Posted: December 20th, 2021

Workshop Presentation instructions Assessment Task 1: Workshop Presentation

Workshop Presentation instructions

Assessment Task 1: Workshop Presentation

Assessment Task 1: Workshop (style) Presentation

Details of task 1:

Due date:  Saturday 25 March 2017

Length:         10 minutes oral presentation (12-20 slides recommended)

Weighting:   10%

You are required to give a short presentation, demonstrating how the material contained in this Unit could be applied to a specific scenario in your own work practice.

You may choose to discuss a scenario which:

• has occurred since you commenced studying the Unit, giving you the opportunity to utilise your new learning;
• occurred in the more distant past;
• might occur in the future in your workplace.

The scenario discussed can be:

• a clinical dilemma involving a patient/client;
• a broader management dilemma involving clients/patients/offenders/arrestees;
• systemic/programmatic challenges involving issues relevant to this Unit.

ENSURE THAT YOU RIGOROUSLY DEIDENTIFY ANY CASE-BASED INFORMATION AND ADHERE TO MONASH UNIVERSITY POLICY WITH RESPECT TO CLIENT/PATIENT CONFIDENTIALITY AS OUTLINED IN THE ASSESSMENT COVERSHEETS.

You should include:

• a brief description of the scenario;
• a brief description of your role;
• an analysis of how an application of the knowledge and principles contained within this Unit have/could have/will help to achieve improved outcomes;
• references to the literature, and citations (authors and dates) need to be referenced in the slides;
• it is essential that the 10 minute limit is adhered too.

Criteria for Marking Assessment Task 1:

Area	Maximum Mark
Clarity (logical structure; presentation style)	3
Reference to relevant evidence base	3
Integration: drawing links between scenario and   relevant evidence base	4

Liaise with the Unit Coordinator if you are unclear as to what is required.

 

 

 

 

 

 

 

 

 

Fundamentals of Forensic Behavioural Science

Unit Book

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Session 1: Basics of Criminology………………………………………… 1

Session 2: The Criminal Justice System……………………………… 19

Session 3: Mental Health and the Law……………………………… 59

Chapter 1 – Competence & Capacity…………………………. 60

Chapter 2 – Civil Commitment………………………………….. 74

Chapter 3 – Mental Disorders & Criminal Responsibility 85

Chapter 4 – Forensic Mental Health Services……………. 100

Session 4: Working as an Expert…………………………………….. 111

Session 5: Ethical Challenges in Forensic Mental Health….. 141

 

 

Session 1

Basics of Criminology

 

Contents

Objectives………………………………………………………………………… 1

Readings………………………………………………………………………….. 2

Introduction…………………………………………………………………….. 2

Genetics…………………………………………………………………………… 3

Twin studies………………………………………………………………… 3

Adoption studies………………………………………………………….. 4

Conclusion…………………………………………………………………… 4

Sociological theories………………………………………………………….. 5

Anomie theory (Emile Durkheim)………………………………….. 5

Strain theory (Robert Merton)……………………………………….. 6

Labelling theory (Howard Becker)…………………………………. 7

Social control theory (Travis Hirschi)…………………………….. 8

Psychological theories……………………………………………………….. 9

Criminal  thinking  patterns  Samuel  Yochelson  and Statton Samenow)   9

Freud and psychodynamic theory……………………………….. 10

Antisocial personality disorder and psychopathy………….. 11

Social learning theories……………………………………………………. 13

Modelling (Albert Bandura)………………………………………… 13

Differential association theory (Edwin Sutherland)……….. 14

Conclusions……………………………………………………………………. 15

Suggested further reading……………………………………………….. 15

References………………………………………………………………………. 16

 

 

 

 

Basics of Criminology

 

Objectives

At the completion of this session it is expected that you should:

 

• demonstrate a knowledge of the general principles  of sociological theory as it relates to crime, and be familiar with specific examples of sociological theories;

 

• demonstrate a knowledge of the general principles of psychological theory as it relates to crime, and be familiar with specific examples of psychological theories;

 

• demonstrate a knowledge of the general principles of social learning theory as it relates to crime, and be familiar with specific examples of social learning theories;

 

• appreciate how each theoretical approach has implications for offender assessment, treatment and policy development.

 

 

Readings

Reading 1.1 Andrews, D.A. & Bonta, J. (2010). Understanding through theory: Towards social learning through psychodynamic, social location and differential association perspectives. In The psychology of criminal conduct (5th ed.). Cincinnati: Anderson Publishing, pp.79-130.

 

Reading 1.2       McGuire,    J.    (2004).    Accounting   for   crime.   In

1. McGuire (ed.), Understanding psychology and crime (pp.27-54, 226-263). Maidenhead: Open University Press.

 

Introduction

What makes people become criminals Are people born criminals Not all criminals are alike. As such, it would be unreasonable to expect that a single approach or framework could account for all criminal behaviour. Nonetheless, the theoretical approaches that are used to understand why people engage in criminal behaviour play an important role in determining the way offenders are managed and rehabilitated. Therefore, there is a practical need to be familiar with the contrasting theories of crime in order to understand different assessment and treatment approaches. The selection of influential theories covered in this session are: genetics (based on twin and adoption studies); sociological theories (comprising anomie theory, strain theory, labelling theory and social control theory); psychological theories (comprising criminal thinking patterns, psychodynamic theory and antisocial personality theory); and social learning theories (comprising modelling and differential association theory).

 

Before discussing specific theoretical frameworks, a few preliminary comments need to be made. First, there are two general ways in which the term criminality is used in research. It is used both to refer to a character trait (disposition) inclining an individual towards rule breaking and to refer to specific behavioural events. The following discussion focuses on criminality as a disposition towards rule breaking. Second, it is important to note that whilst there are important differences in underlying assumptions  between sociological and psychological approaches, in reality the distinctions are blurred. The sociological approaches identify causes of criminality   in   social   structures   and   cultural   factors   whereas

 

psychological approaches emphasise factors within the individual. However, the dividing line between sociological and psychological approaches is not clear cut because criminality is expressed through behaviour and social and cultural factors are necessarily mediated through psychological processes.

 

Genetics

Exploration of the biological basis for criminal behaviour has been of interest to scientists for a long time. Fifty years ago, research portrayed criminal behaviour as being determined by either nature or nurture. More recently, most scientists accept that the development of criminal behaviour reflects a complex interaction between both nature and nurture.

 

Most research into the genetics of criminality relies on the study of twins and adopted children rather than family lineage. This is because twin and adoption studies can more cleanly separate out the genetic/ biological effects from the effects of family environment.

Twin studies

 

One way to examine the role of genetics in criminality is to compare the incidence and types of criminal convictions among identical (monozygotic) and fraternal (dizygotic) twins. Identical twins originate from one egg and one sperm and are therefore genetically the same. Fraternal twins originate from two eggs and are genetically different. The twin study method of research assumes that if genetics plays a significant role in criminality, then the behaviours of identical twins should show more similarity than is found in the behaviours of fraternal twins.

 

Approximately fifteen such twin studies with a range of sample sizes have been reported (e.g., Bouchard, Lykken, McGue, Segal & Tellegen, 1990; Christiansen, 1977; Dalgaard & Kringlen, 1976; Gottesman, Carey & Hanson, 1983; Lange, 1931; Rowe, 1983). The twin data clearly indicate that genetics is a significant component in criminality. This is not to say, however, that it is the sole or even the most important factor. Genetic studies also reveal that environmental factors are extremely important.

 

 

Adoption studies

 

Another method used to identify important variables in the interaction between heredity and environment is adoption studies. The assumption underpinning adoption approaches is that if the rate of criminality among adopted children is higher for those who have a biological parent with a criminal conviction than for the adoptees with a noncriminal biological parent, then heredity has an effect. Two types of designs are used to research the genetic influence on criminality in adoption studies. The first compares criminal behaviour of adopted children whose biological parents  have criminal histories with criminal behaviour of adopted children who do not have biological parents with offending histories. The second design begins with a sample of adoptees, some with criminal histories and some without. These two groups of adoptees are then compared in terms of criminality in their biological and adoptive parents.

 

Denmark has a databank on more than 14,000 children who were adopted between 1924 and 1947. This databank formed the basis of the most comprehensive adoption study to date (Mednick, Gabrielli

& Hutchings, 1984). The court convictions of 14,427 adoptees (adopted between the years 1927 and 1947) were compared with conviction records of their biological and adoptive parents. The study showed a significant relationship between the conviction history of the adoptees and their biological parents: adoptees raised by noncriminal parents with criminal biological parents were at a higher risk to be convicted than when no parent was criminal (20% vs 13.5%).

 

Results from other adoption studies are largely consistent with the results described above (e.g., Bohman, Cloninger, Sigvardsson & von Knorring, 1982; Cadoret, 1978; Crowe, 1972). Hence, adoption studies provide further support for the role of heredity in criminality.

Conclusion

 

The available data so far indicate two things. The first is that some people may be born with a biological predisposition to behaviour that runs counter to social values and norms. The second is that environmental factors may either inhibit or stimulate this biological predisposition.

 

 

Sociological theories

Sociology involves the study of people in the context of the group or society (Blackburn, 1993). Not surprisingly then, sociological theories of crime begin with the view that crime arises from society’s social structure and organisation. According to sociological theories, social inequities and biases, poor economic conditions and political oppression produce criminal behaviour. These theories assume that social class is significantly correlated with criminality. People in lower classes are more like to commit crimes. However, empirical research shows that at best class is a minor risk factor from criminality (Andrews and Bonta, 2010). Nonetheless, it is important to review this approach to understand criminality because sociological approaches have shaped offender assessment, treatment, policies and facilitated research. Outlined below are four influential sociological theories about criminality.

Anomie theory (Emile Durkheim)

 

The central tenet of this theory is that the disintegration of social cohesion causes criminality. Durkheim (cited by Thompson, 2004), a French sociologist working in the 1800s, developed his theory based on observations of suicide, not criminal behaviour. Briefly, Durkheim observed that suicide rates increased during periods of rapid change in society (e.g., economic recession). To explain these observations, Durkheim argued that periods of rapid change result in the disintegration of social cohesion, the corollary of which is that social rules and norms become weak or unclear (anomie). In the absence of boundaries, limits, or norms, Durkheim argued that individual life becomes meaningless, which leads to increased rates of suicide. In relation to crime, Durkheim argued that during periods when social cohesion is weak, there will be minimal societal agreement about what is right and wrong and this will result in a higher rate of crime.

 

While there are a number of contemporary illustrations of Durheim’s ideas (e.g. collapse of Argentina, Los Angeles riots following the Rodney King beating trial), one of the biggest limitations of Durkheim’s Anomie Theory is that it is unable to account for why people participate in crime during periods of social stability.

 

 

Strain theory (Robert Merton)

 

Merton (1939), an American sociologist working in the early to mid 1900s, developed Durkheim’s concept of anomie to form his own theory, called Strain Theory. Whereas Durkheim argued that criminality was caused by sudden social change, Merton argued that a lack of integration between social ambitions, goals and ‘socially acceptable’ means to achieve those goals caused criminal behaviour. The key elements of Merton’s theory are outlined below.

 

• The goals: Society values specific For example, in Western societies, wealth, prestige, and fame are valued. People are encouraged to make as much money as possible and to acquire material items.

 

• The means: As well as valuing specific goals, societies or social structures prescribe ‘acceptable’ methods of achieving these For example, in Western societies, education and hard work are recognised as acceptable methods. In these societies it is generally believed that anyone can achieve the valued goals through acceptable methods. That is, anyone can be successful if they work hard.

 

• Anomie: According to Merton, whilst everyone is socialised to value the same goals, not everyone has equal access to acceptable methods of achieving those For Merton, this is anomie- a lack of integration between societal goals and acceptable methods for attaining them. The result of this discrepancy is a strain on society, which results in criminal behaviour.

 

• Coping with anomie: Merton identified five ways in which people cope with the strain caused by limited access to socially valued goals, some of which lead to criminal behaviour and some of which do

 

1. Conformity is the most common mode of Conformists value, but do not always achieve, the goals of society.

 

2. Innovators value societal goals but have few acceptable ways to achieve those goals, thus they create their own This may be through criminal acts such as robbery, theft or embezzlement.

 

 

 

3. Ritualists abandon the goals they once believed to be within their reach and focus themselves on their current They conform to society’s rules and have a safe daily routine.

 

4. Retreatism refers to those who give up both the goals and the means of achieving these They aim to escape from the expectations of society, often through alcoholism and drug addiction. They escape into a non-productive lifestyle.

 

5. Rebellion occurs when the societal goals and the acceptable methods of achieving them are Individuals create their own goals and their own means, by protest or revolutionary activity.

 

Anomie and Strain Theories locate criminal behaviour in the social structure and diminishes the personal responsibility of the offender. The strength of Merton’s Strain Theory is that it accounts for individual differences: not all individuals who do not have access to conventional means for goal attainment within the social structure resort to crime. This allows for the possibility for individual differences to interact with social structure. However, it does not account for all criminal behaviour (e.g., white-collar crime), or attend to the fact that some delinquents lack skills as well as opportunities and means (Blackburn, 1993). Furthermore, it does not account for the findings of some studies that show that delinquents are not exclusively motivated by frustration of high aspirations (Hirschi, 1978) and that other motivators such as excitement and peer group influences are also important (Blackburn, 1993).

 

Strain Theory has some logical implications for correctional policy. Generally, it calls for the provision of access to socially acceptable means of obtaining valued goals for offenders, as part of the rehabilitative process. This could involve providing access to employment skills training, opportunities to upgrade education, etc.

Labelling theory (Howard Becker)

 

Labelling Theory (Becker, 1963) does not aim to explain why someone commits a crime, but instead focuses on why some behaviour is labelled deviant/criminal and how being labelled ‘criminal’ incites further criminal behaviour. Three assumptions underpin this theory:

 

• criminal behaviour  is  simply  rule  breaking  behaviour  that  is labelled deviant by people in positions of power;

 

• labelling someone as ‘criminal’ is influenced by offender characteristics such as age, race, class, rather than offence characteristics;

 

• being labelled ‘criminal’ encourages people to act in accordance with the label (Becker, 1963).

 

Labelling Theory has been criticised because it focuses on ‘criminals’ from lower socio-economic classes and does not explain ‘criminals’ from higher socio-economic classes (Blackburn, 1993). Furthermore, labelling someone a ‘criminal’ has been found to affect recipients differently, with little or no effect on serious offenders and greater effects on female, white or first-time offenders (Monash, 1982). Finally, labelling theory removes the responsibility from the offender to the overarching social structure.

 

A strict interpretation of Labelling Theory from a correctional perspective would suggest that prisons should be abolished altogether because the existence of prisons only serves to create ‘criminals’. The elimination of prisons is neither desirable nor practical. There are however, important points raised Labelling Theory with a more liberal interpretation. Labels, such as ‘high risk’ or ‘psychopath’, have clear implications for offenders, which can affect institutional placement, program delivery, and release decisions. The impact of these labels must be given serious consideration during the assessment and management of those who engage in antisocial behaviours (Becker, 1963; Linden, 1996).

Social control theory (Travis Hirschi)

 

This theory assumes that people are by nature self-seeking and deviant and therefore it is conformity to social convention/laws that requires explanation rather than criminality. Conformity is understood to occur through the socialisation process and in particular, through the role that social bonds have in maintaining law-abiding behaviour. Hirshi (1969, 1978) argued that everyone has the potential to be ‘criminals’ but fear discourages the majority of people because they do not want to destroy or weaken the social bonds they have with others. Hirschi identified four aspects of social bonds:

 

1. attachment to others facilitated by  conscience,  internalised norms and valuing what others think;

 

2. commitment to conventional goals;

 

3. belief in conventional values;

 

4. involvement in conventional

 

Within this theoretical framework, people become ‘criminals’ when they stop caring about the conventional restraints that deter criminal behaviour.

 

Several limitations of Social Control Theory exist, two of which are that it does not explain how bonds develop or weaken and it does not comment on the influence of either social conditions  or individual characteristics. From a Social Control perspective, rehabilitation must address an offender’s ability and desire to develop and maintain social bonds, as well as their ‘unconventional’ thinking and value system.

 

Psychological theories

Sociological approaches do not account for the fact that individuals exposed to the same or similar environments react differently. Psychological theories focus on the role of the individual in the conduct of criminal behaviour, rather than on broad societal factors. People commit crimes because they have emotional, psychological or intellectual problems.

 

Criminal thinking patterns (Samuel Yochelson and Stanton Samenow)

 

Yochelson and Samenow (1976) reject sociological explanations for criminal behaviour that emphasise environmental effects. They argue that criminals fundamentally think differently from non-criminals. This does not mean that they have aberrant or irrational thinking patterns: the pattern of their thoughts is clear and logical, it is the content of their thoughts that is problematic. That is, the criminal perceives him or herself and the world differently from non-criminal people.

 

Whilst Yochelson and Samenow denounced sociological theories of criminality, the ramifications of their ideas are similar to those discussed previously with Social Control Theory. Within this framework, rehabilitative treatment interventions must target the cognitions and thinking patterns of offenders.

 

Freud and psychodynamic theory

 

Freud’s psychodynamic theory represents classic psychological theory. Although many of Freud’s ideas have been discounted over the years, some of his original ideas still provide a useful framework from which to understand psychology’s early conceptualisation of criminal behaviour. The central tenets of Freud’s theory are that human personality is composed of three parts- the id, ego, and superego:

 

• The id: All basic needs and drives are contained in the id (e.g., hunger, sexual drive, aggression), which is governed by the pleasure That is, the id seeks immediate gratification for all wants and needs.

 

• The ego: The ego develops during childhood and can be conceptualised as the executive or mediator of It operates in accordance with the reality principle and aims to balance needs and desires with the realities and restrictions that exist in the immediate external environment.

 

• The superego: This personality structure is last to It represents the conscience of the individual. The superego internalises values and norms through identification with people in the individual’s environment (e.g., parents, siblings). It can be conceptualised as the moral component of personality; it dispenses punishment in the form of intense guilt.

 

A basic premise of Freud’s psychoanalytic theory is that these personality structures develop as a result of ‘conflict resolutions’ that occur across the stages of development1. Ideally, these three structures interact with one another so that their needs and demands develop in a balanced way. Freud’s position is that this balance depends upon an interaction of both social and biological factors during the individual’s upbringing, particularly during early and middle childhood.

 

Freud posited that criminality could develop through multiple pathways but generally criminal behaviour was the result of a weak superego. Freud emphasised the role of family life and early attachments during childhood and argued that criminality reflected a failure to develop a strong superego.

 

 

 

1 Called oral, phallic, latency and genital stages in Freudian theory.

 

 

 

Whilst Freud and early psychodynamic theory has been heavily criticized, there remain several interesting ideas that arise from a psychodynamic perspective on criminal behaviour. This theoretical approach provides a useful conceptual framework for understanding the importance of early development on later behaviour, particularly criminal behaviour.

Antisocial personality disorder and psychopathy

 

This perspective contends that some individuals are fundamentally different, both interpersonally and behaviourally, from other people and these differences reflect a disorder of the personality. Specifically, and as defined by the current Diagnostic and Statistical Manual of Mental Disorder (DSM-IV-TR) (1994) and the DSM-V that is to be released in May 2013, a personality disorder is characterised by:

 

… an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time and leads to distress or impairment.

 

Antisocial personality disorder is the personality disorder most commonly associated with criminality (Dolan & Birgit, 2009). The DSM-IV-TR (1994) and the DSM-V to be released in mid 2013, defines Antisocial Personality Disorder in the following manner:

 

The essential feature of Antisocial Personality Disorder is a pervasive pattern of disregards for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood.

 

DSM-IV requires that there must be evidence of a conduct disorder in childhood. Other characteristics of Antisocial Personality Disorder include:

 

• failure to accept social norms (criminality)
• irritable/aggressive
• impulsive
• lying/conning
• reckless
• irresponsible
• lacks remorse

 

Psychopathy is also included in this theoretical approach to criminal behaviour because it meets the broad definition of ‘personality disorder’  and  shares  some  features  with  Antisocial  Personality

 

Disorder. A large body of research has identified a relationship between psychopathy and criminal behaviour, particularly violent offending (e.g., Hare, 2004; Piquero, Farrington, Fontaine, Vincent, Coid & Ullrich, 2012; Salekin, 2008).

 

The modern conceptualisation of psychopathy was described by psychiatrist Hervey Cleckley (1982) and further developed and operationalized by Robert Hare with the Psychopathy Checklist- Revised (PCL-R) (Hare, 1990, 2003). Hare (1990, 2003) conceptualises psychopathy as comprising two broad factors: affective/ interpersonal and behavioural, antisocial and lifestyle, characteristics. Each Factor comprises a number of components, listed below, which are very specifically defined by Hare (2003). There are two additional items that are not correlated with either Factor. Specialised training is required to use the PCL-R.

 

Factor 1: Affective/Interpersonal	Factor 2: Lifestyle/Antisocial
Glibness/ superficial charm	Need for stimulation/ proneness to boredom
Grandiose sense of self worth	Parasitic lifestyle
Pathological lying	Lack of realistic, long-term goals
Conning/ manipulative	Impulsivity
Lack of remorse or guilt	Irresponsibility
Shallow affect	Poor behavioural controls
Callous/ lack of empathy	Early behavioural problems
Failure to accept responsibility for own actions	Juvenile delinquency
	Revocation of conditional release
	Criminal versatility

 

These factors divide into four facets:

 

• Facet 1: Interpersonal
• Facet 2: Affective
• Facet 3: Lifestyle
• Facet 4: Antisocial

 

Research shows that features of antisocial personality disorder and psychopathy (cognitions, affect, behaviour) are indeed closely related to criminal behaviour (e.g., Dolan & Doyle, 2000; Polaschek & Reynolds, 2003). Factor 2, the behavioural characteristics on the PCL- R, have been found to be more closely related to general and violent recidivism than has Factor 1, the interpersonal and affective components (Kennealy, Skeem, Walters & Camp, 2010; Walters & Heilbrun, 2010; Yang, Wong & Coid, 2010). Therefore, the implications for rehabilitation are that rehabilitation needs to focus on the individual, their cognition, affect and behaviour, particularly those aspects that relate to Factor 2.

 

Social learning theories

Social Learning Theories represent an integration of psychological and sociological theories. They focus on individual behaviour and consider the influence of social factors on individual learning and behaviour. Social Learning Theories generally offer a more sophisticated framework in which to understand criminal behaviour than traditional approaches. The assumption underpinning Social Learning Theories is that criminal behaviour is learned, just like any other behaviour (Mischel & Mischel, 1976).

Modelling (Albert Bandura)

 

An early proponent of Social Learning Theory, Bandura (1963, 1986, 1989) argued that criminal behaviour is learned through a process of observational learning/modelling. He claimed that criminal (aggressive) tendencies are not innate but learned through the observation of others, either personally or through the media and environment. Bandura argued that observational learning occurs through four processes:

 

• Attention is the first component of observation For learning to occur individuals must perceive and attend to the significant features of the modelled behaviour.

 

• Retention is the next In order to reproduce the modelled behaviour, the individuals must code the information into long-term memory.

 

• Motor reproduction is another process in observational For the individual to reproduce the model’s behaviour they must learn and posses the physical capabilities of the modelled behaviour.

 

• Motivation is the final process in observational In this process, the observer expects to receive positive reinforcements for the modelled behaviour.

 

As stated above, this theory argues that aggression and criminality are learned behaviours. The implication of this theory for treatment is that interventions must focus on the learned criminal behaviour of the individual as well as target the environment that models and reinforces criminal behaviour.

Differential association theory (Edwin Sutherland)

 

Similarly, Differential Association Theory (Sutherland, 1947) argues that criminal behaviour is learned rather than inherited. Differentiation Association Theory argues that learning occurs through the process of socialisation. Nine key principles form the basis of this theory:

 

1. People learn how to engage in

 

2. This learning results by interacting with other criminals.

 

3. Learning occurs in small, intimate

 

4. People learn    criminal     techniques,   motives,     attitudes     and

 

5. People also learn to de-value conventional values and

 

6. These attitudes  are  learned  by  differentially  associating  with

 

7. This differential  association  with  criminals  and  non-criminals varies in duration, intensity, frequency and

 

8. People learn criminal behaviour the same way they would learn anything

 

9. Criminal behaviour is a response to the same cultural needs and values as non-criminal

 

Hence, according to this theory a person becomes involved in criminal behaviour to the degree that criminal behaviour has been differentially reinforced over law-abiding (conforming) behaviour. This occurs when a person has been exposed to excessive modelling and social reinforcement of criminal values and behaviours by individuals  or  groups  who  are  significant  in  a  person’s  life.  The

implications for offender treatment are the same as in Modelling Theory, and involve targeting the individual as well as their environment.

 

Reflective exercise

 

After reading these chapters, reflect further on how the contributions of sociological and psychological theories of crime influence your understanding of crime, and the implications of this for the way you operate within your work role. Jot your thoughts down in the space provided.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusions

Criminal behaviour is a complex phenomenon. There is no single conceptual framework that can account for all crime. Different theories of crime provide different ways of understanding crime and guide policy, philosophy, and the way in which offenders are managed and treated. Taken together, the theories require us to consider both the individual and the social context in which crime occurs. A broad understanding of the various theories of crime should lead to an appreciation of its complicated and multifaceted nature.

 

Suggested further reading

Bandura, A. (1986). Social foundations of thought and action. Englewood Cliffs, NJ: Prentice-Hall.

 

Blackburn, R. (1993). Social and environmental theories of crime. In

The psychology of criminal conduct. Chichester: Wiley.

 

 

 

McGuire, J. (2004). Understanding psychology and crime. Maidenhead: Open University Press.

 

References

Andrews,  D.  &  Bonta, J. (2010). The psychology of  criminal  conduct

(5rd ed.). Cincinnati: Anderson Publishing,

 

Bandura, A. (1974). Behavior theory and the models of man. American Psychologist, 29, 859-869.

 

Bandura, A. (1986). Social foundations of thought and action. Englewood Cliffs, NJ: Prentice-Hall.

 

Bandura,  A.  (1989).  Human  agency  in  social  cognitive  theory.

American Psychologist, 44, 1175-1184.

 

Bandura, A. & Walters, R.H. (1963). Social learning and personality development. New York: Holt, Rinehart and Winston.

 

Becker, H. (1963). Outsiders. New York: Free Press.

 

Blackburn, R. (1993). The psychology of criminal conduct: theory, research and practices. Chichester: Wiley.

 

Bohman, M., Cloninger, C.R., Sigvardsson, S. & von Knorring, A. (1982). Predisposition to petty criminality in Swedish adoptees: Genetic and environmental heterogeneity. Archives of General Psychiatry, 39, 1233-1241.

 

Bouchard, T.J., Lykken, D.T., McGue, M., Segal, N.L. & Tellegen, A. (1991). Sources of human psychological differences: The Minneapolis study of twins reared apart. Science, 250, 223-228.

