CRIMINAL LAW AND PSYCHIATRIC EXPERTISE

CRIMINAL LEGAL PSYCHIATRY

LEGAL ISSUES

(1) Pre-Trial Issues

(2) Fitness to Plead

(3) Trial Issues - Intent

- Psychiatric Defences’ 1 - Automatism

2 - Insanity

3 Diminished Responsibility

- Infanticide

(4) Sentencing

Issues - Mitigation

- Medical Disposals

(1) PRE-TRIAL STAGE

This is from appearance in Magistrates Court (where all criminal proceedings begin) up to consideration of fitness to plead.

Issues considered will be those specific to the pre-trial stage plus trial and disposal issues (where appropriate).

Referrals:

(1) Court remands on bail for psychiatric reports, either as outpatient or inpatient (for example with condition of residence on ward).

(2) Court remands in custody for psychiatric report (therefore seen in prison).

(3) Remanded to hospital for assessment under Section 35 of the Mental Health Act 1983 (will have had a ‘preliminary report’ in advance for the order to he possible).

(4) Remand to hospital for treatment under Section 36 of the Mental Health Act 1983 (‘preliminary report’ beforehand, as above).

(5) Referral by defence solicitor whilst on remand or on bail.

(6) Referral from probation officer whilst on bail or in custody.

(7) Referral from the Crown Prosecution Service.

(8) ‘Automatic’ reports, for example in murder and arson cases.

(2) FITNESS TO PLEAD

N.B. Mental capacity in the law is ‘action specific’, hence a person is potentially capable of X but not of Y, ‘fitness to plead is a specific capacity.

Specific rules for fitness to plead are related to the trial Process.

Rules determined by Section 4 of the Criminal Procedure (Insanity) Act 1964 (see also R V Pritchard);

defendant should be able to:

(1) Understand the charge and significance of plea, therefore “enter a plea”.

(2) Instruct counsel “so as to make a proper defence”; not necessarily precluded by delusions, even where specifically related to the charge, not precluded by amnesia, not precluded by muteness (if ‘of malice’).

(3) Challenge jurors.

(4) Follow the course of the trial.

o Unfitness can be raised by the defence, prosecution or judge.

o Subject to an ‘enquiry’ by jury, not a ‘trial’, psychiatrist gives oral evidence.

o Effect of unfitness to plead is determined by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. An order for detention under Sections 37 and 41 of the Mental Health Act 1983 can be made (must be made for murder) but other disposals are possible.

o Remains in hospital if on 5-37 until fit to stand trial or until discharged; no trial of the offence charged until fit.

(3) TRIAL STAGE ISSUES

Guilt of crime requires: Actus reus plus mens rea.

Each crime defines a specific mens rea. Generally mens rea amounts to ‘intent’.

‘Intent’ is not a psychiatric concept. However, an abnormal Mental State can influence the capacity to form intent or the qualitative nature of actual intent.

Intent

A psychiatrist may give evidence as to the capacity to form intent but not as to the fact of intent.

The issue arises most commonly in relation to substance ingestion.

If ingestion is voluntary then only lack of capacity to form ‘specific intent’ is sufficient to achieve acquittal.

If ingestion is involuntary then the lack of capacity to form (non-specific) ‘intent’ is sufficient.

N.B. Alcohol blackout does not amount to lack of intention per se, because it is an amnesic syndrome.

There is an overlap between lack of intent and ‘automatism’ (see below).

Automatism

Distinguish:

(I) Medical automatism (usually ictal or pen-ictal, ? fugue states).

(2) Legal automatism (essentially, impaired consciousness).

Hence all medical automatisms are legal ones but not all legal autornatisms are medical ones.

Conditions allowed as legal automatisms:

(1) Hypoglycaemia

(2) Epilepsy

(3) Somnambulism

(4) Night terror

(5) Hysterical dissociation

(6) Post head injury concussion

(8) Hypnotic trance

Distinguish between:

(1) ‘Sane’ automatism (resulting in acquitta1),

(2) ‘Insane’ automatism (resulting in direction to hosita1 under the Criminal Procedure (Insanity) Act 1964).

