining whether rather jumbled comments by the accused represent a clinical phenomenon, such as thought disorder, may be assisted by listening to the recording. The beginning of the interview and the caution may be omitted. Difficulties in explaining the caution and sometimes the detainee’s complete failure to understand it may be important clues to the nature of their difficulties and an important ground for a submission to exclude the interview. In R v McGovern (1990) 92 Cr App Rep 228, where a 19-year-old pregnant woman with an IQ of 73 was charged with murder, it was part of her successful appeal against conviction for manslaughter that her confession was made in the absence of a solicitor when she was ‘physically ill, emotionally distressed and unable to understand the caution until it was explained in simple language’.

Box 7.8 lists aspects of the interview that may have a bearing on their reliability.

Whether a suspect was suffering from a mental disorder at the time of the interviews is an objective test. In R v Everett [1988] Crim LR 826, the medical evidence was that the detainee had an IQ of 61. The Court of Appeal held that it did not matter what the police officers thought; the test was the detainee’s actual condition as subsequently diagnosed by the doctor. R v Beattie [2018] NICA 1 has established that suspicion may be dispelled upon examination by a forensic physician.

It may be necessary to try and re-examine the basis for a judgement, by the doctors involved at the time of the interview, that the suspect was fit to be interviewed or did not need an appropriate adult. Gudjonnson (2003, p. 269) describes a case where the trial judge held that the two doctors had considered only potential harm rather than potential unreliability.

Under the PACE, s 76, the court must exclude the confession if it finds that it was obtained by ‘oppression’ or under circumstances likely to render it ‘unreliable’. Oppression is subjective: ‘What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of the world may turn out not to be oppressive when one finds that the accused is of tough character and an experienced man of the world’ (R v Priestley (1965) 51 Cr App R 1).

In R v Emmerson [1990] 11 WLUK 266, the court did not accept that the police’s rude and discourteous questioning, with some shouting and bad language, was oppressive, but it might be so in someone who could easily be overwhelmed by such behaviour. In R v Miller [1986] 1 WLR 1191, it was held that it might be oppressive to put questions to someone known to be mentally ill so as ‘skilfully and deliberately’ to induce a ‘delusionary’ state. While an ‘experienced professional criminal’ might expect a vigorous interrogation (R v Gowan [1982] 6 WLUK 123), it was held that there had been oppression in the case of R v Hudson [1980] 10 WLUK 280, where a middle-aged man of previous good character had been subjected to a lengthy and, in some respects unlawful, interrogation.

In Ireland, the test is one of fairness. The People (DPP) v Shaw [1982] IR 1 established that what was technically a voluntary statement could be ‘excluded if, by reason of the manner or circumstances in which it was obtained, it falls below the standard of fairness’.

An Irish case helpfully defines oppression: ‘Questioning which by its nature, duration or other attendant circumstances (including defective custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have remained silent’ (The People (DPP) v McNally and Breathnach [1981] 2 Frewen 43).

What interviewing techniques may be oppressive or render the suspect’s evidence unreliable is a specialised area (Gudjonsson 2003, pp. 75–114). Not all of the ‘oppressive’ tactics identified by Gudjonsson are unacceptable and, even when they are used, their identification is not in itself sufficient to submit that the evidence elicited may be unreliable. Furthermore, not all impropriety necessarily involves oppression. What matters is whether reliability is compromised. However, when reporting, it is of critical importance to state not that there is unreliability, but why there might be unreliability (see Chapter 6, ‘Treading on the Judge’s Toes’, for details of Pora).

In R v Paris (1993) 97 Crim App R 99, where the detainee was on the borderline of ‘mental handicap’, the Court of Appeal identified an interview in which he was ‘bullied and hectored’ as oppressive and said that it should have been excluded. It also pointed out that it would have been oppressive even with a detainee of normal intelligence. However, in R v L [1994] Crim LR 839, similar tactics seem to have been regarded as acceptable as long as they did not affect the reliability of the confession. In L & R v R [2011] EWCA Crim 649, there was evidence that L, who showed signs of autistic spectrum disorder, was ‘suggestible particularly when under pressure and when required to respond to complex statements or questions’. A confrontational style of questioning, far from eliciting the truth, might make erroneous answers more likely. There was a risk that under pressure he would give answers in which he did not believe. It was ruled that the admission of the interview, conducted in the absence of an appropriate adult and a solicitor, would be unfairly prejudicial to him.

It is not just ‘oppressive’ interviewing which needs to be identified. In R v Waters [1988] 7 WLUK 374, it was sufficient to have identified merely ‘improper’ questioning which had resulted in ambiguous and potentially unreliable answers. In R v Blackburn [2005] EWCA Crim 1349, the issue was the effect of prolonged questioning on a 15-year-old boy who suffered from no mental disorder, but was described as ‘a vulnerable individual’. Expert evidence was admitted as to whether someone, after prolonged questioning, might make a false confession in the form of a ‘coerced compliant confession’.

It will often be advisable to have a formal assessment of IQ by a psychologist because clinical impressions by prison medical officers and psychiatrists about intelligence are often misleading (Gudjonsson 2003, pp. 322, 469). Also, in R v Kenny [1993] 7 WLUK 202, it was held that it is not appropriate to take IQ test results from one case and apply them slavishly to another case because every case has its individual features.

Psychological test results, even in the absence of a mental disorder, may be evidence of mental vulnerability which is relevant and important in rendering evidence unreliable. It used to be the law that a mental abnormality had to fall into a recognised category of mental disorder for expert evidence to be properly admissible (Ward), but in O’Brien the court questioned this and indicated that the operative consideration was simply whether the abnormality might render the confession unreliable. It also needs to be established that there was evidence of these vulnerabilities prior to police interview.

