(For the article relating to the result of the trial, please click here http://gtstewart.co.uk/special-verdict-of-not-guilty-by-reason-of-insanity/)

S, a foreign national, had arrived in the UK legally in late November 2019. Following harassment and threats made by a group of people seeking to make a profit of his lack of ties to the UK and knowledge of the English language, S developed a delusional belief which extrapolated the extent of the persecution he was being a victim of. On the evening of New Year 2020, S entered a residential address to seek help. Whilst there he helped himself to wine belonging to the occupants, an offence of burglary. The following day, he bought a knife to commit suicide and escape his persecutors, an offence of being in possession of a knife in a public place. The public place in question was a car park in which messages had been written by S in chalk on the ground to communicate with his persecutors whom he believed were communicating with him through CCTV cameras and other electronic devices in the street, threatening to find him and kill him. Neither offence was alleged to have been committed with a risk of harm to any member of the public nor with a view to steal for a financial gain or otherwise. He was remanded in custody following the second offence.

It was clear at the outset that S suffered from an undiagnosed mental health condition, and S ought to have received help under the Mental Health Act immediately. S had no previous convictions, whether in the UK or in his home country. Instead, he was prosecuted for burglary and possession of a bladed article in a public place. S was assessed by a psychiatric expert in March and June 2020, who diagnosed him with paranoid schizophrenia and concluded that a defence of insanity was available to him. Due to the pandemic, there were delays in securing a second expert report, as is required for a defendant to raise a defence of insanity. The Prosecution insisted on continuing the prosecution despite the obvious mental health concerns and despite the conclusion of the expert. A second expert report was obtained by S’s legal team, but the expert required a second consultation before being able to finalise his report, days before the trial was due to be heard. The expert eventually confirmed that the defence of insanity was available to S. Despite this information, the Prosecution continued to dispute S’s defence and they instructed their own expert. Their expert agreed with the defence.

A trial took place in late November 2020, overcoming further last minute obstacles in having the matter heard. The jury returned a unanimous Special Verdict of Not Guilty by reason of insanity. The trial judge adjourned the matter for two weeks to obtain further reports to address the suitability of a Supervision Order, or a Hospital Order under s37 of the Mental Health Act 1983.

On 10 December 2020, both experts recommended a Hospital Order, and it became apparent that supervision orders, whilst technically being available to the sentencing judge, are impossible in practice as probation cannot put themselves forward as supervisors, and most mental health professionals are extremely reluctant to offer to supervise such an order, which in any event requires the assistance of a team rather than supervision by only one professional.  No bed had been identified by the time of the hearing, and the relevant local authorities refused to take responsibility for S who was not known to them in light of the short time spent in the country before his arrest and his lack of resident status. The experts suggested a further adjournment to explore the outside chance that a relevant services would take responsibility for S and whether a secure bed could be located. This led to a further adjournment.

As a result of identity theft, S was registered with a GP service in a remote area of the country unconnected to S. The clinicians responsible for him at the prison where he was remanded nevertheless made a referral to the services in that area to secure a bed.

At the adjourned hearing on 14 January 2021, the relevant services still had not replied to the referral request. The matter was listed before a judge who was not the trial judge as a result of court arrangements in response to the current COVID-19 restrictions. The trial judge was unable to sit until beginning of February. S’s advocate, Sarah Memmi, argued that the matter could not be delayed until then and the trial judge agreed to release the case to a new judge.

The matter finally came back on 20 January 2021. By that time, S had been in custody over a year. Had S pleaded guilty to the offences, or been found guilty following a conventional trial, he would have been sentenced to no more than 18 months imprisonment. Therefore, he would have been released on licence by August 2020 at the latest.

Following a special verdict of not guilty by reason of insanity, the only three options available to a sentencing judge are: an absolute discharge; a supervision order; or a hospital order, as punishment has no place with such a verdict given the lack of criminal intent. S had been remanded for his own safety and the relevant services failed to transfer him to hospital throughout the time he spent on remand despite their own recommendations.

On 20 January 2021 the sentencing judge agreed with Sarah Memmi’s submission that an absolute discharge was the only just and appropriate outcome given the period in custody and the unfortunate history described above.

She was greatly assisted by Nusrat Chowdhury, supervised by Lynn Roberts, based at Gt Stewart’s Croydon office.

Reflection

Although the ultimate outcome was an absolute discharge, given his mental state, S’s time in prison represents a great injustice.

This case highlights the shortcomings of mental health services as a result of a historical lack of funding. Local authorities are under such pressure that they fight with one another to avoid be responsibility for individuals who may come under their responsibility; services take weeks to respond to urgent referral requests; there are significant delays in transfers to hospital from prisons pending trials. In S’s case, that meant spending over a year in prison when he should have spent a few weeks in hospital and not a day in prison.

The trial judge, as well as the sentencing judge, acted diligently and with great empathy for S at all times. Unfortunately, the gap between the powers available to the court and the availability of resources from relevant services remains. Perhaps a remedy would be a power available to sentencing judges to compel a service to take responsibility for an individual to avoid delays; there is no doubt that appropriate funding would also ease delays considerably. Lastly, less insistence from the Prosecuting authorities in pursuing prosecutions which do not clearly meet the public interest test would certainly assist in avoiding the kind of injustice suffered by S.