Criminal Admissions

Question 1

R v IA

Answer 1

Sexual assault, rape, attempts, possession of a bladed article. Indefinite restriction only released if tribunal discharged him.

Question 2

Lady Hale mad/bad

Answer 2

“Perhaps the true moral distinction is not those who are suffering and those who are not but those considered long term dangers to others and those who are not.”

Question 3

Michael Foucalt (less modern view to Lady Hale)

Answer 3

One must choose because madness wipes out the crime, cannot be a crime as crime cannot be an act rooted in madness.
Principle of revolving door!
When pathology comes in, criminality must go out. In the event of madness, medical institution takes over from judicial.
Either punish or help, cannot do both. Lady Hale stated this is out of date.

Question 4

Tension exists between

Answer 4

law and psychiatry

Question 5

Psychiatric view: Phillipe Pinel

Answer 5

‘The mentally ill, far from being those who merit punishment, are sick people whose miserable state deserves all the consideration due to suffering humanity’

Question 6

Legal view: R v Drew

Lord Bingham

Answer 6

‘It may be accepted as wrong in principle to punish those who are unfit to be tried or who, although fit, are not responsible for their conduct because of insanity. But it cannot, as a matter of national law, be stigmatised as wrong in principle to pass a sentence of imprisonment on a mentally disordered defendant who is criminally responsible and fit to be tried.’

Question 7

Lord Mustill ‘the mentally disordered offender: a call for thought’ (1992)

Answer 7

The professional aims, training and philosophies of the persons in these two groups have nothing in common and are in some respects antithetical… It is not surprising when they overlap there is a confusion of purpose, degree of mutual incomprehension and friction’

Question 8

Diversion

Answer 8

Reducing the role of the criminal justice system and increasing the role of health system.
Different ways of achieving this, pressure to divert at the ned when someone has almost served their prison sentence.

Question 9

Three practical considerations

Answer 9

1. MHA doesn’t apply to prisons, no compulsory treatment powers available in hospital wings
2. Prisons don’t tend to have resources available to care
3. Prison hospital wings are pretty awful, NHS didnt operate there until 2006

Question 10

Minor diversion

Answer 10

When we are still using the criminal justice system a lot but there is a minor diversion to transfer prisoner to hospital when they need treatment and back again

Question 11

Major diversion

Answer 11

Most major is if they are not prosecuted at all for their crime

Question 12

• If diverting disordered offender from crime to health

Answer 12

Also diverting a victim :(

Need to consider victims status in these situations

Question 13

Reasons to question whether diversion is still official government policy

Answer 13

We now have a greater criminalised model of mental disorder rather than medicalised, focus more on risk management than care, now NHS operates in prisons maybe less need for diversion?

Question 14

Bradley Review (2009)

Answer 14

More people with MH problems in prison than ever before, need to raise awareness of MH issues throughout system and establish local criminal justice and MH teams, need to improve treatment in prison, diversion no longer only the answer, 82 recommendations mostly accepted by government.

Question 15

11% of all male and 15% of all female prisoners in 2005

Answer 15

suffered from psychosis, back then almost 82,000 prisoners

Question 16

Amount of people in prison with antisocial personality disorder in 2005

Answer 16

38,000

Question 17

All-Party Parliamentary Group on Prison Health 2006

Answer 17

“Perhaps future generation will look back on ours which has criminalised a large section of its mentally ill as being just as misguided as previous generations which exhibited the mentally ill as freaks”

Question 18

Lady hale “would you rather be”

Answer 18

Fixed term in prison where there could be a stimulating range of educational and other issues, smoking allowed forcible treatment hardly ever allowed
OR
Sentenced to an indeterminate term, high security psychiatric hospital, less varied, smoking not allowed but forcible treatment is

Question 19

Good example of Lady Have analogy

Answer 19

Brady

Question 20

s136 MHA

Answer 20

‘If a constable finds in a place to which the public has access, a person who appears to him to be suffering from a mental disorder, and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety.”

