We recently defended in a section 2 stalking trial at Bromley MC where the firm were appointed to cross-examine the complainants.
The case highlights an important issue for criminal practitioners. Although a section 38 appointment serves a vital function. In some cases, such as those where the client is severely mentally ill and fitness to plead is in issue, it would be more appropriate for the Court to appoint a legal representative to have full conduct of the proceedings.
In this case, the Defendant had a chronic diagnosis of bipolar disorder and whilst on remand was displaying clear signs of psychosis. At every stage of the proceedings, including a first appearance, two bail applications, and a case management hearing she had refused solicitors and represented herself. At some point along the way, we were appointed by the court to cross-examine the complainants.
The inadequacy of the section 38 appointment
A number of weeks before the trial, we received information from the Defendant’s prison doctor that he was in favour of a section 37(3) Mental Health Act disposal. In other words an actus reus trial, followed by a decision about whether to impose a hospital order or a guardianship order.
We immediately notified the court about this development, and tried to arrange a prison visit to take instructions. The prison visit was refused due to the Defendant’s mental health condition. Because we were only appointed under section 38, there was neither authority nor funding to commission the two expert reports needed for the court to impose a hospital order. Regrettably, the court did not take its own action to commission these reports in the weeks prior to the trial date.
Our work at trial
At trial, the Defendant persisted in her refusal to see a solicitor. We then raised the issue of fitness to plead with the District Judge, who was initially concerned that there were no specific medical reports which could be relied on to convert the regular trial into an actus reus trial. All that was available was a liaison and diversion report, the prison doctor’s medical notes and recommendation, and the Defendant’s presentation.
The Judge decided to hear the Crown’s evidence, allow us to conduct the cross-examination, and then make a decision about whether to continue as a regular trial or make a finding on the actus reus. Despite not having the two medical reports, the Judge considered the prison medical notes and the Defendant’s presentation in court, and came to the clear finding that she was likely to be unfit to plead and an actus reus trial was appropriate. The Court then (i) found the actus reus satisfied, (ii) itself commissioned two expert reports and (iii) set a future date to consider what form and length of hospital order would be appropriate in this case.
Our thoughts
Appointments under s. 36/38 YJCEA 1999 are of course vitally important given the number of unrepresented defendants in the system. However, cases such as these demonstrate the clear inadequacies of appointing a representative solely to cross-examine when there are several wider case-management issues that a mentally-ill Defendant will never be able to resolve without legal support.
If you require assistance or support in this area, we have extensive experience in providing help. Whether it’s for yourself, a friend, a family member, or a loved one, please don’t hesitate to call us on 0208 692 2694 or use the contact form below. A member of our expert team will promptly respond to offer assistance.
Photo by Adrian Swancar