 

Cadoret, R.J. (1978). Psychopathology in adopted-away offspring of biologic parents with antisocial behaviour. Archives of General Psychiatry, 35, 176-184.

 

Cleckley, H. (1982). The mask of sanity (4th ed.). St Louis: Mosby.

 

Crowe, R.R. (1972). The adopted offspring of women criminal offenders. Archives of General Psychiatry, 27, 600-603.

 

Dalgaard, O.S. & Kringlen, E. (1976). A Norwegian twin study of criminality. British Journal of Criminology, 16, 213-233.

 

 

 

Diagnostic and statistical manual of mental disorders (4th Edition). (1994). Washington: American Psychiatric Association.

 

Dolan, M. & Birgit, V. (2009). Antisocial personality disorder and psychopathy in women: A literature review on the reliability and validity of assessment instruments. International Journal of Law and Psychiatry, 32(1), 2-9.

 

Dolan, M. & Doyle, M. (2000). Violence risk prediction: Clinical and actuarial measures and the role of the psychopathy checklist. British Journal of Psychiatry, 177, 303-311.

 

Gottesman, I.I., Carey, G. & Hanson, D.R. (1983). Pearls and perils in epigenetic psychopathology. In S.B. Guze, E.J. Earls & J.E. Barrett (eds), Childhood psychopathology and development. New York: Raven Press.

 

Hare, R.D. (1990). Hare psychopathy checklist – revised (PCL-R) technical manual – 2nd edition. Toronto: MHS.

 

Hare, R.D. (2003). Hare psychopathy checklist – revised (PCL-R) technical manual – 2nd edition. Toronto: MHS.

 

Harris, G.T., Rice, M.E. & Quinsey, V.L. (1991). Psychopathy and violent recidivism. Law and Human Behavior, 15, 625-637.

 

Hirschi, T. (1969). Causes of delinquency. Berkeley: University of California Press.

 

Hirschi, T. (1978). Causes and prevention of juvenile delinquency.

Sociological Inquiry, 47, 322-341.

 

Kennealy, P., Skeem, J., Walters, G. & Camp, J. (2010). Do core interpersonal and affective traits of PCL-R psychopathy interact with antisocial behaviour and disinhibition to predict violence Psychological Assessment, 22, 569-580.

 

Lange, J.S. (1931). Crime as destiny. London. Allen & Unwin.

 

Linehan, M.M. (1993). Cognitive behavioural treatment of borderline personality disorder. New York: The Guilford Press.

 

Mednick, S.A., Gabrielli, W.F. & Hutchings, B. (1984). Genetic influences in criminal convictions: Evidence from an adoption cohort. Science, 234, 891-894.

 

 

 

Merton, R.K. (1939). Social structure and anomie. American Sociological Review, 3, 672-682.

 

Mischel, W. & Mischel, H. (1976). A cognitive social-learning approach to morality and self-regulation. In T. Lickona (ed.), Moral development and behaviour. Holt, Rinehart and Winston.

 

Morash, M. (1982). Juvenile reaction to labels: An experiment and an exploratory study. Sociology and Social Research, 67, 76-88.

 

Piquero, A., Farrington, D., Fontaine, N., Vincent, G., Coid, J. & Ullrick, S. (2012). Childhood risk, offending trajectories and psychopathy at age 48 years in the Cambridge study in delinquent development. Psychology, Public Policy, and Law, 18(4), 577-598.

 

Polaschek, D.L. & Reynolds, N. (2001). Assessment and treatment: Violent offenders. In C.R. Hollin (ed.) Handbook of offender assessment and treatment. Chichester: Wiley.

 

Rowe, D. (1983). Biometric genetic models of self-reported delinquent behaviour: A twin study. Behavioural Genetics, 13, 473-489.

 

Salekin, R.T. (2008). Psychopathy and recidivism from mid- adolescence to young adulthood: Cumulating legal problems and limiting life opportunities. Journal of Abnormal Psychology, 117(2), 386-395.

 

Sutherland, E.H. (1947). Principles of criminology (4th  ed.). Philadelphia: Lippincott.

 

Thompson, K. (2004). Readings from Emile Durkheim. London: Routledge.

 

Walters, G. & Heilbrun, K. (2010). Violence risk  assessment  and Facet 4 of the Psychopathy Checklist: Predicting institutional and community aggression in two forensic samples. Assessment, 17, 259-268.

 

Yang, M., Wong, S. & Coid, J. (2010). The efficacy of violence prediction: A meta-analytic comparison on nine risk assessment tools. Psychological Bulletin, 136, 740-767.

 

Yochelson, S. & Samenow, S. (1976). The criminal personality. Volume 1. A profile for change. New York: Jason Aronson.

 

 

Session 2

The Criminal Justice System

 

Contents

Objectives………………………………………………………………………. 19

Readings………………………………………………………………………… 20

Introduction…………………………………………………………………… 20

The law………………………………………………………………………….. 20

Social cohesion…………………………………………………………… 21

Justice………………………………………………………………………… 23

Human rights and responsibilities……………………………….. 25

Sources of law……………………………………………………………. 26

Jurisdiction………………………………………………………………… 30

The structure of the law……………………………………………… 31

The police………………………………………………………………………. 36

Federal and State police services………………………………….. 36

Structure……………………………………………………………………. 37

Ranks………………………………………………………………………… 38

The criminal justice process…………………………………………….. 40

Introduction………………………………………………………………. 40

From arrest to prosecution………………………………………….. 40

The Courts……………………………………………………………………… 46

Types of Court hearing……………………………………………….. 46

Court personnel…………………………………………………………. 47

Court procedures……………………………………………………….. 51

Suggested further reading……………………………………………….. 57

References……………………………………………………………………… 58

 

 

 

 

 

 

 

 

 

 

The Criminal Justice System

 

Objectives

At the completion of this session it is expected that you should:

 

• appreciate the  basic  function  and  the  sources  of  law  in  our society;

 

• differentiate criminal law from civil law;

 

• understand the structure of the police force;

 

• appreciate the limits of police powers of arrest and detention;

 

• delineate the processes involved in the prosecution of offenders;

 

• describe the hierarchy of the court system;

 

• describe the roles of the various court personnel;

 

• understand the basic processes involved in a criminal

 

 

Readings

Note that there are no readings provided for this session, which is substantial in length.

 

Introduction

The criminal justice system describes a large, multi-organisational system concerned with the investigation of crimes and the prosecution and incarceration of perpetrators of crime. It is part of the broader legal system. At its core are organisations such as the police, the office of public prosecutions, the courts and the offices of corrections. Many other organisations are involved directly or indirectly with the criminal justice system. This session provides a broad overview of the system, applicable to all Australian jurisdictions. Much of this material will be familiar to you, depending on your professional background. Particularly for those less familiar with the system, the session should provide a useful resource that can be consulted in the event of future dealings with the criminal justice system. Note that there are no readers provided for this session, which is substantial in length.

 

Please also note that if you are undertaking this unit from overseas, some of the material in this session may not be directly relevant to the criminal justice system in your own country. Despite this, there will be many overlaps and similarities. Therefore, if you are completing this unit from overseas, please make contact with the Unit Coordinator to discuss possible alternative readings for the relevant sections of this session.

 

The law

The question ‘Why law’ has challenged legal theorists over the centuries. The concept of ‘law’ is usually understood in a personal sense by the general public, although there are individuals in most communities who appear to have great difficulty in comprehending the nature of such rules! A full understanding of what the law is about requires consideration of both why we have such rules and how (the procedural mechanisms) they are created and enforced.

 

 

Social cohesion

 

It is recognised today that all human communities and societies (even so-called ‘primitive’ societies) have had laws and legal systems of some kind. Whilst a citizen in a modern, sophisticated society might have difficulties in recognising formal laws in primitive communities, nevertheless, the fact that the community operates in such a way that its individuals know what is expected of them and how they should behave with respect to others indicates the existence of customary rules or laws. Perhaps this is the origin of the law in human communities. If human survival and growth are based on people acting together in coordinated groups, then the existence of a system of behaviour – modifying rules which can be enforced- could enhance the survival of such communities.

 

When we examine human societies and groups, whether we are looking at a single-parent family or a complex federal system of government, we can see that rules and behaviour-controlling systems are in place. The breakdown of such systems is associated with dysfunction within the community, and can result in economic loss, physical harm and death. Not all of these rules are of course ‘laws’ in the strict sense, but whether the rule is made by a Parliament seeking to prevent drink-driving in the community, or by parents seeking to regulate their child’s television watching in the home, the existence of these rules has a particular meaning for the relevant social group. Such rules impose obligations on members of the particular community or group whose behaviour the rule seeks to  address. Thus, in the case of family rules, the children are made aware of the rule and, although they may dislike it and decide to break it, in most cases they understand the consequences of disobedience. Similarly, a rule promulgated by government places an obligation upon members of the community who, even if they dislike the rule, are made aware of the consequences of breaking it. These factors act together so as to reinforce the likelihood that most individuals will obey the rules.

 

The vast majority of rules and laws are accepted by most individuals in the community, most of the time. Even if there is dissatisfaction with certain laws, usually the opposition is restrained rather than violent. Of course, at times rules and laws emerge which  a community finds completely unacceptable. Such rules may arise as a result of dictatorial power being established or because of political pressure from minority groups. It is interesting to note that if widespread community opposition to a law exists, the legislation rarely survives for long. The prohibition laws relating to alcohol in the  United  States  of  America  are  a  good  example  of  this;  civil

 

 

 

disobedience of this law was widespread and the majority of prohibition laws were eventually relaxed. In more recent times, the poll tax in the United Kingdom was eventually abandoned because of overwhelming public opposition. These examples demonstrate that, even where there are effective procedures for the enforcement of rules and laws, a legal rule will fail in the face of overwhelming community objection and/or disobedience.

 

Why then should we obey rules and laws, and why are most people within a community happy to accept the laws we live under To the behaviourist, the animal models are clear: group animals survive better in groups and survival is enhanced in well-ordered groups. Similarly, human communities grow, develop and live in better conditions where the activities of the individuals within the community are ordered. Laws and rules help in developing and maintaining social cohesion. The safety and security that this provides for individuals within a community are very powerful attractions for individuals who wish to join or stay within it.

 

Not all rules or laws have obvious advantages. Sometimes a law has both advantages and disadvantages for the community. Patent law dealing with the protection of inventions and ideas in the commercial world is a good example. The law purports to defend the intellectual property or ideas of an inventor and to prevent others from capitalising on those ideas by making profits at the expense of the originating inventor. At first glance this appears to present a great restriction upon the growth of a community by preventing individuals from developing their own wealth. However, if people are to invest in the development of ideas and products that will Help society, they must have some assurance that, having spent money and time on the project, they will reap some financial benefit. The absence of patent laws restricting the freedom of individuals in the community to copy the work of others would in fact inhibit the development of inventions and new products. Without patent law, inventors and investors would be unlikely to put their money into developing new ideas because they would have no assurance that they would receive adequate financial reward for their effort. Thus, whilst rules dealing with patents and copyright appear to be oppressive from one viewpoint, they are in fact designed to Help in the advancement of society.

 

The existence of laws and rules, therefore, appears to be necessary for social cohesion. Humans, as complex social animals, require high levels of coordination and cohesion within their community groups

 

 

 

in order to be successful: law is the oil that lubricates the machinery of society and provides one of the elements required for social cohesion.

Justice

 

Whilst the purpose of law, when viewed from a community perspective, can be seen as supporting and maintaining social cohesion, there is nevertheless an individual or personal basis to law, which exists alongside the broad community interest. There is value for the community in the law being focused on individuals. In ‘Western’-style democracies at least, it is generally believed that society prospers when individuals are valued in their own right and their interests supported by the community as a whole.  Personal rights and personal obligations are of direct legal interest to  the whole community and lie at the heart of the everyday operation of the law. Just as everyday dealings between individuals in a society require each person to behave fairly with respect to the other, the same is true for legal dealings. Indeed these basic principles of fair play are reinforced by the way in which the law regulates and reviews dealings between individuals. In simple terms, it is this concept of fair play in a broad social sense that underpins the concept of justice in society.

 

For legal rules to be effective in regulating and controlling social order, it is not enough that there be a mechanism for enforcing the law. What is required is for the community at large to accept laws not just because of a fear of retribution if legal rules are not followed, but by virtue of agreeing with the principles that the law seeks to regulate and enforce. In other words, it seems important that the community as a whole appreciates that the operation of the law and the legal rules which regulate everyday actions are right and proper, and meet the needs of individuals as members of the community.

 

Justice comprises the way in which legal rules are acted upon and enforced as well as the content of the legal rules themselves. Criticism of justice systems may therefore address not only the substance of law but also the way in which the legal rules are put into practice. In some cases, particular ways in which laws are enforced are perceived by members of society as unjust. Put more simply, a rule can be right in a general sense, but in a particular instance for a particular individual, the enforcement of the rule can be unfair and unjust. For such situations to be handled appropriately, social machinery must be in place to allow the application of laws to individuals to be examined and reviewed. The machinery of justice,

 

 

 

comprising the law offices, the courts and associated tribunals, plays a major part in this area. With regard to the criminal law, it is for the courts to be sure that an individual who is charged with having broken the law is treated fairly with regard to the principles of natural justice. Thus, an accused person must be told what crime they have been charged with, as well as being given the right to defend themselves in an open manner in which they can be freely heard and express their own views. The rules of evidence are of key importance in this area as they Help in guiding the way in which key procedures of the justice system, such as “the trial”, operate.

 

The concept of justice however, extends beyond the rights of a person who has been accused of a criminal offence. What are the rights of the family of an individual who has been killed What about the rights of a child who has been abused, or the rights of a spouse during divorce proceedings Almost any legal action has the capacity to affect the lives of many individuals. Traditionally the law  has taken a narrow approach with regard to individuals who are affected by its operation. In many cases courts have confined themselves to dealing with the issues between the particular parties that are appearing in court. Thus in a criminal matter, the issues are between the person charged with the crime and the prosecution which is bringing the action before the court. The rights of a victim such as an abused child, or of the family of a victim such as a murdered man’s wife, traditionally were not part of the court proceedings and therefore were not taken into account by the legal process. However, this narrow view of the law has changed. Victim impact statements are increasingly used in criminal cases for example, and courts consider the psychological and emotional injuries suffered by the family of an individual as a result of criminal acts.

 

For the courts, it can be difficult to balance competing interests of individuals who are directly or indirectly involved in a case. In child- care proceedings, the well-being of the child is usually considered paramount, but what about the rights of the biological parents, the step-parents, the grandparents and other close members of the family Competing interests often arise, and concept of justice requires that these interests be balanced to arrive at what the community will accept as a just solution. Conflicts arise in many situations. Even in death it is not uncommon for various groups and factions within a family to compete for possession of the body and to seek to have control over the funeral. Families are in many ways a microcosm of the community. In a family, there may be no easy answer to a complex problem which has many emotional overtones; the range and complexity of problems is increased manyfold when

 

 

 

we look at the issues that disturb whole communities. Arguments about what is just and right and proper create the concept of justice, and such principles apply to the community as a whole as well as to the individuals within it.

Human rights and responsibilities

 

All members of the community who benefit from being part of the community have obligations and responsibilities placed upon them. Together with those responsibilities, and also as a result of accepting these responsibilities, individuals within a society have certain rights. These rights encompass many areas but include an expectation of being treated fairly and justly by all other members of the community. The issue of human rights is publicly recognised as one that affects the whole international community. The rapid development of communication systems between countries has allowed small isolated community groups and ethnic minorities to inform the world about their own human rights concerns. Various communities and societies have talked of “inalienable human rights”. Opinions of human rights expressed either by individuals or by nations can come into conflict: such views are influenced as much by culture as by substantive law. Whilst it is true that culture also influences the law, conflicts can easily arise between different cultural groups as a result of fundamental beliefs. Religious practices are one of the most important cultural influences in relation to human rights. The moral position taken by many communities is strongly influenced by religious belief. Indeed in some communities, the freedom to exercise a particular religious belief is itself a human rights issue.

 

For those working in human services, human rights and responsibilities are a significant professional issue. Client’s rights are often publicly discussed and subject to considerable legal and ethical analysis; in contrast, the rights of professionals as workers rarely receive such attention.

 

For example conflict may exist between the rights of a victim of crime to receive confidential medical services, and the need of investigators to obtain forensic medical evidence. Where a victim of crime refuses to be examined, or to have their examination results communicated to investigators, potential evidence that could be used to prosecute an offender is lost: as a result, the whole community loses information about the crime and the prosecution of an alleged offender can fail as a result of the lack of medical and biological evidence. The loss of such a prosecution, which has the potential to prevent an offender

 

 

 

from causing further damage to the community, is a legitimate concern for law enforcement agencies. In this way, an individual’s right to self-determination with regard to medical treatment and medical examination can come into conflict with the community’s desire for safety from further personal injury caused by criminal activity.

 

A similar issue can arise with regard to potential offenders. An accused person has a right not to be assaulted, and in many legal jurisdictions has a right to remain silent when questioned regarding the crime of which they are suspected. The medical examination of such an individual for the purpose of obtaining evidence for a subsequent prosecution is problematic. New legislation in some jurisdictions permits force to be used to examine such individuals and obtain medical and scientific forensic samples from them. Such legislation has been widely criticised on medical, legal, civil libertarian and human rights grounds.

 

Human rights are not always an immutable set of values. The current concerns regarding risk of terrorism has resulted in shifting attitudes regarding the rights of terrorist suspects and the way they are managed by the legal process and enforcement agencies. Many of these changes and special rules could be viewed as being contrary to generally accepted human rights principles. However, the community risk issue posed by terrorism has, for good or ill, changed the culture with respect to the human rights of suspects in this area.

Sources of law

 

The English tradition of law operates, albeit in various guises, in England and Wales, North America, Australia and New Zealand as well as in a number of other Countries. This legal tradition has had a profound influence on justice systems in many other jurisdictions. Although the rules are not exactly the same in these different jurisdictions, the basic principles and much of the substantive law is common to them all.

 

Laws are established as a result of various needs and pressures that arise within society. As we have seen, rules governing human behaviour and relationships appear to be a constant feature of human society. Whether or not formal laws are present and enforced, customary behaviour and attitudes within a society regulate the ways in which groups and individuals operate in relation to each other. Such traditions and customs in both primitive and advanced communities may operate as extremely persuasive and powerful rules that amount to formal laws. Much of the formal law we have

 

 

 

today arose out of these customary practices of our ancestors. If historical custom within human societies forms one of the basic sources of law in modern societies, it is important to understand these traditions in order to truly appreciate our current law and legal system.

 

The most significant difficulty we face in dealing with custom and tradition as a source of law is the relative lack of documentation of particular customs or in some cases, proof of their actual existence.2 In addition, many old customs and early laws, when viewed through modern eyes, appear to have little relevance to society today. This is particularly true when the social forces that gave rise to the original rules are no longer present. An example of this is the early English coronial system, which operated to raise taxation and revenue for the Crown3.

 

Legislation

 

Whilst customary rules are still relevant in the practice of law in some jurisdictions, no society today could rely on undocumented customary rules as its major source of law. There is therefore a growing trend today to codify and collate the rules by which society operates, resulting in substantial formal documents which can be stored, referenced and recorded. Within Anglo-Australian jurisdictions, such documents are usually developed by a legislative assembly such as a Parliament. By a variety of constitutional procedures they are declared to be a part of the formal law. Such documents – Acts of Parliament or Statutes – take customary provisions, traditions and local rules that have ordered the society in the past and adapt them to the changes in attitude and structure that the society has undergone over the years. In many cases such new or amended laws reflect the influence brought to bear on the previous law by the judiciary. As a result of the incorporation of all these influences, the Parliament arrives at a statement of the law that is relevant to the present structure of the society. Such statements are direct legislation; they set the legal rules or laws that the legislators wish to have operating in their jurisdiction.

 

 

 

2 An example is the challenge to construction of the Hindmarsh Bridge in South Australia which was alleged to infringe upon “secret matters” of Aboriginal women’s business.

3 After the Normans invaded England in the 11th century they developed a system whereby if a person was found dead the body was assumed to be Norman: unless  the local  inhabitants  could prove that  the body  was Anglo-Saxon they had to pay a heavy fine.

 

 

 

Delegated legislation

 

In addition to this direct form of legislation, there are other ways in which the legislature can make legal rules. One of these is through the use of so-called ‘delegated legislation’. It would be far too onerous for a Parliament to make the rules that regulate every facet of a complex modern society. For this reason, Parliaments often develop legislation that sets out the general principles of law that should apply in an area, and then lists specifically who should be permitted to make the precise rules or regulations that shall apply. Such legislation nominates a specific individual or organisation to be responsible for the ‘nitty-gritty’ of the actual law in the designated area. These laws therefore specifically delegate to an individual, often a minister, the responsibility for making the specific rules, and because the power has been delegated to them by Parliament in the relevant legislation the rules made by the individual have the same force as if they had been made by Parliament directly.

 

There are many activities within society that do not require Parliamentary debate on the details of their regulations. For example, in order to assure the safety of the public with respect to buildings, regulations may need to be in force regarding the composition of house bricks used in building. It would not be appropriate for Parliament itself to debate the issues surrounding the composition of house bricks. Indeed, a high level of technical knowledge is required to specify accurately how house bricks should be made. A Parliament therefore might pass legislation that specifically delegates a Minister or an executive agency to make the rules regarding the composition of house bricks.

 

At first glance it may seem dangerous for a Parliament to give an individual or an outside organisation the power to make the actual laws; in practice, the details of this delegated legislation is reviewed by Parliament. The delegated legislation is tabled, that is, set before Parliament, so that the Parliament has the opportunity to examine the rules that have been made. The courts also can review the way in which delegated legislation was made, and have the power to rule that delegated rules made outside Parliament are invalid in certain circumstances. To take the previous example, suppose Parliament has enacted that a particular Minister ‘may make regulations regarding the composition of house bricks, after consulting with representatives of the building industry’, and the Minister does not consult with the building industry before making the regulations; the courts may declare those regulations invalid because the Minister did not formulate  the  rules  according  to  the  manner  which  Parliament

 

 

 

determined. Similarly, if a Minister made rules that were outside the area of responsibility delegated by Parliament, then the courts could hold that these rules were invalid because the Minister had exceeded their powers under the legislation enabling the delegated power.

 

Case law

 

Whether laws are made by direct or delegated legislation, situations are bound to arise which fall outside the specific provisions of the law as stated in the statutes. Similarly, given the inventiveness of the human mind, legislation which defines legal rules in formal words is capable of a variety of interpretations, each of which could amount to a substantial difference in the meaning of the law. While language is the best means we have for conveying ideas, it can be an inexact medium: a piece of writing may mean different things to different people.

 

Society relies on certainty in the law in order that members of society can plan their activities in a way that will not cause a conflict with the law. Such planning, for example, may result in a commercial contract. In such a situation, both parties to the contract need to have faith and belief in the certainty of the law relating to that contract in order for them to risk their money and goods. Similarly, the trust that develops between a purchaser and a vendor relating to the sale of property is based on the fact that both parties are complying with a stable and comprehensible set of legal rules relating to contracts of sale. Where a dispute arises, it is often based on the meaning of the law of contract in relation to the particular sale. In many cases, even the most clearly worded legislation proves to be ambiguous in relation to a specific section or phrase which deals with issue in dispute. In order to resolve such difficulties, specialist legal advice has to be sought as to the probable meaning of the legislation in this area, and if agreement is still not reached then recourse to a formal hearing of the matter before a court may be required. Each party argues their own interpretation of the law in relation to their own particular circumstances before a judge or other legal arbiter; the parties agree to be or are automatically bound by the verdict of the arbiter as to the meaning of the words in the legislation, regardless of the effect this has on the business relationship between them.

 

As a result of analysing legislation during disputes regarding the relevant law, judges and legal arbiters enlarge and expand upon the legislation by interpreting the statutes on a case-by-case basis. These judicial decisions regarding interpretation of statutes also form part of the substantive law of the jurisdiction and they can be referred to

 

 

 

by other individuals as additional legal rules that should apply to them when a dispute arises. Such judge-made rules in the Anglo- Australian tradition form part of what is termed the common law. Although not enshrined in legislation, the additional rules are recorded, documented and referenced as case law so that the rules can be proved to exist as law and quoted in later legal disputes.

 

The power of judges in this area is considerable. If no legislation exists dealing specifically with the issue in dispute and no judge has considered the matter before, then effectively the judge can be making new law regarding the issue. As far as the legal system is concerned, technically the judge is not making new law but is merely declaring what the law has always been on this point (even though a dispute has never arisen before): this is a legal fiction, because for all practical intents the judge is creating new law whilst pretending that it always existed. There are examples where judges have personally developed the law in a particular area with such skill that a government has taken the judge’s rules and written new specific legislation to incorporate those rules as statute law. Whilst judges cannot alter a substantive rule set out in legislation, they can interpret the legislative rules and give them practical meaning in relation to disputes between individuals. In such a way judges are able to define and modify the meaning of legislation. In some cases the judge’s modification of legislation alters the thrust of the legislation: occasionally governments have to repeal judicially interpreted legislation and create new legislation in order to remove ambiguity and restore the law to their original intent.

Jurisdiction

 

Each country or State has its own legislation and legal rules. The physical, political, legal and social grouping within which people live is referred to as a jurisdiction, and it forms the arena within which a given set of legal rules applies. Within this grouping there are a number of smaller legal jurisdictions where a particular court or tribunal has the power to consider matters of a particular type. Such local jurisdictions have particular judges or legal officers who have specific powers to act in particular ways. Differences between such jurisdictions have to do with the areas of law covered, the types of legal procedure employed, and the level of penalties and awards that can be made.

 

Most States form their own jurisdiction within which their rules apply. Despite the fact that there is a wide range of human societies in  the  world,  many  of  the  legal  rules  by  which  they  live  are

 

 

 

remarkably similar. However, differences do exist and these can, for example, place difficulties in the way of international commerce. The field of international law is complex: despite the existence of international courts, international treaties and international associations, legal disputes between citizens of different countries are not easy to resolve. Formal treaties or agreements between different countries can clear the way for solutions to be found to international legal problems. Agreements between individuals in different countries may specifically include terms which regulate how a dispute between the parties will be handled and which jurisdictions will become involved. For example, international law issues can arise in relation to medical practice, particularly where foreign companies are responsible for producing medicines that are then alleged to have had a deleterious effect on patients. Obviously, when working in a different jurisdiction than their home it is particularly important for professionals to accurately inform themselves of the legal rules and procedures so that they are able to perform competently in the local legal arena.

The structure of the law

 

The laws or rules that govern human society encompass the whole gamut of human behaviour and relationships. Such a vast area of activity is impossible to conceptualise in total and for this and other more pragmatic reasons, the law is divided into numerous discrete areas. Just as the practice of medicine is divided into numerous specialties with particular specialists professing expertise in one or occasionally more than one area, so it is with lawyers. Many lawyers offer a general practice service; some lawyers, working either as solicitors or barristers (advocates who appear in courts) practise in a specific area or division of the law, within which they develop expert knowledge and additional professional skills.

