Navigating the criminal justice system for those who lack capacity

The criminal justice system is often bewildering even for those familiar with police stations and courts, but for those who lack the mental capacity for many everyday affairs, or their families and carers, it can be terrifying. If you are a professional or representative working within the Mental Capacity sector, perhaps a civil lawyer, medical professional, attorney or deputy, you may have a responsibility to ensure that your ‘P’ is properly supported if a criminal allegation arises.

Individuals and families may be familiar with the Mental Capacity Act 2005 and/or Mental Health Act 1983 and how it applies to them but ignorance of the criminal law is no defence, and in many ways those who lack mental capacity are particularly vulnerable to the criminal system. Those who struggle to control their actions and emotions, or to apply moral judgment can breach the criminal law, and sadly those who lack capacity find themselves in the criminal system all too often and all too easily.

The concept of 'capacity' as used in the mental health system, the Court of Protection or for a Power of Attorney is quite different to the test of ‘fitness to plead’ or participate in the criminal process. In the Criminal Justice System the process must allow a 'fair trial' and this means that the suspect or defendant must be able to understand the evidence, instruct a lawyer, communicate with the Court and other professionals, and give evidence to an investigation or a trial. The criminal system has the scope to adapt its procedures very significantly to accommodate the needs of a suspect or defendant, to ensure the proceedings are fair and just. This might include practical adaptations, such taking longer or regular breaks, or using appropriate language. It can also include using an Intermediary to facilitate communication. There is no such thing as a ‘litigation friend’ in the Criminal System. In a police station setting an Appropriate Adult might be available, but otherwise the suspect or defendant rely on their solicitor to advance their best interests.

For those under investigation, it is usually the police who must accommodate those accused of crime who may lack capacity. Indeed, it is a tragedy and a scandal that police stations across the region and country must too often deal with the front line of mental health and capacity crises. A police station is almost always a completely inappropriate environment for a suspect who struggles with capacity. Presenting evidence to police of a person's mental health or capacity issues is crucial. Practitioners need to be specialists who are able to navigate not only the criminal law, but understand the complexity of legislation relating to mental health and capacity

In court, issues of mental capacity or fitness to plead and participate often require expert assessment and evidence. An early, accurate identification of the issues both in the case and of the defendant is very important. For cases in the Magistrates court, much of the focus will be on the public interest in proceeding with a case. There is no formal fitness to plead procedure, although the court may adjourn a case to get medical reports. The court will sometimes proceed to hear evidence about whether the defendant did the act alleged, even if there is no trial to determine guilt or innocence. This might be appropriate if the defendant lacks the mental capacity to fairly participate in the trial process but it is important to know what happened.

In the Crown Court, so for more serious or complex cases, there is a formal procedure for determining whether a defendant is 'fit to plead'. Evidence from at least two experts will be required. If the defendant is not fit to plead then a jury may still go to have a fact finding hearing.

Defendants who have committed a criminal offence but who lack mental capacity are likely to be sentenced differently. Their lack of capacity may be a very important feature of mitigation such that the outcome will be exceptionally outside the usual sentencing guidelines. For those with more involved needs, a Hospital Order or Guardianship Order might be appropriate. There are other Mental Health Treatment Requirements that can form part of a community order. Those technically guilty of a criminal offence but who lack capacity in some respects might be absolutely or conditionally discharged.

In any case where a defendant may lack mental capacity in certain respects (or who suffers from mental health issues), early expert legal advice will usually be very helpful. Up to date information is vital. The specialist lawyer will be able to advise on what material is likely to be necessary, whether the suspect or defendant need attend in person at a police station or at court and the likely outcome. At a time of anxiety and fear, it is important to take control of the process to ensure the right outcome.