Mentally ill victim was failed by CPS

Man who had ear bitten off was judged to be an unreliable witness

Nina Lakhani
Wednesday 28 January 2009 01:00 GMT

A decision by prosecutors to drop a serious criminal assault case because the victim, who had half an ear bitten off, suffered mental health problems, has been severely criticised by High Court judges.

In a landmark case, the Director of Public Prosecutions was judged yesterday to have failed in his duty to protect the 22-year-old man who was awarded maximum damages of £8,000 after becoming the target of the vicious unprovoked attack in front of several witnesses. The Crown Prosecution Service (CPS) barrister decided not to proceed on the day of the trial in June 2007 because he believed the victim's mental illness made him an unreliable witness.

That decision was yesterday ruled to be "irrational", "unlawful" and in breach of Article 3 of the European Convention of Human Rights. Lord Justice Toulson said it had understandably caused the victim to feel, "like a second-class citizen". The CPS yesterday apologised to the victim, who can only be identified as FB, and launched an inquiry into the handling of the case.

Lord Toulson said: "The reasoning process for concluding that FB could not be placed in front of a jury as a credible witness was irrational in the true sense of the term. The decision to terminate the prosecution was unlawful, it was also irreversible."

The attack happened after the victim, now 25, tried to leave a north London cafe because he was unhappy about several men smoking cannabis while he was performing folk songs. According to FB, he was threatened with a knife before half of his left ear was bitten off. A man – HR – was charged with wounding with intent to cause grievous bodily harm and witness intimidation after the victim picked him out in an identity parade. It was claimed that HR put the piece of ear back into his mouth to chew it further. The victim said he experienced frequent nightmares and panic attacks as a result of the attack.

FB's illness means he periodically experiences hallucinations and delusional thoughts for which he is prescribed medication. This fact was known, but it had been agreed by all parties, including the judge, that his psychiatrist would appear in court to answer questions about his condition.

Saimo Chahal, a solicitor at Bindmans LLP, who brought the judicial review on behalf of FB, said: "The conclusion reached by the CPS was shocking and unacceptable; however it is not an isolated case. There are countless such cases before the criminal courts where vulnerable people with learning disabilities, mental health problems or indeed any psychological issues are treated as second-class citizens and their evidence is discounted."

The Director of Public Prosecutions, Keir Starmer QC, said: "The way in which the CPS let this man down was simply unacceptable. As DPP, I intend to take steps to ensure that it could never happen again."

FB said: "I have been living in fear and felt that there was no justice after my case was dropped. I hope that other people do not have to go through the hellish nightmare I have been through with my case."

Fear and loathing: Disabled hate crimes

Yesterday's High Court ruling is further evidence that the CPS is failing to adequately pursue crimes committed against people with mental health problems. Campaigners say prosecutors are often reluctant to call witnesses with mental health problems because of the belief that they will come across as unreliable. But it is not just the credibility of disabled people that is all too easily ignored. Since 2005, disability hate crimes have been recognised within the criminal justice system but many believe the CPS routinely fails to investigate and prosecute hate crimes, despite the change in the law.

Last year, The Independent published details of at least 50 incidents in the past three years where the CPS declined to prosecute an attack on a disabled person as a hate crime. The cases, many of which involved physical violence, may have been successfully prosecuted but were not treated as hate crimes which would have increased the severity of the sentence, as well as making an example of perpetrators.

One example cited was that of Christine Lakinski, a physically impaired 50-year-old woman, who was urinated on by a neighbour as she lay dying on her doorstep from pancreatic failure. Even though the neighbour, Anthony Anderson, singled out Ms Lakinski because she was vulnerable, the CPS only prosecuted the case as a public order misdemeanour and not as a hate crime.

Steven Hoskin, 39, was groomed for more than a year by "friends" who recognised that a person with his mental impairment would be an easy victim. In July 2006 Sarah Bullock, 16, Darren Stewart, 30, and Martin Pollard, 21, made him falsely confess to being a paedophile, marched him to a viaduct and threw him off. Bullock and Stewart were jailed for murder while Pollard was found guilty of manslaughter, but the murder was not treated as a hate crime.

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