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Are juries best placed to determine the question of intent in a criminal trial involving a defendant with a history of mental illness? Stephen Akinsanya gets to the heart of the issues
The subject of mental health can evoke many strong emotions depending on one’s viewpoint and personal experience. Most recently, the fatal stabbings in a Sydney, Australia shopping mall in April 2024 and, in the UK, the tragic murder of Thomas O’Halloran in Greenford, London in August 2022 and the devastating loss of Barnaby Webber, Grace O’Malley-Kumar and Ian Coates in Nottingham in June 2023 clearly highlight the concern about those with a diagnosis of paranoid schizophrenia being released from hospital, complying with their medication regime, being monitored and, upon conviction, receiving the most appropriate sentence of detention as punishment – and for the public’s safety.
My recent experience as defence counsel in a case involving a 62-year-old man with an established mental health history brought a number of issues into sharp focus which are worthy of reflection in this article. It was far from the ‘straightforward case’ I had been assured of by my clerks.
The man was charged with three counts of wounding with intent at his local GP surgery. The resulting assaults left a doctor with a fractured skull and the receptionist and administrative staff member with deep lacerations to their heads.
In summary, this patient’s medication had run out. He had not taken his medication for seven days despite attempts to get a prescription at short notice. The protocol and unavailability of a GP to speak on the telephone meant that he could not get an emergency repeat prescription.
While there was no dispute that he had seriously assaulted a receptionist, and the doctor and admin staff who bravely tried to intervene, the issue for the jury was whether he had formed the intention at the time to cause serious harm to each of them.
Are juries best placed to determine the question of intent in a criminal trial involving a defendant with a history of mental illness? Should it be the experts’ opinion that instructs juries in deciding the ‘ultimate issue’?
Despite the expert opinions of two forensic psychiatrists who made individual diagnoses of paranoid schizophrenia and a schizoaffective disorder, on the determinative issue of the defendant’s intent in the commission of the assaults, the trial judge and both parties agreed that this was a matter for the jury to decide. To a non-lawyer and those observing the trial process from the public gallery, this goes against the very purpose of expert witnesses. How can a jury know what a defendant’s intention was at the time of committing grievous bodily harm? Surely the experts who examined them from the imagined ‘shrink’s couch’ would be better informed to provide opinion evidence on the ‘ultimate issue’?
In Pora v R [2015] UKPC 9, an appeal to the Privy Council, Lord Reid gave the judgment of the court and at paras 24 and 27 said the following;
‘24. It is the duty of an expert witness to provide material on which a court can form its own conclusions on relevant issues. On occasions that may involve the witness expressing an opinion about whether, for instance, an individual suffered from a particular condition or vulnerability. The expert witness should be careful to recognise, however, the need to avoid supplanting the court’s role as the ultimate decision-maker on matters that are central to the outcome of the case.
‘27. The dangers inherent in an expert expressing an opinion as an unalterable truth are obvious. This is particularly so where the opinion is on a matter which is central to the decision to be taken by a jury. There may be cases where it is essential for the expert to give an opinion on such a matter, but this is not one of them. It appears to the Board that, in general, an expert should only be called on to express an opinion on the “ultimate issue” where that is necessary in order that his evidence provide substantial help to the trier of fact.’
In such cases, psychiatric evidence as to the defendant’s mental health at the time is prima facie admissible and relevant to the issue of intent, particularly where there is a history of mental illness and the circumstances of the individual case.
In my Manchester case there was no fitness to plead to consider as a preliminary issue or insanity defence to run. The evidence from both psychiatrists was limited to opinion evidence on the defendant’s mental health/symptoms at the relevant time and how that might impact on his cognitive processing or, in other words, his thought process. Any suggestion that the experts could go beyond this to provide opinions that amounted to conclusive assertions on the ‘ultimate issue’ should not be permitted by the trial judge. The jury were entitled to draw their own conclusions after considering all relevant evidence, including the experts’ and the defendant’s sworn evidence.
The recent sentencing in the Nottingham case understandably created much distress and anger among the families of the three people stabbed by Valdo Calocane. Following his pleas of guilty to three counts of manslaughter, and three counts of attempted murder, Calocane was sentenced by Turner J on 24 January 2024 to a hospital and restrictions order, pursuant to ss 37 and 41 of the Mental Health Act 1983 (MHA 1983) for each of the offences to run concurrently.
