The Crown Prosecution Service (CPS) has opened a public consultation on the proposed changes to guidance for prosecuting defendants with mental health issues. The draft guidance advises prosecutors on decisions surrounding whether to prosecute, fitness to plead and/or stand trial, remand considerations, sentencing, and diversion. 

The consultation, open until 4th June, seeks feedback on four main areas of the proposed revisions to the guidance:
• Information prosecutors need about each mental health condition or disorder;
• Appropriate public interest factors;
• Appropriate factors when considering diversion from prosecution; and
• Whether the “fitness to plead” procedure is set out clearly and accurately.

Where the draft guidance falls short

Whilst the draft guidance provides a more substantial picture of mental health conditions than current guidance, it is still woefully inadequate.

Current guidance fails to reference – let alone provide information on – a single mental health condition. Autistic Spectrum Disorder is mistakenly illuminated as a mental health condition, instead of a developmental disorder, with links to the National Autistic Society being the only condition-specific resource cited.

The draft guidance states that there is a “very wide range of mental health conditions”, yet the document fails to recognise that this is the case. Information about specific disorders is most commonly limited to the NHS website, providing an often rudimentary representation.

In discussions of processes that seek to establish whether a crime was committed, a lot is resting on the memory of the parties involves. Notably, there is no mention of the memory issues that often arise in response to trauma.

Prevalence of trauma in defendants: the research

So, what do we mean by trauma? Trauma refers to deeply distressing or disturbing experiences. Events can be one time occurrences such as rape or a shooting, or be chronic such as childhood sexual abuse.

Research highlights the link between criminality and increased exposure to trauma. Survivors of pre-teen childhood abuse had a greater likelihood than controls to have juvenile or adult arrests for both non-traffic offenses (49% vs 38%) and for a violent crime (18% vs 14%). It is no coincidence that PTSD is prevalent in prison populations, with one study estimating a 4%-32% lifetime prevalence in males and 16%-58% in females. This is compared to figures of lifetime PTSD prevalence in non-prison populations ranging from 1.3%-8.8%. Research also illuminates prisoners with gang affiliations as having higher rates of PTSD than their non-gang counterparts.

Trauma is exceedingly common, much as we would like to believe otherwise. A survey by the World Health Organisation found that over 70% of respondents had experienced at least one trauma. One in five women and one in fourteen men were victims of rape or attempted rape, and the Lancet Psychiatry recently reported on the high rates of PTSD in under eighteens. 

How trauma impacts memory

The effects of trauma on memory have been well-documented. Reactions to trauma and their impact on memory include:

  • Depersonalisation - the feeling of being separate from the self. This may involve an inability to recall an event from the first-person perspective in which it was experienced. The event is only able to be recalled as if the person were viewing it from the position of an onlooker. "I felt like I was watching it from the corner of the ceiling" is a common experience of depersonalisation, impacting concentration. It can also involve a detachment from one's memories, feelings, and intentions. Research concluded that depersonalised subjects performed worse than controls on tests to assess general intellectual ability and displayed visual-spatial impairment. These differences mirror depersonalised subjects' subjective reporting of difficulties in perception, attention, and memory. 
  • Derealisation - the feeling of being detached from the world around you. It may feel as if your vision is distorted, with surroundings seeming fuzzy and dream-like. Size perception and spatial awareness may change, with the sense of being in a deep haze. 
  • Dissociative Amnesia - the inability to recall important information. Amnesia may be localised, generalised, or selective meaning that specific events, time periods, skills, and facets of personal identity may be forgotten. Amnesia for amnesia is common, meaning that a person may even be unaware that they are experiencing lapses in memory.
  • Dissociative Identity Disorder - a disorder caused by repeated childhood trauma resulting in sufferers having distinct personality states separated by amnesic walls. A person with the disorder will be unaware - or have impaired awareness - of their own memories, emotions, feelings, memories, and traumas because another part of the personality was unconsciously created to hold them. 
  • Flashbacks in varying forms - memories of trauma may only be remembered in the form of flashbacks. Flashbacks are a moment in which a person detaches from reality and is catapulted into one or more aspects of a trauma, feeling as if the trauma is still happening. Many mistakenly believe that flashbacks are limited to visual experiences of an event. In fact, memories of an event can be experienced and stored in fragments. For example, body memories are when a person feels the physical effect that the trauma had on their body, unaccompanied by other contextual information such as a coherent narrative. An emotional flashback involves sudden feelings of strong emotions, often despair or horror, without explicitly linking to a particular event. 

