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| People with advanced dementia have no place in court | |
| (about 2 hours later) | |
| Ever since Ernest Saunders was misdiagnosed as having Alzheimer’s disease in 1991 and released early from a prison sentence, dementia among defendants has had a bad name. | |
| Commentators expressed cynicism when told by prosecutors last April that Greville Janner was too ill to stand trial. That cynicism persisted after the medical evidence of his dementia was accepted by a judge last month. And people who should have known better seemed to think that even Janner’s death a few days later was not enough to bring criminal proceedings against him to an end. | Commentators expressed cynicism when told by prosecutors last April that Greville Janner was too ill to stand trial. That cynicism persisted after the medical evidence of his dementia was accepted by a judge last month. And people who should have known better seemed to think that even Janner’s death a few days later was not enough to bring criminal proceedings against him to an end. |
| Now there are calls for the courts to impose heavier penalties on people with dementia who cause traffic accidents after being told not to drive. This is more than a little illogical, since those who are too ill to drive will probably be too ill to stand trial at a hearing some months later. They will certainly be too ill to serve a substantial prison sentence. | |
| Related: The Lord Janner case is dogged by the CPS’s confusion | Joshua Rozenberg | Related: The Lord Janner case is dogged by the CPS’s confusion | Joshua Rozenberg |
| This enthusiasm for punishing those who are no longer in control of their actions is deeply unattractive. Of course, it can be difficult to distinguish between the mad and the bad. Mentally ill people sometimes need to be detained in secure hospitals, for both their safety and ours. But what justification can there be for imposing a punishment on those who cannot understand its purpose? It’s hardly going to deter someone from repeating conduct that they simply cannot remember. | This enthusiasm for punishing those who are no longer in control of their actions is deeply unattractive. Of course, it can be difficult to distinguish between the mad and the bad. Mentally ill people sometimes need to be detained in secure hospitals, for both their safety and ours. But what justification can there be for imposing a punishment on those who cannot understand its purpose? It’s hardly going to deter someone from repeating conduct that they simply cannot remember. |
| English law describes those who lack sufficient capacity to participate meaningfully in criminal proceedings as being unfit to plead – meaning unable to respond to the charges they face. There may be a variety of reasons for this, including mental illness, learning disability, developmental disorder, a communication impairment or some other cause. However, the government’s law reform advisers said last week that the law in this area was outdated, inconsistently applied and could lead to unfairness. So the Law Commission has recommended a new legal test of incapacity in England and Wales. | English law describes those who lack sufficient capacity to participate meaningfully in criminal proceedings as being unfit to plead – meaning unable to respond to the charges they face. There may be a variety of reasons for this, including mental illness, learning disability, developmental disorder, a communication impairment or some other cause. However, the government’s law reform advisers said last week that the law in this area was outdated, inconsistently applied and could lead to unfairness. So the Law Commission has recommended a new legal test of incapacity in England and Wales. |
| First, though, it wants improvements in the trial process to make it easier for vulnerable defendants to stand trial. These would include the right to an intermediary – someone who is trained to help the defendant understand the proceedings and communicate with the court. | First, though, it wants improvements in the trial process to make it easier for vulnerable defendants to stand trial. These would include the right to an intermediary – someone who is trained to help the defendant understand the proceedings and communicate with the court. |
| The current test for unfitness to plead derives from a case decided 180 years ago. A man called Pritchard could read but not speak. Charged with bestiality, he was found “mute by the visitation of God” and sent to prison “during his Majesty’s pleasure”. But because the Pritchard test has never been set out in a statute, it is applied inconsistently by clinicians and the courts. | The current test for unfitness to plead derives from a case decided 180 years ago. A man called Pritchard could read but not speak. Charged with bestiality, he was found “mute by the visitation of God” and sent to prison “during his Majesty’s pleasure”. But because the Pritchard test has never been set out in a statute, it is applied inconsistently by clinicians and the courts. |
| One concern is that the current threshold is too high. A defendant with paranoid schizophrenia or depression might still be found fit to plead. But defendants with those mental illnesses may be driven to plead guilty despite having a legitimate defence to the charge. | One concern is that the current threshold is too high. A defendant with paranoid schizophrenia or depression might still be found fit to plead. But defendants with those mental illnesses may be driven to plead guilty despite having a legitimate defence to the charge. |
