This failure not only wastes court time and money but, more importantly, can lead to the suicide of vulnerable mentally ill offenders who are remanded into custody. Moreover, there is an overriding need to identify the mentally ill offender in order to protect the public.
Michael Buchanan, 23, who first underwent psychiatric treatment 10 years ago, pleaded guilty at the Old Bailey last month to the manslaughter of a retired policeman. In the same week another man, Christopher Clunis, who had been released from a mental hospital, killed a man at a London tube station.
On 7 July Paula Bailey, 60, was sentenced to life imprisonment for arson and manslaughter. She set fire to her home and in the blaze her 83-year-old neighbour died. She began offending in 1974 and since then has spent time in Rampton Special Hospital. Her solicitor, Paul Bacon, a member of the Law Society's mental health and disability committee, believes this is the worst sort of case.
'It is disturbing,' he says, 'and it's difficult to say whether her deep-seated problems could have been diverted away from the criminal justice system at an earlier stage.' Paula Bailey has a mental age of ten. Christopher Clunis is a schizophrenic and Michael Buchanan has a history of mental illness dating from 1983.
Solicitors and barristers who have to face these sort of disturbed conditions in clients accused of both serious and trivial offences week after week, have little or no training in dealing with the mentally ill.
The mandatory elements of solicitors' training, stipulated by the Law Society, do not require a solicitor to possess any skills to deal with the mentally ill client. Those who have training in this area tend to be participants in the duty solicitor scheme. But those solicitors who are deemed by the Legal Aid Board to have the requisite on-the-job experience need not attend a duty solicitor course when applying for duty solicitor status.
Bernard George is a principal lecturer at the College of Law who teaches on the course. He acknowledges that solicitors do need more training in this field. 'There is a problem of mental offenders in magistrates' courts,' he says. 'Eastern European studies show that if you close down the mental hospitals then the mentally ill end up in prison.
'This is a specialist subject. There is a limit to how far we can go in providing training because there are so many specialist fields in the law. To a certain extent we respond to the market. If no one wants to do the course then we don't run it.'
The Council for Legal Education provides only two seminars a year on dealing with the disturbed client. They are optional and aimed solely at the barrister pupil as part of the continuing education programme.
Peter Whitzman QC says: 'Most young barristers who come across mentally ill offenders should make an intelligent estimation as to whether they were responsible for their own actions. If they have a client who can't give proper instructions they should take expert advice.'
The fact that Paula Bailey had a mental age of ten might have gone unnoticed by a lawyer not trained to pick up signs of mental illness. Reticence and belligerence are characteristics often found in clients who have been held in custody. It is easy to misinterpret or overlook mentally ill behaviour.
The lawyer must not only quickly recognise the disturbed offender's condition but also needs to know which of the Mental Health Act provisions is best invoked. And there are additional problems when determining whether a mentally ill client is fit to plead, or whether insanity or diminished responsibility are defences that need to be established.
Mr Bacon believes the Legal Aid Board should acknowledge the need to enhance the fee for a case involving a mentally disturbed offender because of the greater responsibilty involved. He also suggests that money should be made available for solicitors to attend specialist training courses. 'Criminal solicitors are working at the least well-paid end of the legal market. Courses cost money and it's understandable that people are not clamouring to do them,' he says.
The Government accepts that the problems now faced by the courts in dealing with the mentally ill should not be left solely to the solicitor. In response to a Home Office circular issued in 1989, court diversion schemes have been established around the country. They involve regular court visits by psychiatrists to whom mentally ill offenders are referred by magistrates, probation officers, gaolers, police and solicitors.
Their aim is to divert the mentally ill offender away from custody towards psychiatric treatment. And by breaking the cycle of mental illness, homelessness, offending and prison, the schemes not only help to protect the most vulnerable members of society, but also save court time and money.
There are now 80 schemes serving all the country's magistrates' courts, and since April grants have been made available to fund them. But many mentally ill offenders are still slipping through the net. Minor offences such as drunk and disorderly do not qualify for legal aid; so the solicitor does not get involved unless and until the crime is serious enough to warrant representation. By then it could be too late.Reuse content