21 March 2024

1. CS Lewis wrote inThe Problem of Pain

"Mental pain is less dramatic than physical pain, but it is more common and also more hard to bear."[1]

2. How does it feel to have mental pain rather than mental health? Listen to this description of the experience of psychosis.

"My awareness (of myself, of [the person before me], of the room, of the physical reality around and beyond us) instantly grows fuzzy. Or wobbly. I think I am dissolving. I feel - my mind feels - like a sandcastle with all the sand slicing away in the receding surf... The `me' becomes a haze, and the solid centre from which one experiences reality breaks up like a bad radio signal. There is no longer a sturdy vantage point from which to look out, take things in, assess what's happening. No core holds things together, providing the lens through which to see the world, to make judgments and comprehend risk. Random moments of time follow one another. Sights sounds thoughts and feelings don't go together. And it's all taking place in slow motion[2].

3. When this person hears houses talking to them directly, saying - "look closely. You are special. You are especially bad. Look closely and ye shall find" - they don't hear literal sounds. The words just come into their head, but they know that the words belong to the houses.

4. The South Eastern circuit has asked me to deliver this brief address on the pressing issue that intersects two crucial aspects of society; mental health and the criminal justice system. This is complex terrain. I know everyone here wants to ensure that, on our watch, everything reasonably possible is done to reduce the burden of mental pain that CS Lewis described.

5. Mental health disorders affect a significant portion of the population and factors such as poverty, trauma, substance abuse and lack of access to mental health services contribute to the over representation of individuals with mental illness in the criminal justice system.

6. Studies[3]have found that the stigma and misunderstanding surrounding mental illness often lead to discrimination and inadequate treatment within the criminal justice system not least because it is harder for those affected to navigate due to difficulties with working memory, maintaining attention, understanding abstract information such as timelines and dates, and difficulties with comprehension and retention of information both written and verbal.

7. Such individuals also face a higher risk of victimisation, self harm and suicide. As if that wasn't enough, the research finds that recidivism rates are higher among this population due to the lack of resources to address underlying mental health issues, perpetuating a cycle of incarceration and deteriorating mental health.

8. Improving the position requires a multifaceted approach that prioritises understanding, compassion, collaboration and systemic change. Both the legal professions and the judiciary have a role. Let me describe, briefly, three ways in which the judiciary is playing its part.

9. Judges receivetraining and access to resourcesin dealing with parties who have mental ill-health. The training is embedded in induction courses for courts and tribunals judiciary. Continuation courses offered by the Judicial College of England & Wales such as theAccess to Justice: Procedural Fairness in the Crown Courtcourse focus on the topic. It includes a training film with a mentally disordered defendant representing herself. A psychiatrist gives a practical and informative talk as part of the course. The course director is an experienced Old Bailey Judge HHJ Tayton KC.

10. The Judicial College has also recently taken over provision of training to all Legal advisers and Magistrates. A new course they are now receiving on mental disability has four central topics

1. Making reasonable adjustments.

2.Clarity of communication.

3. Dealing with unconscious biases and

4. Approaching a case where capacity is an issue.

11. All of this training is practical. It uses case studies and discussion in small tutor groups.

12. Each course spot-lights a number of resources including the Advocates Gateway and the Equal Treatment Bench Book. Chapter 4 of the ETBB covers what mental disability is, how to identify needs, achieve appropriate case management, possible adjustments and the correct terminology to use, as well providing a helpful glossary of terms.

13. One of the subjects covered in Chapter 4 isMental Health Liaison and Diversionservices and I want to move on to those. In practice as Treasury counsel at the Central Criminal Court I was aware of the value of having a mental health professional in the building every day to assist defendants, witnesses and the court. Then the service was unique to CCC. In 2022 when I was lead presiding judge on the South Eastern circuit I was keen to put in place a Mental Health Liaison and Diversion scheme to cover all the Crown Courts in London. With commitment from the NHS, Fiona Dixon the lead L&P person at CCC and a lot of work by many other people, I am delighted to say it has been a wonderful success and is ripe for further extension[4].

14. What is it? We are going to hear from one of the practitioners on the Panel about the detail but the aim is to facilitate the progression of cases through the crown courts with minimal delays resulting from mental health issues. The L&D practitioner will review the lists, check on defendants in the cells, speak to judges in chambers, facilitate sharing of medical (with consent) and other information and provide advice. One London court reports that they make 30-40 referrals to the L&D practitioner a month. That is, probably, an indication of the cases that have not been delayed with the consequent distress to the mentally unwell person. Advocates and instructing solicitors can ask for a referral, a practitioner will be available, typically, every day on site or if not, readily contactable from court.