 

As a result, there are lawyers specialising in the law relating to companies and corporations, or the law relating to family matters, or to crime. Specialisation is as important for the development of the law as it is for medicine. Indeed it is often the practitioners in these narrow specialist areas who create developments and advances. This division of the law may be regarded as thematic; there are other ways of classifying the law. These different methods of describing the organisation of the law are worth considering in an attempt to put the law into context.

 

 

 

Public and private law

 

Although divisions in the law are somewhat artificial, it is often convenient to divide the areas of law into those that fall within the public arena and those that relate to issues that arise between private individuals. Public law deals with the relationship between the individuals of a community and the State itself. The State in this context can be seen as the whole community acting in concert in its dealings with individual members of the community. Hence, matters of constitutional or administrative law deal with the organisation of the State’s operational parts, and in the criminal law the State seeks to control and regulate various forms of behaviour on the part of individuals. Both these areas form part of the public law regulating the relationship between the State and its citizens.

 

In contrast, “private law” deals with matters that arise between individuals. Hence, matters relating to contracts between individuals, tortious4 acts including negligence, and some matters of family law fall within the area of private law. Note that a government or a State can also act as a private individual in the eyes of the law. For example, if a government orders goods from a supplier and a dispute arises as to the nature of the contract between them, it is purely a matter of private law between the government and the supplier of the goods as individuals, and the dispute does not necessarily involve any of the broad issues of public law.

 

Criminal and civil law

 

Another classification of the law is the division between criminal and civil. As we have seen, the criminal law is usually a matter for the State or government. In this case the State, in recognising forms of behaviour on the part of individuals which are deleterious to the operation and functioning of the society, seeks to restrain individuals from behaving in such a manner. Such individuals are punished if they can be shown to have breached the criminal law. In this way, the

 

 

 

4 Tort law serves to protect a person’s interests in their bodily security, property, financial position or reputation. A tort is a wrongdoing, an example of which is the tort of negligence. Tort law allows a person to obtain a remedy to restore them to their position before the wrong (tort) was committed. There is some overlap with criminal law, for example assault is both a tort and a criminal act. In criminal law however the outcome serves to punish the offender, whereas in tort law the person may obtain, for example, a financial sum to compensate them for their injury.

 

 

 

State or government is acting on behalf of the whole community. In some jurisdictions, the role of the State is taken by the ‘Crown’, and in others by a formal nominee of the people. Regardless of the constitutional structure of the jurisdiction, the important issue is that the whole community acting together seeks to sanction the criminal behaviour of individuals which pose a threat to it. The fundamental principle involved is the overall safety and welfare of the community. Protection of society is one of the most significant principles behind the criminal law, although in different jurisdictions issues such as religion, morality, retribution and rehabilitation are also important to varying degrees.

 

The procedures for applying the criminal law in Anglo-Australian jurisdictions are different from the procedures found in matters of civil law. In criminal law, a prosecution is brought by the State; depending on the severity of the alleged crime, the matter is heard before a magistrate sitting alone, or by a judge with a jury. In many jurisdictions, preliminary matters are heard by a magistrate following information from a police officer or a prosecutor. Many serious crimes are dealt with by way of a preliminary proceeding in front of a magistrate who decides whether, on the evidence presented by the prosecutor, the accused persons should stand trial in a higher court. For less serious offences, a magistrate sitting alone deals with the matter summarily. In such a case the magistrate hears the evidence, decides on the guilt or innocence of the accused and, if the accused is found guilty, determines the penalty. In criminal trials in the higher courts, the case for the State or the Crown is presented by a barrister acting as a prosecutor. The accused persons (defendants)  are defended by their own legal representatives.

 

Regardless of whether the criminal matter is tried in a lower  or higher court, criminal matters in the Anglo-Australian jurisdictions require the Crown or the State prosecutor to present sufficient evidence upon which the court could reasonably find a person guilty. If the Crown fails to present sufficient evidence, then the Crown case fails even if no matters are raised in defence. In this situation, the defence argues that there is no case to answer because  the prosecution has not satisfactorily made out its case, and that as a result the matter should be dismissed. Where the prosecution makes a substantial case, the defence seeks to undermine that case in a variety of ways and/or to show that the incident concerned occurred in a different manner from that which the prosecution alleges.

 

 

 

For a person to be found guilty of a criminal offence, the law requires that the prosecution prove the matters alleged beyond reasonable doubt. The phrase beyond reasonable doubt has a specific legal meaning: in the case of a trial by jury, the jury must feel certain that the accused is in fact guilty of the crime alleged. This is known as the “standard of proof”. In criminal trials in a higher court, the jury is there to listen to the evidence, to weigh and evaluate that evidence, and to come to a conclusion regarding the guilt or innocence of the individual based solely on the information revealed in the court hearing. It is not the job of a jury to evaluate the meaning or suitability of the criminal law itself. Indeed, information regarding the law applicable to a particular case is explained to the jury by the judge. The role of the judge in such proceedings (apart from sentencing) is to advise the jury on the meaning of the law itself, and to regulate and guide the formal procedures of the court in admitting and hearing the evidence. The jury, being lay members of the community, are not expected to have any special knowledge beyond that of the ordinary ‘person in the street’. Indeed, this is the basis of trial by one’s peers, an approach which attempts to ensure that everyday common sense and values are brought to bear upon the decision regarding the guilt or innocence of an accused person.

 

The fact that the issue of guilt or innocence is determined by a lay jury of individuals from the general community again demonstrates the principle that in matters of criminal law it is the community as a whole which is seeking to judge and deter individuals from behaving in an anti-social fashion. The jury in a criminal trial is there to represent the community viewpoint with regard to the determination of guilt or innocence. By this process the decisions made by juries in criminal courts should be acceptable to the broader community outside the court.

 

Civil law covers all legal actions that occur with regard to disputes between individuals except the criminal matters mentioned above. In civil proceedings the party who alleges that they have been wronged is referred to as the plaintiff. In order to bring a complaint to the court, the plaintiff has to set out the case in the form of special documents. Eventually, if the matter is not settled out of court, the plaintiff has to present the matter in court. The person against whom a civil action is brought is referred to as the defendant. It must be remembered that a defendant in a civil proceeding is quite different from the defendant in a criminal proceeding: in civil law there is no concept of guilt in the criminal sense. For example an action ‘in tort’ where negligence by a doctor is proved, the doctor is not ‘found guilty’ of negligence. The negligent matter alleged is merely proved

 

 

 

successfully to the court and financial restitution is usually arranged. If the court finds in favour of a patient in such situations, the only issue is the payment of damages in recompense for the patient’s loss. No crime has been committed and there is no criminal charge recorded against the medical practitioner.

 

The degree of proof required in civil proceedings is different from that in criminal proceedings. As explained above, in criminal proceedings the matter must be proved against the defendant ‘beyond all reasonable doubt’. However, in civil proceedings, the standard of proof used is ‘on balance of probabilities’. This is less onerous than the criminal standard as the plaintiff only has to prove that their allegation is more likely to be right than the defendant’s presentation of the events.

 

Appeals procedures are in place for both civil and criminal matters in most jurisdictions. The majority of appeals deal with legal matters rather than, for example, matters of medical fact or specialist evidence.

 

Substantive and adjectival law

 

Substantive law is the body of legal rules that most law people refer to as the law: that is, a statement of the rules that regulate the conduct of individuals in society, both with respect to society as a whole (criminal law) and with respect to other individuals within the society (civil law). This includes civil matters such as tort, contract and family law, together with the law relating to property and company law.

 

Adjectival law deals with legal procedures themselves and governs the way in which legal processes are carried out. The law of evidence is a good example of adjectival law: it regulates what evidence can be heard in court, how that evidence should be delivered, and what evidence should be excluded from courts. As a result, adjectival law is used to regulate the way in which the substantive law is applied both in court and in preliminary legal matters. As the law has developed as a specialty, many disputes both in the civil and criminal law process have come to centre on principles of adjectival law rather than substantive law. Often it is analysis of adjectival law which leads to the discovery of, so called “legal loopholes”, and as a result legal experts spend a great deal of time dealing with this branch of law.

 

 

 

Federal and State law

 

In jurisdictions that are unified, such as New Zealand, no legal distinction exists between the different areas of the nation: a common set of legal rules applies in all places. In other jurisdictions, such as Australia and the United States of America, a federal system of states exists within the nation so that the individuals within the community are subject to two sets of laws: the law of the federation and the law of the specific state, territory or province in which they live. Such an arrangement within a jurisdiction is subject to a number of guiding documents, which regulate the way in which the states behave with respect to each other both individually and collectively as the federation (in Australia often referred to as the Commonwealth). When states come together to form a federation, they give up certain of their legal rights and responsibilities and hand them on to the federation as a whole. For example, matters of defence and foreign policy are handled by the Commonwealth, whereas individual matters that regulate the behaviour of most individuals, such as the criminal law, are dealt with by individual states. Not surprisingly, disputes often arise over whether a legal matter can be considered by the federal courts or the state courts. In practice, the federal and state jurisdictions are tightly controlled legal entities with well-defined jurisdictional boundaries.

 

The police

The basic functions of the police are:

 

• the prevention and detection of crime;
• protection of life and property;
• enforcement of the law to maintain peace and good order. There are additional tasks, which vary between

Federal and State police services

 

The Australian Federal Police enforces Commonwealth criminal law and acts as Australia’s international law enforcement and policing representative. It also provides a community police service to international airports, the ACT, Jervis Bay and external territories such as Norfolk Island.

 

Each  of  the  States  and the  Northern  Territory has its own police service, which enforces that State’s laws.

 

 

Structure

 

Each police force has its own individual structure, but similarities exist. As for any large organisation, each force has its own administrative and support structure, which will not be discussed here, however from an “operational” or functional perspective, the forces are generally structured in the following manner.

 

General duties policing refers to visible “front-line” police – those in uniform performing general policing duties. These police perform various duties in the areas of crime prevention (e.g., foot patrols), crime response (e.g., being called to the scene of an armed hold- up/assault/theft etc), various emergency duties (e.g., responding to traffic signal failures/ bomb threats) and supervision of detainees in holding cells. Having performed an initial assessment or taken an initial report of an incident, these police may then call upon police members from other specialised areas to deal with the situation further.

 

Certain crimes are further handled by detectives in designated criminal investigation units. Detectives are police who have undergone further training in the area of investigation of crimes. They do not dress in uniform and they drive unmarked cars. Their role includes the attendance at crime scenes, establishing and  interviewing possible suspects, obtaining statements from witnesses, seizing exhibits or evidence, and charging offenders and presenting the evidence in court. Detectives prefix their rank with “detective” e.g., “Detective Senior Constable”. In many states, detectives work in regionalised units, which deal with crimes of a broad nature that occur in that geographical area. Several states also have centralised, specialised criminal investigation units with their own areas of expertise and criteria for involvement in particular cases. For example in Victoria, centralised major crime units include the Homicide, Sexual Offences, and Drug Squads.

 

Great variability exists around the nation with respect to specialist operations units within each police force. Examples of these include:

 

• search and rescue units;

 

• forensic services  –  fingerprinting/  photography/  crime  scene examination etc;

 

• highway patrol/traffic management;

 

 

 

• sexual offences and child abuse units- dealing with victims of sexual and child

Ranks

 

There exists a hierarchical system within each force akin to military structure, and many of the forces are subdivided into geographical regions with their own chain of command. In Victoria, the ranks in ascending order are:

 

• Constable
• Senior Constable
• Leading Senior Constable
• Sergeant
• Senior Sergeant
• Inspector
• Superintendent
• Commander
• Helpant Commissioner
• Deputy Commissioner
• Chief Commissioner

 

 

 

 

Figure 1: The Criminal Justice System

 

 

The criminal justice process

Introduction

 

The accompanying flow chart (Figure 1) illustrates the basic pathway that occurs after a crime is committed, showing the involvement of the various organizations. This may be oversimplified for some students but aims to put into context the topics which will be discussed below. Variations in terminology and process exist around the various jurisdictions within Australia, however the underlying principles and organisations are essentially similar.

From arrest to prosecution

 

The first stage of detention in the criminal justice system is that of arrest and interrogation by the police. The law relating to arrest in Australia is a complicated mix of statutory requirements and common law decisions. It reflects an attempt to balance the individual’s rights to liberty and the community’s interest in effective law enforcement.

 

Arrest

 

An arrest is the actual seizure or touching of person’s body with a view to detention. If there is no touching of the body, an arrest has not been made, unless the suspected offender agrees to go with the arrestor. Words of arrest are generally said at the time of the arrest. These are designed to inform the suspect of the substance of the charge.

 

The basic powers of arrest in Australia are set out in state and Commonwealth legislation. For a full understanding of the powers, the arrest provisions in the relevant Acts of the jurisdiction concerned should be consulted.

 

Arrests can be made with or without a warrant. Both the police and the public can make an arrest. However, the police make most arrests and usually do so without a warrant.

 

An arrest without a warrant must be done in accordance with the relevant legislation. If an arrest is not carried out in accordance with the legislation, it is unlawful and can be resisted by the person apprehended as long as he or she does so by using reasonable force.

 

 

 

The legislation allows an arrest to be made without a warrant where the arrestor has found a person committing an offence (other than a breach of regulations) and reasonably believes that arresting the person is necessary to:

 

• stop the person continuing or repeating the offence;

 

• ensure the  safety  or  welfare  of  the  public  or  preserve public order;

 

• ensure the offender appears in court; or

 

• preserve public

 

The key requirement is that the arrestor finds the suspect committing the act. This has been interpreted widely to allow arrest where the suspect is caught ‘red-handed’ immediately after committing the act.

 

The police have broader arrest powers than the average citizen as they can arrest a person whom they reasonably believe  has committed an indictable or serious offence in the past, provided they have reasonable grounds for that belief.

 

Detention for questioning

 

The purpose of an arrest is to detain the suspected offender. Usually after an arrest the suspect is brought into custody in the police station or holding cells for the purposes of questioning. A person cannot be detained against their will in custody for questioning unless they have been arrested.

 

The legislation limits the amount of time for which a suspect can be detained for the purposes of questioning: unlimited time for questioning is not permitted in Australia. The legislation in each state generally provides that the suspect be detained for  a  ‘reasonable time’ depending on the circumstances of the investigation or for a short time frame. For example, for Commonwealth offences, the time for interrogation is limited to four hours. In Victoria, the suspect must either be released on bail or not, or brought before a justice or magistrate within a ‘reasonable time’ after the arrest.

 

Whilst being detained for questioning, suspects must be given the opportunity to communicate with a friend, relative and or a legal practitioner. They are informed that they do not have to answer the interrogating officer’s questions and that any answers they do give may be used in evidence against them in later court proceedings. At

 

 

 

the end of the questioning, the suspect may be charged and then released on bail or may be remanded in custody pending the hearing of the charges against them. A bail application may be made at any time prior to the hearing of the charges. If a suspect is not released he or she may be detained in custody in either a police station lock–up or cell, the remand section of a jail or in cells located at a court-house.

 

Powers of arrest and detention

 

The operation of the Australian criminal justice systems is based on the concept of due process. Due process means that the police must base their operations on the law. The police may not break the law in order to enforce the law.

 

The police must act to restrain the use of arbitrary power, for example that of aggrieved citizens who wish to act against an alleged offender. In 1999, both the New South Wales Government, the Opposition, and the Department of Corrective Services were strongly criticised for not ensuring a proper transition program from prison to freedom for a man recently released after serving 25 years for the murder of a five year old child. He was forced to leave his Sydney accommodation after the actions of local citizens went apparently unchecked by the police. His freedom was not adequately protected by the police. Felicity Hampel QC argued that the New South Wales authorities in this instance did not uphold the rule of law (Hampel, 1999).

 

Police may not disregard legal rules and, if they do, it is highly likely that the court will discharge the alleged offender. Under a due process approach, there are rules which protect the defendant against error. Police must have a basis for arresting a citizen and each state and territory has laws setting out the way in which an arrest takes place and for how long the police can hold a citizen. There are also laws relating to searching of persons and property which must be upheld.

 

Finally, there is the important rule of presumption of innocence. An alleged offender does not have to say anything in answer to questions put to her/him by the police. This enshrines the important principle that the prosecution must prove the case beyond reasonable doubt. The obligation is on the prosecution to collect and marshal the evidence and present the case to the court in an appropriate fashion. The fact that the defendant did not answer questions put to her/him can also form part of the evidence presented to the court. A contrasting approach might be to presume guilt, disregard such rules

 

 

 

and achieve a higher conviction rate. However our system is concerned to avoid inadvertently convicting the innocent.

 

Professor David Bayley, a noted researcher on police and policing, suggests that police fulfil two major functions: the first, ‘authoritative intervention’ and the second, ‘symbolic justice’ (Bayley, 1996). When police arrest an alleged offender, they are acting in accordance with their authoritative intervention role. Bayley indicates that criminal investigation accounts for approximately 16% of Australian police time compared with patrolling which accounted for 54% of their time and that what police do around the world is strikingly similar. Bayley opines that criminal investigation is talking to people: ‘victims, suspects and witnesses – in order to find out exactly what happened’ and, that police rarely collect evidence and make an identification, but identify the suspect first and then collect the evidence. It is because of this that the rules about arrest and detention are so important as they provide some barrier to the potential of police to infringe on the civil rights of alleged offenders. Each Australian State and Territory has its own laws about arrest and detention.

 

Professor John Braithwaite, an eminent Australian criminologist, has suggested that generally some police services are ‘good’ and others ‘bad’ (Braithwaite, 1992). Two broad theories conceptualise the police role. According to republican theory the goal of the criminal justice system is to maximise the dominion of citizens. Dominion is the condition where we enjoy a subjective freedom because we have assurances of full citizenship. We feel free, including an absence of the fear of being victimised. A ‘good’ police agency respects the ideal of dominion and will police according to the rules and in a way which respects all sections of the community, the traditionally powerful as well as the weak. Braithwaite contrasts this style of policing with ‘bad policing’ which follows the more traditional majoritarian approach where police work to enforce the majoritarian order of respectable society. A number of Australian police agencies (previously known as police forces) seemed to have operated according to this model, e.g., the Queensland Police Force in  the 1970s and the New South Wales police in the 1980s and recently in Sydney in relation to the incident above. This broad orientation influences the police as they go about their daily work and  will impact on arrest and detention practices. Some critics of governments and police suggest that the various police agencies are still policing Aboriginal people according to majoritarian practice and that this, in turn, helps account for the over-representation of Aboriginal people in custody.

 

 

 

Police interviews

 

As already mentioned, after a suspect is arrested, he or she is usually questioned by police. This process is also known as a police interview. This is a formal process, which is usually audio or video- taped. There are statutory criteria which must be met such as informing a person of their rights. During an interview, police may put a series of allegations to the suspect and they may ask a series of questions in order to elicit what events have transpired in relation to the crime being investigated.

 

If a suspect confesses to a crime during the interview, this may of course provide crucial evidence in the case. It is possible however that such a confession may be subsequently ruled “inadmissible” by a court if for example it is deemed to have improperly or unlawfully obtained. If for example, a suspect was in a state of drug withdrawal at the time of interview, it could be reasonably argued that their ability to understand their situation and adequately represent or defend themselves during the rigours of a police interview was significantly impaired, and a court may rule out the evidence derived from the interview. Clearly if the interview was the major source of evidence, the case would fail. It is hence in the police interest to ensure that a suspect is in a fit state to be interviewed.5 This sometimes necessitates the assessment of the suspect by a medical or mental health practitioner.

 

Once a suspect is charged by police with an offence they are then known as the defendant (in the lower courts) or the accused (in the higher courts).

 

Bail/ release on summons

 

A person may be charged with an offence and remanded in custody or they may be “bailed” to appear in court at a later date. The criteria determining whether a person may be refused bail are detailed in a specific statutory act. Factors involved include:

 

• nature of the offence for which the person has been charged;
• risks posed by the person if they were to be released;
• other outstanding criminal matters against the

 

 

 

 

 

 

5        See later session.

 

 

 

Except for certain offences, such as murder, police may grant bail; if police wish to oppose bail then the decision is made by the court/ bail justice. If bail is granted, there is usually a set of conditions made with which the person must comply, such as to appear in court at a later date.

 

The prosecution process

 

In a criminal matter, one police officer will be nominated as the informant. He or she may not be the most senior officer involved in the case but is the one designated as being in charge of the case. For each case a brief of evidence must be compiled: this contains a record of all the evidence upon which the police, and thus the Crown base their case. As such it contains all the relevant witness statements, transcripts of interviews of suspects, and references to the physical exhibits or evidence which will be produced in court (e.g., weapons, photographs, videos etc). Several copies of the brief are required and disseminated to:

 

• the prosecutor (Police or Crown prosecutor);
• the defendant/accused (or their legal representative);
• the Court (the magistrate or judge).

 

In the case of minor offences (e.g., minor shop-lifting, minor assault), which are heard in the lower courts (magistrates’ or “local” courts), the prosecution is usually handled by a police prosecutor: a police member who has undertaken further specialist training in court procedure. The police prosecutor presents the case to the court and examines and cross examines witnesses, just as a barrister does in the more serious cases.

 

In more serious (indictable) offences, criminal prosecutions are handled by the Office of Public Prosecutions  (OPP).  These organisations are independent statutory authorities and they prepare and conduct proceedings in:

 

• all indictable matters;

 

• committal/preliminary hearings for indictable matters;

 

• certain summary  (less  serious)  offences  heard  in  the  lower courts;

 

• bail applications/appeals  and  sentencing  hearings  involving these

 

 

 

The OPP is staffed by solicitors who essentially prepare the cases for court, and barristers (known as “Crown Prosecutors”) who appear in court presenting the case for the prosecution. Sometimes an “external” barrister may be briefed for a particular case. The staff from the OPP receive the police brief of evidence and liaise closely with the police informant in preparation for court. Sometimes, the OPP may request that the police provide further statements or evidence before a case proceeds to trial. Sometimes the OPP may form an opinion that the charges laid by police are not appropriate and may alter the charge, or that the likelihood of conviction is so remote that it is not worth proceeding to trial.

 

The Courts

A hierarchical court system exists throughout Australia. Essentially the structure and functions are quite similar however terminology may vary. As already mentioned there is both a Federal and State court system.

Types of Court hearing

 

Following is an account of some of the various types of court hearings, which may be particularly relevant to human services professionals whose work brings them into contact with the criminal justice system. Again, terminology may vary between jurisdictions.

 

Magistrate’s/ local Court hearing

 

Summary offences, and some “indictable offences heard summarily” are heard in the lower courts. The case is argued in front of a magistrate only who decides the verdict and imposes the sentence/ fine.

 

Trial

 

A trial is a court hearing for an indictable offence and occurs in the higher courts (County/District and Supreme). It is heard before a jury who determine the verdict. If found guilty, there is a later sentencing hearing where submissions are made by the prosecution (usually victim impact statements), and the defence (which may include medical and mental health reports) to the judge, who then determines the sentence.

 

 

 

Committal hearing

 

This is a preliminary hearing for an indictable offence, which occurs in the lower (magistrate or local) courts. A magistrate hears the evidence and decides whether there is enough evidence to proceed to trial in the higher courts. A witness may be required to attend both the preliminary hearing and the trial.

 

Voir dire

 

This is a hearing which may occur during a trial, but in the absence of the jury. If for example there is disagreement between the prosecution and defence regarding the expertise of an expert witness, that witness may have to attend a voir dire where they answer questions put by both parties and the judge, who seeks to determine whether the witness can give expert opinion on the matter in issue. If the decision of the judge is that the witness may give such evidence, the jury is recalled and the case proceeds as if the interruption had not occurred.

 

Bail application

 

A court hearing which may occur in lower or higher courts, depending upon the charge(s), where the accused applies for bail. It is heard by a magistrate or judge. Witnesses may be called to provide evidence supporting or opposing the bail application.

Court personnel

 

The following is a description of the roles of some of the various people involved in the court process. Depending upon your work you may have more interaction with some than others.

 

Judge/Magistrate

 

The chairman of a tribunal, or the judge or magistrate presiding in a court has charge of the entire proceeding. In addition, in relation to the laws of evidence they have specific roles: in particular they have to deal with issues of admissibility of evidence. The general principle is that a judge has no general discretion to reject admissible evidence regardless of its reliability. Similarly, a judge has no power to admit evidence which is legally inadmissible. It follows that the role of the judge is to apply the rules of evidence to the court proceedings and it is the judge who is the arbiter of disputes regarding the application of the rules of evidence. In practice of course, the judge, in coming to decisions regarding what evidence is admissible and what is not admissible, clearly has considerable power as to what evidence is

 

 

 

heard in court. The principle at work here is that the judge can only apply the law strictly and not exercise a general discretion as to what evidence should be received by the court.

 

Having stated the general principle in relation to discretion there are a number of key exceptions to the rule regarding judicial discretion to admit evidence. It is important to recognise when a judge is exercising a discretion in admitting or rejecting evidence as opposed to simply applying the law. While a higher court on appeal will deal with issues of errors in law it will be reluctant to interfere in matters of legitimate judicial discretion. One example of the exercise of judicial discretion is the power to reject evidence that would otherwise be admissible, on the basis that the evidence would have a highly prejudicial effect on a jury, far in excess of its probative value in the case. This is relevant, for example, in relation to admitting evidence of clinical photographs of injuries of a gross kind. A judge also has discretion to reject admissible evidence that has been obtained by unlawful or unfair means. This can apply to evidence of confessions by accused persons where the circumstances in which the confessional statement was made were such that it would be unfair to the accused person to admit the confession in evidence.

 

The judge also has discretion to regulate cross-examination of witnesses although they probably cannot exercise discretion to disallow questions that are otherwise legally permissible. They can however, prevent questions being asked that are directly offensive.

 

Perhaps the best way to summarise the role of the judge is to say that questions of law are determined by the judge and questions of fact by the jury. It is for the judge to interpret the law for the court and to explain to the jury what the law in question means. However, there are a number of cases and trial types where the judge may also decide the factual issue. This is particularly true of the lower courts where magistrates deal both with questions of fact and law. Occasionally a jury can decide what words mean in a statute, particularly where the words are capable of ordinary interpretation, such as “insulting behaviour”.

 

Before a jury can consider their verdict the judge must be sure that the prosecution has made out their case; if this has not been done the judge can withdraw the matter from the jury. This does not mean that the judge decides on the weight or the quality of the evidence, as that is a matter for the jury. Occasionally the defence will argue that there is no case to answer and request that the judge withdraw the case from the jury: this decision is a matter for the judge.

 

 

 

With respect to evidence in the lower courts, the role of magistrates and tribunal chairmen is similar to that of judges in higher courts, although there may be statutory differences in the rules of evidence for their particular jurisdiction.

 

Judge’s associate

 

This person is generally seated in front of the judge and Helps them with their requirements. The associate may also perform duties such as reading out charges.

