| 3: COURT
PROCEEDINGS |
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| The
criminal courts require assistance in the following areas: |
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- in assessing the
fitness of an accused to plead;
- in assessing the
state of mind of an accused person at the time of
the offence;
- the disposal of a
case where an Examination of the Facts (EOF)
makes a finding that the person did the act or
made the omission constituting the offence; and
- the disposal of a
case if a person has been found guilty of an
offence.
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| This
section addresses these requirements and identifies
proposals for the improvement of the services available
including multi-disciplinary assessment in the larger
courts and the development of an emergency psychiatric
service. |
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| The Health Service
Role |
| 3.1 When the
prosecution service suspects that an accused is mentally
disordered, they will ask for a report from the local
psychiatric service. Expert witness reports from
psychiatrists and clinical psychologists may be provided
for the prosecution, or defence. An assessment of mental
disorder may be made at an early stage, with a
recommendation for remand to hospital under the Criminal
Procedure (Scotland) Act 1995, if the psychiatrist
considers the person to be mentally disordered and
detainable under mental health legislation. This allows
for the gathering of more information and a further
period of assessment before any final recommendation is
made on disposal. |
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| The Local
Authority Role |
| 3.2
Following conviction, or a finding at an Examination Of
the Facts (EOF) that the person did the act or made the
omission constituting the offence, the court may ask for
a social enquiry report (SER) to be provided by criminal
justice social work staff in accord with national
standards, or a psychiatric report, or both. The court
must obtain an SER in certain circumstances and may
request one in any case. |
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| 3.3 The SER
will include information and analysis of those aspects of
the offender’s circumstances and personality which
may have a bearing on the person’s offending
behaviour. One aspect involves an initial
assessment/screening of the offender’s apparent
state of mental health. If concerns are identified, the
author of the social enquiry report can suggest that the
court obtains a formal psychiatric report. Alternatively,
the author may establish that the offender is currently
receiving or has received treatment and may seek
information and advice from the relevant medical services
to include in the SER. The SER will also review disposal
options appropriate to the assessment which has been made
of the offender. The content of the SER is disclosed to
the offender. |
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| Bail
Decision-making |
| 3.4 Mentally
disordered people have the same rights as others to be
considered for bail and they should not be deprived of
this right. However, the police or court may be inhibited
from releasing a suspect or granting bail, if a suspect
is homeless, or because there is doubt whether the
individual can understand an obligation to attend court
if released. Social work departments can provide
information and advice relevant to the decision by the
court about whether to grant bail. Two bail
information/supervision schemes have been established in
Scotland (see paragraph 5.17) which check information
about an alleged offender, access resources and, when
requested by the court, offer a supervision service.
Where no such scheme is in place, it is still possible
through the arrangements for planning local authority
criminal justice and community care services to provide
for assessment, supervision and accommodation to be made
available to the court in suitable cases. (See
paragraph 5.20 also.) |
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| Multi-disciplinary
Assessment |
| 3.5 Good
practice suggests that the principle of
multi-disciplinary assessment should apply so that the
offender’s health and social care needs can be fully
investigated and comprehensive advice can be provided to
the court to assist in decision making. |
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| 3.6 There
are cases where symptoms of a mental disorder are not
recognised until an individual appears in court or is
remanded to prison. In such cases the psychiatric service
provided for each health board’s residents should
therefore specify that the courts and procurators fiscal
in their area require a promptly delivered psychiatric
assessment service to assist the transfer of an accused
person to hospital as and when required. Development of a
service involving a duty psychiatrist with access to
community or hospital resources would be the preferred
means. The psychiatric service needs to be complemented
by a multi-agency network of services including clinical
psychology, nursing, social work and housing. |
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| 3.7 The
commitment of staff and resources to multi-disciplinary
assessment arrangements at the post conviction stage
should be an integral part of the same joint planning
among court, social work, criminal justice community
care, and health as discussed earlier in relation to
formal diversion (paragraphs 2.12, 2.13). Normally an
offender, considered by the Court to be mentally
disordered and who has committed an imprisonable offence
has sentence deferred for an SER and/or psychiatric
reports to be obtained. The Criminal Procedure (Scotland)
Act 1995 governs the time periods that apply to these
procedures. Assessments of this kind are best carried out
in the community (whether in hospital or an out-patient
clinic). It should not be necessary to remand the
offender in custody for the sole purpose of enabling
assessment. |
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| 3.8 The
court requires a properly co-ordinated multi-disciplinary
assessment. To ensure a single entry system, arrangements
for assessments of this kind should be the responsibility
of the social work department (criminal justice social
work services). The number of contributors to the
assessment will depend on the circumstances of the case
and on local court arrangements. Possible contributors
should include psychiatry, social work community care or
family services, clinical psychology, primary care and
housing. Unless there are exceptional reasons, contact
with the offender’s family is an essential part of
the assessment. Consideration, as known, of the issues
relating to the victim, victim’s family and the
public are also an essential part of these assessments.
