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Beyond the Pritchard Criteria: Fitness for Court - Dr Mark Burgin

24/05/21. Dr. Mark Burgin BM BCh (oxon) MRCGP discusses how understanding the Pritchard Criteria can assist solicitors whose clients are going to court.

The Pritchard Criteria state that the defendant must be capable of understanding, retaining, make a decision just as in any capacity assessment. The criteria then go further and gives examples of skills that the defendant must learn to not be disadvantaged. As few defendants are familiar with the legal process this is a low bar, but should it be? There are three issues, what harm the criteria will prevent, minimising disruption to the court and avoidance of gaming.

To consider if the current system is fit for purpose a suitable metric should be found. It is not useful to ask those with a vested interest because they will be focused on the outcome not the method. Judges and experts are both independent of the process and have useful perspectives, this article is from the expert’s viewpoint. Experts are generally worried about vulnerable and disabled people whose needs can get missed.

This humanistic approach is open to abuse from those who wish to game the system. Allowing those whose outcome was not favourable to appeal on the basis that they did not get a fair hearing does not help those with a genuine problem. Doctors understand the problem as the inverse care law, those with highest needs have the least care and vice versa. Having needs does not mean that the outcome of the case will be unjust.

The criminal justice system is designed for those with special needs from the provision of free legal representation to having a judge listen to both sides. For there to be a real risk of injustice the defendant’s issues would have to be unusual and be likely to influence the outcome. It not enough for there to be a risk of injustice or that the defendant did not offer the best defence. The defendant’s issue must require reasonable adjustments to avoid a real risk of injustice.

Disassociation

Many victims of abuse as a child (physical, sexual, emotional and neglect) suffer post traumatic stress and have dissociation as a defence mechanism. Disassociation is a normal experience for instance letting one’s mind wander when being told off. In PTSD disassociation goes further and sufferers may describe using thoughts designed to block out what is happening around them. As court proceedings commonly trigger the Disassociation reaction it can make following the proceedings almost impossible.

As long as the solicitors are aware of the condition, they can request assessment from a consultant psychiatrist or disability analyst. Solicitors might suspect the problem if they are having problems with engagement in an otherwise compliant client. Other symptoms that suggest PTSD are reported history of abuse (particularly violent) and nightmares. Hypervigilance is another component of PTSD but has an overlap with agitation from psychosis and anxiety so is not useful in practice.

Reasonable adjustments for dissociation mainly fall upon the defendant’s solicitor to provide the support needed. Every day the defendant needs the key pieces of evidence written in neutral language to take away and read. This means that the solicitor needs to summarise the day’s proceedings into a written document for their client to consider. They also need to check their client’s understanding on the next morning which can increase their workload.

A typical case is where one victim has encouraged another victim to be part of a scam. The first victim is then accused of conspiring with the criminals to defraud the second victim. Whether the first victim has committed a crime depends entirely upon their state of mind. Disassociation creates the impression that the first victim is not being honest with the court. The first victim is also likely to feel guilty about recommending the scam as well as shame about their involvement.

Memory problems

Some defendants state that they cannot remember the events that they are accused of, which causes problems with their defence. If they cannot put their side of the story the court is entirely dependant upon the victim and any witnesses’ descriptions. The type of case can vary from those with strict liability to cases where the defendant’s state of mind is essential. As this is a common ploy by those who wish to game the system the courts may unfairly make an adverse inference.

The defendant’s solicitors may not be certain whether their client is being honest when stating that they have no memory. The disability analyst can detect neurological, psychological, cardiac and pharmacological patterns of memory loss and is cheaper than even one specialist report. Understanding why the defendant lost their memory may provide a better understanding of their involvement.

It could be that they have a physical cause such as a head injury or drug induced, equally they may have no apparent reason. The disability analyst examines all the evidence medical and psychological as well as performing a disability analysis assessment (about 2 hours). This assessment allows the expert to pick out the defendant’s functional restrictions and compares with what the defendant remembers and other symptoms. Defendants find simulating memory loss challenging and the pattern is straight forward to detect.