Question 21

In 2015-2016 how many times 136 used?

And what % taken to hospital?

Answer 21

24,792 times

93% taken, best its ever been

Question 22

Detention 136 hours?

Answer 22

72 hours

Question 23

Carol Carter

Answer 23

Police called out for neighbour dispute, blocks of flats, Carol stood on communal balcony arguing with her neighbour, had faeces on her hands and shouting. s136 used yet no mental disorder.

Question 24

Mr Seal

Answer 24

Visited his mother, could not find a parking space, beeping his horn, neighbour called police who turned up and he was arrested under s136 and detained for days yet had no disorder.

Question 25

Police and Crime Act 2017

Answer 25

Amended deadline from assessment from 72 hours to 24 hours.

Provision for a medic to extend to another 12 hours if necessary.

Question 26

s135 Mental Health Act Private Premises

Answer 26

Someone is in their home or someone else’s private premises. English law stresses the importance of having a dwelling/private space the state cannot interfere with. If you are within your private premises and MHP cannot access those they will need a warrant.

Question 27

s135(1)

Answer 27

“if there is reasonable cause to suspect a person believed to be suffering from a mental disorder

a) has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction or the justice OR
b) being unable to care for himself, is living alone in any such place

the justice may issue a warrant authorising any constable to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under part II or of other arrangements for his treatment or care”

Question 28

Sessay

Answer 28

S allowed two police officers in her house, once inside they took her to a police station, took her child into protection, drove her to a hospital claiming 136. Sedated her, then claimed s5-6 MCA ‘proportionate restraint for lacking capacity’. 13 hours later detained under s2 MHA and sectioned.
Amounted to a deprivation of liberty!

Question 29

Police and Criminal Evidence Act 1984 s17

Answer 29

Permits entry without warrant to save ‘life or limb’ to prevent serious damage to property, high threshold.

Question 30

Baker v CPS

Answer 30

Risk of serious harm would suffice

Question 31

Syed v DPP

Answer 31

Mere concern for welfare does not suffice

Question 32

s17 only allows police to…

Answer 32

Enter! No power to remove therefore it is only a partial power, once in the home places them within Sessay

Question 33

R v Oye

Answer 33

Not in dispute because of delusions he thought he was being confronted by evil spirits whom were the police. But prosecution contended so far as self-defence was concerned he had used unreasonable force.

Question 34

Section 35 MHA

Answer 34

Remand for assessment.

• One registered medical practitioner certifies he is suffering from a mental disorder
• A hospital bed will become available within 7 days
• In the meantime, can be detained in a place of safety

Up to 28 days can be renewed maximum of 12 weeks

Question 35

R (on the application of M) v Kingston Crown Court

Answer 35

s35 remand cannot be used to enable CPS to obtain evidence the accused had the intention or capacity to form the intention to commit an offence of GBH

Question 36

Remand for treatment

Answer 36

MHA s36

• Two registered medical practitioners certify he is suffering from mental disorder and
• That illness is of a nature or degree which makes it appropriate for him to be detained
• Appropriate medical treatment is available and
• A hospital bed will become available in 7 days and
• In the meantime, suspect detained in place of safety

Initially 28 days can be renewed for up to 12 weeks
Compulsory treatment provisions apply

Question 37

The Criminal Procedure (Insanity) Act 1964 s.4

Answer 37

Enables the crown court to divert offenders who are unfit to plead. Since March 2005 their fitness has been determined by a judge unless the issue arises after the trial has begun, in which case the jury.

Question 38

Hasani

Answer 38

An unfit defendant can be tried if he regains his fitness to plead

Question 39

Central issue regarding unfitness to plead?

Answer 39

Whether they have a disability which renders them unfit to plead, former undefined the latter is governed by R v Pritchard where the offender did not suffer from disorder

Question 40

R v Pritchard

Answer 40

Accused will be deemed unfit to plead if he cannot

a) understand the charge against him
b) distinguish between a guilty and not guilty plea
c) instruct a lawyer
d) follow the evidence
e) challenge an objectionable juror

Focus on cognition/understanding rather than capacity.

