Mon - Fri 09:00 - 18.00
Central Court 25 Southampton Buildings London WC2A 1AL
Tel: +44 020 7936 3637
DX 458 London Chancery Lane
Chambers provides an out of hours service. If you call Chambers main number you will be diverted to the clerk on call who will be able to deal with your enquiry.
An interesting and insightful article from Lesley Manley of Church Court Chambers on mental impaired clients.
It is often helpful for the practitioner to have specific examples demonstrating the importance of the mentally impaired client obtaining special help when coming into contact with the criminal justice system. A purely academic approach will not suffice when dealing with vulnerable clients one might encounter in practice.
The practitioners’ job is relatively straightforward when a client has been diagnosed with an illness, learning difficulty or brain injury and the practitioner and court are aware from the outset of the person’s vulnerability. The practitioner can then consult with psychiatrists, psychologists, and arrange intermediaries for trial purposes if necessary.
Real difficulties arise when the solicitor or barrister does not know that the client is mentally impaired and/or has little reason to suspect mental impairment. A failure to notice or appreciate the fact that a defendant is mentally impaired can result in real injustice, hardship and suffering within the criminal justice system. People may stand trial when they are not intellectually equipped to do so. They may give evidence at trial in circumstances when they ought to be receiving assistance from an intermediary. They may be wrongly convicted. They may also be remanded in custodial settings or receive lengthy custodial penalties when in fact they should have been diverted to hospitals or institutions where they will receive care.
In the recent case of R v Dixon 2013 EWCA Crim 465 where a young defendant with a low IQ was tried for murder the court directed the jury that they could hold against him his failure to testify even though it was accepted he had a low IQ and had been provided with the assistance of an intermediary. In this case the defendant’s need for assistance had been identified by those representing him. It is vital that a defendant’s need for special help is not overlooked.
The case studies set out below illustrate how difficult it can be for the busy practitioner who is not a qualified doctor, let alone a specialist, to identify when expert opinion should be sought in the context of whether or not a defendant is mentally impaired.
Routinely in practice one encounters those afflicted by drink or drug addiction problems, naturally it does not follow that those people are in any way suffering mental impairment to render them unfit to plead or stand trial.
Indeed one frequently, in practice, encounters clients who after years of sustained drug and alcohol abuse are amazingly unaffected in terms of physical damage. Not every client suffering from alcoholism or drug addiction is mentally impaired. Similarly not every client who suffers from an inability to respond speedily to questions, demonstrates bad behavioural problems or even mental illness is mentally impaired.
However the solicitor or barrister should be alert to the fact that on occasions a client will have a serious mental impairment problem that needs to be investigated in the interests of justice.
In cases where clients have not come through formal referrals from institutions it can be very difficult to appreciate the client is mentally impaired and to get information as these cases studies demonstrate. The client or his/ her Dr not even be aware that mental impairment is an issue. The client may have had accidents or injuries during childhood ( now long forgotten)and be unaware there has been neurological damage as a result.
CASE STUDY ONE
I was instructed to represent Mr A. Mr A was a difficult and uncooperative client. He was nearly always under the influence of class A drugs and always unable to focus on the issues connected with his trials. He was unable to behave in any sort of socially acceptable manner. His history was that he had been a mild mannered student reading for a degree and hoping to have a professional career. One evening he went to assist a person being robbed. He was kicked unconscious. He remained in a coma for three weeks but thereafter regained consciousness and was discharged. Thereafter he gave up his studies and began to consume large quantities of illicit drugs.
One of his siblings repeatedly pointed out to medical professionals Mr A’s extraordinary change in personality after the assault. It was assumed by the medical profession and his legal advisors that Mr A had been traumatised. He began to be arrested for petty thefts. His offending then escalated in seriousness. He had been represented by numerous solicitors and counsel and as a result of his eccentric behaviour many reports had been commissioned from Consultant Forensic Psychiatrists. They were all of the opinion he had schizophrenic tendencies, and that his illness was exacerbated by his drug misuse. At each trial he was deemed fit to plead and stand trial and spent approximately ten years within the criminal justice system.
He was frequently bullied and mocked in prison. I sought further expert advice for this client after discussion with a consultant psychiatrist. I pointed out the client’s extraordinary change had occurred after the assault he sustained. The psychiatrist stated the client should be examined for mental impairment. Therefore a consultant forensic psychiatrist specialising in mental impairment was instructed. This was a turning point for client. A brain scan demonstrated that the assault the client suffered had caused catastrophic, and irreparable brain damage. It was damage of a type rarely seen outside the setting of war when bullets have caused brain injury. The diagnosis was Organic Brain Disorder. It was not possible to reverse but it did mean that accommodation was found outside London in a home specialising in the care of brain injured. He has had no further contact with the criminal justice system.