Abnormal suggestibility and abnormal compliance are vulnerabilities of particular importance. In R v Smith [2003] EWCA Crim 927, convictions for attempted rape and burglary with intent to rape were quashed upon receipt of evidence from psychologists to the effect that the appellant produced abnormally high confabulation scores, both on immediate and delayed recall, and according to the defence psychologist he was ‘abnormally suggestible and compliant on testing’. In Roberts, expert evidence was admitted to show that the accused had a ‘compliant and unreliable’ personality.

Suggestibility may be particularly important in people with an intellectual disability who have a greater tendency to go along with a story that is put to them and the more so if they are under pressure. In R v King [1999] 12 WLUK 333, the appellant’s unsuccessful defence to a charge of murder was that his confession had been obtained under pressure as a result of accepting suggestions put to him by the interviewing officers. At his successful appeal, a psychologist gave evidence that his IQ was 78 and his scores for suggestibility and compliance were in the abnormal range. The court held that he was ‘more vulnerable than was understood at the time, and abnormally ready to accept what was put to him’.

When you prepare the report, be familiar with all of the other evidence and be prepared to place your findings within the context of the totality of the case (Gudjonsson 2003, p. 328). Do not to fall into the trap of assuming that, because there is evidence that a confession is true, there is no issue of reliability. In R v Cox [1990] 11 WLUK 165, where the accused had an IQ of 58, at the voir dire (a trial within a trial at which the judge decides an issue in the absence of the jury), he admitted one of the offences with which he was charged. The trial judge admitted this confession, but was held to have been wrong to do so. Likewise, in R v Crampton [1990] 11 WLUK 258, it was held that, if acts were done or words were spoken which were likely to induce unreliable confessions, then an admission was inadmissible, whether or not true. As to whether a confession is unreliable, the issue of whether the confession is true is strictly irrelevant.

If the accused gives evidence on a voir dire, you should be in court to observe this. In R v Weeks [1995] Crim LR 52, it was held that the demeanour of the accused when giving evidence on the voir dire could assist the prosecution in showing that he was not affected by the threats allegedly made at the interview.

The presence of an appropriate adult is meant to provide safeguards for the detainee, but their mere presence may not be sufficient. Paragraph 11.17 of the Codes of England and Wales, Northern Ireland and the Isle of Man makes it clear that the appropriate adult is not expected to act simply as an observer. The role is an active one: to advise the detainee, to observe whether the interview is being conducted properly and fairly, and to facilitate communication. In Northern Ireland, there is also a discretion for the police to provide a ‘registered intermediary’ where a detainee with a mental disorder or significant impairment of intelligence and social functioning is unable to participate effectively (Notes for Guidance 1GG of Code C). Their role includes advising interviewing officers about appropriate communication strategies and if present they, not the appropriate adult, are responsible for facilitating communication.

The transcripts of the interviews may reveal a failure to advise the person being interviewed, improper or unfair interviewing about which the appropriate adult (or registered intermediary) is silent or a failure to facilitate communication so that misunderstandings are apparent. It may be clear from the custody record that the appropriate adult did not consult with the detainee in private before the interview. In R v Dutton (Central Criminal Court, unreported, 1987), the court concluded that an appropriate adult ‘would, before the police interview, have ascertained from Mr. Dutton, quietly and without any pressure, what he wished to say; and/or … ensured that Mr. Dutton had the advice of a solicitor before he was interviewed’.

In a case which was dismissed after magistrates heard the evidence of a psychologist that the accused was someone who needed an appropriate adult (DPP v Cornish [1997] 1 WLUK 250), an appeal by the prosecution led the court to set out the approach which ought to be adopted in such cases, including receiving prosecution evidence about the interviews. This was identified as: ‘… who was there at the time of the interview and how the interview went, so that the court could form some impression of the effect of the absence of the appropriate adult upon the conduct of the interview and other matters of that kind’.

The psychiatrist or psychologist needs to study the interview records and decide what the effect was of the absence of the appropriate adult, or what the effect was of an appropriate adult being present but not providing the safeguards expected or being an inappropriate appropriate adult (see Box 7.9).

The appropriate adult ‘cannot … be a person with whom the juvenile has no empathy’ (DPP v Blake [1989] 1 WLR 432). In Blake, the appropriate adult was a juvenile’s estranged father whom she did not wish to see. It has been argued that ‘any person to whom the suspect expressly objects is per se inappropriate’ (Mirfield 1997, p. 289, emphasis in the original).

Although case law supports the exclusion of an intellectually disabled or mentally disordered person from being an appropriate adult, as happened in R v Morse [1990] 11 WLUK 237, where the father of the juvenile detainee, acting as appropriate adult, had an IQ of between 60 and 70, was virtually illiterate and was probably incapable of appreciating the gravity of his son’s situation, the test is whether the appropriate adult is capable of fulfilling their functions. Thus, in Ward, where the detainee’s mother was almost certainly psychotic when acting as appropriate adult and had an IQ of 76, the trial judge accepted the psychiatric evidence that she was capable of fulfilling her functions and ruled that she did qualify as an appropriate adult. Her psychosis concerned her neighbours and so, arguably, it did not affect her perception of what was happening to her daughter. The Court of Appeal did not overturn the trial judge on either his description of her as having ‘some intellectual deficit as a result of her chronic psychosis’ or on his judgement of her overall capability of functioning as an appropriate adult.

