CPS consultation on legal guidance on mental health conditions and disorders - Law Society response

The proposals

The Crown Prosecution Service (CPS) recognises that it is vital to make correct decisions when deciding whether or not to prosecute people with mental health conditions.

Sufficient information about such conditions needs to be given to prosecutors, so they may make informed decisions about both the evidential and public interest limbs of the Code for Crown Prosecutors.

The new guidance is intended to steer prosecutors through a decision-making process in an area which is inevitably subject to change, as medical understanding of mental health conditions and disorders develop.

Some of the key points of the guidance:

  • the revised guidance signposts CPS lawyers to key policy documents, introduces them to statutory definitions and explains basic definitions
  • the guidance addresses issues across a case life: the decision to prosecute; fitness to plead and/or stand trial; remand considerations; defendant special measures; sentencing and diversion
  • it provides additional information for prosecutors about a variety of mental health conditions and directs them to websites for greater information
  • it provides more detailed discussion on a range of public interest considerations
  • there is reference to local liaison and diversion services and more information on when diversion may be appropriate
  • there is reference to the Equality Act 2010 which is triggered by defendants who meet the definition of disability and, as a result, may be entitled to reasonable adjustments and special measures when giving evidence
  • the section on fitness to plead has been expanded and there is additional guidance for prosecutors in circumstances where the suspect’s mental health means that a nominal penalty is the likely outcome
  • the sentencing section sets out the types of disposal and the availability and conditions of each sentence

The consultation sought views on four main areas of the proposed revisions to the guidance:

  • information prosecutors need about each mental health condition or disorder
  • appropriate public interest factors
  • appropriate factors when considering diversion from prosecution
  • whether the 'fitness to plead' procedure is set out clearly and accurately

Our view

We welcome what is a commendable attempt by the CPS to recognise and accommodate the increasing complexity and role of mental disorder in promoting an individualistic approach to the assessment of mental health diversion.

However, many disorders and conditions cannot be accommodated by the traditional prosecutorial approach to intent and culpability.

We recommend that the guidance stress that the prosecutor should approach the public interest test by adopting a more inquisitorial, rather than binary, approach which is not singularly focused on the category of the mental health disorder but on the individual’s capacity too.

It is unclear what the proposed status of the guidance will be in relation to its relationship with the current 2018 Full Code for Crown Prosecutors and its two-stage test evidential and public interest test.

The guidance may be of limited benefit if it is not incorporated into the Full Code. We recommend that details mental health diversion guidance be incorporated into the Full Code.

The list of mental health conditions is a useful aide memoir. However, it is important to make clear that a disorder might not necessarily meet these descriptions, and whilst the guidance that follows seeks to address this, adding this point to the list would be a more effective flag.

The guidance notes that a suspect’s mental health is likely to be relevant to the application of the public interest stage of the Code in relation to the assessment of the suspect’s culpability, but in our view, it overemphasises the significance, or severity, of the mental disorder.

We invite the CPS to consider qualifying the phrase ‘significant mental illness or disability’, which is arguably an overly subjective test influenced by notions of harm, or symptoms of psychosis, in contrast to features associated with a wide variety of learning difficulties or the autistic spectrum.

We recommend that the guidance adopt a similar list of criteria for assessing the culpability of a mentally disordered persons as set out in a draft sentencing guideline which the Sentencing Council is currently consulting on.

What this means for solicitors

The guidance will assist prosecutors to make the right decision on whether to commence a prosecution against a mentally disordered suspect, or whether to divert the person from the criminal justice system.

It will provide defence solicitors with a clear and accessible insight into how the CPS make these decisions and enable them to make informed submissions concerning that decision, in their client’s best interests.

Next steps

The CPS will consider all responses and publish the legal guidance in due course.

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