A double standard

When in the judicial system, a suspect is under perpetual scrutiny.

Everyone is vulnerable to the effects of trauma on memory. And Crown Prosecutors are encouraged to recognise this - but only in relation to a complainant/victim. 

The 'Psychological Evidence Toolkit - A guide for Crown Prosecutors' highlights the effects of trauma upon memory and recall. "An inability to access the traumatic memories may make the giving of very detailed evidence in court impossible and the person may be erroneously seen as lying or incompetent", the guidance reads. Why are defendants not afforded the same understanding? It works both ways. Surely if valid post-traumatic responses may "erroneously" paint a victim to be "seen as lying or incompetent", the defendant will be perceived similarly.  

"Lay assumptions regarding traumatic experiences tend to assume that such incidents, as one of the most important experiences in life, would lead to an accurate and permanent memory being laid down.  It is also assumed that there should be consistency both in the central memory and in the peripheral detail and that the memory will never be forgotten. Trauma studies have indicated that these assumptions are incorrect. Trauma can lead to extremes of retention and forgetting.  Terrifying experiences may be remembered with extreme vividness, or may be totally inaccessible, and amnesia for all or part of a traumatic experience is not uncommon.  An individual may dissociate when faced with overwhelming emotion, and will then be unable to integrate the totality of their experience into conscious memory. This in turn will hamper the ability to provide a detailed, temporally accurate account." - 'Psychological Evidence Toolkit - A guide for Crown Prosecutors' 

Practical applications in the judicial system

"The prosecutor must be satisfied that there is a realistic prospect of conviction given the evidence available. The mental health of a suspect may be relevant to the decision as to whether there is enough evidence to prosecute; prosecutors should refer to guidance on the evidential stage set out below" reads the CPS' draft guidance on the mental health of defendants. But said "evidential stage" lacks even a reference to trauma-related memory difficulties. These memory deficits may be difficult to identify, even for a mental health professional with forensic expertise. A suspect may be misinterpreted as attempting to mislead police through providing a confusing account of events, or may remain silent - misconstrued as guilty - for fear of exposing the fragmented and terrifying flashbacks they experience of the event.

When questioned about an event, a person may be unable to piece together the events in chronological order. They may remember it in a fragmented way, only through the smells and tastes that were present. Perhaps they can only recall the event from the perspective of an onlooker, unable to use language to reflect the spatial configuration of the people involved within the location. Maybe they have no recollection of the event even happening. 

Diagnosed psychiatric disorders may grant a defendant a defence of diminished responsibility or diversion to other services. However, trauma-related memory impairments are often sub-clinical, essentially evading psychiatric diagnosis and remaining unrecognised.  

The judicial system often falls into a "victim vs defendant" paradigm in which the defendant is necessarily stripped of their humanity. Being the perpetrator of a crime is not mutually exclusive with being subjected to trauma. Repeated early life exposure to trauma can reinforce maladaptive coping strategies that are unconsciously utilised when a person encounters a stressful situation, even if they commit a crime during it. 

"Do consultees agree or disagree that the information in Annex A covers the main features of conditions which prosecutors should be aware of when dealing with these cases? Is there anything else that should be taken into account?", asks CPS.

I disagree.

No one is immune to the effects of trauma and Crown Prosecutors must recognise this.



Read the draft guidance and respond to the consultation here