An appropriate adult is not rendered inappropriate just because they are a ‘somewhat critical observer and participant’, for example, the father of a 15-year-old boy who ‘intervened robustly from time to time, sometimes joining in the questioning of his son and challenging his exculpatory account of certain incidents’ (R v Jefferson [1994] 1 All ER 270).

Failings of the appropriate adult which may render an interview inadmissible or lead to a challenge to reliability are set out in Box 7.10.

Although FTBI is to be distinguished from, and not confused with, FTP (see below), in R v B [2012] EWCA Crim 1799, the Court of Appeal found it very difficult to understand how the judge, having found that the appellant was unfit to plead, could have found that the appellant would understand the caution and have sufficient understanding to be interviewed. It therefore went on to say that it could not understand how his police interview could have been admitted for the trial of the facts (see below) to decide if he had done the act charged.

Out-of-Court Silence

In England and Wales, a detainee who does not answer questions put to him by the police will be at risk of the court allowing an adverse inference to be drawn from his silence (Criminal Justice and Public Order Act 1994 (CJPOA), ss. 34, 36 and 37). However, the courts have made special allowances for the mentally disordered or otherwise mentally vulnerable. In R v Argent [1996] 12 WLUK 323, the court established a subjective test to be applied to a detainee who did not answer the questions put by the police, taking into account such matters as the time of day, the detainee’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge and personality. R v Howell [2003] EWCA Crim 1 confirmed that ‘the suspect’s ill-health, in particular mental disability’, was relevant.

In such a case, a psychiatrist may be instructed in order to decide if, when interviewed, one or more of these conditions applied. In such a case, and where the solicitor has advised the detainee not to answer questions, a request should be made for access to what should be her full and comprehensive record of all the factors that she has taken into consideration. The solicitor will be aware that, if relied upon by the psychiatrist, this information will no longer be legally privileged. See Rix (1998) for a case in which the accused’s personality disorder was accepted as a condition relevant to drawing an inference from his out-of-court silence.

Fitness to Plead and Stand Trial

At the York Spring Assizes in 1831, Esther Dyson, who was ‘deaf and dumb’, was indicted for the murder of her illegitimate child (R v Dyson (1831) 7 Car & P 303) (Rix 2012). A sign language interpreter testified that it was impossible to make her understand that she could challenge jury members and that she could not put words together. Her incapacity to understand the mode of her trial or to conduct her defence was proved. She was ordered to be kept in strict custody until His Majesty’s pleasure was known.

When Pritchard, who was also ‘deaf and dumb’, was indicted for the capital offence of bestiality a few years later, the court followed the procedure in Dyson (R v Pritchard (1836) 7 Car & P 303), but the adoption of the Pritchard jury direction (Box 7.11) in R v Podola [1960] 1 QB 325 has made Pritchard the leading case.

In England and Wales, the procedure for determining whether an accused is ‘under a disability’ is governed by the Criminal Procedure (Insanity) Act 1964 (CP(I)A), the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (CP(IUP)A) and the Domestic Violence, Crime and Victims Act 2004 (DVCVA). If raised by the defence, it bears the burden of establishing unfitness on a balance of probability; if raised by the prosecution, it bears the burden of proving unfitness beyond reasonable doubt. If raised by the court, Halsbury’s Laws suggest that the burden lies on the prosecution to disprove the accused’s unfitness. It is usually raised by the defence.

The CP(I)A does not apply to summary proceedings where the usual course, if there is evidence of unfitness, is to determine whether the accused did the act or made the omission charged and, if so, make a hospital order under the MHA 1983, s 37(3) or make no order at all. So, when the accused is charged with a summary offence and the court is satisfied that he did the act or made the omission, if the court does not have sufficient medical evidence to decide on an order under s 37(3), the Powers of the Criminal Courts (Sentencing) Act 2000, s 11(1)(a) gives the court the power to remand the accused in custody or on bail for a medical report and, if remanding on bail, to impose a condition that the accused cooperates. The power to order medical reports depends merely on the court being satisfied that the accused committed the actus reus of the offence. The report’s focus is narrow – the criteria for a hospital order under the MHA 1983, s 37, but including a risk assessment that informs the recommendation and sets out the proposed treatment, particularly if there is to be no recommendation of a hospital order and it is proposed to care for the accused in the community.

In Jersey, there is no mechanism or direction for FTP to be determined by the lower, magistrate’s court. Where the magistrate’s court has doubt as to a person’s fitness to enter a plea, the court must immediately refer the case to the Royal Court for determination, no matter how minor the alleged offence, although it is open to the Attorney General to consider whether or not the criminal law should be engaged if it is a relatively trivial offence (Attorney-General v O’Driscoll [2003] JRC 117).

In England and Wales, in the youth court, where also the CP(I)A does not apply, the test is of ‘effective participation’. In SC v United Kingdom [2004] 6 WLUK 252, an 11-year-old boy of limited intellectual ability and with a poor attention span had been convicted of robbery. The European Court of Human Rights ruled that:

SC v United Kingdom was considered in R (P) v West London Youth Court [2005] EWHC 2583 (Admin). The accused was aged 15 years, had an IQ of 63 and on appeal it was argued that he could not effectively participate in the proceedings. The court held that neither youth nor limited intellectual capacity necessarily led to a breach of the European Convention on Human Rights (ECHR), art 6 (the right to a fair trial). It found that crucially the district judge had taken into account how the youth court was designed and adapted to deal ‘with the kind of problems presented by the claimant and other youngsters whose intellectual capacity falls at the lower end of the scale’. The court identified a number of steps that could be taken (Box 7.12).

