Mental health and the criminal courts

Recognising the potential vulnerabilities of defendants and those convicted during criminal court proceedings is critical in the delivery of justice in a way that is fair, just and humane. While measures in criminal proceedings in respect of the presence of mental vulnerabilities of the defendant are nothing new, distinguishing vulnerability may be more challenging. The question then, as has been for others (see for example, Cooper, Backen and Marchant), is where criminal proceedings do engage parties with mental illness or disorder, how well our criminal courts ensure that such defendants are not unfairly disadvantaged. All who are charged with a criminal offence are to be presumed innocent until proven guilty, and indeed Article 6 of the European Convention on Human Rights and the Human Rights Act 1998 require this. Central, though, to concerns around the adjudication of guilt or innocence when the defendant displays mental vulnerabilities is the matter of participation in proceedings. This issue of participation will be explored as we proceed in this chapter. Court cases can be broadly divided into those that involve the prosecution of, and sentencing for, criminal offences (criminal proceedings) and those that involve a dispute between two parties about rights and properties (civil proceedings). Although mental health issues may arise in civil proceedings (e.g. with concerns about the effect of mental ill-health on parenting capacities in family proceedings), this chapter focuses on mental health and the criminal courts in England and Wales.