Specialist prosecutors should review all decisions to charge suspects with mental health vulnerabilities and the defence of insanity should be amended, a law reform charity has said.

Defendants with learning disabilities and mental illness are repeatedly being failed by the criminal justice system in England and Wales, the report by Justice claims.

About a quarter of adults are diagnosed with a mental illness during their lifetime, and the proportion caught up in the criminal justice system is even higher. They need to be more clearly identified and supported, the study argues.

If problems are not addressed, the fair trial rights of many defendants may be undermined, Justice says. The report says mental health experts, not police officers, should identify people with mental ill-health or learning disabilities.

Among other recommendations, the report says specialist prosecutors should be appointed for each Crown Prosecution Service area to make charging decisions in such vulnerable cases.

Magistrates courts, youth courts and the crown court should have a dedicated mental health judge to deal with management of such cases, Justice proposes.

A new capacity-based test of fitness to plead and fitness to stand trial should be placed on a statutory footing, the report adds.

The defence of insanity should be amended to a defence of “not criminally responsible by reason of a recognised medical condition”.

Fresh sentencing guidelines on mental health and vulnerability should be developed and a broader range of alternative punishments made available to sentencers to meet the needs of these cases, Justice says.

“Too many criminal justice actors, all along its pathways, are unfamiliar with the range of mental health conditions and learning disabilities that can create vulnerability nor what to do about them,” the report notes.



Sir David Latham, chair of the Justice working party, said vulnerability should be “properly identified and, where identified, properly approached so that the person either receives reasonable adjustments to give them the capacity to effectively participate in their defence, or if appropriate, is not prosecuted.

“Where a person is diverted from prosecution or prison, suitable and effective treatment and support must be available to ensure that the person remains outside of the criminal justice system.”

Andrea Coomber, the director of Justice said: “The criminal justice system is not suitably designed to accommodate people with mental health or learning difficulties. There are still fundamental problems with the criminal justice system’s response to vulnerability and too few people receive reasonable adjustments to enable them to effectively participate in their defence.

“We are impressed by the efforts being made to create an integrated criminal justice and mental health sector. We hope that this report will build on that and bring about change for some of the country’s most vulnerable people.”