This case demonstrates the very real difficulty of identifying mental impairment in a client. Indeed for ten years he had had an inadequate medical diagnosis, the suffering he and his family had endured was a tragedy.
A lesson to learn from this case is the absolute importance of having a completely thorough history of the client, the importance of listening to family members and in cases where a head injury has been sustained ensuring that those treating him have considered whether there has been any long term physical brain damage and what investigations have been conducted. It is also important to check with experts whether there are other tests they think should be carried out and whether they suggest referral to experts in other fields of medicine.
CASE STUDY TWO
I was instructed to represent Mr B. He was accused of the sexual touching if a young child. He presented as a mature male, appeared to be able to give instructions and denied the offence in interview. He had had contact with the criminal justice system on a couple of occasions previously for minor matters and received cautions and reprimands. There had been no hospital orders as he had never been mentally ill. There were no records to indicate any sort of mental health difficulty. He lived with a parent, his father and had never lived independently. He had friends locally and was able to socialise. It appeared as if there would be no difficulty in the trial proceeding in the normal fashion. The question of mental impairment was brought to the attention of my instructing solicitor by chance. The client’s father informed the solicitor that the client was “unable to lie”. This prompted a further enquiry from the solicitor as to why the client was “not able to lie”. The clients parent explained that the client’s brain did not appear to function in a normal fashion. He had learning problems at school but had remained in mainstream education. He had remained at home after school and never worked. The situation was that the client’s mother ( now deceased) had accidentally let his pram fall down a flight of stairs with him in it as a young baby. The client had injured his head and been taken to hospital. The parent felt the fall may have been the reason the son could not lie. The client did not believe himself to be very different from other people, just not very clever at education. This lead to the defence obtaining the medical records over thirty years old which recorded the accident. A mental impairment expert was instructed. Tests were conducted upon the client. The results were that the client had extremely severe difficulties. This lead to agreement with the Prosecution that the client was unfit to stand trial. The jury then considered whether or not the client had done the act complained of. The jury decided they could not be sure of that.
This was another example of a case where the fact of mental impairment may well have gone unnoticed were it not for the concern expressed by a family member and the solicitor’s experience and meticulous investigation of the client’s mental ability. A client may well have stood trial and been cross examined in circumstances where this should never be permitted to occur.
Both these case studies demonstrate that barristers and solicitors need guard against assuming that because a client has stood trial and been imprisoned in the past that this means the issue of mental impairment does not arise and cannot be raised.
The above cases demonstrate the need for detailed instructions, and for both solicitor and counsel to take take active steps to verify accounts of head injury accidents and to take active steps to seek medical records and where necessary instruct experts in the appropriate field of medicine.
Sports Stars and Unpaid Wages – Yasin Patel looks at the World of Professional Cricket and the growing problem of what can... more
On 2 July 2020 the National Crime Agency confirmed that it had dismantled “entire organised crime groups” through Operation... more
It is not just in the worlds of finance and commerce where the effects of the global Corona Virus pandemic are currently being... more
In January 2019, Yasin Patel and Amy Hazlewood wrote an Article on Unexplained Wealth Orders (UWO’s). This Article provides an... more
Following on from Yasin Patel and Amy Hazlewood’s article on Fraud under the furlough scheme, this article takes a closer... more
Church Court Chambers proudly presents our first Webinar, “Jury Really Want To Hurt Me?” – The Culture Club of Trial by... more
“In this short article Gregory Wedge of Chambers Crime and Regulatory Group analyses the recent Court of Appeal authority... more
Notwithstanding the seriousness of the coronavirus (COVID-19) pandemic and a global effort to fight the same, some individuals... more
Yasin Patel and Amy Hazlewood look at the potential criminal offences arising from the furlough scheme and what multi-national... more
Many businesses are wondering whether the Covid-19 Pandemic will allow a reduction or, alternatively, end their existing... more
In light of the unprecedented measures that the UK government has put in place to address the Coronavirus pandemic, George... more
Kerim Fuad QC, Head of Chambers, and Colin Witcher of Chambers Crime and Regulatory Group suggest three recent authorities to be... more
The “ Magnitsky Act” is a trailblazing piece of legislation enacted by the United States. Lesley Manley looks at developments... more
