People with mental illness let down by criminal justice system

Sketch by Isobel Williams

Mental health experts, not the police, should be identifying vulnerable people, according to a report by the human rights group JUSTICE which also calls for specialist prosecutors to make charging decisions.

The group backs the Law Commission’s recommendations that the test of fitness to plead and fitness to stand trial should be ‘placed on a statutory footing’; the insanity defence be amended to a defence of ‘not criminally responsible by reason of a recognised medical condition’; and called for further review of the defences where mental capacity is in issue ‘taking into account the difference between substantial and total lack of capacity’. You can read the full report (Mental Health and Fair Trial) here.

Andrea Coomber, director of JUSTICE, said that there were ‘fundamental problems’ with the criminal justice system’s response to vulnerability and ‘too few people receive reasonable adjustments to enable them to effectively participate in their defence’. According to JUSTICE people in the criminal justice system were ‘far more likely to suffer from mental health problems than the general population’.

Sir David Latham, chair of the JUSTICE working party and former chairman of the Parole Board, said vulnerability should be properly identified and ‘where identified, properly approached so that the person either receives reasonable adjustments to give them the capacity to effectively participate in their defence, or if appropriate, is not prosecuted’. ‘Where a person is diverted from prosecution or prison, suitable and effective treatment and support must be available to ensure that the person remains outside of the criminal justice system,’ he said.

The report referenced a 1998 study that found that 90% of the prison population had one or more of the five psychiatric disorders (psychosis, neurosis, personality disorder, hazardous drinking and drug dependence). The group quoted more recent research that, when prisoners were screened on arrival, almost one in four (23%) had some prior contact with mental health services.

According to the National Institute for Health and Care Excellence, around 60% of prisoners had personality disorders, compared to 5% of the general population; 11% of those serving community sentences had psychotic disorders compared to 1% of the general population; and 76% of female and 40% of male remand prisoners had a common mental health disorder. The National Appropriate Adult Network estimates that ‘between 11-22% of arrested adults are mentally vulnerable’ and need the help of an appropriate adult.


JUSTICE report in brief

  1. The investigative stage: Mental health experts, not police officers, should be identifying people with vulnerability as a result of mental ill health or learning disability;
  2. Decision as to charge or prosecution: A specialist prosecutor should be appointed for each CPS area to make charging decisions in cases of vulnerability;
  3. Pre-trial and trial hearings: Magistrates’ courts, youth courts and the Crown Court should have a dedicated mental health judge;
  4. Legal capacity tests: A capacity based test of fitness to plead and fitness to stand trial, placed on a statutory footing should be available in all courts and the “insanity” defence should be amended to a defence of ‘not criminally responsible by reason of a recognised medical condition’;
  5. Disposal and sentencing: A sentencing guideline on mental health and vulnerability should be created and a broader range of disposals made available.

Profile photo of Jon Robins About Jon Robins
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award

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