Mind set up an expert advisory group with representatives from the CPS, Bar Council, JSB, ACPO and service users. They conducted a survey of experiences and considered how to give appropriate guidance. Additionally research was conducted with victims and witnesses about their experience of the Criminal Justice System, how mental health can impact on people’s ability to give evidence and how the appropriate support mechanisms could have helped them. As a member of the Bar Council’s Disability Committee with an interest in mental health, I was seconded to the working party to work with Mind in producing the toolkit on behalf of the Bar.
The toolkit contains practical information, advice, case studies and guidance aimed at assisting an advocate to understand both the experiences and implications of those suffering with mental distress. It seeks to assist in their evaluation of evidence and witnesses, and guides the reader through helpful exercises. The Code for Crown Prosecutors 2010 (para 2.4) requires prosecutors to be “fair, independent and objective”. The toolkit aims to equip the advocate with knowledge and hopefully a better ability to discharge that duty and seeks to prevent him/her from being drawn by myth and stereotype practices which impact upon that guidance.
The toolkit discusses how an advocate should approach the often complex decision-making process of evaluating credibility and reliability. It encourages more consultation with the witness, careful evaluation of how their condition may affect them giving evidence; considerations of reasonable adjustments and stresses the importance of pursuing a merits-based approach to the evidential test. Following the guidance in R (on the application of B) v DPP, it is important for an advocate to assess if the evidence is sufficient to merit a conviction, rather than the likelihood of a conviction by the jury.
A substantial section of the toolkit is dedicated to providing an approach to the relevance and duties of disclosure. The key points being to apply oneself to the facts and case issues without making unnecessary assumptions on the relevance of mental health. Avoiding unnecessary instruction of a psychiatric expert or disclosing medical history; seeking consent at all times; resisting disclosure unless strictly necessary under CPIA rules; avoiding a risk-adverse approach in erring on the side of caution in fear of appeal based on grounds of non-disclosure; and, finally, always challenging disclosure of psychiatric evidence by the defence during the trial where it may be unnecessary.
It is a core quality standard for all advocates to protect the victim or witness from any unfair questioning or treatment during a trial. It is fundamental to the fairness of proceedings that an individual does not suffer prejudice or have any disability exploited by a robust advocate asking inappropriate questions or exploring irrelevant issues by reason of the existence of mental distress.
Fairer advocates for the future
Being part of the working party to produce the mental health toolkit has been an extremely rewarding experience. Inns, Circuits and education providers work hard to build well rounded lawyers for the future, and participating in the working party has enabled me to feel part of that valuable process. The toolkit is a source of guidance to anyone seeking to understand the issues affecting those suffering from mental distress. It stresses the importance of treating all witnesses/victims, who may be distressed, without fear or prejudice and highlights not only the myths and stereotypes that exist concerning mental distress issues, but also the fear and stereotypical legal stigmas which have been created by negative experiences. We all must strive to redress such concepts by education, careful preparation and awareness to avoid negative experiences within the Criminal Justice System. It is hoped that the toolkit – which is available on the Law Society, Bar Council or Mind websites – is widely incorporated into training and seen as standard good practice for any advocate.
Rachel Spearing, 3 Pump Court Chambers, is a member of the Bar Council’s Disability Committee
Promoting disability equality
The Bar Council’s Disability Committee sits alongside the Equality and Diversity Committee but has a very specific role to promote disability equality across the profession and to remove any barriers to access or progression within the profession, or to using services provided by the profession. The Disability Committee seeks to assist and influence other bodies in the justice system, for example the Inns of Court, JAC, CPS and the Courts Service. Headed by Julian Picton QC, it fulfils its remit by proactively seeking out and addressing evidence of disability inequality, as well as responding to requests for advice and guidance from disabled students and practitioners and to enquiries from barristers’ chambers on reasonable adjustments. For the latter purpose the Group has set up a Panel of Disability Advisers. For further advice e-mail email@example.com.
Mental distress and the Criminal Justice System
Mental distress covers a wide range of conditions from temporary depression, anxiety to more serious clinical illnesses, such as paranoia and schizophrenia.
25% - One in four people will experience mental health issues at some point in their life (Psychiatric Morbidity Report, Office for National Statistics, 2001).
71% - 71 per cent of respondents to a survey conducted by MIND (“Another Assault” 2007) had been the victim of crime in the past two years. The report concluded that people with mental distress felt disempowered to speak out against injustice by reason of their disability, finding the Criminal Justice System daunting and often distressing.
90% - Nine out of ten people with mental health issues report that they have experienced stigma and discrimination in their lives (“Time to Change” Mind, 2008).
Justice not pursued
This stigma and misunderstanding about mental health can result in cases not being pursued. For example, the case of R (on the application of B) v DPP  EWHC 106 (Admin) was dropped by the prosecutor solely on the ground that the history of psychiatric illness of the victim (FB) made him an unreliable witness. This decision relied on a condition-based assessment and expert evidence which generalised about the impact of schizophrenia on FB’s “reliability as a witness of the truth”. The High Court awarded FB compensation for being made to feel “like a second citizen, [...] beyond the protection of the law” (per Toulson LJ at ). It concluded that the decision to terminate the prosecution was unlawful.
Following this decision the CPS issued further guidance and assistance to prosecutors concerning the standards, tests and considerations to be applied: “The Victims & Witnesses who have mental health issues and/or learning disabilities – Prosecution Guidance” (20 May 2010).