Memory loss from whatever cause is disorientating and disempowering so for instance a defendant accused of dangerous driving leading to serious injury may need reasonable adjustments. They need help to recall the details that are still present in their brain because head trauma often disrupts recall rather than the memory itself. They may need emotional support to deal with issues such as survivor’s guilt which can colour their testimony.

Drug induced memory loss has a patchy dreamlike quality making it difficult to work out what was real and what was not. Victims can find themselves accused of crimes that occurred during the gaps in their memory. Although there are likely to be as many male victims of spiked drinks as female victims it is more difficult to prove. The stereotype of the drugs as ‘date rape’ ignore the more common uses as drugs of abuse and for practical jokes. The commonest cause of drug induced memory loss is alcohol.

Understanding the law

The law is complex and most defendants do not know the components of their crime. For instance GBH is made up of three components. The person must have wanted to harm someone, usually evidenced by an argument with the victim or generally violent behaviour. They must have intended that harm to be serious as evidenced by the use of weapons or dangerous methods. They must have caused serious harm to the other person. Few prisoners convicted of GBH can break their offence down into these parts.

Some will argue that it does not matter whether a person who has been convicted of a crime actually understands that crime. Others will argue that it is an offence to justice to be convicted of something when they do not have the basic knowledge of that crime. There is however a practical issue that should concern both sides, the criminal justice system is very expensive. If an accused gets the wrong sentence then they may stay in prison much longer than is required.

From the disability analyst expert’s point of view it is difficult to see how the defendant can instruct their solicitor, plead to the indictment, give and understand evidence without an understanding of the crime. As this is strictly speaking a knowledge issue it is the solicitor’s responsibility to teach the defendant about law. Judges are responsible for ensuring the proper processes take place in a court room and must take responsibility for not testing this understanding.

The defendants understanding the components of all the crimes that they are accused is the most basic part of legal capacity. Some would argue that it is not for the expert to consider whether the defendant has the knowledge and skills to engage with the case. The Pritchard criteria are not just for lawyers, the expert must give opinions on whether the defendant has the skills required. There are also practical reasons why the expert needs to test the defendant’s knowledge.

To test capacity the expert must the assess if the defendant is capable of understanding, retaining, make a decision. The subject matter is the legal issues, the defendant may have capacity in other areas, but the expert is considering legal capacity. It follows that however educated a defendant they cannot have legal capacity if they are unable to retain the law. As the expert can assume that the lawyer has already tried to explain the law it is reasonable to assess their retention of the law.

Conclusions

R v Pritchard is well on its way to being 2 centuries old and remains a clear statement of the law with regards to legal capacity. Some aspects such as challenging a juror or questioning evidence are largely the responsibility of the legal team. Other aspects such as capacity are clearly intrinsic to the defendant and relate to issues such as learning difficulties and dementia. In the middle are those aspects that reflect the interaction between the defendant and the system. These apply to all legal cases where the litigants give oral evidence.

It is disconcerting to consider that a person could be convicted of a crime when they do not know the components of that crime. That the present criminal justice system does not have a failsafe system such as on the indictment sheet, a leaflet given the accused, a letter from the solicitor to the defendant laying out the test, a simple test from the solicitor or the court is worrying. The problem is the absence of an automatic referral for a disability assessment to consider the Pritchard Criteria in the estimated 70% with mental health problems.

There are many defendants who have conditions which prevent them from raising a proper defence. In most cases reasonable adjustments would benefit all defendants and should be part of the normal system. Judges would find many of the insights into conditions such as PTSD and memory loss assists them in assessing the evidence that the litigant is able to give. In non-criminal cases the stakes are not as high but the legal protections for the litigants are also lower.

The increasing role of the disability analyst in the legal system perhaps reflects a growing understanding of issues such as hidden disability. Or perhaps the increasing legal protections for disabled people such as the Equality Act 2010, the Human Rights Act and UN CRPD 2006 are pushing lawyers to recognise that disability is not always as obvious as a wheelchair. The Pritchard Criteria is often relevant in clinical negligence as many medical accidents leave their victims with disabilities.

References

R v Pritchard 1836

Law commission 2010 The Law Commission Consultation Paper No 197 Unfitness To Plead

UN Convention on the Rights of Persons with Disabilities article 12 - Equal recognition before the law

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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