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Jean-Yves Gilg

Editor, Solicitors Journal

Mental health and the criminal justice system

Mental health and the criminal justice system


For those who work at the coalface of the criminal justice system, it is becoming quite clear that more and more people suffering from mental health problems are being prosecuted and brought before the courts for a range of criminal allegations.

The fact that a person is suffering from a mental health-related issue does not necessarily mean that if
the evidence supports a prosecution, then one will not be brought. Having a mental health problem will not automatically mean that you have a blank cheque to commit criminal offences.

For instance, in relation to murder allegations, a partial defence is afforded to defendants so charged with this serious offence, to reduce the conviction to manslaughter on the grounds of diminished responsibility. This is not available, for instance, on a charge of attempted murder, where the intention the prosecution has to prove is an intention to kill. The Homicide Act 1957, as amended by the Coroners and Justice Act 2009, makes it clear that where a person kills or is a party to a killing, they shall not be convicted of murder if they were suffering from such abnormality of mind as substantially impaired their mental responsibility for their acts and omissions in doing or being party to the killing.

All this will be decided on the back of a series of psychiatric and psychological reports, often conflicting between the prosecution and the defence, forcing the jury to have to decide between them. A similar, practical process will have to be undertaken by the court in relation to any offence that requires mens rea, and the courts are no strangers to mental health becoming a battleground between the adversarial parties to a trial.

This process leaves much to be desired and often turns upon how effective the relative experts appear to be in the witness box, in front of a judge and a tribunal of fact. As with any trial imponderables, witnesses 'having a bad day' or positing their views hesitantly in front of
a jury can produce profound results where mental health is
in play. The conviction of an individual who may have mental health problems, without those problems being recognised at trial, can result in their being placed into custody with little or no effective facilities for treating or controlling mental health conditions. Often, a court will recognise that a defendant has a mental health condition, but not enough to affect culpability.
In these twilight cases, an individual risks being sent to
a conventional prison with virtually no expertise in treating mental health issues. Even if a defendant is found to have palpable mental health problems, such that they provide partial defence, hospital orders, whereby the individual is confined subject to being safe
to be released, can result in mistaken judgements, for example where the defendant
is released too soon, so that they go on to commit more serious offences in the public soon after.

As the spate of mental health allegations continues, the time has come for our criminal justice system to completely review how it deals with mental health in criminal trials, both for the protection of society and the accused.

John Cooper QC is a barrister practising from 25 Bedford Row @John_Cooper_QC