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 7th
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 21st and 23rd 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 23rd 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 18th 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 15th 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 3rd
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.
