DPP calls for ‘stigmatising’ mental health laws to be overhauled

Out of date laws which stigmatise defendants with mental health issues should be overhauled, the Director of Public Prosecutions (DPP) has said.

Delivering the annual Howard League Parmoor Lecture, Max Hill QC called for a debate about whether the criminal justice system enables people with mental health conditions to participate fairly.

The CPS has today published new guidance for prosecutors on how to deal with cases involving victims, witnesses or defendants with mental health issues. Internal CPS analysis research suggests that mental health conditions are a feature of almost one in five of our cases. This guidance has been revised to ensure it reflects the significant developments in medical understanding, and societal attitudes.

However, prosecutors can only decide how best to approach cases according to existing laws, and key planks of the legal framework which govern this area remain unchanged since the 1800s.

The DPP said: “We, as a society and as a service, are changing and we are recognising the importance of mental health as well as physical health. But criminal justice has not adapted. It has not moved forward with us. It is stigmatising and it is in need of change.

“I am not suggesting we should stop prosecuting people with mental health conditions or disorders. What we need to do is balance our approach and ensure that those with mental health conditions, and I’m including victims and witnesses, are treated fairly and proportionately.”

He highlighted two specific areas for consideration; fitness to plead, and the defence of insanity. Decisions on whether someone is fit to plead guilty or not guilty to an offence are based on whether they are able to fulfil a range of tasks, including understanding the charges, and instructing lawyers. In contrast, civil law is based on a modern understanding of cognitive capacity, and decision-making is based on whether an individual can understand, retain and relevant information, and communicate a decision.

Mr Hill said: “The starting point must be that we want every defendant to be able to participate fully and fairly in their criminal trial. Any decision that reduces their participation must be based on a consistent, modern understanding of mental health. And, as a point of principle, no-one should be worse off if their mental health prohibits them from taking part in criminal proceedings.”

The defence of ‘insanity,’ which dates back to an assassination attempt against Sir Robert Peel more than 170 years ago, is also overdue for consideration. The legal definition established by that case remains unchanged, which means that someone diagnosed by experts today as suffering a severe mental illness, but who does not meet criteria based on outdated medical understanding, cannot be found guilty due to insanity.

The revised guidance for prosecutors on dealing with defendants with mental health has been informed by attitudinal shifts which recognise that an impairment or disorder, including a mental health disorder, doesn’t necessarily have to disable someone’s access to justice.

Other important changes to the guidance include:

  • Emphasising the importance of full participation wherever possible, including through special measures and reasonable adjustments.
  • Providing prosecutors with additional support on information available at the time of charge  to avoid unnecessary delays; and
  • More information on how to manage cases better, for example, how to commission psychiatric reports on defendants to contribute to decisions about the case.

This is intended to be clear, practical guidance that will assist prosecutors to manage these cases fairly and effectively.