I’m going to try really hard not to discuss the case of Lord JANNER after today’s annoucement by the Crown Prosecution Service that he will not be prosecuted for a litany of sex offences – mainly because I know no more about it than anyone else who has followed the media. It has already been confirmed that a Deputy High Court judge has been asked to independently review the case and that some are contemplating legal action so if the CPS have err’d in their thinking, it will be scrutinised in those challenges. Those processes should take their course and let people who’ve seen the relevant materials take the decisions – there’s a radical thought!
Nevertheless, today saw an outbreak of legal commentary on Twitter and having not particularly followed the case, I began to pay attention when it was confirmed that it was the developed extent of Lord JANNER’s dementia was the crux of today’s accouncement not to prosecute him. When I then read the full CPS press release, I just thought it made sense and I wondered in light of its content what other options we thought they had? It seemed to me to address the legal issues that were there for determination and whilst I’m not a lawyer, I also couldn’t help but notice that most of the reaction I was reading on social media was not a critique of the legal logic, but an understandable reaction of frustration, to put it very mildly, about someone who is alleged to have repeatedly offended, very seriously over many years and whilst in a position of authority will not face justice despite the existence of sufficient evidence to charge him with many of the allegations made. How could any of us not have sympathy with victims and their families in this case and their desire to see justice served in relation to a man in respect of whom the DPP herself said there was sufficient evidence to charge with dozens of serious sex offences?
It all appears to reduce down to the question of the suspect’s dementia and to the health considerations that CPS must apply at the point of considering charges against any of us. This is what I want to focus on here but not specifically with regard to a particular case – the CPS have to apply these kinds of considerations each year to a number of suspects who are vulnerable by reason of their mental health or their impaired cognitive functioning and this precise debate is one that has been going on for some years when it comes to the difficult issue of violence within mental health settings towards NHS staff. I have written about the legal process of unfitness to plead before and I’m not intending to just repeat that, merely to focus instead on the application of discretion ahead of any criminal process. Discretion exists during criminal investigations for both the police and for the CPS – by the end of this post I want to argue that without sensible application of discretion, our criminal justice system would be full of cases that would cause even more outrage than we have seen today.
The CPS must, by law, have regard to the health of suspects against whom they may consider bringing charges – they must consider both the implications on their health of a criminal justice process; and the implications of their health on their ability to engage in the trial process. To stand trial, defendants must be able to understand the process going on inside the courtroom and be able to instruct their lawyers accordingly. If they cannot do so, they are unfit to plead and stand trial. The police also have discretion about whether cases are even referred to the CPS in the first place and we frequently exercise it after the investigation of minor crimes involving suspects with profound medical problems. Elsewhere on this BLOG, I’ve written about violence within mental health settings where detained patients are alleged to have assaulted NHS staff. Not everything that is reported to the police gets referred to the CPS and not everything that is referred to them is prosecuted – multiple legal officers, whether they be investigating officers, their supervisors or CPS lawyers ensure multi-scrutiny of the same case and discretion is often applied and cases stopped at various stages.
So there are a couple of considerations around individuals who are or who may be unfit to stand trial –
- How is unfitness decided? and
- Who decides upon a defendant’s unfitness?
The nineteenth century case R v PRITCHARD  is the basis of determining ‘unfitness’ and it can be declared if any one of four criteria are met. It happens where defendants are unable –
If unfitness is being raised in court by the defence, it is determined on the balance of probabilities: where it is raised by the prosecution, it is determined to the full criminal standard of proof – beyond all reasonable doubt. So in the case of any patient where four medical practitioners are all agreeing in light of those criteria on the potential of that person to take part in a trial, what do we want the CPS to do? Of course, there are cases where medical opinion is divided and the CPS takes a view that the issues should be tested in court with doctors giving evidence before a jury. It is also true that doctors are sometimes hoodwinked and they sometimes make errors: a Guiness fraudster and a Lockerbie bomber are amongst the examples. In the case of the Yorkshire Ripper, no fewer than five forensic psychiatrists examined the defendant prior trial and three of them ended up giving evidence as the jury weighted through it all.
So should all matters not be tested in a public court where they relate to a high profile individual and multiple, serious allegations aggravated by an abuse of authority? Well, they often are but nothing in law mandates it – even where someone is suffering a severe or enduring mental health condition, it could be possible that they are fit to plead and stand trial and we should be clear that the easy decision for any criminal justice decision-maker is to kick something further into the system and let someone else decide. Christopher HAUGHTEN, who attempted to kill a police officer and who grievously injured many more, was prosecuted and stood trial notwithstanding that he was seriously unwell from the point of arrest to the point of conviction – but he WAS fully convincted in the end. We need to accept that each case of this kind is difficult and complicated in its own right and must be judged on its individual merits.
Of course what a lot of today’s remarks have often missed is victims and it is argued that a failure to prosecute a vulnerable suspect denies victims the change to be heard and validated. I fully understand that and today’s CPS statement did make mention of the importance of victims being heard. There’s no way that I can think of to avoid my next statement from sounding somewhat harsh: but the criminal hearing is there to determine the guilt or otherwise of a suspect accused of offending, – assuming that they can take part in it – and to determine an appropriate sentence where necessary. If the CPS look at the medical information available and feel there is little or no doubt that the court will find a person unfit to plead, then they are vested with the discretion not to commence a criminal justice process and they have taken such decisions more than once this year. But if you launch a prosecution in anticipation that someone will be unfit to plead, even after a finding of facts the court only has three options: they can impose a hospital order under s37 MHA, they can imposed a supervision order or they can absolutely discharge the person.
Let’s look at those other examples: many people in our society living with various mental health and other cognitive problems are accused of offending, including some of them, very seriously indeed. I read recently in an NHS document that it is not the job of the police to consider these medical or cognitive matters, they should ignore the question of the mens rea in any offence that involves a detained patient and they should approach the CPS to prosecute when they are satisfied that they can prove the act that was done. If you add all of that to the calls we have heard today for the CPS to prosecute a high profile case notwithstanding what appears to be consistent evidence of a medical condition that raises very obvious difficulties when you read the Pritchard criteria (above), you see what an unresolved issue we have, which is largely to do with legal literacy outside the criminal justice system.
It would mean that where a patient is deprived of their liberty under the Mental Health Act or the Mental Capacity Act and where they are experiencing a disabling psychosis, disturbing delusions and auditory hallucinations and have never been in trouble with the police before, they would prosecuted in a criminal courtroom if a nurse complained that they were punched by a patient whilst medication was administered in circumstances that patient found frightening. (Incidentally, it also means the nurse would be prosecuted if that patient complaint of assault, but that wasn’t considered either.) Notwithstanding how unwell they are, notwithstanding that the trial may be quite unrecognisable to them and they can’t instruct their lawyers, they’d be prosecuted. The system does allow for this if it can be argued that the criminal courts need to be able to apply certain orders to indiviudals who may pose further risk to the public. Again, each case is judged on its merits.
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