Cannabis, good drug or bad? The topic of debate internationally for decades by governments, medical professionals, recreational... more
Islam Khan discusses a recent Court Of Appeal case in an immigration matter shifting the test on proportionality on Human Rights... more
Islam Khan explores what the “BANGER” extension establishes and how it affects the current “Surinder... more
For even the most dyed in the wool Conservative voter, Conservative Central Headquarters’ decision to rename their twitter... more
Does your neighbour regularly park across your driveway? Have a dog that howls or barks incessantly? Have children that make... more
This weekend the Rugby World Cup Final between England and South Africa will be watched by billions around the globe. Inside... more
……“the consequences of the infringement of the procedural rules about contempt proceedings may be just as serious... more
R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General... more
Over the past week, Lewis Power QC has been representing the Church Court International Law Team across the pond. Mr. Power QC... more
Lincoln’s Inn Barrister Still Missing Despite the Promises of Foreign Adviser Gowher Rizvi to Assist after Al Jazeera Head to... more
Yasin Patel and Amy Hazlewood look at one of the most important pieces of legislation passed in recent years. One that is looking... more
As October 31st 2019 draws nearer, Britain’s exit from the European Union and its exact terms become all the more important. ... more
The Corporate Manslaughter and Homicide Act 2007 (the Act), was designed to create a statutory offence, facilitating the... more
Yasin Patel and Amy Hazlewood look at the area of drill music and the law. This article is split into two parts: the first part... more
Yasin Patel looks at the question of “racism in football”. In this two part series, the first article outlines the arguments... more
In this article, written by Yasin Patel and Amy Hazlewood, we look at the areas of drugs, and in particular ‘county lines’... more
The British government and its agencies powers of investigation will increase significantly with a new piece of legislation.... more
Since the downfall of ISIS and the liberation of many Syrian people, women and children (and whole families) have been fleeing to... more
Tax Avoidance and Tax Evasion. What is the difference? One is illegal and one is smart tax planning. But which is which? Local... more
Yasin Patel and Amy Hazlewood explore the problems surrounding drones, from their use in humanitarian activities to drugs being... more
Yasin Patel looks at the growing area of ‘Image Rights’ and why it makes sense for a sports star to protect their ‘image... more
The case of Zamira Hajiyeva and the Unexplained Wealth Order “UWO” restrictions imposed upon her have brought to... more
New Law Journal publishes article by George Hepburne Scott regarding the recent ground breaking High Court case regarding prison... more
New Law Journal publishes an article by George Hepburne Scott regarding changes to the judiciary in Poland. George Hepburne Scott... more
‘Suck my d**k, you n****r, you n***o’ Offended by the title. And so you should be, but what are you going to do about it?... more
Please follow link below to read George Hepburne Scotts article on extradition published in the New Law Journal.... more
The Situation before the Human Rights Act In the traditional doctrine of statutory interpretation, the courts looked at the... more
The new Prime Minister Theresa May has announced a review of the Modern Slavery Act 2015; it is clear that corporate compliance... more
The Court of Appeal in the case of Griffiths 1 QB 589, made an apposite observation concerning a growing trend towards indicting... more
On 23 June 2016 over 33 million people voted in the EU referendum. Since that date there has been widespread anger from those who... more
Alkan Shenyuz is a barrister with Church Court Chambers specialising in international commercial law and in this article for... more
Leading legal publisher Westlaw has published Michael Polak’s article on INTERPOL notices. INTERPOL notices can severely... more
Alkan Shenyuz, a barrister and specialist in banking and financial services looks at the new EU Payment Services Directive and... more
In a clear sign that regulators want to open up competition in the UK banking industry to new banks, the Prudential Regulatory... more
In R (on the application of DC and The Secretary of State for Justice EWHC 33 (Admin) the High Court considered the law of... more
Whilst it would be naïve to suggest that ‘marriages of convenience’ do not occur, the Home Office seem to me to be using... more
Anthony assisted partners in Peters & Peters LLP in providing an expert summary of the laws and regulations which have been... more
Looted antiquities from Syria – what collectors need to know Alkan Shenyuz, barrister with Church Court Chambers discusses what... more
Modern Slavery Act 2015 The introduction of this consolidating act is to be welcomed. As with all recent changes to criminal... more
Alkan Shenyuz, a barrister with Church Court Chambers in London and a specialist in international law, summarises the key legal... more
The Government’s announcement in June that it is to bring forward legislation in Parliament to ratify the Hague Convention on... more
An interesting and insightful article from Lesley Manley of Church Court Chambers on mental impaired clients. It is often helpful... more