FREE CHAPTER from ‘A Practical Guide to Fitness to Plead and Insanity in the Crown Court and Magistrates Court’ by Alex Matthews


Following the order in which one might encounter a mentally vulnerable defendant, it makes sense to begin at the beginning when an advocate first encounters a defendant.

This section aims to address:

  • Information the advocate needs to gather
  • Taking initial instructions

Whenever representing a defendant an advocate will of course have an eye to their mental wellbeing. It may be, having the good fortune of having been instructed in advance and armed with psychiatric record and reports, the advocate is well prepared and knows full well their client’s condition. However, too often one arrives at the door of court with merely a case summary and an antecedent record. In such circumstances information gathering is the first order of business.

Some information relates to the facts of the case on the face of the papers and from those personnel at court. Things to look out for might include:

  • Out of character behaviour – a defendant of previous positive good character suddenly lashing out violently or performing a sexual act in public;
  • Friends or family can provide anecdotal details ie ‘he was sectioned a month ago’, which can help assess the lay of the land:
  • Is there a liaison and diversion service at court – can they assist with any information or a brief assessment;
  • Was there an appropriate adult in interview;
  • Is the FME’s attendance apparent and available for review;
  • Experienced officers may note mental health factors in their statements or case summaries.

So too, the client’s presentation and initial instruction is key to your assessment:

  • Does the defendant have missing periods of recollection without the intervention of drugs and alcohol;
  • Is their presentation to you disordered, muddled or volatile (again, as far as you can tell not due to drugs or alcohol)

No advocate is required at court to ‘diagnose’ a defendant; a lawyer’s expertise is in the law, not in medicine or psychiatry. However, those working in criminal courts are put in the unenviable position of needing to make an initial assessment as regards whether there are potential mental health issues which may require expert assessment. We are often tasked with doing so rapidly and without the support of any sort of intervention service.

Without wishing to pretend to expertise I do not have (I am in no way medically qualified) it is always the case that an advocate will need to be alert for a client presenting in psychosis. This can present itself in many ways. For the advocate in conference things to look out for include:

  • Hallucinations – seeing, hearing, smelling, tasting or feeling things that are not happening
  • Delusions – ie beliefs that the person is in a position of power, or that people are planning to hurt them
  • Confused thought patterns – speaking quickly, abrupt topic changes, sudden switches mid-sentence.

The above are a beginning of the ways an advocate might start to assess a client is giving instructions, if they are capable of doing so at that juncture, and whether there are mental health issues or disorders in play, importantly either at the time of the offence or on the date on which the defendant has arrived at court.

The defendant may be suffering acute mental health issues in police or court custody and often may not adhere to societal norms or keep hold of their temper or fear. A key issue for the advocate will be ensuring the court does not rush proceedings and is aware of the issues at hand.

It is in this context that the issues of insanity and fitness to plead can begin to be considered; only when information has been gathered can the application of the various statutory regimes begin.