 

Jury

 

A jury is chosen from members of the community. As such they form the basis of the legal principle ‘trial by one’s peers’. Making oneself available for jury service is one of the duties of a citizen in our community. However, not all members of the community are considered fit or proper persons to sit on a jury. Specific individuals such as people convicted of certain offences are excluded from jury service. In addition, some people by virtue of their occupation may at the discretion of the judge be excused from jury service. A jury is empanelled as one of the preliminary matters dealt with by a court at the beginning of a trial (prior to the reception of evidence). This involves selecting jury members from a pool of individuals who have been ordered to attend the court that day. Objections to jury members by a process of ‘challenge’ can be made and this process is subject to detailed procedural rules.

 

It is the job of the jury to receive the evidence and to consider it in coming to their verdict. They are not expected to interpret the law but they are expected to apply it to the particular facts they have heard in evidence. If a jury requires more information about the law during their deliberations they can return to court and seek advice of the judge. In some situations a judge may direct the jury to acquit a defendant. This may occur if the evidence required for a conviction has not been brought before the court, or if the evidence brought is so inherently incredible that no reasonable person would believe it to be true. If the evidence is of a generally poor quality but some evidence exists regarding the offence, the case must be put to the jury to consider.

 

 

 

Advocates

 

The legal profession is composed of lawyers – law graduates who have undertaken further professional training “in harness.” The lawyers who are the legal representatives of the parties before a court will be barristers or solicitors appearing as ‘advocates’.

 

The barristers form the specialist ‘bar’ and are practitioners who have elected not to undertake work as a solicitor but to specialise on disputed legal matters that particularly involve court hearings. Barristers are not just a specialist class of lawyers: there are large numbers of barristers who practice in a wide range of general legal areas and solicitors who have highly specialised narrow practices. A number of solicitors will also represent clients in the lower courts.

 

The task of an advocate is to ‘advance’ their client’s case to the best of their ability. Whilst they have a general duty to the court not to deliberately mislead the court on matters of law or to introduce facts that they know to be false, their obligation is not necessarily to seek the truth. Instead their task is to present the case on behalf of their client to the court in such a manner that the court will accept their version of the facts, leading to the magistrate or jury deciding the matter in their favour. The advocate is generally unfettered in the way they conduct their case, however, they must accept instructions from their client and act in a way that is in accordance with court procedure and the rules of evidence. The law of evidence is the ‘rule book’ by which they carry out their daily work. As such you can expect a judge or barrister to have a sound knowledge of the laws of evidence, as they apply them on a daily basis. In trials and committal hearings there may be a senior and junior barrister representing each party, and an instructing solicitor, who are all seated at the bar table in the court room.

 

Witnesses

 

In one sense the witness is the most important person in the courtroom. Courts make the decisions on facts and those facts are brought to court by the witnesses. Ordinary witnesses can only give factual evidence of what they personally perceived. Ordinary witnesses are not permitted to give their opinion in evidence and if the party calling them considers them to be an expert and capable of giving opinion evidence, then it is for the judge to decide whether they are an expert and therefore able to give opinion evidence.

 

 

 

Tipstaff

 

A tipstaff is present in the higher courts and is primarily concerned with looking after the day to day needs of the jury. The tipstaff will also call and swear-in witnesses, and pass documents or exhibits between the advocates, witness and judge. The tipstaff is usually dressed in a formal uniform.

 

Clerk

 

A clerk is an administrative officer who Helps a magistrate in the running of a court. They may call and swear in witnesses, pass documents between the witness box, bench and bar table, and oversee the audio-recording of proceedings amongst other duties.

 

Registrar

 

A registrar is a senior administrative officer of the court and may also perform duties such as the issuing of witness summons. If documents, such as a medical record, are subpoenaed by a court, they should be sent to the registrar of the court who ensures their safe and proper keeping.

 

Court recorder

 

Although virtually all court proceedings are audio-taped, some judges prefer to have a stenographer on site for instantaneous recording and thus feedback of evidence given.

Court procedures

 

The court procedure in the Anglo-Australian tradition is principally adversarial. Each party before the court seeks to advance their case by calling witnesses to present their own version of the facts  to the court. At the same time, each party seeks to demonstrate that the other party’s case is either not made out, flawed, incorrect or unbelievable. The coroner’s court is an exception to this: the coroner sits as an examining magistrate hearing evidence from witnesses that the court itself has selected. Such an inquisitorial procedure still allows individuals, involved in the death to have a lawyer to represent their interests in the inquest.

 

 

 

The prosecution

 

Whilst the courts are established by the State and are operated and administered by the State, the day-to-day procedure within the court is organised independently by the judiciary. Therefore in criminal matters, the prosecutor presents the case on behalf of the State, whilst the judge formally presides over the court as an impartial umpire supervising the proceedings.

 

This approach is in contrast to the inquisitorial legal procedures of many European systems of justice. Here it is the role of the court to determine the truth of the matters alleged, and the judge or magistrate plays an active part in the interrogation of witnesses. In these jurisdictions the judge is Helped in this process by lawyers or advocates from the prosecution and the defence. The adversarial system is quite different: the judge plays little or no direct part in the fact-finding exercise before the court, and by and large the judge’s activities are restricted to dealing with matters of law and legal procedure. It follows, therefore, that in a criminal matter it is up to the prosecutor to inform the court about those facts of the case that the prosecution believes support the charge against the accused person. The prosecutor need not lay all the facts before the court, and can leave out pieces of information which are not thought to be relevant to the prosecution case. Whilst prosecutors must not deliberately hide information that is relevant to the issue before the court, they are not usually obliged to lay before the court all the information that they know.

 

Modification of legislation in Anglo-Australian legal systems has developed the law further on this point. In many jurisdictions the prosecution is obliged to make the defence aware of all information that it has prior to trial. However, the prosecution is not obliged to present all of this information to the court. If the prosecution decides not to present certain information to the court, it is up to the defence, knowing what has been left out, to decide whether to present the additional information. Essentially, the task of the prosecutor is to present the evidence that is required to make out the prosecution case against the accused. Prosecutors have no further duty than this, although they must act fairly and not knowingly mislead the court as to the evidence surrounding the matter.

 

 

 

The defence

 

The task of the defence in the adversarial system is to represent the interests of the accused person above that of any other person within the rules of procedure and the ethical guidelines of the legal profession. The defence may choose to demonstrate to the court that the prosecution has not made out a satisfactory case, so that there is no case for the accused to answer. Alternatively they may seek to demonstrate the weaknesses and errors in the prosecution case, so as to show that the matters alleged cannot be believed to have occurred beyond all reasonable doubt. A wide range of defences is open to accused persons: a defence barrister may rely on one or several of these. As a prosecution often relies on the oral testimony of witnesses giving evidence from the witness box, the defence in some cases will try to discredit the reliability of the prosecution witnesses or to demonstrate that what the witnesses say is incorrect or capable of another interpretation. It follows that it is legitimate for the defence to attack the credibility and truthfulness of prosecution witnesses. In the same way it is open for the prosecution to attack the credibility and truthfulness of any witnesses that are called to give evidence by the defence.

 

The trial begins

 

A trial may be set to commence on a particular date however there is often some time, and sometimes weeks, spent in legal argument before a jury is selected, “empanelled” and any witnesses are called to give evidence. Once the trial proper begins, the judge delivers instruction to the jury on their role then each party has the opportunity to address the court with an  “opening  address” outlining their case. Witnesses are then called, and the presentation of the evidence begins.

 

Examination-in-chief

 

The party who has required the witness to attend at court to give evidence initially requests that the witness be called to the witness box, identifies them to the court and then proceeds to ask them a series of questions which are designed to elucidate the facts and (in the case of expert witnesses) opinions set out in their statement. The information that is sought from the witness at this time is the information which the party calling the witness wishes to have placed before the court. The questions may cover all of the material contained in the witness statement or only some of it. In cases where an expert is called by the Crown to give evidence on behalf of the prosecution  in  a  criminal  matter,  the  questions  will  relate  to  the

 

 

 

specific elements of the crime that the Crown wishes to prove. There may be features of the expert’s examination or statement that the prosecution does not require the witness to give in evidence. Perhaps other witnesses will give such evidence, or the matter has already been agreed by the parties. The witness therefore should, as in all cases, answer only the specific questions that they are asked.

 

If expert opinion evidence is to be given during examination-in-chief, it is the task of the party calling the witness to set out the nature of the witness’ expertise and to prove to the court that the witness has sufficient expertise to give opinion evidence in the matter. Because the barrister who carries out the examination-in-chief usually knows details of the witness’s evidence, the barrister is not  usually permitted to ask leading questions of the witness. That is, the barrister can ask only open questions which seek to elicit the evidence at issue, but may not ask a question which tends to suggest the answer. Thus, the question will be ‘What did you see when you arrived at the house’ rather than ‘Did you see a dead body lying at the foot of the stairs when you arrived at the house’ In certain circumstances, however, with the consent of both parties and the judge, a court may permit leading questions during examination-in- chief in order to speed up the court process with regard to evidence which is non-controversial and not a significant issue in the case.

 

In a committal hearing however, the examination-in-chief  usually only consists of asking the witness whether their statement is true and correct and whether they have any amendments, as there is no jury to listen to the contents and the magistrate has already had the opportunity to read the witness statement.

 

Occasionally during examination-in-chief, the judge asks the expert witness questions to elucidate or clarify some point of the evidence. The witness should note these questions by the judge most carefully: in most circumstances, the judge is attempting to ensure that the evidence that the witness has given can be understood by the jury. If a witness finds that the judge is asking a number of questions on matters relating to evidence that they have already given, the judge probably considers the witness’s previous answers confusing or too technical in nature. The witness should use the opportunity offered by the judge’s questions to clarify the evidence and to deliver parts of it again in a manner which lay people would find easier to understand. Very occasionally, a judge asks about new matters which have not been covered, but these questions are usually left to the end of a witness’s evidence. In addition to questions from the barristers and the judge, questions may be asked by the jury, through the jury

 

 

 

foreman, with permission of the judge. When the party calling the witness considers that they have obtained from the witness all the evidence that they need for their case, examination-in-chief comes to an end. As the court process is adversarial, the opposing party now has a turn.

 

Cross-examination

 

After the completion of examination-in-chief, the process of cross- examination commences. In criminal matters where the witness has been called to give evidence by the Crown, it is the defence counsel who cross-examines the witness. If it were the defence who called the witness, it would be the prosecution who cross-examines the witness. The defence counsel has access to the witness’s statements made prior to the court case, and in addition has usually taken detailed notes of the evidence given during the examination-in-chief. These notes may well include a record of specific words and phrases used by the witness in their previous answers.

 

The extent and nature of cross-examination are extremely variable, and much depends on the nature of the defence which is being raised by the accused person. Several approaches and techniques are used in cross-examination, and a witness may experience one or more of these in any particular case. It is important to remember, however, that in many cases the evidence-in-chief given by an expert witness in response to questions put by the prosecutor, although important for the prosecution case, is not an issue for the defence at all. For example, in the case of an alleged rape, a clinical forensic physician who examined the alleged victim may not be cross-examined on the process of the physical examination, or on the opinion they formed as to the injuries or the possibility of vaginal penetration. The defence may accept that vaginal penetration took place. In such a case, the main defence argument might be that the penetration occurred with consent, and the question as to whether consent was present may be the only point at issue. In such a situation, the cross-examination of the medical witness as to their findings may be minimal, and in some cases there is no cross-examination at all.

 

In some instances the process of cross-examination can be detailed, exacting and challenging for the witness. The questions may be open or leading. It is not uncommon for counsel to put forward a hypothetical situation in which a particular set of events have occurred and to ask the witness whether such a scenario might explain the facts observed. Considerable latitude is available to the cross-examiner as to the manner in which questions are put and the

 

 

 

range of material which can be covered. The cross-examination may seek to clarify points that have been covered in the examination-in- chief, particularly those points which have been damaging to the cross-examiner’s case. A witness’s opinion, veracity and competency may be challenged, and prior statements made by the witness may be compared and contrasted with their current evidence. A cross- examiner who is unable to shake or successfully challenge the witness’s evidence, or to demonstrate that the witness lacks skill or credibility, will quickly end the cross-examination in order to prevent the witness presenting further evidence damaging to their case.

 

Re-examination

 

At the conclusion of cross-examination, the party who originally called the witness may re-examine the witness in relation to  the issues that arose in cross-examination. New evidence may not normally be introduced during re-examination, but occasionally this may occur with the permission of the court and usually with the acquiescence of the other party. Re-examination is used to shore up the original information gained through examination-in-chief and to minimise any damage done to the witness’s evidence during cross-examination. Re-examination can demonstrate real artistry on the part of a barrister but often the best re-examination is no re-examination at all. If damage has been done to a party’s  case during cross-examination by the other side, it is often better not to show up the weakened case by asking further questions; it may be better to sit back and ask nothing, and thereby imply that no damage was done at all.

 

In some situations, further cross-examination and further re-examination may occur with the permission of the judge. When both parties have finished with a witness, the judge may ask questions; in some cases, the jury may be permitted to ask the witness questions through the judge. If any important issues arise out of the answers given by the witness to questions from the judge or jury, the barristers for both parties may be permitted to ask follow-up questions. The witness, after completing their evidence, is permitted to step down from the witness box; in most cases the party calling the witness will ask that the witness be excused. Usually the judge agrees to this and the witness may then leave the Court, having been excused from further attendance in the matter.

 

 

 

Judges’ directions, verdict and sentence

 

After presentation of all the evidence during a trial, each party has the opportunity to summarise their case for the jury, known as “closing argument.” The judge then takes an active role in the process, addressing the jury specifically on the evidence and matters of law that pertain to it. The judge advises the jury of the nature of the criminal charge and what they are required to be certain of before they bring in their verdict. The jury then “retire” to consider their verdict. Once the jury has brought in the verdict, the judge deals with the accused person – discharging them if they have been found not guilty, or later sentencing them if they have been found guilty. In relation to sentencing, the prosecution and defence are able to make submissions to the judge regarding the nature of the sentence. At this point in the proceedings, for the first time, information regarding the background of the accused, including any prior convictions, can be taken into account.

 

Courtroom environment

 

This whole process takes place in a courtroom and even allowing for the modern courtrooms that are now available, the atmosphere can be somewhat forbidding and austere. In many jurisdictions, barristers wear wigs and gowns when appearing in the higher courts. The procedure within the court is of a traditional nature, both formal and ritualised. For most lay members of the community the way in which a court case is conducted is quite alien to other aspects of human affairs. Why should such an austere and potentially threatening procedure be used within the justice system Its origins have a complex background based on early English legal history.

 

Suggested further reading

Bronitt, S. & McSherry, B. (2010). Principles of criminal law (3rd  ed.). Sydney: Lawbook co.

 

Lamb, H.R., Weinberger, L.E. & DeCuir, W.J. (2002). The police and mental health. Psychiatric Services, 53(10), 1266-1271.

 

Hollander, Y., Lee, S., Tahtialian, S., Young, D. & Kulkarni, J. (2012). Challenges relating to the interface between crisis mental health clinicians and police when engaging with people with mental illness. Psychiatry, Psychology & Law, 19(3), 402-411.

 

 

References

Bayley, D. (1996). What do police do In W. Saulsbury, J. Mott &

1. Newburn (eds), Themes in contemporary policing (pp.29-41). London: Policy Studies Institute.

 

Braithwaite, J. (1992). Good and bad police services and how to pick them. In P. Moir & H. Eijkman (eds), Policing Australia: Old issues, new perspectives. Melbourne: Macmillan.

 

Hampel, F. (29 June, 1999). Humane justice lynched by vigilante action. The Australian, 15.

 

 

Session 3

Mental Health and the Law

 

Contents

 

Introduction…………………………………………………………………… 59

Chapter 1: Competence and capacity………………………………. 60

Objectives………………………………………………………………….. 60

Readings……………………………………………………………………. 60

Introduction………………………………………………………………. 61

The philosophical framework……………………………………… 61

The components of competence…………………………………… 63

Informed consent……………………………………………………….. 64

Refusal of treatment……………………………………………………. 65

Advance directives…………………………………………………….. 66

Children…………………………………………………………………….. 66

Permanent of fluctuating loss of competence………………… 67

Fitness to be interviewed…………………………………………….. 68

Fitness to plead and stand trial……………………………………. 69

Testamentary capacity………………………………………………… 70

Conclusions……………………………………………………………….. 71

Suggested further reading…………………………………………… 71

References………………………………………………………………….. 72

Chapter 2: Civil commitment………………………………………….. 74

Objective……………………………………………………………………. 74

Readings……………………………………………………………………. 74

Background……………………………………………………………….. 74

Philosophical themes………………………………………………….. 75

Historical development………………………………………………. 75

Elements of civil commitment laws……………………………… 76

Mental disorder……………………………………………………… 76

Capacity………………………………………………………………… 77

Threshold………………………………………………………………. 77

Benefit…………………………………………………………………… 78

Least restrictive alternative…………………………………….. 79

Process………………………………………………………………….. 79

Outpatient commitment…………………………………………. 79

Applications outside mental health…………………………. 80

Conclusions……………………………………………………………….. 80

Suggested further reading…………………………………………… 81

References………………………………………………………………….. 82

Chapter 3: Mental disorder and criminal responsibility……… 84

Objectives………………………………………………………………….. 84

Readings……………………………………………………………………. 84

Introduction………………………………………………………………. 85

The defence of insanity (mental impairment)……………….. 86

Diminished responsibility……………………………………………. 89

Automatism……………………………………………………………….. 89

Intoxication defences………………………………………………….. 90

Sentencing and mental disorder………………………………….. 91

The effects of metal disorder……………………………………. 93

Areas of debate and development…………………………… 94

Suggested further reading…………………………………………… 95

References………………………………………………………………….. 95

Chapter 4: Forensic mental health services……………………….. 99

Objectives………………………………………………………………….. 99

Reading……………………………………………………………………… 99

Introduction………………………………………………………………. 99

What constitutes a forensic mental health service……….. 99

Secure inpatient facilities………………………………………. 100

Prison based mental health services……………………….. 101

Community forensic mental health services……………. 102

Court services………………………………………………………. 103

What   is    different   about     forensic   mental   health services                                                    104

Facility in working with risk………………………………….. 104

Facility with working with complex patients………….. 105

Working with ethical awareness……………………………. 105

Interface with legal and correctional systems…………. 106

Suggested further reading…………………………………………. 107

References………………………………………………………………… 107

 

 

 

 

Mental Health and the Law

 

Introduction

One of the key challenges for professionals dealing with people who display antisocial behaviour, particularly those who also display signs of mental disorder, is learning to negotiate the interface between mental health and the law (Eastman, 2000). These challenges are frequently considerable, leading to exasperation and bewilderment on both sides of the ‘divide’. They have practical, legal, clinical and ethical dimensions. This session is intended to Help students in their attempts to meet those challenges successfully by enhancing understanding of some of the key principles involved. It is subdivided into four chapters, which should be read in sequence:

 

Chapter 1: Competence and Capacity Chapter 2: Civil commitment

Chapter 3: Mental Disorder and Criminal Responsibility Chapter 4: Forensic Mental Health Services

 

 

 

Chapter   1:  Competence  and capacity

 

 

Objectives

At the completion of this chapter it is expected that you should:

 

• understand the terminology used in addressing decision-making ability;

 

• appreciate some of the moral and legal background to the issue;

 

• recognise how different situations impinge upon the assessment of competence;

 

• understand the framework for assessing

 

Readings

Reading 3.1.1 Biegler, P.  &  Stewart,  C.  (2001).  Assessing competence to refuse medical treatment. Medical Journal of Australia, 174, 522-525.

 

Reading 3.1.2 Gall, J.A. & Freckelton,  I.  (1999).  Fitness  for interview: Current trends, views and an approach to the assessment procedure. Journal of Clinical Forensic Medicine, 6, 213-223.

 

Reading 3.1.3 Grubin, D.H. (1993). What constitutes  fitness  to plead Criminal Law Review, 748-758.

 

Reading 3.1.4 Gudjonsson, G. (2003). The psychology of false confession: Case examples (Chapter 9). The psychology of interrogations and confessions: A handbook. Chichester: John Wiley, pp.217-243.

 

 

Introduction

Competence and capacity are terms used interchangeably to refer to decision-making abilities. In forensic psychiatry as with other fields of health care, assessment of competence is often important. It may be required to determine whether a person is capable of meaningful participation in an aspect of the criminal justice system, such as undergoing trial or interview. Competence is necessary to consent to treatment and its absence may result in invocation of civil commitment or guardianship laws. In the civil jurisdictions a psychiatrist may be requested to determine whether a person is or was competent to refuse treatment or make a legally binding decision such as composing a will.

 

The philosophical framework

Competence requires reference to the moral framework which lends it such importance. A judgment of competence is founded on respect for autonomy: personal autonomy, or self-rule, refers to self- governance. Autonomous persons are agents, that is, their actions represent freely chosen and considered reflections of their values and choices. The qualities of autonomous actions show that they are not reflexive or random; they are meaningful and (at some level) considered; and they reflect the higher capacity of the autonomous agent to make personally relevant choices.

 

Autonomy is however but one among a number of morally relevant principles. It is by no means clear that autonomy should always be the trumping principle. For instance, in many societies, communities or families are viewed as more important than individuals, and decision-making may be deferred to an elder; or individual decisions may be made based upon the needs of the group rather than the individual.

 

If decision-making competence is grounded in autonomy, then its loss may reflect alterations in the ‘self’. For example, in some mental disorders, decisions made might not reflect core values which are more stable over time. Thus when a person is acutely unwell with bipolar affective disorder, or some years into Alzheimer’s disease, their decision might appear alien to their values or somehow lacking authenticity. Personal values have some stability over time, but may also change through one’s life. In general, changes are gradual, or understandable in context, rather than appearing as drastic changes in core values or beliefs (Benn, 1975).

 

 

 

A woman of 59 who had always been very proper and polite, was noted over the preceding year to have begun to swear, drive recklessly and at times be flirtatious to strangers and take her clothes off  without regard for who should see her. Treatment for presumptive bipolar disorder was unsuccessful, at which time a brain scan demonstrated frontotemporal dementia. An application for a permanent guardian was successful based on her permanent loss of competence due to executive dysfunction.

 

Competence generally refers to a task-specific decision. It is not a category but a dimensional variable. It is possible that a person is competent to choose what they would like for dinner, but lacks competence to consent to major surgery. This point develops two concepts: threshold and risk (Wikler, 1979; Wicclair, 1991).

 

The threshold for determination of competence must be set at a reasonable level. If competence requires complete and exhaustive knowledge, for instance, an understanding of every potential complication which might arise from major surgery, then only the extraordinarily gifted will be competent. Rather, competence is for the many, not the few. Thus the threshold is generally a pragmatic one, which will be discussed later in the text.

 

If the risk of a course of action is great, the threshold at which one is deemed competent generally increases. For example, consent to a blood test is generally verbal and brief, whereas consent to neurosurgery is likely to be more comprehensive.

 

A related discussion is how to manage the situation when a person lacks specific decision-making competence. In different jurisdictions and for different situations, various options exist. These include substituted or surrogate decision-making, ‘best interests’ decision- making, or alternative legal responses. In general, competence is assumed to be present prima facie, but this is a rebuttable presumption.

 

Legal aspects of competence are very specific to jurisdictions. For the purpose of this discussion, common law approaches will be discussed, and general principles will be identified without specific reference to the laws of one country or region. Readers are directed to the case law and statutes of their own region for application of these general principles.

 

 

The components of competence

There are a number of facets to competent decision-making. Various deficits may result in loss of competence. The expression of a choice is crucial, but may be limited by communication difficulties (e.g. mutism, unconsciousness) or vacillation. Some people find it difficult to arrive at a decision or may change their mind frequently.

 

Deficits in understanding may impair competence. A lack of awareness of the seriousness of a diagnosis may, for example, lead to treatment refusal which is not competent. This may occur through poor explanation from clinicians, or the patient’s denial or lack of insight. These latter terms refer to an unconscious inability to accept the truth as explained, and to defects in self-awareness which may be seen in a number of neuropsychiatric conditions including stroke and psychosis.

 

Limited understanding may be related to cognitive deficits, intellectual disability, or poor listening. An alternative example which should always be considered is that information given has been too complex. Poor disclosure may occur because of lack of appreciation of the recipient’s abilities or wilful understatement of risks. Alternatively it may be held that to give full information would harm an individual: such paternalistic withholding of information is known as therapeutic privilege.

 

In assessing comprehension, the reasoning behind a decision is frequently sought. Thus expressed decisions may in fact, bear no apparent relationship to the information related to the decision, or appear dissonant with other expressed desires. Where a decision appears difficult to relate to the person, further exploration of reasoning underlying the expression of a choice may Help in understanding why a particular choice has been made. In assessing comprehension, it is frequently valuable to ask a person to explain in their own words what they have been told, and ask open questions to explore this further. (Savulescu & Kerridge, 2001).

 

The test of Re C relies on a three-stage test, and demands that the person is able to take in and retain information; to believe it; and to weigh it, balancing risks and needs. The test was developed by Thorpe, J. in determining that a 68 year-old man with schizophrenia, detained at Broadmoor Special Hospital, was competent to refuse amputation for a gangrenous leg. C acknowledged the risk but stated that  he  did  not  believe  that  he  would  die,  despite  advice  to  the

 

 

 

contrary from his surgeon. Thorpe, J. noted that ‘it matters not whether the reasons for the refusal were rational or irrational, unknown or even non-existent’ (Re C).

 

Various tests for competence exist, legal and operationalised, which require assessment of a mixture of these domains or skills. It is important in assessing competence that the assessor is aware of case law or legislative requirements in their jurisdiction. Some operationalised scales such as the MacArthur Competence Assessment Tool – Treatment (MACCAT-T) rely on a semi-structured interview (Grisso & Appelbaum, 1998). Others rely on questions which seek to identify statistically relevant associations  of diminished competence in a structured fashion. However the specificity of task-specific demands renders all except specific assessments unlikely to be valid in other contexts.

 

Informed consent

Informed consent is necessary for most medical interventions, except in circumscribed situations such as emergencies, which rely upon different (‘best interests’, necessity) justification. Otherwise, treatment may constitute assault or be regarded as ethically problematic, for instance relying upon deception. The foundation of informed consent is personal autonomy. Its value has arisen from grossly exploitative research including those of Nazi doctors, the Tuskegee syphilis study and other research which used (often vulnerable) subjects without concern for their own interests (Beauchamp & Childress, 2009).

 

The threshold for informed consent is higher in research as benefits do not necessarily flow to the participant. Informed consent requires adequate disclosure of information, understanding, and implicit or explicit permission from the patient. In addition it involves voluntariness, which refers to the lack of constraints upon free choice. Pressure may be greater on prisoners, those with personal relationships and involuntary patients. Assessment of impaired voluntariness suggests that the standard for informed consent should be higher, or safeguards provided to reduce the effects of explicit and implicit coercion.