The families and a significant number of the wider observing public felt that these sentences did not reflect the severity of the callous killings. In February 2024 the then Attorney General, Victoria Prentis KC sought leave to refer these sentences to the Court of Appeal pursuant to s 36 of the Criminal Justice Act 1988 on the basis of being unduly lenient. In summary, it was argued that Calocane’s culpability was not erased by his proven mental illness; that the sentencing judge was wrong not to pass a penal element to the sentence. The families certainly felt that these offences warranted a life sentence and the Attorney General argued for such a disposal together with a hospital and limitation direction pursuant to s 45A MHA 1983 (a ‘hybrid order’).
In my Manchester case, following the defendant’s acquittal on three counts of wounding with intent, the injured parties’ primary concern was that the defendant received the necessary help from healthcare professionals to ensure that the public was safe and his actions could not be repeated. Sadly, it’s a fact that throughout the country some of those afflicted with serious mental illness are not being monitiored for compliance with their medication regime and are not receiving support from the relevant agencies due to funding cuts, leaving the public vulnerable to the types of violence shown in the examples mentioned.
While it is no excuse for the brutal violence used in the Manchester and Nottingham cases, there is an element of ‘but for the grace of God go I’. Calocane had completed his degree at the University of Nottingham in mechanical engineering achieving a 2.1 just one year before the tragedy. His mental decline started in 2019. He had no previous convictions. The defendant in the Manchester case had developed mental health problems in 2011 after his long-term partner died from cancer.
In the Nottingham case, expert reports were sought by the defence and prosecution regarding Calocane’s mental health – no fewer than one prosecution and three defence experts. Evidence of psychosis was documented in these reports and the fact that he was not compliant with his medication regime at the time of the offences. He also refused to engage, with any continuity, with mental health professionals in the community.
The experts including the prosecution agreed that he was suffering from paranoid schizophrenia and the nature and degree of the illness meant that the appropriate sentence disposal was detention in hospital for treatment pursuant to s 37 MHA 1983. He was assessed, correctly, as dangerous and clearly posed a risk of grave harm to others, making a restriction order pursuant to s 41 MHA 1983 necessary for public protection. The prosecution expert expressed the following opinion:
‘He retains some responsibility in that he was not insane at the time of the index assaults. However, there was substantial impairment of his ability to form a rational judgment and to exercise self-control, and the assaults would not have occurred but for his psychotic symptoms. The offending was in my view entirely attributable to his mental illness. His failure to comply with the prescribed oral anti-psychotic medication in (at least) the 12 months before the index offence was in my view not a culpable omission, but rather one determined by his lack of insight into his illness, an integral feature of the disorder.’
Despite the views of the families and observers, a ‘hybrid’ order would not provide the public with the same level of public protection as a hospital and restrictions order. (See R v Calocane [2024] EWCA Crim 490 at para 40 iv for the reasons why.)
Lady Chief Justice, Dame Sue Carr, at para 85 of the judgment, said:
‘The key factor in a case like this, when deciding whether or not a penal element is required, is the strength of the link between the offender’s impairment and the offending in question. Here, in the words of Professor Blackwood, at the time of the assaults the offender was “in the grip of a severe psychotic episode… entirely driven by the psychotic process”.’
In my Manchester case, the defendant had pleaded guilty to offences of wounding and spent two years on remand awaiting trial. He received a further six years, of which he would serve half in prison, to reflect the severity of the offending (time spent on remand is deducted from the overall sentence).
In R v Calocane the Lady Chief Justice made the following remarks:
‘In our judgment, the risk caused by any non-compliance with the medication regime or any failure of the medication to control the psychosis is so high that release into the community can properly be assessed as “very unlikely”. On this approach, it is even harder to label the hospital and restrictions order unduly lenient…’ [93]
‘Had the offender not suffered the mental condition he did, the sentencing judge would doubtless have been considering a whole life term. But neither the judge nor this court can ignore the medical evidence as to the offender’s condition which led to these dreadful events or the threat to public safety which the offender continues to pose.’ [95]
In conclusion, I came away from my Manchester case with three overwhelming thoughts:
The grief experienced by the families and friends of those tragically taken in Sydney, Nottingham and Greenford is unimaginable. We should all be concerned by the reality that there are many mentally unwell people in society who are not being adequately monitored or complying with their medicine regime, meaning that a sudden psychotic episode could result in tragic consequences.
My Manchester case left me in no doubt that the courts will continue to strive to ensure that justice is done, as far it is ever possible to do so, with the protection of the public at the forefront of the sentencing process, recognising that no system can ever be perfect or address the loss felt by those directly affected.
