The Crown Prosecution Service: Gatekeeper of the Criminal Justice System - Justice Committee Contents

Memorandum submitted by Mind


  Mind (NAMH) is the leading mental health charity in England and Wales.

  Mind's vision is of a society that promotes and protects good mental health for all, and that treats people with experience of mental distress fairly, positively, and with respect.

  The needs and experiences of people with mental distress drive our work and we make sure their voice is heard by those who influence change.

  Our independence gives us the freedom to stand up and speak out on the real issues that affect daily lives.

  We provide information and support, campaign to improve policy and attitudes and, in partnership with independent local Mind associations, develop local services.

  We do all this to make it possible for people who experience mental distress to live full lives, and play their full part in society.

  Being informed, diversity, partnership, integrity and determination are the values underpinning Mind's work.


  1.1  Another Assault, Mind's report into the experience of victims and witnesses with mental distress, was published in November 2007. It highlights shockingly high rates of crime perpetrated against people living with long-term mental distress in community settings—71% of respondents to our survey had been the victim of crime or victimisation in the past two years.

  1.2  Our report also reveals serious flaws in the way criminal justice agencies serve victims and witnesses experiencing mental distress. Sixty-four per cent of victims of crime or harassment in our survey were completely or somewhat dissatisfied with the overall response of the authorities to reporting the incident. Just six per cent (nine people) were completely satisfied with the outcome of their case.

  1.3  Our key findings about barriers to justice, which are of relevance to this inquiry, are:

    —  a lack of training and awareness about mental health amongst criminal justice professionals across the board;

    —  evidence of failure by criminal justice agencies to address people's needs, despite systems in place to support vulnerable and intimidated witnesses;

    —  concerns about inappropriate decision-making by the police and prosecutors which causes attrition in the system; and

    —  inappropriate use of psychiatric evidence, which is used to discredit witnesses with a mental health problem in court.

  1.4  The "credibility imbalance" we discovered in our research (whereby people with a psychiatric diagnosis were systematically discredited, not believed or not taken seriously) causes attrition of cases at each stage of the criminal justice system. Expecting to not be believed, or reporting a crime and not being taken seriously:

    —  deters people from reporting crimes;

    —  discourages thorough investigation of crimes by the police;

    —  leads to cases being dropped before they get to court;

    —  reduces prosecution rates when cases do go to court

  1.5  Mind believes the failure of criminal justice agencies to meet the needs of victims and witnesses experiencing mental distress is contrary to their duties under the Disability Discrimination Act (DDA). In order to comply with the DDA, criminal justice agencies and policy makers should involve disabled people, including people experiencing mental distress, in policy and business planning. Agencies should also put measures in place to promote equal access to their services for disabled victims and witnesses.

  1.6  Mind has had positive discussions with the CPS about greater involvement of people with mental distress in its business planning. However, we believe that at present the CPS does not do enough to ensure that its diversity policies reflect the full spectrum of needs that fall within the category of disability, including people experiencing mental distress.

  1.7  This submission sets out issues uncovered in Mind's Another Assault report and recommendations for the CPS to promote equality in access to justice.


  2.1  Victims of crime need to feel there is a reasonable expectation of getting justice if they are to report a crime. Our findings support Home Office figures showing that disabled people are significantly more likely to report a lack of confidence in the criminal justice system.[3] Twenty-three per cent of people in our survey who chose not to report a crime said they did not report an incident because they thought nothing would be done and there was no point. Many respondents stated that previous experience of reporting an incident and it not being acted upon made it not worth bothering again.

  2.2  Criminal justice agencies admit they have traditionally struggled in prosecuting hate crimes, domestic violence or sexual violence—the kind of crimes mentioned by people in our survey. In disadvantaged areas where antisocial behaviour is common, resources are often too scarce to respond to every incident of harassment—so hate crimes are investigated poorly or not at all.

  2.3  Mind believes that ensuring a thorough police investigation takes place is one of the simplest ways to improve confidence in the system for people experiencing mental distress. It will allow people to feel they have been taken seriously and any decision made by prosecutors has been made on the basis of all the facts, rather than assumptions or partial evidence. The CPS therefore has a role to play in improving investigations, by demanding more and better evidence from the police at the charging stage.


  3.1  Mind believes the CPS does not provide sufficient training about mental health for prosecutors to make consistently good decisions concerning mental health and credibility. We understand that prosecutors—indeed all lawyers—receive no mental health awareness training at all. Given the strength of the association between mental distress and not being believed, it is vital that all justice professionals understand the relationship between credibility and mental health in order to ensure equal access to justice.

  3.2  Mental health awareness training for all frontline staff—including refresher training for long-serving staff—is key to improving the justice system for a number of reasons:

  3.3  Frontline criminal justice professionals need to know when people might be experiencing distress so they can provide appropriate support—including the special measures provided to vulnerable and intimidated witnesses.

