In the public's psyche, our biggest health fear, cancer, has largely been replaced by a diagnosis of dementia. What can be worse than to suffer the loss memory, control, identity, and the loss of self?
An ever-aging population has meant that dementia is affecting many families, and an appetite to prosecute historic crimes, notably sex crimes, against now elderly defendants, means that dementia has become an increasing feature of our criminal legal system. For some years, the fastest growing sector of UK's prison population has been men in their 60's, 70's , 80's and even 90's with a significant number of these serving lengthy terms for offences committed decades ago.
So how do our criminal courts cope with those defendants who, by the time of trial are suffering, or claiming to be suffering from dementia, severe or otherwise? The answer is, not very well.
Our law on this is still based on the 1836 case of Pritchard and essentially the following criteria apply: can a defendant suffering from a mental disability such as dementia, understand the criminal case that has been brought against him; adequately follow the evidence during the trial procedure; able to provide cogent instructions to his lawyers and is he capable to sufficiently participate in the trial procedure by being able to give evidence on his own behalf, or, archaically, is he able to challenge a juror?
If, supported by the evidence of at least two court approved psychiatrists, the answer to any of these issues is NO, as found by the trial judge, then the defendant is found unfit to plead. Thereafter, a jury is called upon to hear evidence to determine whether "he did the act" e.g., did he or did he not set fire to the building? The jury are not required to enquire into the defendant's mind (or lawyers' speak - mens rea) and consider questions such as intent.
Where a jury finds that the defendant "did the act" then the court's powers are quite limited and are restricted to an absolute discharge or some form of supervision or detention under a hospital order. The judge cannot impose a prison sentence.
This procedure applies to all unfitness to plead cases, but where dementia is the disability, particular difficulties are presented.
Conclusive diagnosis of dementia or the severity of the condition is impossible and physical evidence can only be obtained upon post-mortem.
It is a condition that can easily be feigned and the court misled; notably the infamous case of Earnest Saunders. His case has resulted in the criminal courts approaching cases of claimed dementia with deep suspicion.
The main apparent aspect of dementia is loss of memory and memory loss of the facts surrounding an alleged crime cannot itself amount to a defence or an assertion of unfitness to plead. Therefore, a diagnosis from two psychiatrists that a defendant is mildly affected by his dementia may well not be enough.
Of course there is the current controversy surrounding the high profile case of Lord Janner where according to the DPP there is sufficient evidence to prosecute but, due to his state of dementia (not his age or the age of the alleged crimes) it is thought "not to be in the public interest" to try him.
Undoubtedly, the DPP would not have reached this decision casually and without thorough psychiatric examinations, having taken place and certainly at least one of those psychiatrists would have been appointed by the Crown. Even so, her decision can be criticised. She has deprived the complainants of their chance to give evidence and she has deprived the accused Lord Janner of any chance of testing their evidence in an effort of salvaging what is now a ruined reputation.
Martin Lewis is a barrister of 18 years call at Castle Chambers and deals with cases covering all aspects of criminal law. This article is for informational purposes only and does not constitute legal advice. If you require any advice please contact Jeffrey Lewis or Siobhain Egan on 020 7387 2032, or complete our online enquiry form here.
