Earlier this month, the prosecution of a defendant under new legislation specific to emergency services personal was was abandoned as “not in the public interest” after a a man had been charged with spitting at a police officer. The headline in the Daily Telegraph did a cracking job of conveying vagueness about the reasons behind this and because it relates to the mental state of the defendant, I thought a short blog of pure speculation on my part may be helpful to considering what may have gone on here.
First things first, the decision to abandon this prosecution was obviously nothing whatsoever to do with the fact it was new legislation and it was not a statement that spitting at police officers (or anyone else) is not in the public interest to pursue. Despite my reaction to the specifics of this being as uninformed as everyone else’s, what did strike me was how this was about the weighing of the public interest test where a defendant has mental health problems. The other stuff isn’t irrelevant, but nor does any one thing trump everything else, when prosecutors are determining the public interest in any prosecution, police victim or otherwise.
The particular victim in this case, Inspector Alex Taylor of Greater Manchester Police, was quoted by the Telegraph as saying something I’ve said myself, that I’d “rather be kicked or punched” than spat on. No-one who has ever faced this at work doubts for a moment how appalling this experience is when it happens to you – it is absolutely foul, no doubt and in some cases can involve months of worry if you learn the suspect has an infectious condition. In most circumstances, such assaults would proceed to a trial if guilt were not accepted and we’d all hope the courts would take this sort of thing really seriously. But one other thing was said which helps confuse understanding of these matters, as far as I can tell: “If he had been sectioned, I could have understood it”, ie, the decision to drop the case as “not in the public interest”.
This leads us up a blind alley, in terms of understanding things. Here’s why –
SECTIONED =/= CULPABLE
I can’t say this one enough: whether or not someone is ‘sectioned’ says nothing inherently about whether the person is either criminally culpable of the accusation against them OR whether they are fit to stand trial. All these variables can combine: and they are assessments at different points in time. Someone arrested and then ‘sectioned’ would not stand trial, if charged, for months: their mental state on the day of offence / arrest and at the point of trial could be different, and often is. Clearly, this could be an improvement in their mental state (perhaps because of a period of inpatient care and treatment) or a worsening (criminal justice processes can cause a deterioration in someone’s condition). So whether someone is ‘sectioned’ on the day of arrest is broadly unrelated to whether or not they may be fit to stand trial, months later.
By law, the Crown Prosecution Service must be satisfied of two things to mount a prosecution: first, that there is evidence of the alleged offence, sufficient to make it more likely than not a court would convict the defendant. Secondly, the CPS must be satisfied that it is “in the public interest” to prosecute the person and that is a complex assessment of various things. This includes, but is not restricted to, the mental state of the defendant and to the options available to a court during sentencing, if guilt is proved. It’s this latter part which is relied upon to justify discontinuance of the proceedings in this case and appears linked to the psychiatric reports about the defendant’s apparent ‘unfitness to plead’.
Regardless of someone’s mental state at the time of an offence and regardless of whether they were ‘sectioned’ at the time, ‘unfitness to plead’ considerations are about the defendant’s mental state at the time of trial. It is therefore entirely conceivable a defendant could have been arrested whilst fully responsible for their actions, not ‘sectioned’ under the Mental Health Act on the day of arrest and correctly prosecuted. However, it could be that new information has come to light and / or that there has been a change in a defendant’s mental state which leads to assessment they are unfit to stand trial. << I’m not saying this is what happened – I have no more information than anyone else and I’m offering this, hypothetically to explain the process.
UNFIT TO PLEAD
Where proceedings are live, considerations of ‘unfitness to plead’ then drive how a court might handle a case. Where unfitness to plead is raised, a court can have a hearing before a jury which determines whether or not the defendant is, in law, unfit to understand proceedings, instruct their counsel and so on. If the prosecution and defence are agreed on ‘unfitness’ or where the court finds this is the case, another hearing can determine ‘a trial of the facts’. This is a hearing to determine whether a defendant ‘did the act’ alleged – the purpose of it is to ensure that innocent defendants are not then subject to invasive legal orders purely arising from their mental state at the time of trial when they had, in fact, done nothing wrong.
However, where an act is proved – without this amounting to a finding of guilt – the court then has various options. A defendant found to have ‘done the act’, can be subject to three outcomes from the courts –
- A restricted hospital order (s37/41 MHA).
- A supervision order (under the Probation Service).
- An absolute discharge – which essentially means that the defendant is dismissed from court without further action.
As in the case of Lord Janner, it is therefore important to understand the relevance of these potential outcomes if the prosecution of someone who likely to be found unfit to plead is to proceed. Where a defendant is already ‘sectioned’ under the MHA and where they are thought to pose a serious risk of harm to the public, a restricted hospital order (which requires two doctors to confirm its necessity) may be thought necessary. As such, prosecuting an ‘unfit’ defendant may have utility because subsequent to a trial of the facts finding they did the act alleged, the court are then placed to protect the public by imposing such an order.
But what if it’s not appropriate?
THE PUBLIC INTEREST TEST
We learned from the victim in this case that the defendant had not been ‘sectioned’ at any stage after his arrest. This implies a restricted hospital order would not be possible, given the absence of two doctors providing medical recommendations to an AMHP for admission to hospital under Part II. That means, any prosecution of an unfit defendant will turn on the applicability of a supervision order with the Probation Service. Little is said in the article which helps us understand why it were not thought relevant, albeit there could be any number of reasons to do with the defendant’s mental state and other background factors specific to them and I’m loathed to speculate on that. Suffice to say that without the necessity for such an order, the only possible legal outcome from a trial of the facts would be an absolute discharge.
An absolute discharge simply means the defendant is found ‘responsible’ in the sense that a trial of the facts found they ‘did the thing’ without them having been found fully guilty in law, and they are then free to go from court. It legally changes little from merely dropping the case as ‘not in the public interest’. So depending on your view, the decision is whether we should prosecute someone for no particular criminal justice outcome of any benefit or drop the case and risk the appearance that inevitably gives. Neither outcome is great and it probably centres on what you think is important: virtue signalling our dislike of those who assault our cops or the risk to someone’s health by being further prosecuted despite it being likely you will never be found guilty and not able to benefit from or be subject to an order to protect the public form a risk of serious harm.
But this is also a relevant point, whether or not we like it: criminal justice prosecutions costs (tens of) thousands of pounds and can adversely impact the mental health of defendants. So we must ask why we would pursue a case if the near-certain outcome is that no-one will be found guilty of anything and that the only thing a court seems likely to do is dismiss the defendant with an absolute discharge? Final disclaimer: this ‘analysis’ (frankly, it is speculation) is entirely based on reading between the lines of a Daily Telegraph article, so obvious caveats and limitations apply – there may be more to this which went unreported! I just hope it might help in general terms with understanding how or why CPS and / or the courts may approach these matters where the mental state of defendants prevents a meaningful trial or outcome.
And I wish Inspector Taylor well – been there, my friend. Been there.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
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 – http://www.legislation.gov.uk