Stephen Akinsanya is a barrister at 15 NBS, broadcaster, and author on all issues concerned with youth violence. He is committed to improving the lives of young people and is founder and CEO of Life of Focus.
The subject of mental health can evoke many strong emotions depending on one’s viewpoint and personal experience. Most recently, the fatal stabbings in a Sydney, Australia shopping mall in April 2024 and, in the UK, the tragic murder of Thomas O’Halloran in Greenford, London in August 2022 and the devastating loss of Barnaby Webber, Grace O’Malley-Kumar and Ian Coates in Nottingham in June 2023 clearly highlight the concern about those with a diagnosis of paranoid schizophrenia being released from hospital, complying with their medication regime, being monitored and, upon conviction, receiving the most appropriate sentence of detention as punishment – and for the public’s safety.
My recent experience as defence counsel in a case involving a 62-year-old man with an established mental health history brought a number of issues into sharp focus which are worthy of reflection in this article. It was far from the ‘straightforward case’ I had been assured of by my clerks.
The man was charged with three counts of wounding with intent at his local GP surgery. The resulting assaults left a doctor with a fractured skull and the receptionist and administrative staff member with deep lacerations to their heads.
In summary, this patient’s medication had run out. He had not taken his medication for seven days despite attempts to get a prescription at short notice. The protocol and unavailability of a GP to speak on the telephone meant that he could not get an emergency repeat prescription.
While there was no dispute that he had seriously assaulted a receptionist, and the doctor and admin staff who bravely tried to intervene, the issue for the jury was whether he had formed the intention at the time to cause serious harm to each of them.
Are juries best placed to determine the question of intent in a criminal trial involving a defendant with a history of mental illness? Should it be the experts’ opinion that instructs juries in deciding the ‘ultimate issue’?
Despite the expert opinions of two forensic psychiatrists who made individual diagnoses of paranoid schizophrenia and a schizoaffective disorder, on the determinative issue of the defendant’s intent in the commission of the assaults, the trial judge and both parties agreed that this was a matter for the jury to decide. To a non-lawyer and those observing the trial process from the public gallery, this goes against the very purpose of expert witnesses. How can a jury know what a defendant’s intention was at the time of committing grievous bodily harm? Surely the experts who examined them from the imagined ‘shrink’s couch’ would be better informed to provide opinion evidence on the ‘ultimate issue’?
In Pora v R [2015] UKPC 9, an appeal to the Privy Council, Lord Reid gave the judgment of the court and at paras 24 and 27 said the following;
‘24. It is the duty of an expert witness to provide material on which a court can form its own conclusions on relevant issues. On occasions that may involve the witness expressing an opinion about whether, for instance, an individual suffered from a particular condition or vulnerability. The expert witness should be careful to recognise, however, the need to avoid supplanting the court’s role as the ultimate decision-maker on matters that are central to the outcome of the case.
‘27. The dangers inherent in an expert expressing an opinion as an unalterable truth are obvious. This is particularly so where the opinion is on a matter which is central to the decision to be taken by a jury. There may be cases where it is essential for the expert to give an opinion on such a matter, but this is not one of them. It appears to the Board that, in general, an expert should only be called on to express an opinion on the “ultimate issue” where that is necessary in order that his evidence provide substantial help to the trier of fact.’
In such cases, psychiatric evidence as to the defendant’s mental health at the time is prima facie admissible and relevant to the issue of intent, particularly where there is a history of mental illness and the circumstances of the individual case.
In my Manchester case there was no fitness to plead to consider as a preliminary issue or insanity defence to run. The evidence from both psychiatrists was limited to opinion evidence on the defendant’s mental health/symptoms at the relevant time and how that might impact on his cognitive processing or, in other words, his thought process. Any suggestion that the experts could go beyond this to provide opinions that amounted to conclusive assertions on the ‘ultimate issue’ should not be permitted by the trial judge. The jury were entitled to draw their own conclusions after considering all relevant evidence, including the experts’ and the defendant’s sworn evidence.
The recent sentencing in the Nottingham case understandably created much distress and anger among the families of the three people stabbed by Valdo Calocane. Following his pleas of guilty to three counts of manslaughter, and three counts of attempted murder, Calocane was sentenced by Turner J on 24 January 2024 to a hospital and restrictions order, pursuant to ss 37 and 41 of the Mental Health Act 1983 (MHA 1983) for each of the offences to run concurrently.
