07 Jun 2017 Posted in Criminal Law Mental Health & Capacity 

Criminal law for those who lack capacity

Matthew Graham Posted by Matthew Graham, Partner & Head of Criminal Law & Mental Health

Criminal law for those who lack capacity

Domestic Assault

P was a married man of over 25 years, who had suffered a stroke and suffered brain injury as a consequence.  He was able to continue living at home with his wife, with the benefit of a significant care package.  However, P’s behaviour had become increasingly erratic and at times aggressive, albeit he would have little memory of that behaviour after the episode.

P assaulted his wife. He was extremely angry and abusive.  The wife called the police for assistance and P was arrested.  P was detained in the police station and subsequently accommodated in a secure hospital setting on a voluntary basis.  P was prosecuted in the Magistrates Court for Assault.

P admitted what he had done and was profoundly remorseful, albeit he had little recall of the specific events.  After various expert assessments, P was considered capable of participating in the criminal process with the court making various adaptations, including hearing and visual guides.  P wanted to take responsibility for what he had done and did not want to use his injury or health to diminish his responsibility.  P pleaded guilty and was discharged without any other order being made, financial or otherwise.  Most of the proceedings had been conducted in the absence of the P.

We had also taken the opportunity to achieve a re-designed care plan for P, to provide better support for both P and his wife, with whom he was able to return to live.  The wife was critical of the previous plan and had predicted that it would end with the breakdown in P’s behaviour. The resolution of the Criminal proceedings was inextricably linked with the development of the new care plan, in liaison with P’s medical team, deputy and family.

 

Motorbike Accident and Public Disorder

P was charged with an incident of Public Disorder in a local public house.  P lived in supported accommodation locally.  At the local pub he had begun arguing with a fellow drinker.  Things became heated, and when the staff asked them both to leave P became violent and had to be detained by staff until police arrived.  He was arrested and charged with threatening behaviour.  In the police station he did not have a lawyer or appropriate adult.

Once we were instructed we discovered that 10 years prior P had been involved in a serious motorbike accident.  As a consequence, he had frontal lobe damage.  Those who cared for and supported P recognized that he struggled with emotional control and with regulating his behaviour during times of conflict – this was a recognized part of P’s presentation and his injury, albeit this had not been identified by the police or during the investigation.

We made representations that it was not in the public interest to proceed with the prosecution, drawing on the evidence of the brain injury, the ongoing therapy undertaken by P with regard to his behaviour and emotional control and the many protective factors in place.  This included the financial stability enjoyed by P by virtue of a professionally operated trust, which ensured stable accommodation and regular therapy.

The Crown Prosecution Service agreed that it was not in the public interest to prosecute the case and the charge was dropped.  P never had to attend at court.

 

Illegal Internet Use

P, a young adult, had lifelong physical and mental disabilities, including a profound ASD diagnoses, a learning disability and schizophrenia.  P had accessed illegal images of children and other illegal pornographic material online.  That use was discovered by the police and he was prosecuted, despite his obviously serious presentation.  P had expressed some very unusual desires.

This case proceeded to the Crown Court given the nature of the material accessed online.  Within the care setting, practical arrangements were made to control P’s computer access and to introduce a suitable program of education.  We obtained two expert medical reports that demonstrated P was unfit to plead or participate in the proceedings.  He was therefore not criminalised, but treated as a patient within the criminal system.  There was a hearing in front of a jury regarding the facts of what happened, which found as a fact that P had accessed certain illegal imagery, but that P was not guilty of a criminal offence by so doing because of his conditions.  The Crown Court Judge made a Supervision Order to maintain P’s care package and to ensure that he continued to receive the support he needed to be safe and well.

We worked very closely with P’s Guardian and the Consultants and Social Worker in charge of his care to achieve an outcome that avoided the criminalisation of a plainly profoundly unwell young man.  At the same time, we worked to ensure that P and others could be assured of a safe environment going forward, in which P could thrive without risk to himself or others.

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Matthew Graham

Matthew Graham

Partner & Head of Criminal Law & Mental Health

01225 400666

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