Wales and Cheshire Region Practice Direction
When, in proceedings for an offence triable only on indictment, it is perceived to be reasonably likely (for example, from the nature and circumstances of the offence or from what is known of the defendant's history, character and/or personality) that expert evidence of a psychiatric nature will or may be required for the effective disposal of the case in due course, it is to be regarded as the responsibility not only of the defence Solicitors but also of the Prosecuting authority:
a. to identify as precisely as possible, at the earliest practicable stage of the proceedings, the issue/issues which calls/call for investigation by a psychiatrist and/or related expert;
b. thereupon to take steps to instruct a psychiatrist and/or a related expert with a view to obtaining an opinion in writing (ie. a report) upon such issue or issues.
Copies of any report from a psychiatrist and/or from a related expert obtained by the Prosecuting authority in the course of any proceedings to which Paragraph 1 applies should be provided within 48 hours of receipt, unless there is good reason to the contrary, to all other parties to the proceedings and to the Court.
That is to say, to the Crown Court or - if such a report or reports is/are obtained prior to committal or transfer - to the Clerk to the Justices of the relevant Magistrates' Court. The Clerk should then ensure that at least two copies of each such report are included within the committal/transfer papers which are transmitted to the Crown Court.
At the first PDH in the Crown Court in proceedings for an offence triable only on indictment the parties will be expected to inform the Court of the following matters:-
a) whether there are any issues involving psychiatric or psychiatrically related evidence and - if so - what those issues are, whether or not any report(s) addressing those issues has/have yet been obtained, whether or not those issues are or are likely to be disputed, the anticipated area(s) and extent of any dispute, the number of psychiatrists and/or related experts from whom reports have been or are to be obtained, the date that has been indicated by each such psychiatrist and/or related expert as being the earliest upon which his or her finalised report or reports will be completed (if not already complete), and whether there is any or any potential difficulty or problem which may prevent him or her from being able to provide the finalised report(s) by that date;
b) the reasons, where the proceedings are said by any party to involve an issue or issues requiring investigation and report by a psychiatrist and/or related expert, for not yet having taken steps to obtain any relevant report or reports; the party concerned will be expected in this event to identify to the Court with as much precision as is possible the nature of the issue or issues in question, and to inform the Court of all grounds which are relied upon to seek and to justify the instruction of a psychiatrist and/or related expert;
c) the reasons relied upon by the Prosecuting authority for not yet having provided copies to the Court or to the other party or parties of any report from a psychiatrist and/or from a related expert which it already has obtained:
d) whether, with regard to any report from a psychiatrist and/or related expert which already has been obtained by the defence, it is proposed to adduce as evidence in the proceedings (otherwise than in relation to sentence) any finding or opinion contained therein;
e) the reasons for any report or reports not yet being available from a psychiatrist and/or related expert who ha been instructed.
The foregoing provisions shall also have effect in relation to proceedings for an "either way" offence which is committed, sent or transferred for trial or committed for sentence, but in any such proceedings the respective responsibilities of the defence Solicitors and of the Prosecuting authority to identify the relevant issue or issues and to take steps to instruct a psychiatrist and/or related expert [ie. Paragraphs 1a) and 1b) need not be exercised before the conclusion of the mode of trial determination or before a defendant has pleaded guilty to the offence in the Magistrates' Court.
Where a defendant in respect of whom no or no current report from a psychiatrist and/or related expert exists is convicted of an offence in the Crown Court, and it appears to the Court to be necessary or desirable before proceeding to sentence the defendant that a report or reports should be obtained, the Court should ensure after hearing and taking account of any submissions made by or on behalf of the defendant and (if appropriate) by the Prosecution that:
a) any issue in relation to which the report or reports is/are required is specified with as much precision as possible;
b) any psychiatrist and/or related expect from whom a report is to be obtained is provided with particulars of the offence or offences of which the defendant has been convicted, a concise summary of the evidence, a copy of the defendant's up-to-date antecedents, copies of any available and relevant reports (including pre-sentence reports) prepared in any previous criminal proceedings, and such other information or material (including witness statements, transcripts of interview and any "unused" material) which the Court or the parties consider to be appropriate to provide.
This Protocol should be read in conjunction with the contents of its accompanying Appendix for further explanation, clarification and guidance.
The Honourable Mr Justice Thomas
The Honourable Mr Justice Richards
Date: 19 May 2000
The protocol has been produced in an effort to tackle problems which have been experienced on Circuit in proceedings where there are issues involving the evidence of psychiatrists and related experts (for example, psychologists). Difficulties have been encountered for a number of reasons but two of the root causes are that such evidence is not, in general, being obtained or not being consolidated into a state of readiness as expeditiously as it ought to be: as a result, there have been occasions when the Court has had no option but to adjourn cases which have been listed for trial. Such a course obviously entails adverse and undesirable consequences of a kind (for example, uncertainty and delay for defendants; inconvenience to the parties, to witnesses and to the Court; wasted public expenditure) which any modern criminal justice system should do its best to prevent and to eradicate.
Due to the unsatisfactory state of affairs which was affecting a number of cases involving psychiatric evidence, a Working Party was established in October of last year at the instigation of our then Presiding Judges (Mr Justice Maurice Kay and Mr Justice Thomas) in order to investigate the position and, if possible, to devise a protocol to govern proceedings in which psychiatric and related issues arise. The Working Party comprised the following members: the Recorder of Cardiff, Mr Leighton Davies QC, Mr David Aubrey QC, Mr Chris Lewis (Crown Prosecution Service), Mr Roy Morgan (Solicitor), Mr Geraint Walters (of the Swansea Bar), Dr Tegwyn Williams (consultant forensic psychiatrist at the Caswell Clinic, Bridgend), Dr David Huckle (consultant forensic psychatrist at Llanarth Court, Raglan), and Dr Trevor Scarle (the Senior Medical Officer at HM Prison, Cardiff). The Party met on two occasions (in December of last year and in March of this year). The range of matters which emerged in discussion was substantial, and the debate relating to them was open and constructive.
