Justice Delayed, not Denied

On August 3rd 2018, Kaylsey Smithen was convicted of the manslaughter of his 46yr old mother, Janice, which took place in Birmingham more than six years earlier. This short post is a little bit of speculation on my part, based only on media reports of the legal process, but which seeks to outline why such a delay can occur and challenge again assumptions that professionals might make about serious mental illness being a barrier to criminal prosecution.

You may remember this case if you follow me on Twitter: at the start of 2018, Birmingham and Solihull Mental Health Trust apologised to Mrs Smithen’s family for the standard of care he received prior to her killing. There was some debate arising from the Safeguarding Adults Review about whether the police should have been called to a Mental Health Act assessment and / or whether the police were at fault.

Following his arrest for murder in 2012, shortly after his mother’s body was discovered by the police, he was detained under the Mental Health Act (MHA), having been diagnosed with paranoid schizophrenia. He was assessed as being unfit to stand trial – meaning he would be unable to follow legal proceedings or to instruct his solicitor. One report from the Birmingham Evening Mail implies he was given a restricted hospital order in 2013 after being found responsible for fatally beating his mother. This implies a legal process which found him unfit to stand trial but guilty of going the act during a ‘trial of the facts’. Whether or not I’m inferring correctly there, he remained in hospital under one provision or other of the MHA.


Fast-forward to recent events and his health has obviously been deemed to have improved, at least sufficiently to allow him to instruct a solicitor and understand legal proceedings despite remaining in hospital under the MHA. Remember: this is one of my key messages across this whole blog?! –

The fact that you are mentally ill enough to be in hospital, detained under the MHA does not automatically mean you are not criminally responsible for your actions and it does not mean you cannot be made to go through the criminal justice process. All individual cases are taken on their individual merits – no presumption either way.

Kaysley Smithen stood trial at Birmingham Crown Court for murder in recent days and he put forward a defence of ‘insanity’ – this means he argued that “he did not know what he was doing and / or did not know what he was doing was wrong”, by virtue of his mental health condition. Yesterday, he was found not guilty or murder but was convicted instead of manslaughter on the grounds of diminished responsibility, his insanity defence having been rejected by the jury. This reinforces the importance of this panel of twelve peers: notwithstanding that there would have been significant psychiatric evidence in this case, it all amounts to opinion only – important opinion, no doubt – but opinion nonetheless. It remains necessary for juries to form their own view about things.

Important things to remember –

  • Any ‘fit to stand trial‘ considerations, is about whether someone is fit to stand trial at the time of the trial: it is nothing to do with the mental state of the person at the time of the offence. Lord Janner would have been fit to stand trial had he been prosecuted in the 1990s, but he had degenerative dementia when he was eventually prosecuted in the 2010s and was, predictably, found unfit to stand trial.
  • Kaysley Smithen’s case has worked other way: he was initially ‘sectioned’ and too ill to stand trial – several years later, his condition has improved and regardless of his mental state in 2012, he was prosecuted because he was not fit to understand the process to which he was central.
  • Insanity and diminished responsibility defences are all about the mental state of the defendant at the time of the offence – so in any case like Mr Smithen’s where his health has sufficiently improved over time to allow for a trial, it remains open to him to argue and / or for the court to find, that his offending was explained (insanity) or partially explained (diminished responsibility) by his mental state.


You might wonder what difference all this makes, especially if Mr Smithen was given a restricted hospital order in 2013 after being found unfit to plead; only for his recent manslaughter conviction to give him a … restricted hospital order?! There are a couple of things to say: the first being that there is an obvious difference between the following two types of patient –

  • A person with serious mental health problems who hurts another person when they were very unwell and did not know what they were doing.
  • A person with serious mental health problems who hurt another person when they were very unwell, but who did know what they were doing.

When it comes to the point where Mr Smithen is being considered for discharge from hospital, or any other patient who has been through this process in a similar way, the Mental Health Unit at the Ministry of Justice, as well as the psychiatrist in charge of their care, will have to give consideration to the risk to the public of release. This is the purpose of s41 Mental health Act: to protect the public from the risk of serious harm and it is what distinguishes a hospital order under s37 from a restricted hospital order under s37/41.

So it’s easy to see why a finding of guilt for manslaughter matters to the overall assessment of risk to the public, especially given it implies very strongly the relationship between his offending and his illness – it was NOT found to be directly causal. If you open up my blog and enter any of the legal terms for which I’ve given hyperlinks in this post, you will find other posts with particular examples that have occurred over the years.  And if you want to read an excellent book on all this, get yourself a copy of the book in the header image, above – Mental Health and Crime by (LSE Professor) Jill Peay.  My favourite book on all this MH-CJ stuff.

And so the familiar saying that “justice delayed is just denied” is not always true! – where an offender has serious mental health problems, some delay may mean that necessary to support and care can be given to a suspect or defendant and that this allows for a trial to occur which subsequently assist in protecting the public from serious harm.

Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2018

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk


2 thoughts on “Justice Delayed, not Denied

  1. Hello Michael,

    Do you know if he was remanded following the initial detention in custody and presented to the crown court where part 3 was used?


    Was he sectioned under 2 or 3 MHA from custody (perhaps the threshold test was not met making remand impossible) and then later presented at court or remaining in hospital on probably s.3 whilst the trial of the facts occurred?

    My understanding is the desire will generally be if sufficient evidence exists to remand, to do so to enable s.35 or s.36 remand for assessment or treatment. They should only be diverted from custody under part 2 where this evidence is not available?

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