Jersey Unreported Judgments

Mental Health Law.

[2021]JRC314

Royal Court

(Samedi)

17 December 2021

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Crill and Dulake

The Attorney General

-v-

Wilson Aaron Richard Ibbet

C. R. Baglin, Esq., Crown Advocate.

Advocate R. C. L. Morley-Kirk for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 7^th December 2021, we heard evidence from two consultant psychiatrists, Dr Kaushal, who is employed by the States of Jersey Health and Social Services Department, who gave evidence on behalf of the defence; and Dr Ian Cumming who gave evidence on behalf of the Crown.  Dr Cumming is a consultant psychiatrist who is frequently called as an expert witness and is clinical lead for the Criminal Justice Liaison and Diversion Services for South London and the Maudsley NHS Foundation. 

2.        Both examined the Defendant, Dr Cumming on one occasion and Dr Kaushal on several occasions. 

3.        The Defendant is aged twenty and is alleged to have imported MDMA and cannabis into the island by post on 21^st and 23^rd September 2020.  The envelope containing the MDMA was addressed to him and contained, inter alia, 103 tablets with a street value of between £2,000 and £3,000.

4.        When the Defendant was interviewed on 23^rd September 2020, he said that he had recently been diagnosed with autism (his father was an appropriate adult in interview) and ultimately said he was put under pressure to receive the packet by a third party whom he declined to name.  He said that he was unaware of what was in the packet but agreed that he suspected it might contain something illegal.  The cannabis was contained in a separate envelope addressed to the Defendant's home four days later.  When the Defendant was interviewed about this, he made no comment.  He was charged with importing MDMA and cannabis on 18^th February 2021.  He has been on bail since. 

5.        The Court was convened in order to determine whether or not the Defendant was fit to stand trial.  Importantly, in Dr Cumming's report dated 15^th September 2021, he said 'I believe it is more likely than not that [the Defendant] was unwell at the time of the offence and substantial enough that he should not be held criminally responsible'.

6.        The relevant provisions of the Mental Health (Jersey) Law 2016 ("the Law") are as follows and we set them out in full:

"56.    Power to adjourn proceedings where defendant apparently incapable

(1)       Where it appears to the court that a defendant is incapable of participating effectively in proceedings, the court may adjourn the proceedings to enable determination of the issue of the defendant's incapacity.

(2)       Subject to paragraph (3), the determination of that issue -

(a)        shall be held as soon as possible and at such time and place as the court may direct; and

(b)        may be held in the absence of the defendant if, having regard to the medical evidence, it is impracticable or inappropriate to bring the defendant before the court.

(3)       Where the court considers that it is expedient and in the interests of the defendant to do so, the court may postpone consideration of the issue of incapacity until any time up to the opening of the case for the defence (and if, before the issue falls to be determined, the defendant is acquitted, the issue need not be determined).

57.      Determining issue of incapacity

(1)        The court determining an issue as to the defendant's incapacity shall have regard (so far as each of the following factors is relevant in the particular case) to the ability of the defendant -

(a)        to understand the nature of the proceedings so as to be able to instruct his or her lawyer and to make a proper defence;

(b)        to understand the nature and substance of the evidence;

(c)        to give evidence on his or her own behalf;

(d)        to make rational decisions in relation to his or her participation in the proceedings (including entering any plea) which reflect true and informed choices on his or her part.

(2)        The issue as to the defendant's incapacity shall be determined on the balance of probabilities.

(3)        For the purpose of determining the issue of incapacity -

(a)        the court must obtain, and have regard to, medical evidence on that issue; and

(b)        the court shall have all such powers to make orders in respect of the defendant under this Part as it has in respect of a defendant under Articles 61(1) and 62(1).

(4)        Where the court determines that the defendant is incapable but considers that the defendant's incapacity might be alleviated by special measures to enable the defendant to participate effectively in the proceedings -

(a)        the court shall have regard to whether it is practicable to put in place such special measures; and

(b)        if the court considers it is practicable to do so, shall direct that such special measures are put in place.

58.      Result of finding of incapacity

(1)        This Article applies where, on the hearing of an issue as to a defendant's incapacity, the court determines that the defendant is incapable (even if special measures were to be put in place) of participating effectively in proceedings.

(2)        Where this Article applies, the court -

(a)        may adjourn the proceedings for a further specified period of no more than 6 months, for the purpose of enabling the defendant to receive treatment; and

(b)        if it does so, may do anything which it has power to do under Article 63.

(3)        Where this Article applies and -

(a)        the court does not adjourn the proceedings under paragraph (2); but

(b)        the court is satisfied, having regard to the medical evidence, that the defendant is and will remain (so far as reasonably foreseeable) incapable of participating effectively in proceedings,

the proceedings adjourned under Article 56(1) shall not proceed further and the court may deal with the defendant only -

(i)           by releasing him or her unconditionally; or

(ii)          as provided by Article 59.