The issue is decided by a judge alone on the evidence (written or oral) of two or more RMPs, at least one of whom must be an AMP (CP(I)A, s 4(6)), but this does not apply to summary proceedings (see above). Where the medical evidence is unanimous, it may be read, but the judge is entitled to reject it and, in which case, as where it is contested, oral testimony will be necessary. R v Walls [2011] EWCA Crim 443 established that: ‘Save in cases where the unfitness is clear, the fact that psychiatrists agree is not enough … a court would be failing in its duty to both the public and to an accused if it did not rigorously examine the evidence and reach its own conclusion.’

Box 7.13 shows how the test for FTP is operationalised. Note that ‘the current test … is expressed as a single, indivisible test which must be met in its entirety. An accused will not be fit to plead or stand trial if any one or more of the specified competences is beyond his capability’ (Marcantonio v R [2016] EWCA Crim 14).

Box 7.14 shows some common misunderstandings about FTP. The test has a high threshold.

The following explanations of the competences for FTP, taken from R v M (John) [2003] EWCA Crim 3452, and some of the requirements for effective participation established in SC v United Kingdom should be read in conjunction with Box 7.13.

The accused must have a broad understanding of the nature of the trial process and of what is at stake, including the significance of any potential penalty, the role of the jury and the importance of making a good impression on the jury.

Instructing solicitors and counsel involves being able to (1) understand the lawyer’s questions, (2) apply the mind to answering them, (3) convey intelligibly the answers which they wish to give, (4) explain their version of events, (5) point out any statements with which they disagree and (6) point out any facts which should be put forward in their defence.

Following the course of the proceedings means being able to (1) understand and follow what is said by the witnesses and counsel in their speeches to the jury and (2) communicate intelligibly to their lawyers any comment they may wish to make on anything that is said by the witnesses or counsel – for example, that a witness is saying something that is not true. This does not mean understanding, or being capable of understanding, every point of law or evidential detail – only having ‘a grasp of the essential issues’ (JD v R [2013] EWCA Crim 465).

Giving evidence if they wish in their own defence means being able to (1) understand the questions asked, (2) apply their mind to answering them and (3) convey intelligibly to the jury the answers which they wish to give. It includes being cross-examined (R. v Orr [2016] EWCA Crim 889).

The test is case specific:

For example, in JD v R, ‘[t]he evidence was not complicated. It was before the court in a readily comprehensible form … The Appellant was able to convey his defence to his legal team. He understood sufficiently that his potential involvement went beyond his own actions.’

Walls illustrates the difficulties in not addressing the Pritchard criteria. The court found the expert psychiatric witness somewhat unsatisfactory and rejected his evidence. He had not considered the appellant’s police interview and at the appeal he reluctantly agreed that the appellant was able to give an explanation of what had happened and maintain a consistent account (as he did at trial). He suggested that the appellant could accept suggestions uncritically, but it was clear from his interview that this was not so. He could not provide satisfactory answers to questions exploring his dogmatic assertion that the appellant was unfit to plead or explain how his views related to the Pritchard criteria.

In Scotland, statutory criteria for unfitness for trial are contained in the CP(S)A, s 53F (Box 7.15). The standard of proof is the balance of probabilities. Medical or psychological evidence is needed. The test is whether the person is ‘incapable, by reason of a mental or physical condition, of participating effectively in a trial’. Someone is not unfit for trial by reason only of being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge.

In Northern Ireland, the procedure for determining fitness to be tried is set out in MCA(NI), s 204. It is a matter for the decision of the court without a jury. It requires evidence from two RMPs, including the oral evidence of an AMP. There are no statutory criteria for FTP, but the Northern Ireland Law Commission (2013) has recommended that the ‘Pritchard test’ is updated to incorporate the language of capacity.

In Ireland, the Criminal Law (Insanity) Act 2006 (CL(I)A), s 4 governs fitness to be tried (Box 7.16). It may arise at the instance of the defence, the prosecution or the court. It is determined on the evidence of an ‘approved medical officer’ (AMO) (a consultant psychiatrist within the meaning of the MHA 2001) by the District Court where the person is charged with a summary offence and in all other cases by the trial judge.

In Jersey, the capacity to participate effectively takes into account the accused’s ability ‘to make rational decisions in relation to his participation in the proceedings (including whether or not to plead guilty) which reflect true and informed choices on his part’ (O’Driscoll), although in Harding v Attorney General [2010] JCA 091, the court said that it did not regard this test as any different in principle from that which has been held to apply in England.

Assessment is best approached, following a minimum of introduction, by asking the accused to explain his attendance. His response may indicate that he understands the adversarial criminal proceedings and the nature of the offence(s). Questions as to plea may reveal whether he understands the available pleas and their effects. If pleading not guilty, the accused can be asked to explain why, although, if the assessment is at the request of the prosecution, he may have been advised not to discuss his defence. Then it will be more difficult to decide whether or not he can give instructions. This is because ‘where the assessment almost inevitably will entail questioning about the circumstances of the alleged offence’, apart from the PACE, s 78, there seems to be no specific protection regarding the subsequent use of those statements either in a hearing under the CP(I)A (as amended by the CP(IUP)A), s 4 A to ascertain if an unfit accused committed the act or omission in the charged offence, or in a trial if the accused is found fit to plead (R (M) v Kingston Crown Court). If two or more have been charged, the accused’s relationship with them should be explored, as an accused’s vulnerability might be such as to require consideration of special provisions, such as not sitting with the other accused persons or even a separate trial. To test his ability to give instructions and his understanding of the evidence, put some of the evidence to the accused and ask him to comment or explain. This will also assist as to the accused’s ability to give evidence. The test of challenging a juror is satisfied if the accused is capable of understanding that he should tell his lawyers if he knows or recognises a juror and can tell them so. The case should not be considered in isolation: how the accused conducts the affairs of everyday life will shed light on the abilities needed to understand evidence, give instructions and give evidence. Witness statements, reports and medical records should be searched for evidence of the accused’s everyday functioning. The police interview record may reveal what the accused has previously demonstrated as to his understanding of the allegations, his ability to understand evidence and explanations that may suggest what his instructions to his legal representatives might be. As FTP may change over time, re-examination on the day of the trial may be advisable; this is usually done on a joint basis with the other expert(s).

