The Course of Justice

This post summarises the justice process, as it would apply to a hypothetical person with a mental illness.


Initial Response – Professor PAJ WADDINGTON argued in his 1998 book, “Policing Citizens” that the police spend more time not enforcing the law, than they do enforcing it. This is no different for offenders with mental health problems. It still remains open to all police officers to exercise discretion by giving advice or informal warnings; or to utilise an ‘out-of-court’ criminal justice disposal, like a fixed penalty notice or caution.

In addition, officers who respond to incidents involving a criminal offence, have the option to refer individuals to mental health services or to take the individual into custody to ensure a faster referral, for example under s136 of the Mental Health Act.

Investigation – the investigation of a criminal offence, should include assessment of any public interest in there being a prosecution. All cases on their merits, but in some cases it is obvious early on that investigation will be required because of the nature of the offence and / or the suspect’s background, either in terms of health or previous convictions.

Arrest – if a suspect is arrested, they will be taken before the Custody Sergeant at a nearby custody suite. The custody officer is responsible for the health and welfare of detainees whilst detaining and also for key legal decisions about whether prosecution should be brought or bail granted, for example. Anyone suffering from mental disorder is likely to be examined by a police doctor – the Force Medical Examiner.

If you are arrested, it does not follow that the police have decided you will be prosecuted: they may take advice in custody from mental health professionals, they may arrange formal assessment for admission under the Mental Health Act and / or interview a suspect. Depending on the outcome of any such assessment, there should be consideration as to whether it is appropriate for a person to be interviewed or further investigated or whether they should be diverted (whatever that means) from the justice system and / or to the health system.

Diversion – where offenders have potentially serious mental health problems which may prevent them from being interviewed about the allegation by the police, they can be diverted for one fo two reasons.  Either there is insufficient evidence to yet charge them with the offence they were arrested for and the investigation is ongoing; OR, despite being there sufficient evidence to charge them, it is not (yet) considered in the public interest to do so.  In some situations it is possible and desirable to charge the offender with an offence despite questions about their mental-ill health.  All situations turn on their individual merits in light of medical assessment in police custody.

In the first example, offenders will be diverted to the health system whilst still being kept on police bail and the investigation will continue whilst they receive assessment and / or treatment.  When a point is reached where they are considered fit for interview, the suspect can be questioned either by returning to the police station or in hospital.  If they were diverted in the public interest, they may still be retained on bail to ensure that once in hospital they engage with mental health services.

Either way, diversion from the police station does not mean the end of the investigation or any dropping of charges: it is way to ensure that proper medical assessment is undertaken and the investigation continues whilst this occurs.  Where a person is eventually interviewed, they would normally have an appropriate adult present. << This is someone to help ensure that a vulnerable suspect understands what is going on.


Prosecution – If the police believe that there is sufficient evidence and public interest to charge a suspect with an offence, they will often take advice from the Crown Prosecution Service about doing so. Whilst some cases can be decided by the police, the inclusion of a suspect’s mental health history often adds a layer of complexity which often sees cases referred to the CPS.

The CPS have to weigh the evidence and public interest in a prosecution, with reference to the Code for Crown Prosecutors, issued by the Director of Public Prosecutions. This is the statutory guide to all lawyers making prosecution decisions. The CPS also have the option of asking the police to go down the route of various ‘out-of-court’ options, like cautions or conditional cautions.

Bail – where it is decided that someone should be prosecuted, the custody sergeant at the police station will have to decide whether or not someone is granted bail to appear before the Magistrate’s Court, or whether they are remanded in custody by the police to appear before the next available court – there are remand courts six days a week, so the worst case scenario is an offender being prosecuted and denied bail on a Saturday afternoon, who appears in court on Monday morning. Usually, it means appearing at court the following morning.

In law, there is a presumption that bail will be granted – if the police are to deny bail it must be justifiable against one or more criteria laid down in the Police and Criminal Evidence Act 1984. These criteria include a risk of further offences, interference with justice; a likelihood that the defendant will fail to surrender to the custody of the court. It does also include one justification that is of application of offenders with mental health problems, which is a risk to the defendant themselves, for example from self-harm or suicide.