  3.4  Criminal justice professionals need to understand why and when mental distress might affect a person's recall of events or their interpretation of an incident. Often, police and prosecutors are unaware of different diagnoses and their symptoms—but some knowledge is crucial to ensure cases are investigated without prejudice. People in serious distress can, and the vast majority do, retain full capacity to understand the world around them—including their experience of victimisation. Some people with psychotic illnesses will experience periods of delusions and paranoia—this should not discredit everything they experience when they are in a period of psychosis, and should not have a bearing on their experience when they are not experiencing psychosis. However, for a very small number of people, psychotic delusions may affect the reliability of their testimony.

  3.5  All criminal justice professionals working with people with mental distress need to understand the principles of mental capacity. All people should be assumed to be able to make their own decisions and act for themselves, and should be supported in that capacity, unless there is good evidence otherwise. Decisions not to prosecute, should not be made on the basis of assumptions about the witness's resilience or whether they can "handle" court. These decisions should be made by the witness in consultation with experts.

  3.6  Criminal justice professionals need to know how to work with someone whose statement may at first appear conflicting or confusing. Intermediaries can provide an invaluable service in supporting people with mental distress during interview and in court, by ensuring that questions put to a witness are understood fully and answers given are correctly interpreted. Being able to identify where this support might be valuable—by asking the right questions and assessing situations intelligently—is essential if needs are to be met.


  4.1  Mental distress does not preclude people from providing good evidence in court. Yet some respondents said they felt the police or Crown Prosecution Service (CPS) had made judgements as to whether they could go through the process of giving evidence in court, without consulting them or offering support. "I was honest with the police about my history. They could have prosecuted. I was not the only woman he was stalking—the Detective Constable was also dealing with another victim at the same time as me. I think they felt I wouldn't handle court."

  4.2  Mind believes prosecutors should have greater input into the investigation phase and should build stronger working relationships with police. If police officers feel that a witness may find court distressing, they should seek advice from the CPS about what support is available rather than dropping the investigation. Similarly, police should not pre-empt charging decisions, and earlier involvement by the CPS would prevent this from happening.

  4.3  Another Assault revealed that much of the crime experienced by people with mental distress is targeted at those people in the most vulnerable circumstances—people living alone or without good social networks, people experiencing a mental health crisis, and those detained in hospital.

  4.4  In focus groups, participants stated clearly that they felt the harassment they experienced was hate crime. Negative public attitudes to mental distress made them a target.

  4.5  If the CPS had greater involvement during the investigation stage prosecutors could do more to ensure that evidence is robust enough for an aggravated sentence to be considered by the judge where the victim is particularly vulnerable or the incident is perceived to be a hate crime. This would increase confidence and raise public awareness that the State takes very seriously its responsibility to tackle discrimination.


  5.1  Anecdotally, Mind has heard reports of cases being dropped by the CPS before they reach court because a witness's evidence is not seen as reliable; our research supports this. Sixty-four out of 73 support workers said they felt people with mental distress being seen as unreliable witnesses was an issue.

  5.2  In court, people experiencing mental distress can face intrusive cross-examination about their mental health. One in five support workers (16 out of 86 surveyed) said they knew of cases where a person had been cross-examined about their mental health. For example, defence lawyers may bring up a psychiatric diagnosis to discredit witnesses' evidence. The defence can order a psychiatric report from an expert of their choosing, choose what questions are covered by the expert's evidence, and can also request access to an individual's medical records.

  5.3  Mind is concerned that people's case notes or psychiatric reports are being used in an inappropriate manner, when this information has no direct relevance to the case. Support workers felt more could be done to protect clients from unnecessary cross-examination. It is an unjustifiable breach of privacy and can be very distressing to be grilled about such intimate information. Disclosure can have an impact on other parts of a person's life, such as their job or social relationships.

  5.4  Mind believes the Government, in consultation with Mind and others, should bring forward proposals for tighter rules around the use of medical histories and psychiatric reports in court. Mind believes the proposals should be in line with existing restrictions on disclosure of a witness's sexual history or evidence of "bad character".

  5.5  Mind recommends that these proposals include:

    (a) Producing guidance for prosecutors on the interplay between mental capacity, credibility, reliability and mental health. This would give prosecutors a better basis for assessing whether a witness experiencing mental distress will make a reliable witness in court;

    (b) Making decisions about the relevance of psychiatric evidence where possible before the trial or in a closed session, because media reporting of psychiatric information, and disclosure in front of friends and family in court, can be very stigmatising and distressing;

    (c) Producing guidance for prosecutors about how to assess what psychiatric evidence may be relevant to a case and should be passed to defence lawyers and what is not. For example, recent psychotic episodes including the experience of delusions might affect a witness's interpretation of events, depending on the nature of the delusion, and this might be disclosed. But it is unlikely that depression occurring a few years before an incident would be relevant to the witness's capacity to give evidence and therefore there is no need for the prosecutor to consider this as evidence at all. If the prosecutor believes the defence already have this information (for example where the accused is a neighbour), the prosecutor should anticipate the line of questioning and challenge it or bring in expert witnesses to discredit the defence argument;

    (d) Restrictions on the use of psychiatric evidence in cross-examination, where it is used in a discriminatory manner to imply bad character.