The aim should be to develop, for the court, where
appropriate, an individual service plan which identifies
the potential range of services available to the offender
in association with a suggested court disposal. If the
court appearance results in custody, the plan should be
sent to the prison by the Sheriff Clerk to inform work
with the prisoner by prison-based medical and social work
services. |
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| 3.9 To
implement these proposals effectively, the authors of
SERs need to have the skills and capacity to screen for
mental health problems and to comment on the possible
impact of a custodial sentence on someone with an
identified mental health problem. This requires training
which, subject to local agreement, should include other
agencies involved to ensure all work from the same
instruction base. See also paragraph 6.35. |
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| 3.10 A
properly co-ordinated procedure for preparing
multi-disciplinary assessment reports will be developed
as a means of identifying the range of options available
for mentally disordered offenders. |
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| 3.11 This
approach requires more time for preparation of the
reports and for consideration by the criminal justice
agencies. Experience elsewhere has indicated that courts
are prepared to provide longer adjournments (up to
8 weeks) to assist this procedure. The liaison
required in preparing the reports will lead to increased
collaboration in the provision of health and social care
services for those who come before the courts. |
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| 3.12
Whatever local arrangements apply, supervised
accommodation within the criminal justice network will
not fully meet the needs of people with a range of mental
disorders. Providing accommodation to ensure that accused
persons who are mentally disturbed are not remanded
unnecessarily in custody is largely a matter for
community care service level agreements between health
boards and local authority social work departments.
Community arrangements will be inappropriate for the
severely mentally disordered for whom local hospital care
should be available. Local authorities and health boards
should review the accommodation services provided for
mentally disordered persons to ensure that they are not
remanded unnecessarily in custody and that, wherever
possible, they can be supported under existing community
care arrangements. |
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| Community-Based
Disposals |
| Deferred
sentence |
| 3.13 There
are two main ways in which the court’s powers to
defer sentence may be used to deal with offenders with
identified mental health problems. If the offender is
receiving treatment, a deferred sentence provides a means
for the court to allow the treatment to continue and to
check its progress. A deferred sentence could also be
used to motivate the offender to face up to the need for
treatment. Voluntary support could be provided by the
social work department or other social care agency to
assist the individual in this respect. |
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| Supervision
and treatment orders |
| 3.14 The
court can impose a supervision and treatment order on a
person judged unfit to stand trial but who was found at
an ‘examination of the facts’ to have done the
act with which he was charged, or on a person who has
been tried but acquitted on the ground of insanity at the
time the act was committed. As the title of implies, this
disposal involves both supervision and treatment in the
community. It will be made only when the court considers
it the most appropriate of the disposals available in
these special circumstances, in respect of a person with
a mental disorder who is considered able to live in the
community with support and assistance from health and
social care agencies. A joint circular of guidance has
issued, (13). |
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| Guardianship
order |
| 3.15 A
guardianship order may be made by the court after
consideration of an application by a Mental Health
Officer made with the support of two doctors. As with
supervision and treatment orders, the powers to enforce
the order are limited and its use is best suited to
mentally disordered offenders who may themselves require
to be protected from abuse and who will adhere to the
conditions laid down in the order. These may relate to
arrangements for treatment/oversight and to where they
should live. This order may be particularly suited to
people with a learning disability. |
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| Probation
order with a condition of psychiatric treatment |
| 3.16 The
court may make a probation order of up to 3 years with a
condition of psychiatric or psychological treatment of no
longer than 12 months if it is assured that treatment is
available either in an in-patient or an out-patient
basis. The offender must give his/her informed consent.