The protocol is intended initially to take effect in all Crown Courts located in South Wales (Haverfordwest, Carmarthen, Swansea, Merthyr Tydfil, Cardiff and Newport) but consideration is to be given in the near future to its adoption by all other Crown Courts on the Circuit. The provisions of the protocol are basically designed to streamline and to regulate the progress of cases involving psychiatric issues in a manner which is as effectual as possible; avoiding unnecessary delay in obtaining evidence from psychiatrists and related experts is the primary objective. It is important to emphasise that it is no part of the purpose of the provisions either to limit the entitlement of any party to instruct an appropriate psychiatrist and/or related expert of choice in any particular case or to restrict the right of any party to adduce relevant psychiatric and/or related evidence. That said, all practitioners are asked to bear the following points in mind:-
a) The number of consultant forensic psychiatrists practising in the 'catchment area' of the Circuit is small. They are overburdened with work, and it is imperative if at all possible that the pressure upon them should be relieved so as to enable them to deal more speedily with those cases in which serious offences and complex or contentious psychiatric issues are involved. The consultants themselves are of the view that a substantial number of the criminal cases in which they presently receive instructions concern psychiatric issues which are non-contentious and upon which general psychiatrists are equally as able and as qualified to prepare requisite reports. Indeed, it has been pointed out that many defendants in such cases have a NHS history of previous or continuing involvement with one or more general psychiatrists, and that where this is so it will be more advantageous and useful to obtain a report from such a psychiatrists rather than to instruct a forensic psychiatrist who in all probability will have no prior knowledge of the defendant in question.
b) Accordingly, where it is sought to obtain psychiatric evidence in any proceedings a defendant's legal representatives are encouraged to consider carefully the purpose of seeking that evidence and, after making such enquiries as they think fit, to satisfy themselves that it is necessary to instruct a consultant forensic psychiatrist as opposed to a general psychiatrist.
c) A Register is to be published containing the names and contact details of all those general psychiatrists within the catchment are who are prepared to accept instructions and to provide reports. It will also particularise, where appropriate, whether he or she specialises in the diagnosis and treatment of any particular form of mental illness, disorder or disability. Copies of the Register, which is to be kept up to date and regularly revised by the head consultant forensic psychiatrists at the Caswell Clinic and at Llanarth Court, will be available from Crown Court Offices on Circuit and from the Circuit Administrator's Office in Cardiff.
d) In some cases where it clearly has been necessary for a party to instruct a consultant forensic psychiatrist undue delay has been caused when that party has failed or has been reluctant to look further afield upon discovering that none of the consultants who practises within the catchment area is for one reason or another able to accept instructions, or able to provide a report within a reasonable period of time. Practitioners in such circumstances should be prepared to instruct available consultants who practise outside the catchment area, and to this end they should familiarise themselves with the names and contact details of such consultants. In order to assist, the Register referred to above will include a section containing not only the names and contact details of consultant forensic psychiatrists who practise within the catchment area but also those of a number who practise in the West Country, the West Midlands and the Border Counties of England.
Obtaining funding for the early instruction of a psychiatrist and/or related expert in legally aided cases can cause undue delay. However, the delay can often be minimised by obtaining a 'through' Legal Aid Order in the Magistrates' Court and practitioners ought to ensure that they are familiar with the statutory provisions and the practice relating to such orders. In addition, they should obtain details from Crown Court Offices of the arrangement under which, in certain circumstances, expenditure for obtaining reports may be directly authorised and payments on account to an expert may be made by the Crown Court without the need to make an application for prior authority from an area committee under Rule 54 of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989.
It is appreciated that the provisions of the protocol may not cover every eventuality, and it should be recognised that some of them are intended to act as a 'trigger' for considering further directions which may be ordered by the Court (for example, joint instruction by the parties of a single expert once the nature and extent of an issue is reasonably clear), and for unveiling some of the underlying 'difficulties' in obtaining psychiatric evidence which were identified by the Working Party. Two difficulties deserve particular mention:
a) Psychiatrists are frequently hampered and delayed in the preparation of reports by the failure or refusal of General Practitioners to release or to provide copies of a defendant's medical records. The existence of such a situation should be mentioned to the Court at the earliest opportunity so that consideration may be given to making an order or issuing a summons compelling production. However, the absence of such records should not ordinarily prevent a psychiatrist from being able, at least, to prepare a preliminary report.
b) Psychiatrists instructed on behalf of the prosecuting authority are on occasions faced with the problem of defendants who refuse to be interviewed. It is sometimes stated by such defendants that their refusal is based on legal advice which they have received. Defence solicitors should in every case where they so advise a defendant, or where they have ascertained from a defendant that irrespective of their advice he will not consent to be interviewed, inform the prosecution of the position. The prosecution should then consider whether they are able to give an undertaking to the defence that nothing said by the defendant in interview to the psychiatrists on non-medical matters will be adduced in evidence. If giving such an undertaking fails to solve the impasse, or if the prosecution are unwilling to give such an undertaking, the situation should be mentioned to the Court at the earliest opportunity so that a decision upon whatever action thought appropriate to achieve progress may be made. Again, however, it ought to be borne in mind that the refusal of a defendant to be interviewed should not ordinarily preclude a psychiatrist from being able to prepare a report on the basis of other material - including a defendant's tape or video-recorded police interviews - with which the psychiatrist is or can be provided.
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