Borderline cases of intellectual disability can be problematic. Although it will often be advisable to have the evidence of a psychologist, the test is a legal test and not a matter of IQ or performance on some particular test. Cases involving dementia can be difficult, as impaired memory can affect the ability to follow the course of the proceedings. The most difficult cases involve depressive disorders. These often involve hitherto, or still, law-abiding professional or business people who are understandably unhappy when charged with an offence such as fraud and fear not just financial and professional ruin, but years of imprisonment to which they will be unaccustomed. But remember that many accused are unhappy at being prosecuted and fearful of the outcome, but are not under a disability. Memory and concentration impairments severe enough to interfere with understanding evidence, giving instructions or giving evidence are easy to assert and for some not difficult to represent. Careful forensic assessment is needed to assess genuineness. The recollection of a recent event can call into question alleged memory impairment. An admission to spending six hours a day going over statements and documentary exhibits with a solicitor calls into question impairment of concentration. Careful study of medical records and witness statements may reveal evidence inconsistent with the symptoms alleged.

Particularly in cases of depressive disorder, there are often concerns that the trial will make the accused suicidal. The courts are wary of such concerns. In R v Lederman [2015] EWCA Crim 1308, the trial judge referred to this as ‘holding a gun at the court’s head saying: don’t you dare tip him over the edge’. He was upheld by the Court of Appeal: ‘Concerns about suicidal ideation and mental fragility are not part of the Pritchard criteria for consideration of unfitness to plead.’

Allowance needs to be made for the adjustments that can reasonably be made to the trial to assist an accused and ensure their effective participation (see ‘The vulnerable defendant’, below). In Walls, the court stated that this includes the use of an intermediary.

Be prepared for the court seeking assistance as to the disposal of the case. If it is a case in which the court ought to consider imposing restrictions on discharge, make this clear in the report. Some judges take the opportunity to hear oral evidence on this issue, with the opportunity for cross-examination, during the enquiry into unfitness. It is then unnecessary to recall the psychiatrist to give evidence if the jury’s finding is that the accused did the act(s) or made the omission alleged.

In England and Wales, if the accused is found to be ‘under a disability’, the court then conducts a trial of the facts under the CP(I)A, s 4A(2) and a jury decides whether the accused ‘did the act or made the omission charged against him as the offence’. Although an accused found unfit to plead and stand trial may rarely be permitted to give evidence at the trial of the facts, the judge and counsel ‘should always give careful consideration to whether it is right that the defendant should do so’ (R v Egan (Michael) [1998] 1 Cr App R 121) and although an interview with an accused who has been found unfit to plead and stand trial can be introduced during the trial of the issue, ‘the court will usually need to be persuaded by expert evidence that notwithstanding the finding of unfitness, the defendant understood the caution and generally it was safe to interview him’ (R v Swinbourne [2013] EWCA Crim 2329).

If found to have done the act or made the omission alleged, the court must make: (1) a hospital order with or without a restriction order without limit of time; (2) a supervision order, which may include treatment by or under the direction of an RMP; or (3) an order for absolute discharge (DVCVA, s 24(1)). Before a supervision order can be made, there has to be evidence that such supervision is available and that the necessary arrangements are in place (City and County of Swansea v Swansea Crown Court [2016] EWHC 1389 (Admin)). Additionally, the CP(I)A, s 5 A permits the making of orders under the MHA 1983, ss. 35, 36 and 38 prior to final disposal of the case where there has been a finding of disability (or insanity).

In Scotland, the CP(S)A, s 57 provides for the following disposals for a person found unfit for trial and found beyond reasonable doubt on an examination of the facts to have committed the act charged: a compulsion order, a compulsion order with a restriction order, an interim compulsion order, a guardianship order, a supervision and treatment order, and a discharge with no order.

In Ireland, if the accused is found to be unfit, the court may then allow evidence to be adduced as to whether or not the accused did the act alleged. If satisfied that there is reasonable doubt as to whether the accused did it, they must be discharged; once committed to a designated centre, further disposal is subject to the Mental Health (Criminal Law) Review Board.

In Northern Ireland, if following a finding of unfitness to be tried and a finding by a jury that the accused did the act or made the omission charged, the court has to make a public protection order (PPO), a public protection order with restrictions (PPOR), a supervision and assessment order or order an absolute discharge. If the offence charged is one for which the penalty is fixed by law, the only possible disposal is a PPOR (MCA(NI), s 207(b)) and it cannot be for a specified period (s 207(c)).

