Crown Prosecution Service Ruth Bowskill Deputy Chief Crown

Crown Prosecution Service Ruth Bowskill, Deputy Chief Crown Prosecutor CPS Thames and Chiltern Area

MENTAL HEALTH IN THE CONTEXT OF DOMESTIC ABUSE CONFERENCE 15 October 2015 KASSAM STADIUM

Who are we and what do we do? • The CPS is the principal public prosecuting agency for conducting criminal prosecutions in England Wales. • Its main responsibilities are to provide legal advice to the police or other investigative agencies during the course of criminal investigations, and decide whether a suspect should face criminal charges in all but the most minor of cases. The CPS conducts prosecutions in all criminal courts

• The decision to prosecute or to recommend an out-of-court disposal is a serious step • Prosecutors make their decisions in accordance with the Code for Crown Prosecutors, and the DPP’s Guidance on Charging. • We MUST apply the Code in all cases. • The Code contains what is described as the Full Code Test. • The Full Code Test has two stages: • the evidential stage; followed by • the public interest stage. • No matter how serious a case is, it cannot proceed without meeting the evidential stage of this test

Offenders • Public Interest (PI) covers a number of factors including whether it is appropriate to prosecute or divert an individual who is suffering from a mental disorder. • The CPS uses the term ‘mentally disordered offender’ to describe a person who has a disability or disorder of the mind and has committed or is suspect of committing a criminal offence. It covers a range of offences, disabilities and disorders. • A mental disorder may also be relevant to fitness to plead and sentencing/disposal.

• There is a balance to be struck between PI in diverting a defendant with significant mental illness from the CJS and other PI factors in favour of prosecution including the need to safeguard the public. • In serious cases where a prosecution is plainly needed unless there is clear evidence that continuing the case would be likely to result in a permanent deterioration in the defendant's condition, it may be appropriate to obtain an independent medical report. • Prosecutors will need information and evidence about any mental health problems at the earliest opportunity

Safeguards • A person who is mentally disordered or otherwise mentally vulnerable must not be interviewed in the absence of an appropriate adult. • Confessions can be excluded if safeguards are not in place. • When a patient is alleged to have assaulted a member of staff, prosecutors will refer to joint working agreements with the police and health services.

Fitness to Plead in the Crown Court • The purpose of this procedure is to strike a fair balance between the need to protect a defendant, and the need to protect the public from a defendant who has committed an offence which would constitute a crime if done with the requisite mens rea (mental element) (R v Antoine [2001] 1 AC 340). • The procedure has two stages: • Whether the offender is under a disability i. e. whether he is "unfit" to plead (section 4 Criminal Procedure (Insanity) Act 1964) ; and if so • Whether he did the act or made the omission charged against him (section 4 A Criminal Procedure (Insanity) Act 1964).

Domestic Abuse Guidelines for Prosecutors • Domestic abuse offences are regarded as particularly serious by the CPS.

• There is no specific offence of 'domestic violence or domestic abuse'; • The domestic nature of the offending behaviour is an aggravating factor because of the abuse of trust involved. • There may be a continuing threat to a complainant's safety, and in the worst cases a threat to their life or the lives of others around them.

Impact: lasting trauma on victims extended families, especially children Victims will not be always be aware that what they are experiencing is abusive behaviour. • Victims may have difficult decisions to make that will significantly impact on their lives • Some may not want to go through the CJ process • • •

• The longer domestic abuse continues the likelihood of increase in frequency, seriousness and can result in death. • Domestic abuse can be difficult to prosecute due to: need for careful and sensitive handling nature of the relationship cultural or religious beliefs sexual orientation mental capacity, disability or poor health

• Support and safety needs should be identified from the outset. This needs close liaison between police CPS and partner agencies. • CPS has a Toolkit prepared by CPS, Mind, Bar Council and Law Society specifically addressing mental health distress and assisting witnesses and victims to give best evidence in criminal cases.

• Special measures • Can be: Use of a live link or behind screens Having an Independent Domestic Violence Adviser (IDVA) in place or other support Having an intermediary

• CPS has a Violence again Women and Girls (VAWG) Strategy which provides an overarching framework for crimes identified as being primarily committed, but not exclusively, by men, against women, within a context of power and control • Joint Police-CPS checklists to ensure that cases are built well • Intelligence about similar previous behaviour is sought so that information can be used to: inform the risk; identify similar fact evidence; form separate charges relating to previous victims; support an application to adduce defendant’s ‘bad character’ CJA 2003

• Simple cautions will rarely be appropriate in cases of domestic abuse. • Bail A prosecutor’s primary concern should be the safety of the complainant and any children or other dependants. Seek RIC or bail with strict conditions

Reluctant victims • Consideration is given to whether the case can proceed without the victim. • Can a hearsay application be made to the Court under section 114(1)(d) or 116(2)(e) CJA 2003 • Can additional support be put in place for the victim • Should a witness summons be applied for compelling the victim to give evidence There is a need to ensure that neither the victim or children will be put at danger in doing so, enquiries will be made of the police, or MARAC, MAPPA If a summons is applied for will the prosecution ultimately seek a witness warrant

• Sentencing • All options are open, along with ancillary orders for protection, including restraining order (even on acquittal), CBO’s (which replace ASBOs), Forced Marriage Protection Orders

Defences on a charge of Murder Archbold • With effect from October 4, 2010 (Coroners and Justice Act 2009 ss. 56 and 178, and Sched. 23, Pt 2, abolished the common law defence of provocation • In lieu of the defence of provocation, the 2009 Act makes provision (see sections 54 and 55, post) for a new defence to murder of “loss of control”. As with provocation, if the defence succeeds, the appropriate verdict will be one of manslaughter.

Archbold • Persons suffering from diminished responsibility • (1)Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. • [(1)A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which— • (a) arose from a recognised medical condition, • (b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1 A), and (c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

Where you can find further information on the Crown Prosecution Service www. cps. gov. uk