‘Sane versus insane’ automatism is determined by the cause of the automatism. Where the cause satisfies the McNaughten rules also then it amounts to insanity (see definition below).

Insanity Gives rise to verdict of ‘not guilty by reason of insanity’.

defect of reason from a disease of the mind such that he/she did not know the nature or the quality of the act or that it was wrong.

o Essentially = ‘cognitive.

o Medico-legal issues centre on definition of ‘disease of the mind’ (not a medical concept); case law authorities imply:

‘mind’ = mental faculties of reasoning, memory and understanding.

‘disease’ = organic or functional

= permanent or temporary

= treatable or not treatable ~f = ‘internal’ (R v Ouick)

= “manifests itself in violence and is prone to recur (Bratty)

Since R v Sullivan epilepsy is a legal ‘disease of the mind’ (probably also hysterical fugue states). Insanity now most often related to automatism cases.

o Suggest care during sentence (where report will go in Home Office File).

Medical Disposals

N.B. Psychiatric diagnosis does not imply (automatically) a psychiatric disposal e.g. defendant with psychopathic disorder which is not treatable (within the terms of the Mental Health Act 1983) or where psychiatric diagnosis does not satisfy Section I of the Mental Health Act 1983.

General points:

o Disposal must be ‘practical’, i.e.

(A) Within the Courts’ powers.

(B) Available clinically.

o Must be argued cogently (not merely telling the Court what to do).

o A link between actus reus and mental state is not necessary for medical disposal. Inpatient Disposals:

(1) Section 37 Hospital Order: grounds for detention of mental illness, mental impairment, severe mental impairment or psychopathic disorder, in the interests of the health or safety of the patient or for the protection of others: medical recommendations by two doctors. No social work application (because order made by Court). No right of appeal to MHRT in first 6 months.

(2) Section 41 Restriction Order: criterion is “necessary to protect the public from serious harm”; need oral evidence of a psychiatrist before it is made. Gives Home Office power over clinical management and discharge of the patients. May be made for limited period or (much more often) “without limit of time”.

(3) Section 38 Interim Hospital Order: not the final disposal but similar terms to Section 37. Can be made for not more than 12 weeks with renewal every 28 days up to a maximum of 6 months.

(4) Probation Order with a Condition of Psychiatric Treatment patient is still informal but if does not co-operate with treatment then can be “breached” by the probation officer on information from the psychiatrist.

Outpatient Disposals:

(1) Probation Order with/without Condition of Psychiatric Treatment.

Motivation is all important, not appropriate to compel a very unmotivated patient through a condition of psychiatric treatment attached to a probation order. Often useful where there is ‘marginal motivation’.

Probation orders are made under the Powers of the Criminal Courts Act.

PSYCHIATRIC EXPERTISE

Expert ‘evidence’ (written or oral) is psychiatric information presented for a non-psychiatric (civil or criminal legal) purpose.

A) PREPARATION OF REPORTS:

Preliminary Matters

Question 1: Is it appropriate to take the case?

(1) Query within your expertise

(a) Query within psychiatry.

(b) Query requires sub-specialist (e.g. neuro-psychiatry).

(2) Query practically sensible (e.g. can you offer treatment if necessary?) Question 2: What role Is requested?

(I) ‘Witness to court’ or ‘advice to Counsel’?

(2) ‘Professional witness’ or ‘expert witness’? Question 3: What issues are at stake?

(1) Distinguish legal/psychiatric issues.

(2) Distinguish (legal) verdict/disposal issues.

(3) Understand how psychiatric matters relate to legal issues.

Question 4: What forum will report be used in?

Medico-Legal Issues

Vary according to (1) fora (2) verdict/disposal issues.

Magistrate Courts - vast majority of cases, mainly minor, mainly disposal issues.

Crown Courts - minority of cases, mainly serious, mainly disposal but sometimes verdict issues.

Case Preparation

Providing a psychiatric report does not begin with interviewing the client.

There is preparatory work:

(I) Ensure instructions are adequate (not “please provide a psychiatric report”).

i.e. what legal issues and what psychiatric aspects of those issues.

(2) Confirm receipt and reading of documents i.e. depositions/social enquiry reports/previous psychiatric history.