 

One observation frequently made is that people are deemed competent to consent so long as their decisions concur with the treating clinician; it is frequently treatment refusal which triggers doubts about competence. It is important that when clinicians assess

 

 

 

competence they maintain independence from the question posed rather than imposing their own values on a situation. The standard should remain subjective (patient-focussed) rather than relying on the values of another party.

 

Difficulty may arise with waivers, where a person expresses blanket consent, states that they trust the treating clinician, and refuses to listen to information.

 

Refusal of treatment

Treatment refusal may have significant consequences including death. When assessing refusal, the crucial areas to explore include subjective understanding of options and their consequences. The actual information provision should be explored, as clinicians frequently utilise minimising terminology which may obscure the nature of some outcomes (for example, talking of ‘mortality’ or ‘passing away’). The reasoning of the patient needs exploration. This includes an investigation into the patient’s ability to quantify risks, especially in terms of percentages or odds. Overly optimistic or pessimistic appraisals of risk may be related to limited ability to estimate such odds. Personal experience may weigh on a decision, as when refusal is based upon extrapolation from a known case which may not be actually relevant to the current decision.

 

The psychiatric relevance is that depressive and psychotic illnesses may lead to the intrusion of delusional material or mood-related misunderstandings. Dementing processes sometimes not recognised by clinicians may impair comprehension, as may executive dysfunction from psychosis or acquired brain injury. The influence of family or personality variables may also impact on decision-making.

 

The role of the psychiatrist in assessing competence requires sensitive exploration of the patient but also the needs of treating clinicians, who may themselves need education and support to understand a patient’s choice and its validity. Furthermore, when decisions are deemed to be incompetent, subsequent treatment against  the patient’s expressed wishes may require involuntary psychiatric treatment or invocation of guardianship to provide a legal basis.

 

A 70 year-old woman with a broken hip refused operation. She stated that God had spoken to her and informed her that He would heal it, and if she underwent operation she would die of infection. She was tearful and distressed, saying that she didn’t want to die but must follow God’s will. A careful history revealed  that  she  was  eccentric  and  had  for  many  years

 

 

 

preached the word of God according to what she had been told by God. She was willing to undertake any other management but refused operation. There was no indication of dementia but opinions were split on whether she was religious or psychotic. As she fully understood the high risk of death and the limited outcome from conservative management, she was assessed as being competent and managed with bed rest. She was discharged after 8 weeks, wheelchair-bound.

 

Reading

 

Reading 3.1.1 Biegler, P. & Stewart, C.  (2001).  Assessing competence to refuse medical treatment. Medical Journal of Australia, 174, 522-525.

 

Advance directives

Legislative and common law foundations exist in some situations for an advance directive. Such a statement expresses a person’s wishes in defined situations should they become incompetent through advent of illness. If this occurs, clinicians may feel bound to follow instructions which lack detail, bind them to impossible or unavailable treatments, or are against their best inclinations.

 

Advance directives may be limited by lack of imagination (Would living with a spinal injury be impossible How would I know if I had no experience of this), poor detail or uncertainty about competence at the time the statement was formulated. Other versions are limited to the provision of appointment of a proxy decision maker in the event of supervening incompetence, who is then legally empowered to make decisions in the best interests of the person (Halpern & Szmukler, 1999).

 

Children

The development in children of moral reasoning relates to their brain development and experience. At law, children and teenagers are frequently regarded as incompetent and decisions are made on their behalf by parents or guardians. However in some situations which occur increasingly as age advances, competence may be present. This is frequently described as ‘Gillick competence’, after the case which went to the Law Lords in the UK.

 

 

 

Mrs Gillick sought to determine that her child, as a minor, could not consent to prescription of the oral contraceptive pill. However the court held that a child under 16 was competent if they possessed sufficient maturity and intelligence to understand the nature and implications of proposed treatment (Gillick).

 

This may include ability to provide informed consent or refuse treatment, capacity to form criminal intent (doli incapax being the formal legal term for this developmental lack of capacity) or consent to sexual relationships (‘the age of consent’) and various decisions about independence, which may require extra legal safeguards. Interviews by police may require a third party to be present and necessitate clear guidelines on methods of questioning, which might otherwise lead to inaccurate or problematic answers.

 

The age at which children are regarded as competent varies across jurisdictions and depends upon the specific task. In  general, however, determination of specific competence relies upon a careful developmental assessment and sensitive exploration of  reasoning and the child’s understanding of consequences. Complicating such assessments is the frequently vexed relationship of minors with authority figures.

 

 

Permanent or fluctuating loss of competence

Some people may exhibit permanent loss of competence in most relevant domains. This includes people suffering neurological conditions such as dementia, those with significant intellectual disability (generally proportionate to the level of intellectual disability, but sometimes difficult to assess when communication deficits are associated with severe or moderate intellectual disability), and some with severe chronic schizophrenia. Permanent loss of competence requires legal protection, usually determined by proxy decision-making (‘best interests’) or appointment of an independent or related guardian in whom is vested legal decision-making power.

 

The basis of such decision-making is an interesting concern. Should the standard be that of the person, with their own values and concerns, especially if their condition rendered these less than fully formed Is there an objective general standard which should guide such decisions It is clear that those permanently lacking competence are vulnerable and require protection, but this may lead to grossly paternalistic treatment.

 

 

 

Competence assessments are particularly complex when competence fluctuates. For instance in bipolar affective disorder, a person may be frequently rational and sensible, but periodically when manic exhibit grossly irresponsible choices, which conflict significantly with their core values and usual behaviour. At such times  paternalistic treatment may be warranted to prevent non-competent harm (financial, health and legal among others) to the agent. It may be difficult to determine the boundary at which competence is lost for some decisions.

 

Fitness to be interviewed

Police interviews of alleged offenders rely upon a clear understanding of rights and process. Some people are not fit to be interviewed, either acutely (through intoxication or episodic mental disorder) or chronically (dementia and intellectual disability may be examples). This compromises the probative value of information- gathering, or may reduce procedural fairness. The interview  may lead to self-incrimination or a lack of understanding of rights such as the right to have a legal representative present.

 

Assessment of fitness to be interviewed is subjective, but relies upon exclusion of physical and mental conditions which may impair a person’s ability to participate meaningfully and fairly in interview. More subtle are interactions between interviewer and interviewee which, through the characteristics of the latter and style of the former, result in false confessions or dubious testimony. A number of prominent convictions have subsequently been overturned on expert evidence which demonstrated that confessions were related to acquiescence, compliance or suggestibility. These terms refer to biases in answering questions and are of particular forensic interest (Gudjonsson, 2003).

 

A woman of 45 was charged with indecent assaults on her two children. She was assessed as having a mild-moderate intellectual disability. She was proud and sought to minimise this. Review of police interview strongly suggested that she was easily confused by lengthy sentences, double negatives and prolonged questioning. As the interview proceeded she agreed increasingly with the interviewers. Expert evidence was led that she was acquiescent and compliant, features related to the interview but also the offences, which were committed after threats from her partner. A number of charges were subsequently dropped, she was reinterviewed with an independent third person present, and her disability and malleability were recognised in mitigation.

 

 

 

There is frequently a guideline-based necessity for provision of an independent observer during interviews. This observer is not present as an advocate but rather to monitor the progress of an interview and Help the interviewee to participate.

 

Reading

 

Reading 3.1.2 Gall, J.A. & Freckelton, I. (1999). Fitness  for interview: Current trends, views and an approach to the assessment procedure. Journal of Clinical Forensic Medicine, 6, 213-223.

 

Fitness to plead and stand trial

Legal trials require the participation of the accused. This may be limited if they are unable to interact meaningfully with their advocate and the process of trial. The needs of justice are not necessarily met if the accused cannot comprehend a finding of guilt or appreciate the basis of subsequent punishment. Consequently procedures have arisen to provide alternative outcomes  for  those who cannot follow a trial in which they stand accused.

 

Historically the issue was that refusal to enter a plea might preclude forfeiture of property or execution. Frequently the issue was one of mutism, which might be ‘of malice or by visitation of God’. Various procedures of torture such as peine forte et dure (pressing under a heavy stone) were utilised to determine whether the person was not fit for trial was wilfully avoiding the process of law. Those found unfit were sometimes described as under disability and in Britain the finding of unfitness to stand trial was described as the special verdict (Grubin, 1993).

 

The evolution of precedents includes that of R v Dyson, (a deaf-mute woman who chopped off the head of her illegitimate child), which blurred the boundary between intellectual disability and psychiatric illness. The common law test set out in R v Pritchard (a case of bestiality by a deaf-mute man) is the basis of most tests of fitness to plead. These tests demand that, at the time of trial, an individual understands that they are charged and can plead, can follow evidence and proceedings in court, can challenge a juror and advise their advocate. The consequences may range from complete acquittal to indefinite detention, according to jurisdiction.

 

 

 

The common law criteria of R v Pritchard have been refined or developed in most jurisdictions. In the United States, there is a focus on comprehension of legal process, which thus requires that those accused of crimes may have to undergo study of practice in mock courts to participate in trials. This is a broad capacity-based approach. Other jurisdictions require specific abilities (Mullen, 2002).

 

Current determinations of unfitness to be tried tend to be restricted to those with intellectual disability or mental disorder such as psychosis (Mackay, 1990). In the USA forensic psychiatrists spend a great deal of time examining whether people are competent for trial. In other jurisdictions this is less of an issue, but Assessment is sometimes required to determine whether the person’s mental ability permits comprehension of legal process sufficient to permit meaningful participation in a trial (Birgden & Thomson, 1999). The threshold is set low: a deep understanding of legal process is unnecessary. Rather, participants in a trial need to understand its nature, the meaning of a plea, and recognise how to provide information pertinent to the case, without needlessly incriminating themselves.

 

Reading

 

Reading 3.1.3   Grubin,  D.H.  (1993).  What  constitutes  fitness  to plead Criminal Law Review, 748-758.

 

Testamentary capacity

Testamentary capacity refers to the task-specific ability to determine how one wishes to manage assets in a will. Wills made by a person lacking testamentary capacity may be overruled. The assessment of testamentary capacity is at times occurrent, and in other cases relies upon retrospective Assessment of presumed mental state. Given the not infrequent disputation over estates, it is an important task.

 

The assessment of testamentary capacity relies upon an appreciation of the nature of one’s assets and their approximate value; the meaning of disposing of them; and an application of one’s values to dispose of them in ways concordant with one’s wishes and inclinations. This is known as having a “sound and disposing mind”. Furthermore, elderly or impaired people may be vulnerable to exploitation or coercion. As a task frequently conducted late in life, it occurs at times when family discord may arise over a person’s care needs, or when frank dementia or more subtle cognitive impairment occur.

 

 

 

Adjuncts to assessment of testamentary competence include psychological or occupational therapy assessments of intellect and financial understanding, as well as clinical discussions of actual and hypothetical situations. This may help the assessor to determine whether, for instance, the testator’s appreciation of their assets is realistic, and how reasoned are their plans for disposing of assets.

 

Reading

 

Reading 3.1.4 Gudjonsson, G. (2003). The psychology of false confession: Case examples (Chapter 9). In the psychology of interrogations and confessions: A handbook. Chichester: John Wiley, pp.217-243.

 

Conclusions

The assessment of competence relies on a thorough and multidimensional assessment of a person’s history and situation, mental state and cognitive abilities. It must be geared to the specific task that a person needs competence to participate in or execute, and the determination should be based upon realistic and pragmatic levels of ability.

 

In a forensic setting, most competence Assessments are to protect people from compromising themselves in interactions with the legal system, but Assessment also may be relevant to determine when paternalistic intervention is warranted or to ensure that a person can participate meaningfully in legal proceedings, be that making a will, standing trial or participating in interview. Careful examination of local precedents and laws will help assessors understand the tests for specific Assessments and apply them in clinical practice.

 

Suggested further reading

Buchanan, A.E. & Brock, D.W. (1989). Deciding for others: The ethics of surrogate decision-making. Cambridge: Cambridge University Press.

 

Faden, R.R. & Beauchamp, T.L. (1986). A history and theory of informed consent. New York: Oxford University Press.

 

Freckelton, I., Keks, N., Howe, V., Foister, K., Jenkins, K., Copolov, D.

& Sullivan, D. (2003). How can valid informed consent be obtained from a psychotic patient for research into psychosis Three perspectives. Monash Bioethics Review, 22(4), 60-75.

 

 

 

Grisso, T. & Appelbaum, P.S. (1998). Assessing competence to consent to treatment. New York: Oxford University Press.

 

Hockton, A. (2002) The law of consent to medical treatment. London: Sweet & Maxwell.

 

Savulescu,  J.  &  Kerridge,  I.H.  (2001).  Competence  and  consent.

Medical Journal of Australia, 175, 313-315.

 

References

Beauchamp, T.L. & Childress, J.F. (2009). Principles of biomedical ethics

(6th ed.). New York: Oxford University Press.

 

Benn, S.I. (1975). Freedom, autonomy and the concept of a person.

Proceedings of the Aristotelian Society, 76, 109-130.

 

Birgden, A. & Thomson, D. (1999). The assessment of fitness to stand trial for defendants with an intellectual disability: A proposed assessment procedure involving mental health professionals and lawyers. Psychiatry Psychology & Law, 6(2), 207-214.

 

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).

 

Grisso, T. & Appelbaum, P.S. (1998). Assessing competence to consent to treatment. New York: Oxford University Press.

 

Grubin, D.H. (1991). Unfit to plead in England and Wales, 1976-88.

British Journal of Psychiatry, 158, 540-548.

 

Grubin, D.H. (1993). What constitutes fitness to plead Criminal Law Review, 748-758.

 

Halpern, A. & Szmukler, G. (1997). Psychiatric advance directives: Reconciling autonomy and non-consensual treatment. Psychiatric Bulletin, 21, 323 -327.

 

Mackay, R. (1990). Insanity and fitness to stand trial. Journal of Forensic Psychiatry, 1, 277-304.

 

Mullen, P.E. (2002). Commentary: Competence assessment practices in England and Australia versus the United States. J American Acad Psychiatry Law, 30, 486-487.

 

R v Dyson (1831) 7 C. & p.305.

 

 

 

R v Pritchard (1836) 7 C. & p.303.

 

Savulescu,  J.  &  Kerridge,  I.H.  (2001).  Competence  and  consent.

Medical Journal of Australia, 175, 313-315.

 

Wicclair,  M.R.  (1991).  Patient  decision-making  capacity  and  risk.

Bioethics, 5 (2), 91-104.

 

Wikler, D. (1979). Paternalism and the mildly retarded. Philosophy and Public Affairs, 8 (4), 377-392.

 

 

 

Chapter 2: Civil commitment

 

 

Objectives

At the completion of this chapter it is expected that you should:

 

• appreciate different    justifications    for,    and    the    historical development of, civil commitment laws;

 

• discuss the theoretical background to civil commitment laws;

 

• understand how  differing  definitions  at  law  are  applied  in practice;

 

• reflect upon the advantages and drawbacks of different forms of

 

Readings

Reading 3.2.1 Holloway, F., Szmukler, G. & Sullivan, D. (2000). Involuntary outpatient treatment.  Current  Opinion in Psychiatry, 13, 689-692.

 

Reading 3.2.2      Richardson,        G.                 (2003).     Involuntary treatment: Searching     for    principles.    In    K.    Diesfeld,    &

I.R. Freckelton (eds), Involuntary detention and therapeutic jurisprudence: International perspectives on civil commitment (pp.55-73). Ashgate: Aldershot.

 

Background

Civil commitment refers to the detention of people who are not subject to criminal sanction. It was formerly used for the poor and inebriates, increasingly for those with mental disorders, and latterly has extended to those deemed to pose risks to the community. Synonyms include ‘sectioning’ and ‘certifying’; both of these terms refer to the application of legal process. Obviously detaining people who have not committed crimes is a serious matter. In this section we shall seek to cover the history and philosophical background to civil

 

 

 

commitment, before discussing debates about various aspects. The more recent uses of civil commitment render the background and ethical justifications particularly relevant.

 

It is important to note that different jurisdictions offer different legal frameworks, and thus local knowledge is paramount. Discussion in this section will rely upon specific international examples, which although not necessarily relevant to the reader, will serve to illustrate broader points. The reader should seek to consider the themes raised here and understand how they would apply in the reader’s own jurisdiction.

 

Philosophical themes

Personal autonomy is a prima facie moral good. We regard self- determination as valuable and indeed, rules of law have developed to codify personal freedoms but also delimit them. One influential view of autonomy is that of John Stuart Mill, who said:

 

The only purpose for which power can rightly be exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant (Mill, 1859).

 

However some people may act in ways which suggest that they lack personal autonomy: by reference to their own values or to generalised objective standards, their behaviour might indicate that mental disorder (psychosis, mood disturbance, dementia, intellectual disability) has compromised their abilities to act autonomously.

 

In such situations, paternalism may be invoked. This moral principle related to acting ‘like a father’ to safeguard the best interests of the non-autonomous person. Note that paternalism must not be for the interests of the overruling person or system. Strong paternalism is a more controversial version of this, in which the wishes of an autonomous agent are overridden in their best interests; in general however, paternalism relies upon the prior loss of autonomy: weak paternalism (Beauchamp & Childress, 2009).

 

Historical development

The history of civil commitment is a dark one. People with mental disorders were previously incarcerated in grim conditions with little legal protection. Many were no doubt poor, drunk, pregnant or disliked rather than suffering from mental disorder. In the United

 

 

 

Kingdom, the state previously relied on parens patriae powers, in which the state or monarch was responsible for the welfare of those deemed incapable of looking after themselves. The principle remains but the actual power has lapsed in most jurisdictions. Nevertheless, such powers may still extend to those with intellectual disabilities or minors.

 

The other primary justification for civil commitment is police powers, where people with presumptive mental disorders may be detained and treated to prevent behavioural disturbance.

 

The first wave of mental health law reform occurred late in the 19th century and is best described as medicalism. Such laws recognised a group of people who required medical care (although this frequently consisted of maintenance in an asylum, with little effective treatment). These laws were marked by a focus on treatment needs and derogation of decisions about these to the medical profession.

 

In the 1950s, the growth of human rights discourse led to an increasing emphasis on human rights, and the next wave of civil commitment laws are more legalistic. These laws sought to define criteria for detention and provide checks and balances to limit medical power. By the 1980s, further legal reforms reflected increasingly effective treatments, the impact of closing previous institutions, the mainstreaming of mental health care, and the growth of consumer rights. Laws remained legalistic but reflected structural changes in the delivery of mental health services.

 

Current trends are for outpatient commitment, and a gradual broadening of the classes of people who might be subject to civil commitment, both of which are discussed below. These topics remain controversial.

 

Elements of civil commitment laws

Mental disorder

 

For the purposes of civil commitment, a definition of mental disorder is needed which is neither too broad nor too narrow. A narrow law might restrict operation to specific diagnoses and thus preclude practical application to a range of appropriate circumstances. A broad law would unnecessarily capture eccentric people and those who are a nuisance, to whom mental health services might have little to offer.

 

 

 

Some laws rely upon categories of illness: the UK Mental Health Act 1983 applied to mental impairment, severe mental impairment, mental disorder or psychopathic disorder. Promiscuity, immoral conduct, sexual deviancy and drug or alcohol dependence were excluded. Each category had definitions, and precedent has further defined conditions which might fall under the legal definitions. Of note, the UK Mental Health Act 2007 removed these distinctions and referred only to mental disorder, defined as ‘any disorder or disability of the mind’.

 

An alternative approach is exemplified by the Victorian Mental Health Act 1986. This requires that a person “appears to be mentally ill” and this is further defined as “a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory” (s8, MHA, 1986, Vic). This approach defines symptom clusters and leaves it as a matter of medical expertise to determine that the conditions are appropriate grounds for civil commitment. A number of exclusion criteria are specified in s8(2) to restrict the parameters of the above definitions to mental disorders which might rightly be the focus of psychiatric treatment, rather than expressions of social deviance.

Capacity

 

Many jurisdictions set a further threshold, one of refusal and/or incompetence. Refusal ensures that there is no other option apart from civil commitment, if other criteria are met. This necessitates that the person subject to civil commitment lacks insight, or disagrees with a need for treatment.

 

Lack of competence to decide might also be the basis for involuntary commitment. Indeed, arguments for capacity-based legislation delayed new mental health legislation in the UK (Richardson, 2003) and have resulted in a rash of new laws including the Mental Health Act 2007 and the Mental Capacity Act 2005. The issue underlying capacity-based law arguments is that lack of competence related to mental disorder should not be treated differently to other reasons for impaired competence (Campbell & Heginbotham, 1991).

Threshold

 

It should not be enough merely to have been diagnosed with a mental disorder: there must be a level of impairment that is appropriate to invoke civil commitment. The two criteria used are typically harm to self and harm to others. In general risk should be present                                    rather            than

 

 

 

the harm actually having occurred. In practice, the threshold for civil commitment will rely to a significant degree upon the availability of treatment resources such as inpatient beds.

 

The threshold for harm to self is flexible. Many people  cut themselves. Many drink to injurious levels or suffer consequent accidental injury. Sports such as sky-diving and boxing may be broadly construed as constituting risk-taking behaviour. Definitions are usually left vague and case law defines what may or may not constitute justification for civil commitment. The intent of these clauses is to prevent injudicious application of civil commitment.

 

Similarly, risk of harm to others must be cautiously  interpreted. There would be few who have not said, even jokingly at some stage: “I’ll kill you”. Threats, aggression and statements of intended violence cover a spectrum from harmless and hot-headed to horrifying and imminent. In addition, some threats or actualities of harm are most appropriately dealt with by criminal sanction. However for some behaviours or risks, civil commitment may be appropriate.

 

It can already be seen that multiple limbs of criteria should operate conjointly, not separately.

Benefit

 

What is the benefit of civil commitment If the benefit is only to the community, civil commitment is best described as preventative detention, which is controversial. In order to justify such detention, the risk which might eventuate if the person were at liberty should be both significant and likely. Quantifying such risk is difficult.

 

GW, a man with antisocial and borderline personality disorder, was detained following serious murderous assaults on strangers. He was transferred back and forth between prison and hospital. He self-harmed dramatically and uttered threats of mayhem should he be released. The Victorian government passed legislation to detain this man indefinitely, based on the putative threat he posed. He killed himself (Greig, 2002).

 

In the UK, it has long been held that treatability was necessary for civil commitment. If no treatment existed for a condition, the mental health system could not detain people. Recently a change in policy and funding led to the development of services for people deemed to be ‘Dangerous Severe Personality Disorder’ (DSPD). The criteria for detention  included  that  detention  could  continue  until  risk  has

 

 

 

diminished. It is not yet certain that DSPD can be treated, or when risk would be considered reduced.

 

In other jurisdictions, civil commitment is premised upon treatment being offered or imposed. There are two predominant debates arising: whether containment alone constitutes treatment (‘milieu therapy’); and whether those detained against their will might refuse treatment. Furthermore, a resource allocation issue is apparent, when detention is not accompanied by resources to provide appropriate treatment, such as psychotherapy or a choice of (expensive) medications.

Least restrictive alternative

 

Many jurisdictions provide that treatment be provided in the environment which least constrains civil liberties. This has been the basis of outpatient civil commitment, also known as community treatment orders. Thus detention is kept to a minimum, and when possible, involuntary treatment remains at home. This appears to be driven by economic imperatives as well as human rights concerns, as home treatment is significantly cheaper.

Process

 

There is much debate about how legalistic the process should be. Some argue that civil commitment should receive the full protection of due process and thus involve sworn evidence and adversarial hearings. Other jurisdictions are more keen to reduce intimidation for patients and to render the processes inquisitorial and informal (Peay, 1989).

 

Those who ‘acquiesce’ but do not ‘consent’ are particularly vulnerable. In a precedent in the UK, an autistic man detained de facto but not de jure was found to have been wrongfully detained. This case, the Bournewood precedent, has been very significant (Eastman

& Peay, 1998).

 

Outpatient commitment

 

More recently community treatment orders or  Involuntary Outpatient Treatment (IOT) has become popular. This enables compulsory treatment with medication but without detention in hospital (Hiday, 2003; Fuller-Torrey & Zdanowicz, 2001). Critics argue that criteria are relaxed because this is seen as a ‘soft option’ but those subject regard it solidly as deprivation of liberty. There is indeed a substantial literature on perceived coercion (Szmukler &

 

 

 

Appelbaum, 2001). Others regard IOT as less restrictive and thus,

 

 

 

when available, preferable. It has been noted that there is a propensity to ‘roll over’ IOT on review. A recent research trial found limited benefit to IOT (Burns et al, 2013).

Applications outside mental health

 

Civil commitment has been extended to those with drug and alcohol problems. Some countries, such as Ireland, permit commitment of alcoholics. This exists outside criminal statute.

 

There is a heritage of treatment for those with infectious diseases. Civil commitment, based upon community protection, has long been used for tuberculosis, and this resurged in the late 1990s. Those who failed to comply with treatment have been subject to detention, or outpatient treatment with detention should they default (Coker, 1999). This mirrors the initial reaction to the AIDS pandemic, where there were calls for civil commitment of HIV-positive people to prevent infection. Most countries maintain public health legislation which provides broad powers of civil commitment to restrict infection outbreaks. The criteria for detention are frequently vague and the powers broad; legal protections are often scanty: for example, see the Health Act 1958 (Vic) s84.

 

More recently, criminals who have completed their sentences but are thought to pose a significant risk of re-offending have been subject to ongoing civil commitment. This provides further detention or restrictions on liberty based upon history, and may also include conditions of treatment. There is a growing trend towards controversial legislation imposing post-sentence restrictions on sex offenders: civil commitment (Sullivan et al, 2005).

 

Conclusions

Civil commitment constitutes a delicate balance between the needs of the community, legal process and treatment imperatives. Formulating mental health laws is complex and contentious. More recently, an interesting and alarming trend has been seen, in which the boundaries of civil commitment appear to be encompassing broader groups of people.

 

 

 

Reading

 

Reading 3.2.1 Holloway, F., Szmukler, G. & Sullivan, D. (2000). Involuntary outpatient treatment. Current Opinion in Psychiatry, 13, 689-692.

 

Reading 3.2.2 Richardson, G. (2003). Involuntary treatment: Searching    for    principles.    In    K.    Diesfeld,    &

• Freckelton (eds), Involuntary detention and therapeutic jurisprudence: International perspectives on civil commitment (pp.55-73). Ashgate:

 

Suggested further reading

Australian Health Minister’s Advisory Council National Working Group on Mental Health Policy (1995). Model mental health legislation.

 

Bean, P. (1980). Compulsory admissions to mental hospitals. Chichester: John Wiley & Sons.

 

Campbell, T. & Heginbotham, C. (1991). Mental illness: Prejudice, discrimination and the law. Dartsmouth: Aldershot.