Question 41

R v Robertson

Answer 41

Suffering from delusions and persecution mania does not equate to unfitness

Question 42

Mackay

Answer 42

The criminal law fails to protect equally vulnerable persons who cannot make true choices about the trial process, including the delusion about whether or not to plead guilty

Question 43

Law Commission

Answer 43

Undertaken a project which attempts to identify more modern legal tests and rules. Amongst its recommendations is to abolish Pritchard in favour of one which draws upon the MCA 2005 by laying down a decision-making capacity test.

Question 44

The Criminal Procedure (Insanity) Act 1964 s4A

Answer 44

If the judge agrees the offender is unfit, the jury will hear evidence in a ‘trial of the facts’ to determine whether he committed the act or omission of the offence.

If he did not they must acquit, if he did the court shall under s5 make a hospital order, a supervision order or an order for his absolute discharge. For murder cases, the court must impose a restricted hospital order.

Question 45

R v Antoine

Answer 45

Paranoid schizophrenic 16 year old boy helped to sacrifice a younger boy to the devil. Jury were not permitted to consider the issue of diminished responsibility under s4A procedure only the actus reus must be proven.

Question 46

Lord Hutton R v Antoine

Answer 46

Fair balance between protecting an unfit defendant who has done nothing wrong and protecting the public from someone who has committed an injurious act which would be criminal but for the lack of mens rea.

Question 47

R v Grant

Answer 47

Jury were not permitted to consider lack of intent or provocation despite Heather Grant’s significant learning disability which may have influenced her boyfriend’s killing

Question 48

Powers of Criminal Courts (Sentencing) Act 2000 s11 in conjunction with MHA s37(3)

Answer 48

Enables magistrates to divert a mentally disordered offender to hospital without convicting him.

Question 49

R (P) v Barking Youth Court

Answer 49

Magistrates must first decide whether the act or commission was committed prior to fitness to plead. If it was, they should then decide whether to make a hospital or guardianship order without convicting him.
This avoids the problems surrounding the Pritchard test.

Question 50

M’Naghten (case facts)

Answer 50

Mentally ill, believing he was being persecuted by the tory party, intending to assassinate the prime minister Sir Robert Peel he mistakenly killed his private secretary and at his murder trial was given special verdict. In response to public outcry, House of Lords issued the rules…

Question 51

M’Naghten rules

Answer 51

“… It must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; OR, if he did know it, that he did not know he was doing what was wrong.”

Question 52

Disease of the mind includes?

2 plus authority

Answer 52

Sullivan - epilepsy

Burgess - sleepwalking

Question 53

R v Johnson

Answer 53

D knew what he had done was wrong in the legal sense but thought there was moral justification for it.

CoA dismissed his appeal, but noted:

‘This area, however, is a notorious area for debate and quite rightly so. There is room for reconsideration of rules and in particular rules which have their genesis in the early years of the 19th century. But it does not seem to us that the debate is a debate which can properly take place before us at this level in the case.’

Question 54

M’Naghten rules criticised by the privy council in

Answer 54

Phillip v The Queen

Question 55

Before Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 …

Answer 55

Special verdict required the court to impose indefinite mental hospital detention. Although the act didn’t reform M’Naghten rules it did introduce more flexibility to available court disposals.

Since March 2005 the courts have discretion (except in murder cases) to make a hospital order, community order with requirements, or issue an absolute discharge. A special verdict on murder charge requires the court to impose restrictions on a hospital order.

Question 56

Law Commission problems

Answer 56

Has identified the area of M’Naghten is in need of reform, remarking:

‘Given the vulnerability of the mentally ill and increasing frequency they are coming into contact with the CJ system, modern criminal law should be informed by modern science, and in particular by modern psychiatric thinking.