(4)          The States may by Regulations amend the maximum period, in paragraph (2)(a), for which proceedings may be adjourned under that paragraph.

59.      Final orders where defendant incapable

(1)        This Article applies where Article 58 applies and where, having regard to the interests of justice and to -

(a)        the evidence already given, and such further evidence as may be given, for the purpose of determining whether the defendant did the act with which he or she is charged; and

(b)        any further matters as to which provision is made by Regulations under paragraph (3),

the court finds that the defendant did in fact do the act with which he or she is charged.

(2)        Where this Article applies, the court may make in respect of the defendant -

(a)        a treatment order (with or without restriction) under Article 65;

(b)        a guardianship order under Article 66; and

(c)        such further orders as the States may by Regulations provide or specify.

(3)        The States may by Regulations make further provision as to the scope and exercise of the court's discretion under this Article, and in particular (but without derogation) may make provision as to -

(a)        facts or matters which must be proved to the court, and the standard of proof;

(b)        the nature of evidence to be given, the persons who may give evidence, and the procedures which must be followed, for the purpose mentioned in paragraph (1)(a); and

(c)        such other matters as the court must take into account.

........

63.      Remand to approved establishment for treatment

(1)        A court may remand a defendant to a specified approved establishment for the purpose of treatment.

(2)        The power conferred by paragraph (1) may not be exercised unless the court is satisfied -

(a)        on the written or oral evidence of 2 registered medical practitioners, at least one of whom is an approved practitioner, that there is reason to suspect that the defendant is suffering from mental disorder of a nature or degree which makes it appropriate for the defendant to be detained in an approved establishment for treatment; and

(b)        on the written or oral evidence of the responsible medical officer, or some other person representing the managers of the approved establishment in question, that arrangements have been made for the admission of the defendant to that establishment within 7 days of the date of the order,

and if the court is so satisfied it may give directions for the conveyance and admission of the defendant to the establishment, and for his or her detention in the establishment or in a place of safety pending the admission.

(3)        If it appears to the court which remanded a defendant under this Article that, on the written or oral evidence of the approved practitioner responsible for making the report, a further remand is necessary for completing the defendant's treatment, the court may further remand that person -

(a)        having regard to the limits on such further remand in Article 62(4) as applied by paragraph (4); and

(b)        without the defendant's being brought before the court, if the defendant is represented by an MHA who is given an opportunity to be heard.

(4)        Paragraphs (4) to (7) of Article 62 shall have effect as though a remand under this Article were a remand under Article 62.

.......

65.      Treatment orders

(1)        A court may order that the defendant be admitted to and detained in a specified approved establishment for treatment, where -

(a)        the court is satisfied, on the evidence of 2 medical practitioners, at least one of whom is an approved practitioner, that -

(i)         the defendant is suffering mental disorder of a nature or degree that warrants admission to and detention in an approved establishment for treatment, and

(ii)        the treatment cannot be given to the defendant without such admission and detention;

(b)        the court is of the opinion, having regard to all the circumstances including (but without limitation) the nature of the offence and the defendant's character and antecedents, and to other methods of dealing with the defendant, that an order under this Article (a "treatment order") is the most suitable method of disposing of the case; and

(c)        the court is satisfied, on the written or oral evidence of the approved practitioner or some other person representing the managers of the approved establishment in question, that arrangements have been made for the admission of the defendant to that establishment within 7 days of the date of the order.

(2)       Evidence under paragraph (1)(a) -

(a)        must be given in writing signed by the practitioners who have personally examined the defendant either jointly or, if separately, at an interval of not more than 5 days; and

(b)        must specify the form of mental disorder from which the defendant is found to be suffering.

(3)       Where a treatment order is made in respect of a defendant -

(a)        the defendant shall be conveyed to the specified approved establishment within the period of 7 days beginning with the date of the order, and in accordance with any directions which may be given by the court for that purpose;

(b)        the managers of the establishment shall admit the defendant and thereafter detain and deal with the defendant as a patient in respect of whom a treatment authorization had been made under Part 3; and

(c)        the court may not pass sentence of imprisonment, impose a fine or make a probation order in respect of the offence for which the defendant is convicted, but may make any other order which the court has power to make apart from this provision.

.......

72       Special verdicts

(1)        Paragraph (2) applies in any proceedings, whether or not a determination of incapacity has been made under Part 8 in respect of the defendant.