 

Delaney, S. (1992). Autonomy denied: International  human  rights and the Mental Health Act 1986 (Vic). Melbourne University Law Review, 18(3), 565-83.

 

Diesfeld, K. & Freckelton, I.R. Involuntary detention and therapeutic jurisprudence: International perspectives on civil commitment. Ashgate: Aldershot.

 

Grieg, D.N. (2002). Neither bad nor mad: The competing discourses of psychiatry, law and politics. London: Jessica Kingsley Press.

 

Reisner, R. & Slobogin, C. (1990). Law and the mental health system: Civil and criminal aspects. St Paul, MO: West.

 

Unsworth, C. (1987). The politics of mental health legislation. Oxford: Clarendon Press.

 

Winick, B.J. (2003). A therapeutic jurisprudence model for civil commitment. In K. Diesfeld & I.R. Freckelton (eds), Involuntary detention and therapeutic jurisprudence: International perspectives on civil commitment. Ashgate: Aldershot.

 

 

References

Beauchamp, T.L. & Childress, J.F. (2009). Principles of biomedical ethics

(6th ed.). New York: Oxford University Press.

 

Burns, T., Rugkasa, I. et al. (2013). Community treatment orders for patients with psychosis (OCTET): A randomised controlled trial. The Lancet. http://dx.doi.org/10.1016/SO140-6736(13)60107-5

 

Campbell, T. & Heginbotham, C. (1991). Mental illness: Prejudice, discrimination and the law. Dartsmouth: Aldershot.

 

Coker, R.J. (1999). Carrots, sticks and tuberculosis. Thorax, 54, 95-96.

 

Eastman, N. & Peay, J. (1998). Bournewood: An indefensible gap in mental health law. Capacity is set to become a major clinicolegal issue. British Medical Journal, 317(7151), 94-95.

 

Fuller-Torrey, E. & Zdanowicz, M. (2001). Outpatient commitment: What, why, and for whom. Psychiatric Services, 52(3), 337-341.

 

Grieg, D.N. (2002). Neither bad nor mad: The competing discourses of psychiatry, law and politics. London: Jessica Kingsley Press.

 

Health Act 1958 (Vic) https://monkessays.com/write-my-essay/austlii.edu.au/au/legis/vic/  consol_act/ha195869/s121.html

 

Hiday, V.A. (2003). Coerced community treatment: International trends and outcomes. In K. Diesfeld & I.R. Freckelton (eds), Involuntary detention and therapeutic jurisprudence: International perspectives on civil commitment. Ashgate: Aldershot.

 

Mental Health Act 1986 (Vic). https://monkessays.com/write-my-essay/austlii.edu.au/au/legis/  vic/consol_act/mha1986128/

 

Mill, J.S. (1859). On liberty. In M. Warnock (ed.) (1962), Utilitarianism. London: Fontana.

 

Peay, J. (1989). Tribunals on trial: A study of decision-making under the Mental Health Act 1983. Oxford: Clarendon Press.

 

Richardson, G. (2003). Involuntary treatment: Searching  for principles. In K. Diesfeld & I.R. Freckelton (eds), Involuntary detention and therapeutic jurisprudence: International perspectives on civil commitment. Ashgate: Aldershot.

 

 

 

Sullivan, D.H., Mullen, P.E., & Pathe, M.T. (2005). Legislation in Victoria on sexual offenders: Issues for health professionals. Medical Journal of Australia, 183(6), 318.

 

Szmukler, G. & Appelbaum, P.S. (2001). Treatment  pressures, coercion and compulsion. In G. Thornicroft & G. Szmukler (eds), Textbook of community psychiatry. Oxford: Oxford University Press.

 

 

 

Chapter    3:   Mental   disorder and criminal responsibility

 

 

Objectives

At the completion of this chapter it is expected that you should:

 

• discuss the various criteria on which issues of criminal responsibility are determined, with respect to  the  various ‘mental state defences’ recognised by the courts;

 

• describe the concepts of ‘insanity’, ‘mental impairment’, ‘diminished responsibility’ and ‘automatism’;

 

• compare and contrast the various approaches taken by courts and lawmakers to the problem of offences committed during intoxication;

 

• consider the various ways in which mental disorder can be taken into account in sentencing

 

Readings

Reading 3.3.1 Bronitt, S. & McSherry, B. (2010). Mental state defences. In S. Bronitt & B. McSherry (eds), Principles of criminal law (3rd ed., pp.237-291). Sydney: Thomson LBC.

 

Reading 3.3.2 Eastman, N. (2000). Psycho-legal studies as an interface  discipline.  In  J.  McGuire,  T.  Mason  &

1. O’Kane (eds), Behaviour, crime and legal processes

(pp.83-110). Chichester: John Wiley & Sons.

 

Reading 3.3.3 Freckelton, I. & Selby, H. (2005). The expert in the sentencing process. In I. Freckelton & H. Selby (eds), Expert evidence: Law, practice, procedure and advocacy (3rd ed., pp.949-976). Pyrmont, NSW: Lawbook Co.

 

 

Introduction

A full understanding of the relationship between law and mental health is incomplete without an appreciation of the various ways in which abnormal mental states can affect the degree of criminal responsibility imputed to offenders.

 

The literature in this area goes back at least two centuries. This chapter only provides an overview of key principles. It is a fascinating area to explore in greater depth: the readings and suggestions for further reading will provide guidance if you wish to examine it in more detail.

 

The area is of more than mere academic interest. In many jurisdictions nowadays, the level of criminal responsibility determined by the courts has a critical impact on the disposition of mentally disordered offenders. Whereas ideally all offenders with a mental disorder would receive appropriate rehabilitation and treatment in a hospital environment rather than a prison, in practice this is rarely possible. In most jurisdictions in Australasia, it is only those mentally disordered offenders who have been found not guilty of their offence because of insanity (mental impairment), or unfit to stand trial, who are diverted entirely from the criminal justice system to the mental health system. In the United Kingdom, which has a larger bed base than Australia in the forensic sector, a greater proportion of mentally disordered offenders are diverted from prison to hospital and the defence of insanity has come to assume much less importance6.

 

The appropriate location of boundaries between blameworthy offending behaviour and non-blameworthy behaviour driven by illness also informs age-old debates about the ‘medicalisation’ of crime and the ‘criminalisation’ of illness. Issues of criminal responsibility reveal the interface of law and medicine at is most problematic, since issues of responsibility are at the very heart of criminal justice. Factors which arise at the boundary include stark differences in epistemology, reasoning and use of language7 (Eastman, 2004; Pathe & Mullen, 1993).

 

 

 

 

6 This is perhaps a more appropriate model: it has long been debated as to whether criminal responsibility alone is an adequate guide for gatekeeping mental health services (Morris, 1967).

7 Including different definitions of the very  same  words,  such  as ‘voluntary’ or ‘automatism’.

 

 

 

Other issues in the material covered in this chapter include consideration of the dichotomy between public policy considerations (including effective management of risk) and strict adherence to theoretical legal principles, and the appropriate role of the medical expert in court.

 

Much of the material covered is historical in nature. This is inevitable, since it is an area of knowledge where full understanding is only possible by appreciating how and why certain principles have come into use, and have withstood the test of time.

 

 

The defence of insanity (mental impairment)

The notion that those who are afflicted by serious mental disorders are not fully responsible for their offending behaviours goes back well over a thousand years (Walker, 1968). Nowadays most jurisdictions in the developed world include some type of defence to criminal charges exculpating offence(s) which occurred because of some relationship to mental disorder. In Australasia, most jurisdictions term the defence “Mental Impairment”; the boundaries differ significantly however from place to place (Bronitt & McSherry, 2010).

 

The term ‘defence’ is something of a misnomer in this context. Many jurisdictions allow the issue to be raised by the prosecution, and its successful application does not usually result in total acquittal, rather it allows the court to impose some level of supervision (often custodial) of a medical rather than a correctional nature. Until recently, most states and territories in Australia allowed those found not guilty on grounds of insanity to be routinely detained in prison settings on an indefinite basis. The United Nations Standard Minimum Rules for the Treatment of Prisoners (1955) Rule 82(1) indicates that such “offenders” should be detained in hospitals rather than prisons. Legislative reform and the construction of appropriate facilities mean that, within the next few years, imprisonment of such patients will continue only in the Northern Territory in Australia.

 

The boundaries of the defence of mental impairment are a matter of law and hence determined by courts and juries rather than being a matter of, for example, medical diagnosis (Pathe & Mullen, 1993). These boundaries continue to vary between different states and historically  have  varied  over  time  and  place  according  to  legal

 

 

 

precedent and public sentiment (Ogloff, Roberts, & Roesch, 1993). Psychiatric practice and knowledge has also played a key role in determining these boundaries.

 

Some authors have sought to expand the ambit of the mental impairment defence and other mental state defences to cover a much broader proportion of violent offending. Various arguments have been proffered for this, including that crime itself constitutes a mental disorder (Raine, 1997), that impulsive, emotionally charged violence is essentially involuntary (Barratt & Felthous, 2003), and that all “disorders of agency” (irrespective of the presence or absence of mental illness) should qualify for exculpation (Matthews, 2004). In practice, such expansionism has never withstood the test of public opinion and public policy (Appelbaum, 1998).

 

It is helpful to think of the defence of insanity (mental impairment) as having three elements:

 

• the mental disorder element;
• the functional element;
• the causal nexus

 

A successful defence, at least in theory, requires that all three elements

be fulfilled to the satisfaction of the decision-maker.

 

The ‘mental disorder element’ has been referred to in common law as “disease of the mind”. As discussed in the reading (Bronitt & McSherry, 2010), some statutory frameworks list specific diagnoses, with the implication that other diagnoses are excluded. Others take a less prescriptive approach and allow practice to develop by precedent. It is generally accepted that severe mental illnesses such as the major psychoses, bipolar disorder and major depressive disorders with psychotic features qualify as mental disorders for the purposes of a mental impairment defence. Intellectual disability, dementia and significant brain damage would also  likely  qualify (and often also result in unfitness to stand trial in any case). More contentious areas include depressive illnesses of non-psychotic type, mild hypomanic episodes, post traumatic stress disorder, personality disorders, and psychoses induced by exogenous substances such as illicit drugs. In the USA, various “fringe diagnoses” have been argued to constitute grounds for an insanity defence with varying degrees of success. These include such oddities as “rotten social background”, “black rage” and “UFO survivor syndrome” (Miller, 2003).

 

 

 

The ‘functional element’ has generated much jurisprudential debate over the past few hundred years. The criteria used to delineate this element, however, can be usefully subdivided into:

 

• those which emphasise cognitive elements such as nature and quality of the offensive act and/or the fact that it was wrong to carry out the act; and

 

• volitional criteria which emphasise the perpetrator’s lack of capacity to control his behaviour, or ability to resist impulses to act in an offensive

 

Historically the functional element has increased in importance from the early 19th century onwards. Prior to that, the courts emphasised the degree of severity of the mental disorder rather than bothering themselves too much with the particular effects that the mental disorder had on the mental state of the offender at the time of the offence (Eigen, 1995). Note that many offences that properly qualify for a mental impairment defence nowadays are premeditated and instrumental in nature. Active delusions, for example, do not rob the offender of the ability to plan and organise behaviour. The exculpation is generally not because of a mental state which is disorganised, but rather because the moral underpinnings of the actor’s behaviour have been morbidly affected by severe symptoms of a mental illness.

 

Australian law has departed from its Anglo-American origins in terms of the functional element by, at least in some jurisdictions, clarifying what is meant by the cognitive inability to know right from wrong (Waller, 1977). This clarification is based on instructions to the jury given by  Justice Dixon in the case of Porter in 19338: Dixon referred to the lack of an ability to reason with a “moderate degree of sense and composure” with respect to the wrongfulness of the offence as being sufficient deficit for a finding of insanity. In practice, this allows some expansion of the boundaries of the mental impairment defence beyond those which would be permitted by a more strict application of cognitive criteria. It is arguable, for example, that very powerful pathological impulses may in and of themselves have an impact on the ability to reason “with a moderate degree of sense and composure”.

 

 

 

 

 

8        R v Porter (1933) 55 CLR 182.

 

 

 

The ‘causal nexus’ element is often inadequately considered in practice. Statutory criteria for mental impairment make it clear that the functional deficit element must be due to the effects of the qualifying mental disorder, rather than, for example, due to coincidental emotional arousal or intoxication. In practice of course, behaviour is usually, determined by multiple factors: this can be a complex area to tease out both for the expert and for the jury.

 

Diminished responsibility

As the reading (Bronitt & McSherry, 2010) explains, diminished responsibility is used as a kind of ‘fallback’ defence in some jurisdictions for cases of homicide where the full criteria for mental impairment have not quite been met, and yet there is a sense that criminal responsibility should be partially mitigated because of the presence of some level of psychiatric disturbance. It has the effect of reducing a murder change to manslaughter. The boundaries of this, naturally, are wider than for mental impairment.

 

It has its historical roots in 18th  century Scotland (Walker, 1968), and essentially was a product of an attempt to save the less blameworthy from the hangman’s noose. Some states, such as Victoria, do not have a diminished responsibility defence, but instead allow issues of mental disorder to be taken into account in sentencing (Walvisch, 2010). Ideally, such sentencing should include the possibility of serving a sentence in hospital rather than in prison. Whilst in many jurisdictions this is possible from a legislative point of view, the paucity of secure beds may make it less likely to occur in practice for those without a full mental impairment defence.

 

Automatism

Very occasionally, defendants will make the argument that their offence was carried out in a state of ‘automatism’ and hence not truly a voluntary act. Bear in mind that it is for the prosecution to prove to the jury (beyond reasonable doubt) both that the defendant carried out the act and that it was voluntary in nature. A wide range of disordered mental states has been raised as grounds to negate the general ‘common sense’ presumption of voluntariness of action. Note that automatism is not a true ‘defence’, but rather grounds on which the prosecution may fail to prove one of the requisite elements of a crime (voluntariness). If the prosecution fails in this, then the defendant  will  walk  free  from  court,  unless  the  automatism  was

 

 

 

secondary to a mental disorder which would qualify for an insanity/mental impairment defence, in which case disposition options are as for mental impairment.

 

This can be a very complex and confusing area. It includes some rather subtle points of law, and touches on the philosophical issues of free will, the nature of consciousness and of action. Some fascinating articles are given in the ‘Suggested Further Reading’ section for those who are interested.

 

When reading the literature, note that the term ‘automatism’ has a much broader meaning to lawyers than it does to health professionals: automatism related to complex partial epilepsy is only one of a wide range of disorders which have been accepted by courts to constitute automatism from a legal point of view. Such disorders include those related to epilepsy, to high or low blood glucose levels, to sleep disorders, to concussive states and, most controversially, to dissociative states after episodes of extreme stress (‘psychological blow automatism’) (Febbo, Hardy, & Finlay-Jones, 1994).

 

Intoxication defences

It is now well established that there is a very strong link between substance use and violent offending (Moore & Stuart, 2005; Swanson, Holzer, Ganju, & Jono, 1990; White, 1997). There are likely to be a number of explanations for this including the effects of intoxication on reducing inhibitory control as well as pre-existing personality characteristics which predispose to both offending and substance use (Pihl & Peterson, 1995; White, Loeber, Stouthamer-Lober, & Farrington, 1999).

 

The notion that those who commit serious crimes whist intoxicated ought to be less rather than more blameworthy for their actions is highly contentious. Nevertheless, intoxication of a severity such as to negate the assumption of voluntariness can form grounds for a complete acquittal in some jurisdictions.

 

Reading

 

Reading 3.3.1 Bronitt, S. & McSherry, B. (2010).  Mental  state defences. In S. Bronitt & B. McSherry (eds), Principles of criminal law (3rd ed., pp.237-291). Sydney: Thomson LBC.

 

 

 

As the reading (Bronitt & McSherry, 2010) makes clear, some jurisdictions have essentially followed a ‘common sense’ public policy path of attaching some degree of criminal responsibility to offences committed in such states. Others, including Victoria, have adopted a more purist ‘legalistic’ approach and (at least in theory) allow for acquittal under such circumstances. In practice, however, this rarely succeeds when brought before a jury.

 

Reflective exercise

 

Reflect further on the pros and cons of adopting these different stances/approaches to criminal responsibility. Jot down your thoughts below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sentencing and mental disorder

Following a finding of guilt, it is the task of the Magistrate or Judge to determine an appropriate sentence in penalty for the crime committed. This is a surprisingly complex task and is an area of continual debate in both law and politics. The presence of a mental disorder in the offender, where this has not led to a finding of insanity (or equivalent) or unfitness to stand trial, is another variable which must be factored into the decision making process.

 

 

 

In order to understand how mental disorder can influence sentencing, it is first necessary to understand the general purposes of sentencing and the principles on which sentencers must act. The purposes of sentencing are broadly similar throughout  all jurisdictions in the Anglo-Australian context. They are9:

 

1. Just punishment of the offender, to an extent and in a manner which is just in all of the

 

2. Specific deterrence to deter the person from committing further offences of the same or a similar type.

 

3. General deterrence to deter other persons who may be so tempted from committing offences of the same or similar type.

 

4. This is generally interpreted broadly to  include any means by which integration into society and the reduction of future risk of reoffending may be reduced. This may include specific therapeutic regimes including those provided by mental health professionals.

 

5. This reflects the public and political imperative for society to publicly denounce the type of conduct engaged in by the offender.

 

6. Community This refers to the protection of the community from the possible future conduct of the offender. It can be effected by a number of means including, but not limited to, actual imprisonment – incapacitation.

 

These purposes are considered in combination. There is no simple algorithm for how they are to be applied in practice: rather, practice has evolved by means of developing case law and statute.

 

Sentencers must also take into account the principle of parsimony i.e. that a penalty should not be more severe than is necessary to achieve the goals for which sentence is actually imposed. In addition, the principle of proportionality – that the penalty must be commensurate with the seriousness of the crime committed – is also relevant.

 

 

 

 

 

 

9        This list is derived from the Sentencing Act 1991 (Victoria), but similar purposes apply elsewhere.

 

 

The effects of mental disorder

 

Reading

 

Reading 3.3.2 Eastman, N. (2000). Psycho-legal studies  as  an interface  discipline.  In  J.  McGuire,  T.  Mason  &

1. O’Kane (eds), Behaviour, crime and legal processes

(pp.83-110). Chichester: John Wiley & Sons.

 

Reading 3.3.3 Freckelton, I. & Selby, H. (2005). The expert in the sentencing process. In I. Freckelton & H. Selby (eds), Expert evidence: Law, practice, procedure and advocacy (3rd ed., pp.949-976). Pyrmont, NSW: Lawbook Co.

 

As discussed in Reading 3.3.3 by (Freckelton & Selby, 2005), mental disorder has been held to impinge on the sentence’s task in a number of ways. A landmark case in Victoria10 delineated the potential impact of mental disorder on sentencing thus:

 

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation is less likely to be a relevant sentencing objective.

 

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be

 

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both,

 

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition a exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or

 

 

 

 

 

10    R v Verdins, R v Buckley, R v Vo [2007] VSCA 102.

 

 

 

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in

 

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate

 

7. Reduction of moral culpability: even where criminal responsibility is still present (i.e. insanity is not relevant) it may be felt that the presence of mental disorder makes the offender less blameworthy than would otherwise be the case, thus affecting the ‘just punishment’ purpose;

 

In practice of course, the extent to which these issues are taken into account will vary widely. In general, where the mental disorder is more severe, the causal link to the offending more clear-cut, and where the offending crime is less serious, then greater account will be taken of these issues, resulting in significant mitigation; the converse of course will also apply.

Areas of debate and development

 

It has long been recognised that mental disorder can be something of a “double edged sword” for a defendant to raise at sentencing. The emphasis on rehabilitation can lead to the risk of a lengthier sentence in order to facilitate longer term coercive treatment frameworks. In addition, since the presence of mental disorder could be said to in certain circumstances increase the risk of reoffending, then a corresponding emphasis on community protection may also lead to longer sentences. The risk of conflating treatment with punishment is central to forensic mental health work and professionals in the field need to carefully consider the ethics as well as the pragmatics involved (Fox, 1999).

 

Different jurisdictions and perhaps even different sentencers vary in their consideration of what qualifies as a mental disorder for the purposes of sentencing. Whereas major mental illnesses such as schizophrenia and bipolar disorder are generally accepted as being relevant, the situation with respect to substance dependencies, adjustment disorders and personality disorders (including psychopathy) is less defined.

 

 

 

Much of the debate about the controversial construct of psychopathy revolves around the tendency for it to encourage an emphasis on community protection considerations in sentencing, given that rehabilitation prospects are generally considered to be poor. Similarly, the courts have often distinguished poorly between the issues relevant to mental illness and those relevant to intellectual disabilities (Traynor, 2002).

 

Whereas the Tsiaras judgement explicitly stated that the mental illness did not have to be causal (with respect to the offence) in order to be taken into account, in other jurisdictions there is active debate about whether this should in fact be the case before an illness qualifies as a mitigating factor (Traynor, 2002).

 

A diversity of special dispositions for those with mental disorders not amounting to insanity have evolved throughout Australia. These vary widely in their level of uptake and requirements. They can be seen more broadly as part of the general move to therapeutic jurisprudence whereby therapeutic factors are explicitly taken into account in sentencing (Wexler, 1990). Together with various mental health court liaison schemes (Brett, 2003) they may hold some promise for improving outcomes for mentally disordered offenders. At present, however, the situation is rather complex, with a great diversity of regimes and services in place, but with little in the way of ongoing Assessment or interstate collaboration in order to monitor and optimise processes.

 

Suggested further reading

Appelbaum,   P.S.   (1998).   Psychopathology,   crime,   and   law.   In

A.E. Skodol (ed.), Psychopathology and violent crime (pp.129-144). Washington DC: American Psychiatric Press Inc.

 

Ogloff, J.R.P., Roberts, C.F. & Roesch, R. (1993). The insanity defense: Legal standards and clinical assessment. Applied and Preventive Psychology, 2, 163-178.

 

Walker, N. (1968). Crime and insanity in England, Volume I (Vol. 1). Edinburgh: Edinburgh University Press.

 

 

References

Appelbaum,   P.S.   (1998).   Psychopathology,   crime,   and   law.   In

A.E. Skodol (ed.), Psychopathology and violent crime (pp.129-144). Washington DC: American Psychiatric Press Inc.

 

Barratt, E.S. & Felthous, A.R. (2003). Impulsive versus premeditated aggression: Implications for mens real decisions. Behavioral Sciences and the Law, 21, 619-630.

 

Brett, A. (2003). Psychiatry, stigma and courts. Psychiatry, psychology and law, 10 (2), 283-288.

 

Bronitt, S. & McSherry, B. (2010). Mental state defences. In S. Bronitt

& B. McSherry (eds), Principles of criminal law (3rd ed.). Sydney: Thomson LBC.

 

Bronitt, S. & McSherry, B. (2010b). Principles of criminal law (3rd ed.). Sydney: Thomson LBC.

 

Eastman, N. (2004). Translating psychiatry into law. Paper presented at the 24th ANZAPPL Conference: Walking an Ethical Tightrope, Port Douglas.

 

Eigen, J.P.  (1995).  Witnessing  insanity.  New  Haven  and  London: Y Pressale University.

 

Febbo, S., Hardy, F. & Finlay-Jones, R. (1994). Dissociation and psychological blow automatism in Australia. International Journal of Mental Health, 22(4), 39-59.

 

Fox, R.G. (1999). Competition in sentencing: The rehabilitative model versus the punitive model. Psychiatry, Psychology and Law, 6(2), 153-162.

 

Freckelton, I. & Selby, H. (2005). The expert in the sentencing process. In I. Freckelton & H. Selby (eds), Expert evidence: Law, practice, procedure and advocacy (3rd ed., pp.948-976). Pyrmont, NSW: Lawbook Co.

 

Matthews,   S.   (2004).   Failed   agency   and   the   insanity   defence.

International Journal of Law and Psychiatry, 27(5), 413-424.

 

Miller, R.D. (2003). Criminal responsibility. In R. Rosner (ed.), Principles and practice of forensic psychiatry (pp.213-232). London: Arnold.

 

 

 

Moore, T.M. & Stuart, G.L. (2005). A review of the literature on marijuana and interpersonal violence. Aggression and Violent Behaviour, 10, 171-192.

 

Morris, N. (1967). Psychiatry and the dangerous criminal. Southern California Law Review, 41, 514-547.

 

Ogloff, J.R.P., Roberts, C.F. & Roesch, R. (1993). The insanity defense: Legal standards and clinical assessment. Applied and Preventive Psychology, 2, 163-178.

 

Pathe, M. & Mullen, P. (1993). The dangerousness of the DSM-III-R.

Journal of Law and Medicine, 1, 47-51.

 

Pihl, R.O. & Peterson, J. (1995). Drugs and aggression: Correlations, crime and human manipulative studies and some proposed mechanisms. Journal of Psychiatry and Neuroscience, 20(2), 141-149.

 

Raine, A. (1997). The psychopathology of crime: Criminal behavior as a clinical disorder. St. Louis: Academic Press.

 

Swanson, J.W., Holzer, C.E., Ganju, V.K. & Jono, R.T. (1990). Violence and psychiatric disorder in the community: Evidence from epidemiological catchment area surveys. Hospital & Community Psychiatry, 41, 761-770.

 

Traynor, S. (2002). Sentencing mentally disordered offenders: The causal link. Sentencing Trends, (23), 1-23.

 

Walker, N. (1968). Crime and insanity in England, Volume I (Vol. 1). Edinburgh: Edinburgh University Press.

 

Waller, L. (1977). McNaughton in the antipodes. In D.J. West (ed.), Daniel McNaughton: His trial and the aftermath (pp.170-185). Ashford: Headley Brothers Ltd.

 

Walvisch, J. (2010). Sentencing offenders with impaired mental functioning: Developing Australian’s “most sophisticated and subtle” analysis. Psychiatry, Psychology and Law, 17(2), 187-201.

 

Wexler, D.B. (1990). The law as a therapeutic agent. Durham, Carolina: Academic Press.

 

White, H.R. (1997). Alcohol, illicit drugs and violence. In D. Stoff,

1. Brieling &  J.D.  Maser  (eds),  Handbook  of  antisocial  behaviour

(pp.511-523). New York: Wiley.

 

 

 

White, H.R., Loeber, R., Stouthamer-Lober, M. & Farrington, D.P. (1999). Developmental associations between substance use and violence. Development and Psychopathology, 11, 785-803.

 

 

 

Chapter 4: Forensic mental health services

 

 

Objectives

At the completion of this chapter it is expected that you should:

 

• understand the various roles of specialist forensic mental health services;

 

• appreciate the elements which make up an ideal contemporary forensic mental health service;

 

• appreciate the role of mental health professionals in Helping with the rehabilitation of criminal offenders, including those who do not suffer from a psychiatric

 

Reading

Reading 3.4.1  Ogloff,  J.R.P.  (2002).   Identifying   and accommodating the needs of mentally ill people in gaols and prisons. Psychiatry, Psychology and Law, 9(1), 1-33.