It can be a ground for appeal against conviction that the appellant was not FTP. In R v Moyle [2008] EWCA Crim 3059, the Court of Appeal had evidence from three psychiatrists to the effect that the appellant had been unfit to plead at the time of his trial, but the court was unable to accede to the submission that he was not FTP. The reasons given by the court illustrate matters that should be carefully considered in such cases at the time of the trial and where the issue arises on appeal. They included how the appellant gave evidence at his trial; he did so in a way which did not create doubts about his ability to understand questions put to him and to give the answers he saw fit to give; there was no indication that he failed to understand the evidence given or to respond to it with his own account, albeit an account which the jury disbelieved. He understood that the proceedings were serious proceedings, that he was being tried for a serious offence and that the aim of the trial was to determine his guilt or wrongdoing. He demonstrated a tactical awareness which was difficult to reconcile with unfitness to plead. His embarrassment at his predicament and his inability to accept that his conduct was the cause of death were reactions not uncommon in those charged with serious crime and certainly not supportive of unfitness to plead. He believed, the court hoped as a result of delusion, that the court was biased, but this cannot extinguish a person’s right to be tried or the public’s right to have that person tried. A false belief about the punishment liable to be inflicted does not impair the accused’s ability to be tried. Not acting in his own best interests, in the evidence and instructions he gave, does not, in itself, create, or contribute to, a finding of unfitness. Although his condition had not changed substantially since his trial, his legal advisors for the appeal had sought specific instructions from him and appeared to have had no difficulty in obtaining them.

The Vulnerable Defendant

For England and Wales, the Practice Direction (Criminal Proceedings: Further Directions) [2007] 1 WLR 1790 sets out vulnerable defendant provisions applicable to defendants who suffer from a mental disorder under the MHA 1983 or who otherwise have any impairment of intelligence or social functioning (or learning disability). These provisions are now incorporated in CrPR CPD I 3G Vulnerable Defendants. The steps that should be taken are to be judged having regard to such matters as the age, maturity and development (intellectual, social and emotional) of the defendant and all other circumstances of the case. These directions also ensure compliance with the judgment in SC v United Kingdom (see above).

The court will decide what special measures, if any, should be implemented at a pre-trial ‘ground rules hearing’ (GRH) (CrPR 3.9(7)(b)). The psychiatrist should be prepared to provide a report for, and if required attend, the GRH. There, the judge may require the advocates to go through their cross-examination questions with the psychiatrist (Cooper and Grace 2016).

Special measures can include: visiting the courtroom in advance and out of court hours; the judge, counsel and court officers dispensing with wigs and robes and sitting on the same level as the defendant; extra time to go through papers with a defendant who cannot read and extra time to allow counsel to take instructions; the defendant sitting, if he wishes, and security considerations permitting, in the well of the court beside their solicitor or barrister or with members of his family or others in a like relationship and with a suitable supporting adult who can explain the proceedings as they unfold step by step; alternatively, being accompanied in the dock by someone such as a nurse; the number of members of public in court being limited; frequent and regular breaks, including short, non-adjourned breaks during which the court stays sitting, for those with impairments of attention or concentration and to allow the defendant’s solicitor, or a supporting adult, to explain evidence, in language the defendant can understand, and take instructions; assistance in the dock to access or follow written evidence and, if so, consideration as to how this will be achieved; speaking slowly and in plain, simple language; questioning of prosecution witnesses in a manner that enables the defendant to understand and follow the trial; counsel and the judge putting short, clear, simple or even very simple questions to the defendant; the defendant giving his evidence by a live television link; the use of a facilitator or intermediary.

The use of a ‘facilitator’ was approved in R v SH [2003] EWCA Crim 1028. This was the case of a ‘learning disabled’ adult. Their role was to assist the defendant to communicate with the judge and counsel by putting into language they could understand the nature of the question that he was being asked. Approval was also given to two measures to assist a defendant who had a poor memory which was hampering his ability to give evidence: (1) reading the defendant’s defence statement to the jury to assist in understanding his evidence; (2) allowing the defendant to refer to his proof of evidence or, if he could not read, allowing leading questions from such a document to be put to him.

This ‘facilitator’ role is similar to that of an ‘intermediary’ and the Youth Justice and Criminal Evidence Act 1999 (YJCEA), s 33BA permits the use of an intermediary in the case of defendants under the age of 18 years whose ability to participate effectively is compromised by their level of intellectual ability or social functioning and in the case of defendants over the age of 18 years who suffer from a mental disorder within the meaning of the MHA 1983 or are unable to participate effectively due to an impairment of intelligence and social functioning. This section has not yet been implemented, but CrPR CPD I 3D.2 requires the court to take ‘every reasonable step’ to encourage and facilitate the participation of any person, including the defendant, and this includes enabling a defendant to give their best evidence, to comprehend the proceedings and to engage fully with their defence.

R (OP) v The Secretary of State for Justice and Cheltenham Magistrates Court and Crown Prosecution Service. Just for Kids Law as Intervener [2014] EWHC 1944 (Admin) identified two roles in a trial for which an intermediary is fitted: (1) general support, reassurance and calm interpretation of unfolding events; and (2) skilled support and interpretation with the potential for intervention and on occasion suggestion to the Bench associated with the giving of the defendant’s evidence. The latter includes communicating questions put to the defendant, communicating their answers to any person putting the questions and explaining such questions or answers so far as is necessary to ensure that they are understood by the defendant or the person in question. Specifically in R (AS) v Great Yarmouth Youth Court [2011] EWHC 2059 (Admin), the intermediary’s role was identified as ensuring that questions were simple and that the defendant had adequate time to respond and was able to alert the court to the difficulties which he faced in answering them; in R v Cox [2012] EWCA Crim 549, the court cited with approval the assistance of intermediaries to the trial judge and counsel in establishing what types of question are likely to cause misunderstanding and how to avert them. In relation to a trial involving a young child, the intermediary was described as ‘someone to befriend and help him, both during the trial itself and in preparation for it’ (R (C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin)).