    (e) Courts appointing psychiatric experts to ensure a greater degree of independence. Until such time as this is introduced, guidance should encourage prosecutors to call on their own psychiatric experts in anticipation of the defence doing the same—so a balanced view of the psychiatric evidence is presented to the court;

    (f) Not taking into consideration psychiatric reports that do not give enough detail or which report on deliberately vague questions. This will rely on the CPS challenging the defence where, for example, the defence orders a psychiatric report which considers only whether the witness has a history of mental distress rather than analysing how that history might be relevant.


  6.1  Another Assault revealed that, for people experiencing mental distress, accessing the criminal justice system is seen as difficult, intimidating and likely to have negative consequences for your mental health. Thirty-six per cent of respondents who had been a victim did not report the crime because they didn't want to go through the process. When victimisation had already left a respondent very distressed and anxious, they said making contact with the police exposed them to more discrimination and vulnerability—"the system of investigation is another assault."

  6.2  It is worrying that people are choosing not to report crimes to protect their own wellbeing. After calculating the benefits and risks, it appears many people we consulted concluded that the anticipated harm of going through the process outweighed the potential benefits of ensuring that justice is done.

  6.3  Government has long recognised that the most vulnerable or intimidated witnesses may benefit from additional support or measures to reduce the pressure of giving evidence in court. Over the past 10 years, a number of legislative and policy initiatives have sought to address these support needs.

  6.4  The Youth Justice and Criminal Evidence Act 1999 provides for `special measures' to support vulnerable witnesses, including: giving evidence via live link; removal of wigs and gowns; video-recording evidence in chief; and restrictions on evidence about the complainant's sexual behaviour. More recently, the introduction of witness care units, intermediaries, and pre-trial interviews have added to this package of supports. Many of these special measures, and in particular intermediaries and pre-trial interviewing, would benefit people experiencing mental distress.

  6.5  Nevertheless, one in five respondents to our survey who did not report a crime said they were not offered support to make a formal complaint or they didn't know where to go to ask for support. Either information has not been well disseminated through the channels that people with mental distress access or people with mental distress are not being identified as vulnerable witnesses.

  6.6  Even where support is available and well-publicised, victims with mental distress face a difficult decision before they can access support. In order to be offered "special measures", an individual must first disclose that they have a mental health diagnosis to the police. But many respondents told us disclosure resulted in the police acting differently, stopping believing them, showing less sympathy, and in some cases dropping the investigation entirely.

  6.7  In discussions with the CPS, Mind has been assured that primary responsibility for identifying vulnerable witnesses lies with the police and not prosecutors, who may well not see the witness until the day of the hearing. However Mind believes that prosecutors should take greater responsibility for identifying vulnerable witnesses. There should be more flexibility about arranging special measures whenever it becomes apparent that a witness would benefit from them.

  6.8  Liverpool council have piloted a Witness Profiling scheme for witnesses with a learning disability. The Witness Profiling unit works with the witness, preparing them for trial and producing a written report about the individual, indicating what they require to enable them to give their evidence in court. The prosecution, defence and judge will then be able to address how each person's difficulties may influence the way they give evidence. The judge is able to put in place measures that facilitate the victim giving evidence in a way that is fair to them as well as the defendant. Witness profiling has been very successful and Mind is calling for this scheme to be widened as there are clear benefits for people with mental distress.


  7.1  Mind's Another Assault report recommends that all criminal justice agencies collect data to allow for comprehensive and consistent monitoring of diversity information of witnesses, including their mental health. Accurately recording diversity data from initial reporting to prosecution and sentencing should help to ensure:

    —  support is provided to the people who need it as a case progresses through the system;

    —  all criminal justice professionals have an awareness of the added psychological impact a crime may have had on a vulnerable victim;

    —  criminal justice agencies develop a greater understanding of patterns of crime against people experiencing mental distress; and

    —  monitoring should be consistent across agencies, so it is possible to monitor and benchmark performance and identify where the barriers to justice lie.

  7.2  Mind recommends that the CPS should do more to monitor diversity systematically in its external work. Monitoring should not just cover "headline" diversity strands, but should consider the experience of diverse groups within strands (for example, monitoring mental health, learning disability, sensory impairments and physical disability within the disability strand).

  7.3  Mind also believes the CPS should monitor the diversity of its employees, including experience of mental distress, and promote greater diversity among its staff.

  7.4  Our experience of tackling discrimination shows that one of the best ways to improve attitudes towards mental distress is to challenge stereotypes and promote direct contact with people experiencing mental distress. Knowing that justice agencies have strong diversity policies will inspire confidence in people with mental distress that they will be treated with respect. Mind understands that the CPS is working towards greater openness about diversity issues internally, but there are issues around mental distress being seen as a lack of resilience or fitness to practice. Mind believes the CPS should do more to educate its staff about mental distress, and this will have knock-on effects on its external-facing work.

Anna Bird

Policy Officer

May 2008

3   Walker A, Kershaw C, Nicholas S: July 2006. Home Office Statistical Bulletin-Crime in England and Wales 2005-06 Back

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