The problems with existing law are many and serious … The application of these antiquated rules is becoming increasingly difficult and artificial, the stringent test of capacity for the purposes of fitness to plead also needs to be reconsidered and should be contrasted with the much wider test contained in MCA 2005.’

Question 57

Law Commission 2013 proposals

Answer 57

Exempt from criminal responsibility those who lacked all criminal capacity and could not have avoided committing the crime because of a recognised medical condition through no fault of their own.

Question 58

Three key provisions of the MHA 1983

Answer 58

s37, 41, 45A

Question 59

MHA s37

Answer 59

Hospital and Guardianship orders

Question 60

Magistrates or Crown must be satisfied of:

5

Answer 60

1. Two registered medical practitioners certify the person is suffering from disorder and
2. Disorder is a nature or degree which makes it appropriate for him to receive medical treatment in hospital (or warrants his reception into guardianship)
3. Most appropriate disposal having regard to all the circumstances
   (including the nature of the offence and the character and antecedents of the offender)
   and other available methods of dealing with him
4. Arrangements have been made for admission to hospital within 28 days, or local social services authority is willing to receive the offender into guardianship and
5. Appropriate medical treatment is available

Question 61

R v Fairhurst

Answer 61

Not proper for a judge to decline a hospital order and impose a sentence of life imprisonment simply and solely because he is anxious that the tribunal might prematurely release the prisoner.

May be exceptional circumstances where the degree of culpability is so great the hospital order would not be justified.

Question 62

Key issue for the court?

Answer 62

The most appropriate disposal. May depend on whether there is a causal link between mental disorder and offending behaviour.

Question 63

R v Nafei

Answer 63

CoA stated in relation to drug importation:
‘Courts tend to focus primarily if not solely on offence itself, it is the case for clear policy and deterrence reasons factors personal to the offender ordinarily tend to account in the usual case for relatively little in this context.

Question 64

R v Khelifi

Answer 64

CoA held although a defendant’s medical needs were important factors, they were not overriding factors as the interests of justice also had to be considered.

Question 65

R v Khan

Answer 65

Applied Khelifi, hospital order was not the inevitable consequence of the conditions being satisfied and whilst the ‘welfare of the offender is an important consideration, the appropriate sentence must be assessed according to the seriousness of the offence.

Question 66

R v Dass

Answer 66

D bludgeoned his grandparents and uncle to death with a hammer and tried to kill himself. Evidence at the trial showed he had chronic schizophrenia at the time. His barrister argued on appeal as a general rule, where there is a causal link between offence and the illness, the illness was of a nature and degree which made a hospital order appropriate, such an order should be imposed.
However CoA rejected this.

They said they ‘have their doubts’ and prison was always an alternative. Dass’s responsibility was diminished he remained culpable and sentence of life imprisonment remained.

Question 67

MHA s41

Answer 67

Restriction orders - no relative discharge power

Question 68

A G’s Reference no 54 of 2011

Answer 68

Restrict the ability of responsible clinician’s discretion to grant their patient leave, transfer or discharge from hospital. Effect is that ‘release is dependent upon responsible authority being satisfied the defendant no longer presents any danger which arises from his medical condition’

Question 69

Ministry of Justice

Answer 69

Tends to make restriction orders under MHA s41(3)(c)

Question 70

R v Birch

Answer 70

‘A restriction order has no existence independently of the hospital order to which it relates, fundamentally affects the circumstances which the patient is detained.
No longer is the offender regarded simply as a patient whose interests are paramount.
P subject to restriction order is likely to be detained for much longer in hospital than one who is not and fewer leave of absence opportunities.’

Question 71

Who can impose restriction order?

Answer 71

Crown court, only where necessary to protect the public from SERIOUS harm.