The role of the intermediary is illustrated in JD v R. JD had an IQ of between 68 and 71, a history of hyperactive conduct disorder and communication difficulties. Reference was made to how the intermediary’s assistance contributed to the defendant’s ability to participate meaningfully in his trial:

These provisions are particularly likely to apply to the young, the intellectually disabled and people with autistic spectrum disorder (see R v Thompson [2014] EWCA Crim 836). However, they need to be considered in any case where the psychiatrist is of the opinion that the defendant is not fit to plead and stand trial because otherwise the court or another expert may suggest that with certain such provisions, he will be able to plead and stand trial.

The court will decide whether the jury will be assisted by an explanation about a vulnerable defendant’s condition and its effect on their behaviour so as to avoid that behaviour being misinterpreted (Thompson). The expert should therefore pay particular attention to their definition of the defendant’s diagnosis or condition in their glossary. In such a circumstance, it may be advisable to provide a more detailed and extensive glossary entry from which the judge can derive an explanation without the need to return to the expert for clarification or further explanation.

In Northern Ireland, the Justice Act (Northern Ireland) 2011, s 12, by amending the Criminal Evidence (Northern Ireland) Order 1999, has made similar provisions for the use of intermediaries for persons aged under 18 years whose effective participation is compromised by their level of intellectual ability or social functioning (art 21BA(5)) and for adults with mental disorder or who otherwise have a significant impairment of intelligence and social functioning and are unable to participate effectively (art 21BA(6)). In Ireland, there are no particular statutory provisions dealing with vulnerable defendants (other than children). In the Isle of Man, there are no specific provisions for vulnerable defendants, but the courts have shown willingness to accommodate intermediaries and make adjustments.

Undesirability of Giving Evidence

In England and Wales, the CJPOA, s 35, and in the Isle of Man the Police Powers and Procedures Act, s 71(1), provide for the court to refrain from giving the adverse inference direction to the jury in respect of the accused’s silence at trial if ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’, but ‘[t]he defendant must be suffering from a recognised mental disorder, the impact of which may affect his presentation in giving evidence’ (R v Mulwinda [2017] EWCA Crim 416). In Ireland, inferences may not be drawn from an accused’s silence at trial.

Grubin (1996) described a case in which the accused’s ‘personality was such that under the stress of cross-examination he was likely to become anxious, frustrated and confused, and … this could cause him to behave in an inappropriate manner, with the risk of prejudicing the jury against him’. Although he did not suffer from a form of mental disorder, there was a risk that he might appear to do so to a lay individual. However, the subsequent ruling in Mulwinda casts doubt on the decision to accede to the application.

Orr makes it clear that the undesirability of giving evidence due to the risk of an adverse inference is to be distinguished from a disability which would fall to be considered under the Pritchard rules. Two psychiatrists had given evidence at the appellant’s trial that he was ‘unable to be responsive to cross examination’ and ‘unable to give evidence in his own defence’. The Court of Appeal regarded the CJPOA, s 35(1) provision as supporting the contention that a finding that an accused was unfit to give evidence in cross-examination did not necessarily determine the question of FTP.

For the application of the CJPOA, s 35(1), there is no requirement for medical evidence, but in such a case the psychiatrist should be prepared to give reasons for their opinion and by reference to the factors that it is within their expertise to identify and describe. These are likely to include, for example, inappropriate behaviour resulting from the accused, as in Grubin’s case, becoming anxious, frustrated, confused, irrational, angry or flippant. But in Dixon v R [2013] EWCA Crim 465, where the accused had ADHD and an IQ of 68, the court held that having a mental condition that might merely cause some difficulty was insufficient. Even ‘extreme difficulty’ in giving evidence or the possibility (but put no higher than that) of an impact on the accused’s mental health is not enough (R v Ensor [2010] 1 Cr App R 18). In R v Tabbakh [2009] EWCA Crim 464, there was psychiatric evidence that the accused, who had PTSD and a history of self-harm, might not do himself justice in the witness box, because he was unable to retain control of himself and might not remember some parts of his evidence. The judge’s decision to refuse to accept that it would be ‘undesirable’ for him to give evidence was upheld. However, the judge did permit the psychiatrists to give evidence of the difficulties he faced in giving evidence. In Mulwinda, the accused had schizophrenia. The court upheld the trial judge’s refusal to accept that it would be ‘undesirable’ for the accused to give evidence, but confirmed that, if he had elected to testify, expert evidence could have been given to the effect that signs that he might be responding to hallucinations were a feature of his mental condition.

R v S [2014] EWCA Crim 2648 concerns the potential impact on the jury of an accused’s strange behaviour in court. The appellant was convicted of the rape and indecent assault of his wife. During her evidence, he was casually reading a book. The convictions were quashed on the basis that his then undiagnosed autism could explain what the jury might have thought was evidence of callous indifference.

Self-Defence

Self-defence may be raised as a defence to an offence of force. There are two limbs: (1) were the facts as the accused believed them to be such that the use of force was necessary; and (2) was the degree of force used reasonable in the light of those perceived facts.

In R v Oye [2013] EWCA Crim 1725, the issue was whether ‘an insanely held delusion on the part of the appellant that he was being attacked or threatened, causing him violently to respond, entitle[d] him to an acquittal on the basis of reasonable self-defence’. The jury had found him guilty. The Court of Appeal decided that: ‘An insane person cannot set the standards of reasonableness as to the degree of force used by reference to his own insanity. In truth it makes … little sense to talk of the reasonable lunatic.’ So he was not entitled to an acquittal based on self-defence. However, the court quashed the conviction and substituted a finding of insanity.

The court relied on R v Martin [2001] EWCA Crim 2245, where fresh medical evidence indicated that the accused suffered from a long-standing paranoid personality disorder (PPD) and also from depression. It was submitted that this caused him to perceive a much greater danger to his safety than would an average person, thereby contributing to his shooting the two burglars of his farmhouse. However, the Court of Appeal decided that it ‘would not agree that it is appropriate, except in exceptional circumstances which would make the evidence especially probative, in deciding whether excessive force has been used to take into account whether the accused is suffering from some psychiatric condition’.