The families and a significant number of the wider observing public felt that these sentences did not reflect the severity of the callous killings. In February 2024 the then Attorney General, Victoria Prentis KC sought leave to refer these sentences to the Court of Appeal pursuant to s 36 of the Criminal Justice Act 1988 on the basis of being unduly lenient. In summary, it was argued that Calocane’s culpability was not erased by his proven mental illness; that the sentencing judge was wrong not to pass a penal element to the sentence. The families certainly felt that these offences warranted a life sentence and the Attorney General argued for such a disposal together with a hospital and limitation direction pursuant to s 45A MHA 1983 (a ‘hybrid order’).
In my Manchester case, following the defendant’s acquittal on three counts of wounding with intent, the injured parties’ primary concern was that the defendant received the necessary help from healthcare professionals to ensure that the public was safe and his actions could not be repeated. Sadly, it’s a fact that throughout the country some of those afflicted with serious mental illness are not being monitiored for compliance with their medication regime and are not receiving support from the relevant agencies due to funding cuts, leaving the public vulnerable to the types of violence shown in the examples mentioned.
While it is no excuse for the brutal violence used in the Manchester and Nottingham cases, there is an element of ‘but for the grace of God go I’. Calocane had completed his degree at the University of Nottingham in mechanical engineering achieving a 2.1 just one year before the tragedy. His mental decline started in 2019. He had no previous convictions. The defendant in the Manchester case had developed mental health problems in 2011 after his long-term partner died from cancer.
In the Nottingham case, expert reports were sought by the defence and prosecution regarding Calocane’s mental health – no fewer than one prosecution and three defence experts. Evidence of psychosis was documented in these reports and the fact that he was not compliant with his medication regime at the time of the offences. He also refused to engage, with any continuity, with mental health professionals in the community.
The experts including the prosecution agreed that he was suffering from paranoid schizophrenia and the nature and degree of the illness meant that the appropriate sentence disposal was detention in hospital for treatment pursuant to s 37 MHA 1983. He was assessed, correctly, as dangerous and clearly posed a risk of grave harm to others, making a restriction order pursuant to s 41 MHA 1983 necessary for public protection. The prosecution expert expressed the following opinion:
‘He retains some responsibility in that he was not insane at the time of the index assaults. However, there was substantial impairment of his ability to form a rational judgment and to exercise self-control, and the assaults would not have occurred but for his psychotic symptoms. The offending was in my view entirely attributable to his mental illness. His failure to comply with the prescribed oral anti-psychotic medication in (at least) the 12 months before the index offence was in my view not a culpable omission, but rather one determined by his lack of insight into his illness, an integral feature of the disorder.’
Despite the views of the families and observers, a ‘hybrid’ order would not provide the public with the same level of public protection as a hospital and restrictions order. (See R v Calocane [2024] EWCA Crim 490 at para 40 iv for the reasons why.)
Lady Chief Justice, Dame Sue Carr, at para 85 of the judgment, said:
‘The key factor in a case like this, when deciding whether or not a penal element is required, is the strength of the link between the offender’s impairment and the offending in question. Here, in the words of Professor Blackwood, at the time of the assaults the offender was “in the grip of a severe psychotic episode… entirely driven by the psychotic process”.’
In my Manchester case, the defendant had pleaded guilty to offences of wounding and spent two years on remand awaiting trial. He received a further six years, of which he would serve half in prison, to reflect the severity of the offending (time spent on remand is deducted from the overall sentence).
In R v Calocane the Lady Chief Justice made the following remarks:
‘In our judgment, the risk caused by any non-compliance with the medication regime or any failure of the medication to control the psychosis is so high that release into the community can properly be assessed as “very unlikely”. On this approach, it is even harder to label the hospital and restrictions order unduly lenient…’ [93]
‘Had the offender not suffered the mental condition he did, the sentencing judge would doubtless have been considering a whole life term. But neither the judge nor this court can ignore the medical evidence as to the offender’s condition which led to these dreadful events or the threat to public safety which the offender continues to pose.’ [95]
In conclusion, I came away from my Manchester case with three overwhelming thoughts:
The grief experienced by the families and friends of those tragically taken in Sydney, Nottingham and Greenford is unimaginable. We should all be concerned by the reality that there are many mentally unwell people in society who are not being adequately monitored or complying with their medicine regime, meaning that a sudden psychotic episode could result in tragic consequences.
My Manchester case left me in no doubt that the courts will continue to strive to ensure that justice is done, as far it is ever possible to do so, with the protection of the public at the forefront of the sentencing process, recognising that no system can ever be perfect or address the loss felt by those directly affected.
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