Too often, people with mental health difficulties end up in prison, when they shouldn’t have been in the criminal justice system in the first place. Just ask any defence lawyer.
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The way the criminal justice system treats people with mental health disorders is a scandal. The police and courts are filling the gap, because the NHS does not have the facilities to look after those who are mentally ill. This is not my conclusion but that of the Home Affairs Select Committee in a report in February 2015. Mental health was estimated to be a factor in 20–40 per cent of police time. For those of us who practise in the magistrates’ court, I would say that sounds about right for lawyers as well. We have all had those cases where one client takes a huge amount of time. I had a client with mental health difficulties who emailed me about 20 times a day every day for two weeks in the lead up to her trial. Yet the question as to whether or not she should have been prosecuted in the first place seemed to have been ignored by the police, the CPS and the courts.
‘One judge granted him an intermediary, but when no intermediary was available, the next trial judge exercised his discretion to continue without one.’
The current way the justice system deals with people with mental illness is not sustainable. Police, prosecution and defence lawyers are not suitably trained, with the result that many mentally ill suspects begin a journey which will end in prison.
This is not a trivial concern. It can be a matter of life and death: 11 people died in custody in 2013–14, and of those, four had been identified as suffering from mental health problems. Of the 68 people who killed themselves within two days of release from police custody in 2013–14, 45 were reported to have mental health concerns (for example, suicidal thoughts or depression).
Those are astonishing figures, and should prompt the police and CPS to put more efforts into keeping such individuals out of the criminal justice system. For defence lawyers, the issue is how to deal with clients once they are in the system. While I understand the pressures of workload, I know of too many occasions where defence lawyers either refuse to take on cases, do not have the right expertise, or simply fail to give the care and attention the case, and more often the client, needs. A fixed-fee regime which discourages proper care and attention is also at fault and the Legal Aid Agency needs to take its share of the blame.
The difficulties should not be underestimated. One of my colleagues at Hodge Jones & Allen, Graeme Hydari, had a recent case which illustrates how little the system is geared up to cope with those who need extra support to understand the process. The client had Asperger’s syndrome and was on the autism spectrum; there were three trials, which all ended up being discharged, with the result that the Crown (eventually) offered no evidence. During one, the defendant ran from court, got into a car, and was driven off at speed by his mum (who also had mental health difficulties), as his barrister, in wig and gown, attempted to give chase. One judge granted him an intermediary, but when no intermediary was available, the next trial judge exercised his discretion to continue without one. (There is currently no statutory right to one for a defendant.) The defendant was very anxious and his evidence made no sense. Graeme is a nationally recognised expert in dealing with clients with Asperger's but said he had never dealt with a case as difficult as this one – although thanks to him and his legal team, the defendant was not convicted.
‘I know of too many occasions where defence lawyers either refuse to take on clients with mental health difficulties, do not have the right expertise, or simply fail to give the case and the client the care and attention they need.’
That is perhaps the point. These are complex and difficult cases – making sure that the client understands evidence, follows procedures and can give instructions takes time and expertise. As lawyers, we must develop that expertise if we are to take on these cases. It is often said that a society can be judged by how it looks after its most vulnerable citizens but perhaps we as a profession should also be judged on how we care for our most vulnerable
In praise of …
Maxine Peake
It’s not unusual for actors and other well-known figures to lend their support to worthy causes.
The general way of these things is that, when a celebrity can be prevailed on to actually turn up at a protest or other event, their arrival is carefully choreographed: they tend to sweep in accompanied by an entourage, deliver a rousing few words to the suitably dazzled throng, and then sweep out again just as quickly.
Maxine Peake does things rather differently.
The actor, best known for her portrayal of gritty-northerncriminal-silk-with-a-heart-ofgold Martha Costello QC, is just as much a champion of legal aid off screen as she is on.
Peake turned up, unaccompanied, to the Justice Alliance’s Magna Carta protest in February this year, and waited around in the cold for well over an hour before taking to the stage to read key clauses from Magna Carta. The event was timed to coincide with the government’s infamous £1,750 a ticket global law summit.
Peake has form when it comes to defending legal aid. Her presence, a year earlier, at the March 2014 ‘Grayling day’ demo helped ensure that press photographers were out in force and that the event received a level of media coverage unprecedented for a legal aid protest.
Unsurprisingly, Peake has won fans among lawyers on Twitter and elsewhere. After the Magna Carta protest, one tweeted: ‘Some fake QCs are lovely people.’ Another commented: ‘She probably knows more about law than Grayling.’
Fiona Bawdon

About the author(s)

Description: Raj Chada - author
Raj Chada is the Head of the Criminal Department at Hodge Jones & Allen.