(2)        Where the court finds that -

(a)        the defendant carried out the act alleged; but

(b)        at the time of carrying out the act, the defendant was suffering from mental disorder to such a substantial degree that he or she ought not to be held criminally responsible for doing so,

the court shall record a special verdict to that effect and may either acquit the defendant or make such an order as it has power to make under Article 59."

7.        The relevant test for determining incapacity, which needs to be proved to the civil standard i.e. on the balance of probability, is set out in Article 57(1) in respect of the matters set out thereunder.  Dr Cumming gave evidence that having interviewed the Defendant in August 2021 it was his conclusion that owing to the Defendant's underlying mental health problems, including autism and ADHD and, more importantly, his more recent symptoms consisting of delusions, grandiose beliefs, which are suggestive of bipolar disorder or schizophrenia, which led to him being found to be hypomanic in December 2020, he was of the view that, having regard to the provisions of Article 57(1) that:

(a)       The Defendant was able to understand the nature of the proceedings so as to be able to instruct his lawyer and make a proper defence;

(b)       Was able to understand the nature and substance of the evidence;

(c)       Was able to give evidence on his behalf, but;

(d)       Was unable to make rational decisions in relation to his participation in the proceedings (including entering any plea) which reflect true and informed choices on his behalf. 

8.        In relation to this final matter, Dr Cumming said that the Defendant's mental condition in terms of his ADHD and delusional beliefs may affect his ability to define his defence, make admissions or define the instructions which he will give, which would form a basis of cross-examination on his behalf.  Accordingly, Dr Cumming concluded that the Defendant lacked capacity and was unfit to plead and stand trial.

9.        Dr Kaushal agreed with some of these conclusions.  He agreed that the Defendant was able to understand the nature and substance of the evidence but he said he would not, without support, be able to instruct his lawyer and make a proper defence or give evidence and that he was unable to make rational decisions in relation to his participation in the proceedings.  Such support might be found in the shape of an appropriately qualified intermediary who got to know the Defendant well. 

10.      Both experts agreed that it was possible, although not certain, that the Defendant's bipolar disorder (as Dr Kaushal believed it to be) or schizophrenia (as Dr Cumming says it may be) is amenable to treatment, but treatment that the Defendant is currently refusing to accept. 

11.      Dr Cumming said that this aspect of the Defendant's condition could wax and wane; he might recover, he might not.  But currently his bipolar disorder (if it is that) is untreated.  Such a psychotic condition is normally treated by medication and people rarely recover spontaneously. 

12.      A treatment order would be a way of 'grasping the nettle' (Dr Cumming) and getting on with such treatment, but such a treatment order is not currently in prospect, and without such an order the Defendant may continue to avoid taking his medication.  It is not appropriate for us to say more about whether or not a treatment order should be made under Article 65 of the Law at this stage as it was not a matter that the Court is currently considering. 

13.      Dr Kaushal said in evidence that the Defendant responds poorly to stress and the longer the proceedings continued the more likely they may have an adverse effect on his mental health.  He too accepted that in six months' time the bipolar effective disorder could be under control if the Defendant engaged with the medication he was prescribed, but there was no evidence before us that he was likely to do so.  In any event, there is a possibility that even with that condition under control, he might not be able to effectively participate in proceedings owing to his other underlying conditions.

Conclusion

14.      Having regard to the evidence, we were satisfied on the balance of probabilities that the Defendant did not have the capacity to participate in a trial of these proceedings.

15.      We did consider whether or not it was appropriate, pursuant to Article 58 of the Law, to adjourn the proceedings for a period of up to six months for the purpose of enabling the Defendant to receive treatment.

16.      However, we did not do so because of the view of both experts that even if the Defendant was fit to stand trial in this case, the likely outcome of such a trial would be a special verdict under Article 72 to the effect that, at the time of the act alleged, the Defendant was suffering from a mental disorder to such a substantial degree that he ought not to be held criminally responsible for doing so.  In the circumstances of such finding, the Court would either acquit the Defendant or make an order under Article 59, which includes a treatment order under Article 65. 

17.      In the circumstances, in view of the Court's decision not to adjourn the proceedings under Article 58(2) and in view of our finding that untreated the Defendant is, and will, remain incapable of participating effectively in proceedings, then we elected to proceed as provided for under Article 59. 

18.      Accordingly, we ordered, having regard to the interests of justice, that the Court should convene again on 3^rd February 2022 with a time estimate of one day in order to establish whether or not the Defendant did the acts with which he is charged.  If the Court finds that the Defendant has carried out the actus reus of the offence charged, then the Court will, at that stage, consider whether or not to make any of the orders permitted under Article 59(2) of the Law, including a treatment order with or without restrictions under Article 65 of the Law.  We ordered up to date medical reports for the purpose of considering such a disposal if appropriate at that time. 

Authorities

Mental Health (Jersey) Law 2016.