 

Introduction

This chapter is intended to provide a brief introduction to the field of ‘forensic mental health’ service provision. Although many of the issues will parallel those found in other branches of health care, some are unique to mental health.

 

 

What constitutes a forensic mental health service

The development of forensic mental health services throughout Australia has proceeded apace over the past decade (Mullen, Briggs, Dalton, & Burt, 2000). Similarly rapid developments, although differing   in   their   exact   details,   have   occurred  throughout  the

 

 

 

developed world. Something of a consensus is emerging as to what are the elements of an ideal forensic mental health service, although different countries and jurisdictions have different emphases and different modes of delivery for each of these elements (Barboriak, 2003). It is fair to say there is no jurisdiction which has achieved an ‘ideal’ service; nevertheless, it is possible to map out the components of such a service.

Secure inpatient facilities

 

It is appropriate and humane that mental health patients in mainstream settings are no longer detained in locked facilities for prolonged periods of time. The emphasis in mental health throughout the developed world in recent decades has been on developing community-based services and reducing the proportion of funding spent on inpatient services. Consequently the average length of inpatient stay for psychiatric patients has fallen dramatically. However, there are still at least three groups of patients who, for clinical and/or political reasons, may require the delivery of hospital services in a secure locked setting for prolonged periods of time. These are:

 

1. Patients who have been placed on an order by the courts mandating inpatient Most jurisdictions have several statutory mechanisms by which this can occur. In general terms, the courts are only likely to make such orders where the offender suffers from a severe mental illness (or, in some jurisdictions, a severe personality disorder), and has committed an offence which is serious enough to attract a custodial sentence. An example of such an order is that pertaining to those who are found unfit to stand trial for a serious offence, or found not criminally responsible for such an offence.

 

2. Prisoners who become acutely mentally ill and require coercive psychiatric Ideally such treatment should occur in a separate designated hospital, rather than in the medical wing of a prison facility. Depending on the relevant legal provisions and resources available, such prisoners may remain in hospital beyond the acute phase of their illness (for further rehabilitation) or be transferred back to prison for the remainder of their sentence.

 

 

 

3. A small proportion of other patients who have severe psychiatric disorders (including in some jurisdictions, personality disorders) that lead them to pose unacceptably high risks to the public if allowed They may be detained in ‘forensic’ facilities under civil mental health legislation until prolonged treatment has reduced their level of potential risk.

 

Ideally a service should have access to a range of different levels of inpatient security with a corresponding range of foci of care.

Prison based mental health services

 

Recent research has conclusively demonstrated that prison populations throughout the world show a significantly increased prevalence of mental disorders when compared to the general population (Fazel & Danesh, 2002). Similar disparities exist for personality dysfunction and for substance use disorders (Ogloff, 2002a). In practice, only the most severely ill (and even then only those who refuse adequate treatment on a voluntary basis) are likely to be transferred from prison to hospital in most jurisdictions. Prisons therefore require comprehensive multidisciplinary mental health services, which should ideally comprise:

 

1. A specialised unit for the assessment and treatment of acute psychiatric

 

2. A multi-disciplinary outpatient service, which provides:

 

• ongoing treatment to the less acutely disturbed;

 

• psychiatric screening for all newly recepted prisoners;

 

• urgent assessment  of  those  with  acute  issues  such  as disturbed behaviour and/or suicidality.

 

3. Therapeutic ‘offender rehabilitation’ programs focussing on psychological issues of relevance to risk of re-offending. These include, for example, programs targeting problems with substance use, anger management and problem solving

 

There has historically been a divide at the service delivery level, between (1) and (2), which have traditionally been dominated by psychiatry and nursing, and (3) which has generally been the domain of psychologists (Dowden & Andrews, 2000; Gendreau, Little, & Goggin, 1996; Hollin, 1999; Howells & Day, 2002). This schism is also reflected in the literature. One unfortunate consequence of this is that

 

 

 

offenders with mental health problems may be excluded from programs designed to reduce their recidivism risk. Another is that forensic mental health services (narrowly defined) have not always embraced the possibility of reducing risk of recidivism in parallel with the treatment of psychiatric disorders.

 

Related to this split is the fact that the role of mental disorder with respect to offending risk remains controversial: some authorities hold that, at most, it is a ‘responsivity factor’ which may affect the sufferer’s capacity to benefit from rehabilitation programs (Andrews

& Bonta, 2010); others emphasise the empirical evidence that mental disorder is itself an independent risk factor for offending (Mullen, 1997).

 

In reading around this topic, it will be useful to keep in mind these distinct schools of thought, and the different foci of the various mental health professionals working in correctional settings. Although there are enlightened moves to bring together the different approaches (Childs & Brinded, 2002; Ogloff, 2002a, 2002b), the likelihood of seamless, fully integrated service delivery remains remote in most jurisdictions.

Community forensic mental health services

 

The specialised elements of forensic mental health care extend well beyond the management of mentally disordered offenders who find themselves enclosed behind high walls. In practice it is found that for high risk mentally disordered offenders in the early period post- release, generic mental health services are often reluctant to take on management responsibilities. This is particularly so for those patients with a high profile and/or with a history of particularly grave offending. This is understandable, given the high case loads carried by most public mental health services and their often limited facility in dealing comfortably with issues of risk (Vaughan, Pullen, & Kelly, 2000).

 

There are various service responses to this dilemma. In Queensland, an ‘integrated’ community forensic mental health service exists which has a consultation liaison role only and does not provide primary treatment: the service Helps general mental health services in managing mentally disordered offenders after they are released from custody by providing expert advice and periodic review of patients. An alternative service model would involve the community forensic mental health service accepting full ‘parallel’ management (except for crises out of hours) of very high risk mentally disordered offenders in the early period post release, with the expectation that

 

 

 

once they have restabilised and reintegrated into the community (which may take several years) then graduated hand over will occur to the local generic mental health service.

 

Some services also include outpatient programs focussing on offenders with problematic behaviours such as sexual offending, stalking or violence (Warren, MacKenzie, Mullen, & Ogloff, 2005).

Court services

 

The courts and other statutory bodies such public prosecutors or parole boards have a steady demand for mental health assessments of offenders with mental health issues. Such assessments may be for a variety of reasons, including Helpance with sentencing dispositions, assessing criminal responsibility or  helping  to determine fitness to stand trial.

 

Most forensic mental health services provide reports to the courts written by various professionals (especially psychiatrists and psychologists). In practice there are advantages to be gained in such an arrangement, since decisions made by the courts may have significant impacts on forensic mental health services themselves when they utilise those services (inpatient or outpatient) as part of the offender’s disposition.

 

An emerging area is that of court liaison or court diversion services. A range of models exist, but the essential principle is that a mental health professional or a team of professionals Helps the courts, usually at the level of the lower courts, in their dealings with offenders with mental health issues. The remit in some areas is to Help with diversion from prosecution (Birmingham, 2001; James, 1999, 2004), whilst in others it is to Help with brokerage of appropriate services for offenders who have been convicted (Brett, 2003). Some jurisdictions have gone one step further and developed specialised mental health courts along the lines of other problem solving courts such as those focussing on drug users (Lamb, Weinberger, & Reston-Parham, 1996; Petrila, 2004). Generally such courts embrace the principles of ‘therapeutic jurisprudence’ (Wexler, 1990). The success or otherwise of such endeavours is currently an area of active debate and some empirical work is beginning to emerge in this field (Cosden, Ellens, Schnell, Yamini-Diouf, & Wolfe, 2003).

 

 

What is different about forensic mental health services

Ideally forensic services need to be well integrated at all levels with their mainstream counterparts. The term ‘forensic’ should describe a temporary phase, denoting a need for a high level of security (whether inpatient or outpatient) for a given patient, rather than become a permanent, potentially stigmatising label.

 

A diversity of views exist with respect to the necessity or otherwise for the existence of the specialised forensic mental health services. This is reflected in the diversity of service models which exists. In practice, however, the speciality has essentially been in existence in one form or other for several centuries now and there are several good reasons for its durability.

 

Four key areas will be described below which delineate the special roles which forensic mental health plays. Whilst all areas are, or at least should be, also integral to general mental health work, the key difference is really one of emphasis. Above a certain threshold of complexity and/or political sensitivity, arguably it becomes imperative that the care of mentally disordered offenders is carried out by those with a specific interest in the field.

Facility in working with risk

 

For good or ill, the paradigm of risk and its management has increasingly come to dominate the field of mental health (Rose, 1998). All mental health services are now expected to be able to effectively assess and manage risk in its various manifestations. Forensic services are marked by having a caseload that carries a significantly higher load in terms of clinical and/or political risk. This risk is usually that of violence, which puts other members of the public at risk (as opposed to, for example, the risk of self neglect or of suicide).

 

It is essential that forensic mental health clinicians are conversant with the key concepts of risk, and understand both the value and the limitations of risk management frameworks. Theoretical knowledge alone is of limited use however when dealing with mentally disordered offenders. An additional requirement is the implicit knowledge and even ‘wisdom’, which only develops with the experience of dealing with a significant number of such patients. In practice, working on a daily basis with a population who have a higher base rate of violent behaviours enables clinicians to become more skilled in picking up on early warning signs of an escalation in

 

 

 

risk. Theoretically at least, this facilitates the prevention of that risk becoming manifest. Forensic mental health clinicians also become more used to dealing with common concomitants of risky behaviour such as hostility, lack of transparency and countertransference11 anxiety.

 

An increasingly important area for forensic mental health clinicians, and an area which some would advocate as being relevant to general mental health clinicians (Hodgins & Muller-Iberner, 2004), is  the need to manage risk factors for violence, going beyond those which conventionally come under the psychiatric rubric (Dowsett, 2005). These include factors such as substance misuse, pro-criminal attitudes and poor anger control. An evidence base for dealing with these issues in mentally disordered populations is slowly emerging (Douglas, Webster, Eaves, Hart, & Ogloff, 2001; Lindqvist & Skipworth, 2000).

Facility with working with complex patients

 

Amongst the population serviced by public mental health services, co-morbid diagnoses are increasingly seen: commonly, a major mental illness such as schizophrenia is co-morbid with a substance use disorder and/or personality dysfunction. This is even more frequently the case in those with a history of violence, where several co-morbid problems are common (Swanson et al., 1997).

 

Effective forensic mental health services need to accept this fact and be able to tailor treatment packages appropriately. This is of course related to the need to manage risk factors beyond simply the active symptoms of major mental disorders.

Working with ethical awareness

 

Professionals of all disciplines should of course work within an ethical framework. There are certain dilemmas however which are relatively specific to working within a forensic context. These usually revolve around the twin poles of care and containment (Mullen, 1993; Walker, 1976). Effective forensic mental health services cannot restrict their focus to that of optimising the wellbeing of the patients under their care. An additional requirement is that the potential risk that such patients pose to the broader community should be minimised  to

 

 

 

11    This is a psychodynamic concept, referring to the emotional reactions, often unacknowledged, of professionals towards their patients.

 

 

 

the best extent possible within the resources provided. In the day-to- day practice of forensic mental health, ethical issues are far from an abstract concern: they inevitably influence the precise content of assessment reports and treatment packages provided.

 

Although the polarity between care and containment is often more apparent that real (since re-offending is generally in nobody’s interest, least of all that of the patient), at times it can lead to real dilemmas for the forensic clinician.

Interface with legal and correctional systems

 

This is the most obvious way in which forensic mental health differs from mainstream. Whereas all mental health workers  are occasionally required to give evidence to the court on patients whom they treat, this is not a regular event. Forensic mental health clinicians (particularly psychiatrists and psychologists) however will regularly be required to give evidence to courts, both on patients under their care and on those referred purely for assessment.

 

In both legal and correctional contexts, there is the ever-present risk of the forensic clinician’s task being subordinated to that of being a ‘handmaiden’ to the ostensibly more powerful institutions of the courts or of correctional institutions. Ethical awareness and mutual respect for the objectives and roles of other professionals is essential for effective working in these contexts. In practice, problems tend to result when one field crosses the boundaries into the other’s area of expertise. An example of this tendency of courts or legislators to create legal ‘pseudodiagnoses’ such as “sexual violent predator” or “dangerous and severe personality disorder”. Both exist in statute, but not in psychiatric nosologies. Conversely, it has been known for mental health professionals in their role as expert witness to cross over into giving confident opinions on issues which are essentially for the courts to determine rather than being a matter of mental health expertise (Eastman, 2004). Not surprisingly, opinions differ on where exactly such boundaries should be drawn (Melton, Petrila, Poythress, & Slobogin, 1997) (Rogers & Shuman, 2000).

 

The four key themes outlined above are of course relevant to all of the individual components of any forensic mental health service. The complexity of the field, which has intrinsic political aspects as well as the more obvious medical ones (Carroll, Lyall, & Forrester, 2004), means that failure of staff in any of these key areas can result in the tragedy of preventable violence on the one hand or the scandal of abusive treatment environments on the other (Prins, 1999).

 

 

 

Reading

 

Reading 3.4.1 Ogloff, J.R.P. (2002). Identifying and accommodating the needs of mentally ill people in gaols and prisons. Psychiatry, Psychology and Law, 9(1), 1-33.

 

Suggested further reading

Lindqvist P. & Skipworth, J. (2000). Evidence-based rehabilitation in forensic psychiatry. Br J Psychiatry, 176, 320-323.

 

Kennedy, H.G. (2002). Therapeutic uses of security: mapping forensic mental health services by stratifying risk. Advances in Psychiatric Treatment, 8, 433-443.

 

Mullen, P., Briggs, S., Dalton, T. & Burt, M. (2000). Forensic mental health services in Australia. International Journal of Law and Psychiatry, 23(5-6), 433-452.

 

Walker, N. (1976). Treatment and justice in penology and psychiatry. Edinburgh: The University Press.

 

References

Andrews, D.A. & Bonta, J. (2010). The psychology of criminal conduct

(5th ed.). Cincinnati, OH: Anderson Publishing Co.

 

Barboriak,  P.N.  (2003).  The  history  of  correctional  psychiatry.  In

1. Rosner   (ed.),   Principles   and   practice   of   forensic   psychiatry

(pp.475-483). London: Arnold.

 

Birmingham, L. (2001). Diversion from custody. Advances in Psychiatric Treatment, 7, 198-207.

 

Brett, A. (2003). Psychiatry, stigma and courts. Psychiatry, Psychology and Law, 10(2), 283-288.

 

Carroll, A., Lyall, M. & Forrester, A. (2004). Clinical hopes and public fears in forensic psychiatry. Journal of Forensic Psychiatry & Psychology, 15(3), 407-425.

 

Childs, L. & Brinded, P. (2002). Rehabilitation of the mentally disordered offender. Australian Psychologist, 37(3), 229-236.

 

 

 

Cosden, M., Ellens, J.K., Schnell, J.L., Yamini-Diouf, Y. & Wolfe, M.M. (2003). Assessment of a mental health treatment court with assertive community treatment. Behavioral Sciences and the Law, 21, 415-427.

 

Douglas, K., Webster, C.D., Eaves, D., Hart, S.D. & Ogloff, J.R.P. (2001). HCR-20 violence risk management companion guide. Burnaby: Mental Health Law and Policy Institute, Simon Fraser University.

 

Dowden, C. & Andrews, D.A. (2000). Effective correctional treatment and violent reoffending: A meta-analysis. Canadian Journal of Criminology, 42(4), 449-467.

 

Dowsett, J. (2005). Measurement of risk by a community forensic mental health team. Psychiatry Bull, 29, 9-12.

 

Eastman, N. (2004). Law and mental health sciences as irreconcilable disciplines and the limits of mental health law. Paper presented at the 24th ANZAPPL Conference: Walking an Ethical Tightrope, Port Douglas.

 

Fazel, S. & Danesh, J. (2002). Serious mental disorder in 23,000 prisoners: A systematic review of 62 surveys. Lancet, 359, 545-550.

 

Gendreau, P., Little, T. & Goggin, G. (1996). A meta-analysis of the predictors of adult offender recidivism: What works! Criminology, 34(4), 575-607.

 

Hodgins, S. & Muller-Iberner, J.R. (2004). Preventing crime by people with schizophrenic disorders: The role of psychiatric services. Br J Psychiatry, 185, 245-250.

 

Hollin, C.R. (1999). Treatment programs for offenders. International Journal of Law and Psychiatry, 22(3-4), 361-372.

 

Howells, K. & Day, A. (2002). Grasping the nettle: Treating and rehabilitating the violent offender. Australian Psychologist, 37(3), 222-228.

 

James, D. (1999). Court diversion at 10 years: can it work, does it work and has it a future Journal of Forensic Psychiatry, 10(3), 507-524.

 

James, D. (2004). Diversion in perspective. Paper presented at the Court in the crossfire between psychiatry and law, Fremantle, WA.

 

Lamb, H.R., Weinberger, L.E. & Reston-Parham, C. (1996). Court intervention to address the mental health needs of mentally ill offenders. Psychiatric Services, 47(3), 275-281.

 

 

 

Lindqvist, P. & Skipworth, J. (2000). Evidence-based rehabilitation in forensic psychiatry. Br J Psychiatry, 176, 320-323.

 

Melton, G.B., Petrila, J., Poythress, N.G. & Slobogin, J.D. (1997). Psychological Assessments for the Courts (2nd ed.). New York: Guilford Press.

 

Mullen,  P.  (1993).  Care  and  containment  in  forensic  psychiatry.

Criminal Behaviour & Mental Health, 3, 212-225.

 

Mullen, P. (1997). A reassessment of the link between mental disorder and violent behaviour, and its implications for clinical practice. Australian & New Zealand Journal of Psychiatry, 31, 3-11.

 

Mullen, P., Briggs, S., Dalton, T. & Burt, M. (2000). Forensic mental health services in Australia. International Journal of Law and Psychiatry, 23(5-6), 433-452.

 

Ogloff, J.R.P. (2002a). Identifying and accommodating the needs of mentally ill people in gaols and prisons. Psychiatry, Psychology and Law, 9(1), 1-33.

 

Ogloff, J.R.P. (2002b). Offender rehabilitation: From “nothing works” to what next Australian Psychologist, 37(3), 245-252.

 

Petrila,   J.   (2004).   Emerging   issues   in   forensic   mental   health.

Psychiatric Quarterly, 75(1), 3-19.

 

Prins, H. (1999). Will they do it again London: Routledge.

 

Rogers, R. & Shuman, D.W. (2000). Conducting insanity Assessments. New York: Guilford Press.

 

Rose, N. (1998). Governing risky individuals: The role of psychiatry in new regimes of control. Psychiatry, Psychology and Law, 5(2), 177-195.

 

Swanson, J., Estroff, S., Swartz, M., Borum, R., Lachicotte, W.S., Zimmer, S. et al. (1997). Violence and severe mental disorder in clinical and community populations: The effects of psychotic symptoms, comorbidity, and lack of treatment. Psychiatry, 60, 1-22.

 

Vaughan, P.J., Pullen, N. & Kelly, M. (2000). Services for mentally disordered offenders in community psychiatric teams. Journal of Forensic Psychiatry, 11(3), 571-586.

 

 

 

Walker, N. (1976). Treatment and justice in penology and psychiatry. Edinburgh: The University Press.

 

Warren, L.J., MacKenzie, R., Mullen, P. & Ogloff, J.R.P. (2005). The problem behavior model: The development of a stalkers clinic and a threateners clinic. Behavioral Sciences & the Law, 23(3), 387-397.

 

Wexler, D.B. (1990). The law as a therapeutic agent. Durham, Carolina: Academic Press.

 

 

 

 

Session 4

Working as an Expert

 

Contents

Objectives…………………………………………………………………….. 111

Readings………………………………………………………………………. 112

Evidence in court………………………………………………………….. 112

Forms of evidence………………………………………………… 113

Evidential concepts……………………………………………………….. 118

Relevance………………………………………………………………… 118

Admissibility…………………………………………………………….. 118

Weight…………………………………………………………………….. 118

Judicial notice…………………………………………………………… 119

Presumptions……………………………………………………………. 119

Proof……………………………………………………………………….. 119

Standard of proof……………………………………………………… 120

Working as an expert in Court………………………………………. 121

Expert witness “rules”………………………………………….. 126

Preparation of formal reports for the Courts…………………… 131

Clinical notes……………………………………………………….. 131

Formal reports and statements………………………………. 132

Practical aspects of giving evidence……………………………….. 135

Subpoenas and summons……………………………………… 135

Before Court………………………………………………………… 136

In Court………………………………………………………………. 137

Suggested further reading……………………………………………… 138

References……………………………………………………………………. 138

 

 

 

 

 

 

Working as an Expert

 

Objectives

At the completion of this session it is expected that you should be able to:

 

• identify the main types of evidence and the particular way each type is used;

 

• understand what is  meant  by  ‘legal  burden’ and ‘evidentiary burden’;

 

• describe  and   distinguish   the   difference   between   ‘beyond reasonable doubt’ and ‘balance of probabilities’;

 

• define what is expert or opinion evidence;

 

• demonstrate an understanding of the rules of expert evidence;

 

• prepare a formal report for court;

 

• demonstrate an understanding of the practical aspects of giving oral evidence in

 

 

Readings

Reading 4.1       Gans,  J.  &  Palmer,  A.  (2004).  Expert  evidence.  In

1. Gans & A. Palmer (eds), Australian principles of evidence (pp.243-263). Coogee NSW: Cavendish Publishing (Australia) Pty. Ltd.

 

Reading 4.2  Melton,  G.B.,  Petrila,  J.,  Poythress,   N.G.   & Slobogin, C. (1977). Consultation, report writing and expert testimony. In G.B. Melton, J. Petrila, N.G. Poythress & C. Slobogin (eds), Psychological Assessment for the Courts (pp.519-546). New York: The Guildford Press.

 

Evidence in court

In any trial, each of the parties before the court may be required to prove certain things. In a criminal matter, as we have seen, the burden of proof lies with the prosecution: it has the task of proving to the court that the elements of the crime occurred and that the accused committed it. The burden of conducting the case and obtaining and presenting the facts before the court in a criminal matter rests with the prosecution as far as the substantial elements of the crime are concerned. There are some circumstances and some evidential points in a criminal trial where it is for the defence to prove certain things. However, in all these situations the method of proof used involves the presentation of evidence before a court.

 

In bygone times, the evidence before a court consisted of either real physical objects, such as a document, a withered leg, a burned victim or a dead body, or alternatively the oral testimony of witnesses who alleged that they had observed certain things. There were no specialist scientific techniques which could be used to confirm the observations of witnesses or the statements that the witnesses gave. Therefore, courts were concerned with ensuring that what was delivered to them as evidence was the truth. It has been argued by some legal philosophers that the use of wigs and gowns by lawyers together with the strict formality of the court was in part designed to be intimidating so that witnesses would feel compelled to tell the truth. Indeed in the past, accused persons were forbidden to give evidence themselves on the basis that they had an obvious reason to lie to the court and therefore they might perjure themselves if they were permitted to give evidence on their own behalf: the risk of this happening  was  considered  too  great  to  allow  them  to  give  any

 

 

 

evidence at all. This situation was justified on the grounds that perjury meant breaking an oath sworn on the Bible and was therefore a sin against God; as such, it was far more serious than any mortal crime that the accused person might have committed. From a pragmatic perspective, the absence of forensic science techniques to confirm or refute a witness’s evidence meant the courts had to try to ensure that the evidence given had the greatest chance of being the truth. For this reason, a whole variety of legal rules were established relating to how courts should receive evidence.

 

The law of evidence is an example of adjectival law, that is, law that seeks to regulate the operation of the law itself. It is one of the most important specialist legal fields, and it has particular significance for barristers because they operate directly under its control in relation to all of their court work. This area of law was developed to help to ensure that what went on in courts was fair and just. The modern law of evidence underpins the operation of the adversarial procedures within the court. The rules of evidence are used to determine how and in what manner evidence can be admitted before the court by either party; it is the judge that determines the application of these rules to any aspect of the evidence.

Forms of evidence

 

Evidence in a court of law can take several forms. Theoretically the most important is so-called ‘real’ evidence. Historically, this is the type of evidence most favoured by the legal system. It consists of an actual physical object. For example, if the degree of damage that occurred to a person’s leg in an accident is in dispute, and as a result of the injury the leg had to be amputated, then the production of the amputated leg in court would be a somewhat gruesome example of real evidence. Although such evidence is theoretically favoured, in practice it is rarely used. Instead, the courts usually choose to receive oral testimony regarding the nature of the injury.

 

Oral evidence is given to a court by witnesses who have taken an oath to tell the truth. The witness is asked a series of questions with the intention of getting them to give truthful evidence of what they saw, heard or did. The questions are usually general and open, but in certain circumstances leading questions can be asked. In addition to oral evidence, documentary evidence may also be admitted by courts and used in their deliberations. Documentary evidence can include original documents and copies, either certified or uncertified.

 

 

 

Direct evidence

 

Direct evidence is an eyewitness account of an issue that forms part of the case before the court. For example in a criminal matter, such as a shoplifting case, the store detective might describe how she saw the goods being taken from the shelf, hidden in the accused’s clothing, and then taken out of the store by the accused without payment; this would be direct evidence of the relevant facts in the case.

 

Whilst a direct eyewitness account of the relevant facts would appear to be the best type of evidence, when it comes to suggestions of falsehood or bias in a witness’s testimony, many factors can make an eyewitness account inaccurate. A few examples of such factors include: alcohol intoxication (Palmer, Flow, Takarangi & Humphries, 2013); van Oorsouw & Merckelbach, 2012); physical distance between witness and event (e.g., Loftus & Harley, 2005; Lindsay, Semmier, Weber, Brewer & Lindsay, 2008); emotional state of the observer (Houston, Clifford, Phillips, Memon, 2013); interval between event and recall (Ebbesen & Rienick, 1998); eyewitness age and suggestibility. There are countless other factors also, and hence such direct evidence as provided by an eyewitness account can be quickly and completely destroyed.

 

The following scenario illustrates this point: in a brawl involving many people, an observer might say that he observed X kick the victim while the victim was lying on the ground. In the confusion of a brawl it might be difficult for any witness to be sure of who did what. The direct evidence of the observer that X was the person who kicked the victim is a powerful and important piece of evidence against X. However, if the person giving this evidence was heavily intoxicated, a substantial distance away from the brawl, had poor visibility due to darkness and a partially obstructed view due to a parked truck, then the observer’s evidence could be discredited by the defence during cross-examination. If there is no direct evidence against X other than the eyewitness account given by the observer, the prosecution would likely fail.

 

Circumstantial evidence

 

Circumstantial evidence is information given in evidence which does not itself comprise the key facts that are the elements of the crime, but instead facts that point to the existence of the key facts necessary for proof of the crime. For example, in the assault case described above, evidence might be given that: there was a boot print of a certain pattern on the victim’s head; that X owned a pair of boots with that same tread pattern; and that X was one of the individuals

 

 

 

involved in the fight. These are all items of circumstantial evidence that suggest that X did in fact plant his booted foot on the victim’s head. However, it is not direct evidence that he did so. Direct evidence of that could only come from an individual who actually observed that event.