Question 72

R v Birch facts

Answer 72

A jealous woman shot and stabbed her husband to death. Psychiatric evidence attributed her conduct to a severe depressive illness and was firmly of the view she posed no threat to public safety. CoA guidance:

• For the court not medical witnesses to determine whether order is necessary but sentencer must have some basis for deciding it is necessary to protect the public from serious harm
• Must consider gravity of the harm to which public will be exposed if the offender is at large?
• Nature of the harm not necessarily limited to personal injury
• Sufficient another individual, or group or category of individuals at risk but not sufficient danger to himself
• Must be justified by reference to expected future behaviour of offender, rather than seriousness of current offence

Question 73

R v Harding

Answer 73

Described keeping a mentally ill person in prison as a form of cruelty.

Question 74

R v Matthews

Answer 74

D pleaded guilty to robbery and diagnosed with dissocial personality disorder. 2 psychiatrists recommended diversion but, despite numerous adjustments, no bed could be found.
Sentenced to 3 years imprisonment for public protection.

Question 75

If p is not admitted within 28 days the order will expire, unlawful to detain or treat under it

Answer 75

R (DB) v Nottinghamshire

Question 76

R v Welsh

Answer 76

Armed himself with a knife and stabbed a person at a friends party for no apparent reason, he had schizophrenia, unfit to plead, transferred to a mental hospital and returned to court and pleaded guilty by reason of diminished responsibility. Rather than indefinite restricted hospital order, judge sentenced him to life imprisonment with minimum 12 years term.

Given previous tendency for violence and gravity of the offence, CoA upheld the sentence.

Question 77

Contrast Welsh with R v Fort

Answer 77

Fort was 18 and of good character with no previous contact with mental health services. One day he stabbed his mother 35 times with a large kitchen knife whilst his father and sister were asleep upstairs, immediately rang emergency services stating he had killed her.

CoA quashed the life sentence for murder and substituted s37/41 restricted hospital order as the most suitable method of disposing with the case.

Question 78

s45A

Answer 78

Hospital and limitation direction - ‘hybrid orders’

Question 79

Hybrid order

Answer 79

Combines a hospital order with a prison sentence. Provides appropriate disposal for mentally disordered offender highly responsible for his actions. Transferred to hospital for treatment but returned to prison once condition improves.
Criteria same for s37 hospital orders.

Question 80

R v Vowles

Answer 80

1. Court must not feel circumscribed by psychiatric opinions. Even if 2 recommend hospital order, not sufficient on its own for disposal: court duty under s32(2)(b) to consider whether hospital order is most suitable.
2. Must consider a) extent to which d needs treatment for disorder, b) extent to which offending is attributable to mental disorder, or whether d’s responsibility was diminished c) extent to punishment required
3. Must have regard to protection of the public
4. i) must consider whether disorder can be dealt with by hospital direction under 45A
   ii) if it can and 21 must make direction under 45A
   iii) if not, consider whether evidence fulfils requirements for hospital order under s37(2)(a) and restriction under 41, and whether ‘most suitable for disposing case’ s37(2)(b)
5. Must consider whether disorder can be dealt if the court determines the order is the most suitable method of dealing, should be made without interim order as acute pressure to secure beds.

Question 81

s47

Answer 81

MoJ fettered discretion to transfer convicted and unsentenced (s48) prisoners to hospital, usually with restrictions (s49)

Question 82

R v Balderstone

Answer 82

Woman with long history of personality disorder attacked her husband and set fire to their flat. Psychiatrists attribute her actions to ‘maladaptive behaviour’ rather than psychosis and said she could be considered responsible.
Prison was the best therapeutic setting.

Question 83

SW London and St George’s MH NHS Trust

Answer 83

Although s.47 transfers cannot be used simply to postpone the date of the prisoner’s release, “transfer to hospital involving admission, nursing, medical, and here psychological supervision, and staged discharged under medical supervision, is capable of amount to ‘treatment’…”

Question 84

D v Nottinghamshire

Answer 84

‘Positive psychotherapeutic treatment’ or specialist nursing care the ‘milieu’ therapy on the ward was sufficient to satisfy the test.

Question 85

Hutchinson Reid v UK

Answer 85

Article 5(1)(e) allows detention ‘provided there is a need to control and supervise that individual in order to prevent harm to others’