Initial appearance – someone who appears before a court is required to enter a plea to the charge(s). If a defendant is considered by their legal representative to be unfit to plead, because of a mental health disorder, then the court can manage that situation in a range of ways. This can include adjourning to a further hearing, granting bail and allowing mental health assessment, perhaps arranged by a court diversion scheme. It certain circumstances it could also include remanding a defendant for psychiatric assessment and treatment.

For more serious offences – indictable only offences – the initial appearance can immediately lead to a case being sent, or committed, to the Crown Court.

Remand – I have written a previous blog post about remands by the court for psychiatric assessment, but of course it is also open to the courts to remand a defendant to prison, even where there are concerns about mental ill-health. We know that this happens so we need to raise it – it happens more than it should.

This can sometimes come about because someone’s mental health problem is less serious and not something which requires inpatient mental health care. Prisons have hospital wings and in-reach mental health teams who can provide a level of care.

If a prisoner whilst on remand is identified as requiring hospital treatment for their mental health disorder, then they can be transferred under s48 MHA to a relevant mental health unit.

People also tend to think of being remanded as being incarcerated – be that in prison or hospital – pending trial or sentencing.  Actually ‘remand’ simply means “to be ordered back” and when someone is given their liberty by the courts but under a duty to return, they are “remanded on bail”.  Such bail may have conditions applied by the court, for example to reside at a particular place, a curfew or to desist from contact with named individuals or from going to certain places.

Trial – whether a defendant stands trial in the Magistrate’s or Crown Court, the trial processes are sufficient similar for this post’s purposes to be dealt with together. The obvious difference is the Crown Court involves a judge and jury, whereas the Magistrates Court is presided over by between one and three Justices of the Peace.

They can hear issues around whether a defendant may be ‘unfit to plead’ or ‘unfit to stand trial or they can proceed to hear the case on the evidence. If they do reach a finding that a defendant is unfit to plead or stand trial, they may then proceed to establish whether the defendant did the “act accused”. For example, did they take an item without permission or hit someone: the actus reus of an offence, without considering the mens rea.

Sentencing – depending upon the conclusion of the court, they can impose several sentences or orders at the end of the court process. Where a trial has occurred and guilt is established, this can range from community punishments, fines up to and including imprisonment depending on the offence. It can also include, for community sentencing, a Mental Health Treatment Requirement.

Where there has been a finding of ‘unfitness’ to plead or stand trial, or where there has been a successful defence of ‘insanity‘, the option of imposing a hospital order or restricted hospital order starts to present itself. Only a Crown Court can impose a hospital order, so if the Magistrates have handled a less serious case and believe this to be the right outcome, they must ask the Crown Court to consider the case as being one suitable for such an order and handle the sentencing.


Where an offender is sentenced to imprisonment but has a mental disorder, assessment of that health need in prison may lead to a conclusion that such care can be delivered within prison by the in-reach mental health teams. This is usually for less serious conditions and / or where the prisoner consents to treatment – the mental health act cannot be used in prison to force mental health treatment upon prisoners.

Where a more serious condition requires treatment under the Mental Health Act, potentially without consent, the Governor may request assessment of the prisoner for potential transfer to hospital. Under either s47 (convicted prisoners) or s48 MHA (remand and immigration prisoners), the prisoner may be transferred to receive hospital care and, if needed, treatment without consent. A prisoner transferred to hospital may either end their sentence in prison or be remitted back to prison once treatment has been completed and inpatient care is no longer needed.


I have written elsewhere about what happens where a patient has been sentenced to a hospital order or restricted hospital order. Important to remember that these orders can be imposed upon a defendant either following a finding of ‘insanity’ or ‘unfitness’ which means that the defendant is unconvicted but detained under mental health law”; OR they can be imposed after conviction for an offence, as happened recently in the case of Christopher HAUGHTON.

This post is indicative only – it is not intended as an exhaustive explanation of the detail, but an overview and I am well aware that it doesn’t clarify absolutely everything.

The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.


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