| As recommended by the commission, the unfitness test would be reformulated to assess the defendant’s capacity to participate effectively in the specific criminal proceedings that he or she is facing. To participate, the defendant would need to be able to take core decisions, such as whether or not to plead guilty or give evidence. | As recommended by the commission, the unfitness test would be reformulated to assess the defendant’s capacity to participate effectively in the specific criminal proceedings that he or she is facing. To participate, the defendant would need to be able to take core decisions, such as whether or not to plead guilty or give evidence. |
| Although the Janner case is not referred to by name, the commission clearly had it in mind when it noted that the court currently had no discretion to discontinue proceedings after finding that a defendant lacked capacity. A so-called trial of the facts is required in those circumstances – even if, as in Janner’s case, the court would inevitably have ordered an absolute discharge. The only remaining options – detaining him in a secure hospital or ordering supervision in the community – would have been neither necessary nor appropriate. | Although the Janner case is not referred to by name, the commission clearly had it in mind when it noted that the court currently had no discretion to discontinue proceedings after finding that a defendant lacked capacity. A so-called trial of the facts is required in those circumstances – even if, as in Janner’s case, the court would inevitably have ordered an absolute discharge. The only remaining options – detaining him in a secure hospital or ordering supervision in the community – would have been neither necessary nor appropriate. |
| While accepting that there may be cases where a jury should consider the allegations – however limited that consideration may be – the commission says that diversion from the criminal justice system may be desirable for defendants facing less serious charges or presenting lower risk. It recommends that the court should have a formal power to stop the case before a trial of the facts takes place. | While accepting that there may be cases where a jury should consider the allegations – however limited that consideration may be – the commission says that diversion from the criminal justice system may be desirable for defendants facing less serious charges or presenting lower risk. It recommends that the court should have a formal power to stop the case before a trial of the facts takes place. |
| If the trial of the facts does go ahead, it recommends that the prosecution should be required to prove all the elements of the offence and not just the physical facts alleged. This would certainly be fairer. A defendant would be acquitted if the mental element of the crime – intention, for example – could not be proved. But it would also give the verdict greater public legitimacy. And that, I think, is dangerous. | If the trial of the facts does go ahead, it recommends that the prosecution should be required to prove all the elements of the offence and not just the physical facts alleged. This would certainly be fairer. A defendant would be acquitted if the mental element of the crime – intention, for example – could not be proved. But it would also give the verdict greater public legitimacy. And that, I think, is dangerous. |
| People with dementia cannot give any instructions to their court-appointed lawyers. Those lawyers will not be able to put forward fact-specific defences – such as an alibi – without information from the defendant. And defendants might be subjected to what the commission wants to call an alternative finding without anyone knowing what arguments the accused would have put forward at a trial. That would not be fair. | People with dementia cannot give any instructions to their court-appointed lawyers. Those lawyers will not be able to put forward fact-specific defences – such as an alibi – without information from the defendant. And defendants might be subjected to what the commission wants to call an alternative finding without anyone knowing what arguments the accused would have put forward at a trial. That would not be fair. |
| The procedure now known as trial of the facts was introduced in 1991 to reduce the risk that a defendant found unfit to plead would be subject to mandatory and indefinite hospitalisation even though no crime had been committed. It was intended to be a protection for defendants rather than a second-class trial, and is worth keeping on that basis. But I see no reason to extend it any further. | The procedure now known as trial of the facts was introduced in 1991 to reduce the risk that a defendant found unfit to plead would be subject to mandatory and indefinite hospitalisation even though no crime had been committed. It was intended to be a protection for defendants rather than a second-class trial, and is worth keeping on that basis. But I see no reason to extend it any further. |
| However much the victims of someone like Jimmy Savile may demand what they regard as justice, we don’t put dead people on trial in the criminal courts. There are equally good reasons that we don’t try people who have lost the mental abilities that the rest of us enjoy. Defendants with advanced and irreversible dementia should have no place in the criminal justice system. |