15. I have time to share just a fraction of the positive feedback from the judges in London on the scheme's effectiveness. I can tell you the Resident Judges were universally appreciative of their L&D practitioners. In an appeal from the Magistrates' Court in which the appellant had been convicted of harassment by sending vast numbers of emails to former employers, she sent numerous emails to the court seeking adjournments and threatening suicide. Because of her own conduct and unrealistic expectations she had become unrepresented and had no expert evidence about mental health or disability. The L&D practitioner met the appellant, provided reassurance about the court process and with her consent reported back to the court on the NHS records of her mental health issues, advising the judge on reasonable adjustments. The practitioner also provided advice on the best way to manage the flow of emails and respond to the suicidal messages which were time-consuming and caused distress to staff.

16. At another Crown Court the resident judge reports that,

"We are seeing more cases where an immediate initial assessment of fitness to plead, or mental fitness generally, can mean that PTPHs are not put off pending such an assessment, thus improving throughput and decreasing the number of hearings in accordance with better case management principles."

17. Elsewhere,  a court was trying three defendants and proceeded to continue with the trial in the absence of one defendant as he had apparently voluntarily refused to attend court from prison. There was no resistance from the defence advocate. However, the court's inquiries through the L&D practitioner revealed that the prison had had serious concerns about the defendant's psychiatric state. Further deeper investigation demonstrated that he was unfit. As a consequence he was discharged from the trial, to be re-tried when fit. A much fairer outcome than being tried and possibly convicted, in absence and while mentally ill.

18.Sentencing. You will all be familiar with the Sentencing Council's guideline for Sentencing Offenders with Mental disorders, Developmental disorders, or Neurological impairments[5]. It provides vital advice and information for judges, and every advocate should have a detailed understanding of the approach it mandates. There is no tolerance of a broad brush attitude. The court needs detailed information when it is to be argued that an offender's mental ill-health, including co-morbidity of impairments and disorders, at the time of the offence or sentencing should bear on the sentence. The key question is expressed in paragraph 3,

"..in assessing whether the impairment or disorder has any impact on sentencing, the approach to sentencing should be individualistic and focused on the issues in the case."

19. Evidence is usually required to establish this impact, it may come from the offender himself, his medical records or other sources including expert opinion. In April 2023 the Court of Appeal approved this methodology and said,

"the distinction between a mental disorder linked to the commission of the offence and one not so linked may sometimes be hard to draw. In this case the terms of the psychiatric report suggests that the appellant's various conditions can be seen as linked to his misconduct, and we can detect no evidential basis to justify rejecting that analysis. It follows that the sentence that the judge imposed was manifestly excessive[6]."

20. I close withRule 28.9 of the CPRwhich requires a sentencing court to send the prison `such information as the court has received that appears likely to assist in treating or otherwise dealing with the defendant'. A service level agreement between HMCTS and the prisons spells this out more clearly and enumerates the various documents including reports and factual information about the offence and offender. It is a vital step to give the mentally ill offender the best chance of appropriate provision in prison, and is sometimes overlooked. I am going to stop there as I am keen to hear from the expert and distinguished panel.

Thank you.

Mrs Justice Cheema-Grubb

[1] C S Lewis,The Problem of Pain, (1940) Re-issued Harper Collins 2015.

[2] Elyn Saks's autobiography, The Centre Cannot Hold: My Journey through Madness (2007)

[3] Just a couple of egs www.justiceinspectorates.gov.uk/hmiprobation/inspections/a-joint-thematic-inspection-of-the-criminal-justice-journey-for-individuals-with-mental-health-needs-and-disorders/ & Mental Health and Criminal Justice: Bridging the Gap | Frontiers Research Topic (frontiersin.org)

[4] "A realistic evaluation of an enhanced court-based liaison and diversion service for defendants with neurodevelopmental disorders"Eddie Chaplin and others. A realist evaluation of an enhanced court-based liaison and diversion service for defendants with neurodevelopmental disorders - Chaplin - Criminal Behaviour and Mental Health - Wiley Online Library

[5] Sentencing offenders with mental disorders, developmental disorders, or neurological impairments

[6] R v Andrew Saurin[2023] EWCA Crim 582