Orders of this kind require close co-operation between
health and social work services. Primary responsibility
for enforcing the order rests with the social work
department (usually criminal justice social work
services) but provision of individual care services
remains with health/community care. The supervisory
responsibility includes checking that the required
treatment takes place and that a report is made to the
court if, for whatever reason, it does not. Any
recommendations to the court to make a probation order
with a condition of psychiatric treatment should include
an action plan setting out clearly the contribution of
health, social work and any other social care agencies.
This plan should be arrived at jointly and include the
participation of offenders so that they can give their
informed consent. The plan should set out clearly the
commitment of the agencies involved. National standards
for the supervision of probation orders require that
progress is reviewed at regular intervals. These reviews
should, wherever possible, involve the participation of
all the agencies contributing to the action plan. A
circular of guidance by the Home Department and the
Department of Health is in preparation (1998). |
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| Hospital-based
disposal options available to the Courts |
| 3.17 For the
purposes of this section references to "hospital
orders" and "restriction orders" include
references to orders that have the same effect as
hospital orders and restriction orders. Before a person
can be committed to hospital certain statutory conditions
must be met, including that the grounds for admission to
hospital set out in section 17(1) of the 1984 Act apply
in relation to the person. The Mental Welfare
Commission’s protective duties (under the 1984 Act)
towards people with mental disorder apply equally to
mentally disordered offenders. |
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| Remand
for inquiry into physical or mental condition/Interim
hospital orders |
| 3.18 Under
the Criminal Procedure (Scotland) Act 1995 courts have
the power to remand an alleged offender in custody or on
bail or commit him to hospital for up to 3 weeks at
a time so that a medical examination and report may be
made before deciding how to proceed. In certain
circumstances the courts may impose an interim hospital
order (maximum length 12 months) before proceeding to
deal with the offender either by making a hospital order
or in some other way (eg passing a sentence of
imprisonment, with or without a hospital direction). The
order is to allow sufficient time for a thorough
assessment to be made of the person’s mental
condition where there would otherwise be difficulty in
making such an assessment in the time available. |
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| Hospital
orders |
| 3.19
Hospital orders can be made by the courts in the
following circumstances:- |
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| (i) where a
person is convicted of offences punishable with
imprisonment (other than offences for which the sentence
is fixed by law); (ii)
where a person is acquitted on the ground of insanity at
the time of the act or omission charged, either by a
court or at an EOF; or
(iii) where an EOF makes a
finding that the person did the act or made the omission
constituting the offence.
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| Offences not
punishable with imprisonment are excluded on the basis
that it would be more appropriate to proceed under the
1984 Act in such cases. Hospital orders may be made only
by the High Court or a sheriff court. These courts may
not, in addition to making a hospital order, pass
sentence of imprisonment or detention or impose a fine or
make a probation order or a community service order.
District courts have the power, in terms of the Criminal
Procedures (Scotland) Act 1995, to remit a case to a
sheriff court, if mental disorder is suspected. |
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| Restriction
orders |
| 3.20 Where a
hospital order is made in respect of a patient the court
may also make a restriction order. The test for making
such an order is that the court must be of the opinion
that it is necessary ‘for the protection of the
public from serious harm’ to make the order
‘having regard to the nature of the offence with
which the person is charged, the antecedents of the
person and the risk that as a result of his mental
disorder he would commit offences if set at large’.
The majority of prisoners transferred to hospital are
also subject to a restriction direction. Any transfer of
such patients within the hospital system to an area of
lesser security requires the approval of the designated
Scottish Minister. |
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| Hospital
directions |
| 3.21 The
courts may, when passing a sentence of imprisonment after
conviction on indictment, direct that the offender be
admitted and detained in hospital for continuing care.
Once recovered he would transfer to prison if any balance
of the prison sentence remained to be served. Otherwise,
when the sentence expired he would be released direct
from hospital into the community, unless he was still
ill, in which case he may be subject to detention in
hospital under civil procedures. |
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| Leaflet for
Victims of Mentally Disordered Offenders |
| 3.22 A
leaflet will be available from The Scottish Office for
victims of mentally disordered offenders which includes
factual information about the processes that apply to
offenders who are ordered to be detained in mental
illness hospitals under the Criminal Procedure (Scotland)
Act 1995 and who are as a result subject to the Mental
Health (Scotland) Act 1984. |