(3) List for self the legal and psychiatric issues that appear relevant.

Interviewing the Client

(1) Query location is adequate (e.g. is it possible to assess in prison or requires admission to hospital?).

(2) Query time is adequate (especially where visiting in prison). Ethical Considerations

Distinguish ‘client’ from ‘patient’; different ‘expectations’ and necessary involvement of third parties

(e.g. courts and lawyers).

See all interviewees as ‘clients’ (even though coincidentally ‘patients’) since that ensures ‘boundary keeping’.

Especially relevant to:

(I) Confidentiality (because of ‘dual’ medical/legal significance of some information).

(2) Access to medical records; consent of client required.

(3) Query discussion of the ‘actus reus’. Clinical Interview

Essentially as for any general psychiatric interview; however, it is conducted in the awareness of ‘clinico-legal’ issues which have been determined as relevant (therefore differences in weight and focus of interview).

Interviewing styles are individual. However, following suggested guidelines:

o Discuss the offence (if going to) towards the end of the interview.

o Family History, Personal History, Social History all weighted according to relevance to diagnosis, prognosis and recommendations, avoid repetition of a ‘social enquiry report’.

o Previous Medical History and Previous Psychiatric History, especially important. Further Investigations

(1) Interview ‘objective’ informants.

(2) Use depositions to ‘reconstruct’ mental state at the time of actus reus.

(3) Read (if possible) Hospital Case Papers if seen in prison (to confirm recent mental state).

(4) Psychometry where necessary, query special psychometry, e.g. suggestibility.

(5) Organic investigations, where necessary.

Other Psvchiatric Experts

Discuss: (I) To ensure same information base.

(2) To narrow the issues (where relevant).

Do so after having formed your own opinion.

Structure of the Written report

Psychiatrists vary, therefore general points only:

o Note that a court report is not a ‘formulation’ or ‘case presentation’ but is the presentation of psychiatric information for a non-psychiatric (i.e. legal) purpose.

o Clarity is crucial.

o Avoid over inclusiveness, with ‘pursuit of legal relevance’ as the aim.

o Minimise use of, and explain technical terms.

o Write in awareness that you might have to defend the exact form of words in cross-examination in court.

o Write with conscious reference to limitation of psychiatric role.

o Write ‘past the court’ (in knowledge that the report will/might be used later in relation to psychiatric treatment and/or sentence serving (e.g. referral of prisoners with psychopathic disorder to HMP Grendon Underwood).

o Avoid value laden statements.

o Avoid general terms, specify.

o Give reasons for opinions expressed.

o Exclude psychiatric information not directly relevant to the court’s purposes.

o Length, only as necessary for legal purpose to which applied; Magistrates Courts apply little time to each case, Crown Courts are more deliberative and reports should be written in awareness of this difference. Brevity can be assisted by limitation of Background History to that which supports/makes more comprehensible the opinion expressed.

o Use headings for ease of reading; ensure have sections headed ‘Opinion’ and ‘Recommendations’.

Opinion:

Opinion is best written in terms of answers to specific legally relevant questions.

Re: Verdict issues, may need to deal with the link between the actus reus and psychiatric diagnosis.

Re: Other experts, only refer to other experts’ opinions in order to explain differences, avoid report becoming a debating ground.

Recommendations:

Concerned with disposal!.

Argument and clarity just as important as in relation to verdict issues.

Give rehearsal of options if appropriate.

Restrict recommendations to psychiatric care (no comments on penal alternatives).

If recommendation made for Mental Health Act disposals then ensure inclusion of

appropriate form of words to allow Court to make relevant order.

Signature:

Ensure inclusion of qualifications used as basis of expertise.

(B) GIVING ORAL EVIDENCE

o Relate directly to written report

o Make ‘evidential notes’, to avoid fumbling through a long report (or ‘highlight’)

o Use few, chosen words - spoken slowly

o Apply the degree of ‘strict logic’ which will be used against you in cross examination

o Be aware of the weaknesses in your argument

o Avoid jargon - where do use technical terms then find ways of lay explanation (e.g. analogy)

o Avoid dogmatism

and

be aware that you are playing ‘rugby-cricket’!