So far, no case has revealed what such exceptional circumstances might be, and other cases have followed Martin. In R v Canns [2005] EWCA Crim 2264, the appellant, who suffered from chronic paranoid schizophrenia, killed a male nurse in a secure hospital. He was convicted of manslaughter by reason of diminished responsibility. His defence had been self-defence, he believing, genuinely as a result of delusion, that the nurse was attacking him in order to rape him. It was submitted that it would be ‘unjust and unrealistic’ to deprive such an accused of a defence ‘based on the reality, to him, of what was going on’. This was rejected and the court expressly stated, with regard to Martin and on the asserted existence of ‘exceptional circumstances’, that each member of the court ‘has found it impossible to identify the sort of exceptional circumstances in which it would be appropriate to take a psychiatric condition from which an accused is suffering into account, when addressing the question of whether excessive force is used’.

Nevertheless, in R v Press [2013] EWCA Crim 1849, the trial judge was found to have correctly invited the jury to consider evidence that the defendant’s PTSD, sustained during military service in Afghanistan, may have caused him to react over-sensitively to perceived threats, when resolving the question of whether he did only what he honestly believed was necessary in the circumstances. Thus, exceptionally, psychiatric evidence may also be admissible in relation to the second limb.

In Ibrahim, the court accepted that medical evidence was admissible as to a psychiatric condition which caused the accused to believe in a state of affairs which did not exist – that is, it is admissible in relation to the first limb of the defence in order to establish what state of affairs the defendant genuinely believed to exist. However, in this case, where the basis of the appeal was that the trial judge had erred in refusing to admit expert evidence as to the appellant’s ADHD, that decision was upheld. One of the trial judge’s reasons was that the evidence was not relevant to issues in the case. The expert medical evidence was to the effect that persons suffering from ADHD have poor impulse control and are more likely to act impulsively; they are likely to have an exaggerated response to threats; and they have a reduced capacity to evaluate current circumstances. The court found that this evidence would not have assisted the jury on the main issue in the case. However, if the complainant did slap or kick the appellant who then unnecessarily returned to the fray and punched the complainant, whereas for a normal person to act in that way it could not sensibly be characterised as self-defence, it was submitted that things were different because of the appellant’s ADHD. It was submitted that the jury might have concluded that the act of punching was self-defence if the medical evidence had been admitted. But the court thought that such evidence could only have provided slender assistance at best; it gave little assistance in making out the defence case that the appellant then thought it necessary to return to the fray and knock the complainant to the ground.

In Ireland, the Non-Fatal Offences Against the Person Act 1997 (NFOAPA), s 18 provides that the use of force for a specified purpose, essentially self-protection, the protection of others, the protection of property from criminal acts or the prevention of crime or a breach of the peace, is not an offence ‘if only such as is reasonable in the circumstances as he or she believes them to be’. As ‘it is immaterial whether a belief is justified or not if it is honestly held but the presence or absence of reasonable grounds for the belief is a matter to which the court or the jury is to have regard, in conjunction with any other relevant matters, in considering whether the person honestly held the belief’ (s 1(2)), it must follow that expert medical evidence as to an honestly held delusional belief as to the circumstances may support such a defence. Where the charge is murder, if, objectively, the degree of force was not reasonable, but the subjective view of the accused was that it was reasonable, the correct verdict is manslaughter. A margin of error must be afforded to a person in a self-defence situation (The People (DPP) v Higgins [2015] IECA 200).

Diminished Responsibility

In England and Wales, under the Homicide Act 1957, s 2, in Northern Ireland under the Criminal Justice Act (Northern Ireland) 1966 (CJA(NI)), s 5(1) as substituted by the Coroners and Justice Act 2009 (CJA 2009), s 52, and in the Isle of Man under the Criminal Code 1872, s 22A, the partial defence of ‘diminished responsibility’ is a statutory defence (Box 7.17) and, if successful, reduces the offence of murder to one of manslaughter on the grounds of diminished responsibility.

In Scotland, diminished responsibility has a statutory basis in the CP(S)A, s 51B: instead of being convicted of murder, a person can ‘be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind’. However, Galbraith v HM Advocate, 2002 JC 1 has established that ‘it is not the function of the witnesses lay, psychological, medical or psychiatric, to say whether an accused’s responsibility can properly be regarded as diminished. Rather they give evidence as to the accused’s mental state.’ Abnormality of mind includes ‘mental disorder’ and ‘a recognised abnormality caused by sexual or other abuse [but] the abuse must result in some recognised medical abnormality’ (Galbraith). Being under the influence of alcohol, drugs or any other substance does not constitute an abnormality of mind, but does not prevent such abnormality from being established for the purpose of this section. Unlike the special defence of not criminally responsible by reason of mental disorder (see below), there is no exclusion of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct. However, Kalyanjee v HM Advocate [2014] HCJAC 44 illustrates some of the difficulties in basing a defence of diminished responsibility on a diagnosis of personality disorder. Here, the diagnosis was PPD, but the court observed that this was:

Related posts:

Chapter 3 – Training, Development and the Maintenance of Expertise Chapter 4 – Business Matters Chapter 10 – Reports in Cases Involving Capacity Issues Chapter 11 – Reports for the First-tier Tribunal (Health, Education and Social Care Chamber) Mental Health Chapter 12 – Reports in Immigration and Asylum Cases Chapter 17 – Going to Court

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