 

The weakness of circumstantial evidence is that there might be other explanations for each of those individual factors. For example, the boot imprint on the victim’s head might match the sole of several different types of boot as well as the one worn by X. Indeed, it might be shown that other people involved in the fight had boots with the same tread. The fact that X owned a pair of boots with this tread does not mean that he was wearing that pair of boots at the time of the alleged offence. Nor does his presence at the fight necessarily mean that he was the person that kicked, regardless of his footwear.

 

Whilst the individual elements of circumstantial evidence are by themselves weak and prove little in relation to the overall crime, multiple pieces of circumstantial evidence given by several different witnesses can be powerful evidence. If it is shown that a biased or untruthful witness is wrong about one of the elements of circumstantial evidence, it is of less overall significance than if direct evidence is shown to be erroneous. The loss of one piece of circumstantial evidence does not necessarily destroy the inference that can be drawn from the remaining circumstantial facts, whereas the loss of a piece of direct evidence may throw the entire case into doubt.

 

In summary, where circumstantial or indirect evidence is concerned, the larger the number of indirect or circumstantial facts that are presented, the stronger the case against an accused person. It is possible for a person to be convicted solely on an extensive list of circumstantial facts without any direct evidence being brought against them.

 

Hearsay evidence

 

Hearsay evidence lacks the direct and original quality of the evidence given by a person who actually observed a crime take place. Oral testimony is said to be hearsay evidence when the witness gives evidence about what somebody else said that they saw, heard or did. The problem with evidence of this type is that the person who actually saw or heard the events that surrounded the crime is not present in court to be questioned or cross-examined. The court is unable to test such evidence by challenging the person who allegedly saw or heard these events. All the court has in the witness box is a

 

 

 

person who can tell the court what somebody else said about the events. Courts are loath to accept such evidence, and hearsay evidence is generally excluded from proceedings in court. It should also be remembered that the actual statement overheard by the witness was not, of course, made under oath. This is another reason that is given to justify the courts’ exclusion of such statements as evidence.

 

There are however a number of exceptions to the hearsay rule including: statements made in public documents; statements made by an employee in carrying out their duty (the making of the statement being part of that duty); certain business records; evidence given in previous trials; and some confessions. These may all be admitted in evidence, even though they are hearsay. Medical histories are not exempt from the rules against hearsay evidence, but they may be given in evidence by health professionals to prove other matters relevant to a case before the courts. For example, in certain circumstances, a doctor can say in evidence that the victim said ‘Joe Bloggs punched me in the face.’ In allowing this evidence, the court does not use it to prove or disprove whether Joe Bloggs hit the victim in the face. Instead the court will use the evidence as a context for doctor’s examination of the victim and the deductions, comments and opinions made by the doctor. If the doctor in this case had examined only the face of the victim, the doctor could explain the decision to do this by virtue of the fact that the victim had said ‘Joe Bloggs punched me in the face.’ Additionally, if the doctor draws an inference based on the finding of injuries to the mouth and teeth, then the doctor’s opinion that the injuries observed were in keeping with the account given by the victim that ‘Joe Bloggs punched me in the face’ means that the hearsay statement is admissible to show the basis of the doctor’s opinion.12

 

Opinion evidence

 

It is a general rule of evidence that witnesses may not state their opinion as part of their evidence in court. Witnesses may state what they observed as a matter of fact, but they are not allowed to draw deductions concerning the facts and present their deductions as part of their evidence. Certainly in criminal matters, deductions from the facts in evidence should be drawn by the jury in order to come to a decision as to whether or not the accused is guilty. To put it another

 

 

 

12    This area is quite complex and the reader is directed to legal texts if further information is required.

 

 

 

way, witnesses’ opinions are inadmissible because it does not matter what the witness thinks the evidence means, it is what the jury or court thinks about the evidence that is significant.

 

Most criminal and some civil matters are decided by a jury containing a wide variety of people, some of whom may have specialist knowledge. If deductions are to be drawn on the basis of the factual evidence given to the court, there should be plenty of commonsense lay knowledge available amongst the jury members, which in most cases is sufficient to deal with the issues raised in evidence. In addition, the judge provides legal expertise as to the significance of the law regarding the matters under review. On the basis of these resources, the jury is entitled to draw its own conclusions and form its own opinions regarding the meaning of the facts of the case, based on ordinary general knowledge. By approaching case analysis in this way, the general skills that are applied to resolve the factual issues before the court are those of an ordinary member of the public. This is one of the ways that justice is seen to be done for the people, by the people.

 

The courts are not designed to be a star chamber of senior judicial figures or a conference of highly trained specialists against whose knowledge and skills the ordinary citizen is tried. Instead, according to legal theory, the triers of fact within the court (the jury) should be a body of people who reflect and represent the community interest.

 

As a result, in jury trials, the evidence is presented to a panel of people who should be representative of the wide spectrum of views, beliefs and intellect that is found within the community. Of course, this is a theoretical ideal. It would take a very large jury indeed to represent every aspect of human belief and knowledge. Juries are simply a manageable sample of the general public, and almost certainly a skewed sample at that.

 

In practice, both civil and criminal trials often involve technical issues well beyond the average knowledge of the person in the street. It is often the case that jury members have insufficient specialist knowledge to comprehend all of the technical evidence presented before them. Given that it is the jury who determine on the evidence whether or not the accused person is guilty, when there is a requirement for specialist knowledge to Help the judicial process the court enlists the help of experts, and those experts may be permitted to deliver opinion evidence.

 

 

Evidential concepts

Relevance

 

For evidence to be admissible, it must be relevant. The decision as to whether evidence is relevant or not is a matter for the judge. There is no fixed definition of relevance. Lord Greene in the case of Tomkins v. Tomkins stated:

 

… when I say relevant I mean this, so nearly touching the matter in issue as to be such that a judicial mind ought to regard it as a proper thing to be taken into consideration.

 

This definition does not really help the reader to understand the legal meaning of relevance and it is perhaps just as useful to say that the fact will be relevant if it is has something to do with the case or is generally pertinent to the case. The evidence must be considered to be capable of Helping in determining the existence of an alleged fact. In practice however, the law treats relevance in a slightly narrower way, as there will be some evidence that although relevant in a general sense, will be excluded by a court because its value is too trivial.

 

In summary, for facts to be relevant they must be probative and not too slight or remote.

Admissibility

 

Evidence is admissible if it is relevant to the facts of the case and if it is not specifically excluded by a particular rule of evidence. Much of the law of evidence has to do with the circumstances in which particular types of evidence are excluded despite their relevance to the case. If evidence is not admissible then it cannot be presented in court and the jury will not hear it. A judge can decide that evidence is inadmissible on a wide variety of grounds. Fairness is one of the basic principles that regulate the admissibility of relevant evidence. Hence evidence that is largely prejudicial and of little probative value may be excluded by a judge.

Weight

 

It is often difficult to distinguish between relevance and weight of evidence. The weight of evidence is the degree of attention or consideration that a particular piece of evidence should receive. Whilst it is for the judge to determine whether  evidence  is admissible, it is for the jury to determine what weight to place on the evidence.

 

 

 

For this matter to be considered by the jury, the evidence must already have been admitted. Weight of evidence is therefore a question of fact, not law.

Judicial notice

 

There are some matters that a court will take ‘judicial notice of’. That is, it will recognise their existence without having to hear evidence about them. Such matters include knowledge of law itself, certain customs, issues of sovereignty and matters of common knowledge.

Presumptions

 

In addition to formal judicial notice of facts, the rules of evidence permit certain presumptions to be accepted by a court. A presumption is made when a court accepts certain facts without hearing evidence about the existence of those facts. In other words, no proof of the facts are required by the court. Why should courts accept facts in the absence of evidence In most cases presumptions are accepted in order to facilitate the operation of the law and for reasons of social policy. For example, people living together as man and wife are presumed to be legally married. The presumption is rebuttable in that evidence could be led to show that they were not in fact married. Similarly, a child will be presumed to be legitimate, that is the child of the married couple, but the presumption is rebuttable if evidence of paternity testing proves that the husband is not the father of the child. The presumption of death is an interesting one. The old common law rule stated that if there was no positive evidence that a person was alive during a continuous period of seven years and that there are people who would have been likely to have heard from the missing person during that time, and that proper inquiries have been made, then the person can be presumed dead. Presumptions concerning death are usually involved in law of succession. For example, where two people die in an explosion, in practical terms they may have died at the same time, however, for the purpose of proving a will a court will presume that the older person died first.

Proof

 

The various parties before a court, the prosecution and the defence, have to prove various things. If a matter is alleged by one party then they must prove that allegation in evidence. The requirement to do this is often referred to as the burden of proof. There are two main burdens which the law identifies – firstly, the legal burden of proof and, secondly, the evidential burden. In criminal matters it is the prosecution  who  bears  the  legal  burden  of  proof,  that  is  the

 

 

 

prosecution must show that the accused person committed the offence. If they fail to do this then the defence need do nothing, as they do not have the burden of proving that their client did not commit the offence.

 

The evidential burden is the burden of producing sufficient factual evidence to raise a particular issue before the court. A jury in a criminal matter cannot be asked to consider a particular question or issue unless some evidence of facts relating to this question or issue have been admitted. Therefore, if the prosecution wish the jury to consider that an accused person may have been drunk, they have the evidential burden of calling some evidence of intoxication before the judge will allow the jury to consider the issue.

 

As mentioned above, in criminal cases the burden of proof lies on the prosecution who must prove the essential elements of the offence. However in some cases where specific defences have been raised, such as insanity (‘mental impairment’) or self defence, the burden may shift to the defence.

Standard of proof

 

The law recognises two different standards of proof. One standard applies to civil proceedings and the other to criminal proceedings. The civil standard is the general standard applied in law and requires that the party who bears the burden of proof, that is the party alleging the facts, to prove those facts on the basis that it is more probable that the facts exist than they do not exist. This has been summarised by the phrase ‘balance of probability’. The criminal standard of proof is different: here the term, ‘beyond all reasonable doubt’, is used. This means that if at the end of a criminal trial the jury have any, or reasonable, doubt as to the guilt of the accused person, they must find him or her not guilty. This high standard of proof is a burden placed on the prosecution in criminal matters. In a criminal proceeding the defence may have to prove a fact (a very rare occurrence), and the standard of proof then required is the civil standard of balance of probabilities.

 

Why is a higher standard of proof applied in criminal matters There is a general presumption that an accused person is innocent until they have been proven guilty, that is, a jury has brought in a guilty verdict. By imposing this higher standard, the law is attempting to ensure that an accused person will not be convicted where some reasonable doubt about their guilt exists. This does not mean that a jury must have no doubt about a person’s guilt, it simply means that any doubt they have must be so trivial as to be almost unreasonable

 

 

 

for it to be responsible for the person being acquitted. It is difficult for juries to understand what is meant by ‘beyond all reasonable doubt’. As a result, judges have used other words in attempting to explain to a jury the standard of proof they should use. Most of these phrases such as “comfortably satisfied” are dangerous in that they do not adequately explain the standard in legal terms, although they may be easier for jury members to comprehend .

 

The standard of proof in criminal cases was explained well by Justice Denning in Miller v. Minister of Pensions in 1947:

 

The degree of cogency required in a criminal case before an accused person is found guilty is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.

 

The degree of cogency required to discharge a burden in a civil case is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not.

 

These key concepts regarding the law of evidence need to be kept in mind when preparing reports and giving evidence.

 

Working as an expert in Court

The courts have long recognised that the law is often called upon to deal with matters well outside normal legal knowledge or the experience of ordinary individuals. In such situations, the  courts have a need for additional knowledge, including scientific and technical skills, to help them resolve these specialist issues.

 

Take the situation of a criminal trial where the prosecution is relying principally on circumstantial evidence. The jury hears evidence from:

 

• a doctor who states that the body in the bedroom of a house was dead and that there were wounds to the chest and a wound to the heart;

 

 

 

• a witness who saw the accused running from the house with bloodstains on his hands;

 

• a police officer who found a knife by the side of the body in the bedroom;

 

• a forensic scientist who says that the blood group of the blood on knife is the same as the blood group from the body of the deceased person and the same as the blood group on the blood of the hands of the accused;

 

• a fingerprint expert who demonstrates the shape and characteristics of the fingerprints found on the handle of the knife and also the shape and form of the fingerprints of the

 

The jury takes all of these individual facts and arrives at a private conclusion along the lines that: the person died because of the wounds to the chest and the heart; the bloodstained knife beside the body caused the wounds; the blood on the knife and the blood on the hands of the accused is in fact the dead man’s blood; the picture of the fingerprints on the knife looks the same as the picture of the accused’s fingerprints, and that therefore the accused had held the knife.

 

The jury may also make a series of inferences on the basis of these facts and conclude that the accused was the person who killed the deceased.

 

This scenario provides an interesting example of the difficulties experienced in trying to dissect facts from opinions. As discussed earlier, in a criminal matter the jury decides what the facts mean and determines whether or not the accused person is guilty. To obtain a conviction the level of proof that the Crown provides in a criminal matter must be sufficient to convince a lay person (a jury member) beyond all reasonable doubt of the accused’s guilt. Analysing the evidence is the job of the jury and, whilst they may be guided on points of law by the judge, the determination of guilt from the inferences drawn from the facts is solely a jury task and one which a witness, however expert, should never try to take over. This principle amounts to a special rule relating to the law of evidence which is referred to as the “ultimate issue rule”. Put simply, it states that a witness may not give any evidence about a matter which amounts to an expression of the ultimate issue of the case, that is, that the accused is guilty (or not) of the specific offence charged. As we shall see, there are some difficulties with the ultimate issue rule.

 

 

 

If we examine our scenario in which it seems that a man has died as a result of being stabbed in the chest, we can see that the facts given in evidence form a circumstantial case against the accused, but they are each capable of a variety of interpretations. If the interpretations from each of the facts support the circumstantial case, then the finding of guilt by a jury is reasonable.

 

Let us first take the factual evidence of the doctor. We immediately see the first problem: it is sometimes difficult to distinguish between facts and opinion. Sometimes, but not always, the distinction between facts and opinion can be thought of in terms of objective observations being facts and subjective inferences being opinions. The doctor stated that the body in the bedroom was dead. At first glance this is clearly a piece of factual evidence given by the doctor. However, the doctor concluded that the individual was dead by virtue of a number of observations: the absence of breathing, the absence of a pulse, perhaps the presence of rigor mortis, perhaps the changes in the retinal vessels in the back of the eye. Various techniques can be used to determine whether an individual is in fact dead. What is really happening in a practical sense is that a doctor is making a number of factual observations and inferring or forming an opinion from them. It could be argued, therefore, that the doctor’s evidence that the individual was dead is opinion evidence and therefore should not be given. Instead, the doctor should simply state the factual observations, namely, that there was no pulse, that there was no breathing and that the muscles had gone rigid, and leave it to the jury to infer that the individual was dead. Clearly, such a situation would be absurd, and we shall see that a doctor in this situation is able to give such opinion evidence of death because the court accepts that the doctor is an expert in this area. However, it serves to illustrate the point that the distinction between facts and opinions is not always clear. In this example, the doctor’s evidence that the individual was dead is expert evidence, admissible on the basis of special knowledge and training as a medical practitioner.

 

This quality of expertise does not apply to all the witnesses in this scenario. For example, the witness who saw the accused running from the house with blood on his hands may have no specialised skill or expertise that could be applied to the facts at issue in the case. The fact that the witness is a nuclear physicist and highly skilled and expert in her area, does not mean that she has any skill in identifying individuals or recognising the presence of blood. Again, if we interpret the evidence strictly, we see that the identification of the person running from the house as the accused is not a matter of fact:

 

 

 

it is another example of an assembly of individual facts which go to form an opinion. For example, the witness might have noted particular characteristics of the person who ran from the house: age, height, gait, a moustache, or the colour of hair. The witness in identifying the accused as the person who ran from the house is using these factual observations to arrive at the opinion that the person running from the house and the accused are one and the same. While this could be seen as another example of opinion evidence, the law allows ordinary witnesses to give such opinion evidence on certain restricted matters. The reason for this is expediency: if the court questioned the witness in such a way as to elucidate each of the individual elements used in making the visual identification, the process would be extremely time-consuming and would not take into account the fact that people in their everyday lives analyse identification factors all the time. Indeed, so common is the process that we consider it a normal and everyday function of all individuals. Such admissible opinions of lay individuals called as witnesses in a court include those on other matters, such as a person’s emotional state, whether a person appears ill, and whether an object is old or damaged. Each of these could be considered by some people as facts and other people as opinions.

 

Although a court will admit such lay opinions, they can be challenged. The defence, for example, could challenge an eyewitness who says they saw the individual running from the house by seeking to find out which individual elements the witness was using in making the identification. For example, the witness may say that the person running from the house had a bushy beard and moustache; the jury can see that the accused does have a beard and moustache, and may draw an inference that the witness is probably right as to the identification of the person who ran from the house. Alternatively, the defence may say that other witnesses will state that three days before the date when the individual was seen to be running from the house, the accused was clean-shaven. If such evidence is correct, it will throw considerable doubt upon the identification evidence. It is important, therefore, to understand the difference between fact and opinion in evidence: dissecting  facts from opinions often leads to important observations regarding the true nature of the case.

 

This principle can be seen in the evidence of the forensic scientist in the above scenario. Here the witness states that he has grouped the blood on the knife, grouped the blood from the accused’s hands and grouped the blood from the deceased’s body and found it all to be the same. This is important factual evidence in a circumstantial case

 

 

 

against the accused. However, the defence in cross-examining the forensic scientist may ask questions about the blood group. If the witness concedes that 60 per cent of the population have this blood group, and that the accused’s blood when tested was revealed to be of the same group, then the value of that evidence in proving that the blood on the accused’s hands comes from the deceased is considerably weakened. The defence at this point can contend that the blood on the accused’s hands when he was arrested was in fact his own blood, coming perhaps from a nose bleed, and the level of the factual evidence provided by the forensic scientist in the case is insufficient to refute this. Of course, further tests could be done, but the principle is that an opinion, whether expert or lay can be challenged by dissecting it into its composite parts and providing alternative explanations for those parts. This is a fundamental principle of advocacy, and it goes to the heart of the adversarial process.

 

We have seen that ordinary or lay witnesses may not give evidence of opinion except in certain commonplace situations where all members of the community regularly and sensibly make opinions and assumptions every day. When it comes to matters of science, the court finds itself in difficulties. In the above example, the average individual in the community might suppose that if the blood on the knife, the blood of the victim and the blood on the accused’s hands were all of the same type, then this was proof that it was all the same blood. They would not have the necessary knowledge in the area of haematology and serology to know the distribution of blood groups in the community and therefore they could arrive at an erroneous opinion. What the court needs in these circumstances is an expert or specialist to provide the relevant background information so that the facts given in evidence can be put into a correct context. In this example, the defence could cross-examine the forensic scientist and ask specific questions to show that many individuals in the community have this blood group and, as far as the forensic scientist is concerned from the test performed, any one of those millions of individuals could have been the source of the blood on the accused’s hands. Similarly, the defence could call their own expert witness who had performed an analysis of the accused’s blood and have that witness give evidence of facts as to the accused’s blood group and evidence of opinion regarding the prevalence of that blood group in the community. The court therefore finds value in using experts to Help it to reach conclusions based on the evidence.

 

 

Expert witness “rules”

 

A number of “rules” have developed determining the admissibility of expert evidence: the expertise rule, the area of expertise rule, the basis rule, the ultimate issue rule and the common knowledge rule. These are quite complex but it is useful to have an understanding of their basic meanings.

 

Who is an expert The “expertise” rule

 

Expert evidence has the power to influence the court greatly, indeed, the expert’s opinion may shape the interpretation that a jury gives to the evidence and therefore influence their final verdict. For this reason, courts are wary about admitting expert opinion.

 

All other things being equal, the first thing a court needs to know before admitting expert evidence is whether the witness is in fact an expert. Within the Anglo-Australian tradition, the definition of experts has received significant attention. Whilst there have been numerous attempts to define what an expert is and what constitutes expertise, the key issue appears to be the depth of knowledge and skill that the witness has in regard to the specific matter before the court about which an opinion is sought. This is the essence of the “expertise” or “qualifications” rule. This broad principle leads to a very open definition. In some areas of expert evidence, the courts appear to be narrowing the qualifications and skills that an expert needs in order to be granted expert status. This approach to experts is seen particularly in the fields of psychiatry and psychology. However, in other areas, the courts appear to be loosening and relaxing the factors by which an individual may be classified as an expert. Two further considerations are that expertise may be limited in time or extent.

 

Duration of expert status

 

A witness appearing in court to provide expert opinion evidence is initially ‘tested’ by the court as to their expert status. In many cases expertise is assumed by the court, and both parties and the judge agree to the witness giving expert opinion evidence. However, whether the expertise is tested by the court or assumed, the witness is accepted as an expert only for that particular court case. There is no process of accreditation of qualifications or experience before a court that grants a witness long-term expert status. This approach is in contrast to the way in which scientific and medical professions regulate their members, where the acquiring of qualifications and

 

 

 

periods of practice provide formal long-term accreditation (which may be maintained by means of a continuing professional development program).

 

Certainly, the courts are interested in witnesses’ professional accreditation and the manner in which they keep up-to-date with advances in their field. However, the legal acceptance of the witness as an expert must be formally tested or approved each time the witness appears to give evidence. As a result, it is possible for a witness to be accepted by a court as an expert on a particular scientific point, and to be declared by a different court not to be an expert on that point. If the point at issue is actually identical, this is difficult to justify. But the reality is that the formation of an opinion on specific facts often involves different types of inferences based on those facts and a witness may indeed have unequal knowledge about different aspects of the same expert area.

 

For example, a forensic pathologist might be considered to be an expert in the interpretation of bloodstains. A court tests the pathologist and comes to the conclusion that they do have knowledge and experience about the behaviour of blood when it is spilt and the pattern it leaves when it is dripped on vertical or horizontal surfaces. If this dripping of blood is the matter before the court, the witness can give opinion evidence regarding the appearance of dripping blood. However, if the same witness was later to give evidence in another matter where the issue was the mathematical analysis of the shape of blood drops so as to determine the point from which the blood was shed, it might be shown that the pathologist does not have the necessary training or experience in such mathematical analysis. This situation might be true even though the court agrees they have expert knowledge regarding the meaning of the appearance of bloodstains. Hence, in the latter example, the witness is determined by the court not to be an expert in a mathematical analysis of bloodstains and cannot give expert evidence regarding blood staining in that regard.

 

Extent of knowledge

 

The above example also illustrates the second of the two principles relating to expert status: fields of expertise are capable of further subdivision. These same subdivisions and levels of expertise are to be found in almost all specialist areas of knowledge. For example, within the specialist area of forensic psychology, a forensic psychologist may further specialise in the assessment and treatment of violent offenders. Although a forensic psychologist specialising in

 

 

 

the assessment and treatment of violent offenders would understand the general principles of offender rehabilitation they may not be an expert in matters dealing with assessment and treatment of sexual offenders. If the matter before the court is regarding the general principles of offender rehabilitation, the forensic psychologist with expertise in violent offending could give evidence relating to general principles of offender rehabilitation. If however, the matter is relating specifically to issues pertaining to the assessment and treatment of sexual offenders, their general offender rehabilitation knowledge would give them limited expertise in that area. Hence, a court may decide that on general offender rehabilitation issues the matter is within the expertise of the forensic psychologist specialising in the assessment and treatment of violent offenders. However, if the issues before the court were to extend into matters specifically to do with issues pertaining to the assessment and treatment of sexual offenders, the court may well hold that the forensic psychologist’s expertise as it pertains to violent offending does not cover that specialised area of sexual offending.

 

Qualifying as an expert

 

How then is an expert qualified before the court The party that calls a witness to give expert opinion evidence must show to the court’s satisfaction that the witness they are calling as an expert has sufficient expertise to be granted the right to give opinion evidence. This may be a matter of dispute. For example, the judge may feel that the matter is one that the jury could determine without the advice of an expert; or the other party to the matter may contend that the witness called is not sufficiently expert in the particular issue to be allowed to give opinion evidence. It is not uncommon for a witness in these circumstances to be permitted to give expert evidence on some points at issue relating to a topic but not on all of them. The court, therefore, is comfortable with the notion of subdividing degrees of technical or scientific expertise.

 

There is no doubt that reputable academic qualifications form a sound basis for determining that a witness is capable of giving expert opinion evidence. Thus, a witness who holds a university degree is likely to be looked on favourably by the court as long as the subject matter is relevant to the scientific points which form part of the issue before the court. In some cases, courts have required that expert witnesses hold formal qualifications. In other cases, courts have held that formal qualifications, whilst desirable, are not necessary; a witness who can show that they have by experience, in the form of practice  or  apprenticeship,  gained  skills  and  knowledge  beyond

 

 

 

those of the general community may be permitted to give opinion evidence. In certain cases, personal study through reading and taking part in a hobby or interest group may be sufficient to persuade a court that a witness has the required skill to Help the judge and jury in comprehending the factual evidence. For example, if an individual was an enthusiast with regard to desert plants and had kept cacti for twenty years, during which time she had been president of the Cactus Society and had written a number of small books and pamphlets on the growing of cacti, then even in the absence of formal botanical or horticultural qualifications, she could be held by the court to have sufficient expertise relating to the growing of cacti. In such a case, however, it is clear that the examination of the witness’s knowledge and skills is likely to be much more detailed and searching than in the case of a witness who has formal professional qualifications.

 

When the expertise of an expert witness is challenged by the other side, or the court is uncertain that they have the required expertise, the witness is tested as to their expertise by both the judge and the other parties in the court, usually in the absence of the jury (i.e., during a voir dire, as described earlier in “types of court hearings”). The question as to whether a witness is an expert is a matter for the court alone: the jury has no say. Assuming the witness is determined to be an expert, then the jury can decide how much weight to place on their evidence by virtue of the experience and knowledge that they have. Therefore, if there is a concern as to whether a witness is an expert at all, the jury is sent out of the courtroom and the matter is considered by the court, often by testing the witness. If the court feels that the witness is capable of giving expert evidence, the jury returns. In this case the witness is tested again by the parties so that the jury can hear the witness’s qualifications being expounded and challenged and can assess what evidential weight should be given to the expert’s opinion.

 

The range of specialist issues that may arise in court is almost unlimited, and experts vary with regard to their skills and knowledge in the specific areas within their general expertise. Therefore an individual expert will not necessarily have sufficient expertise to give opinion evidence on all of the points that arise out of a specific topic. Such a witness can be asked questions that go beyond their expertise, and having answered them to the best of their ability, be challenged in cross-examination on the level of knowledge they have in this specialist area and the weight the jury should give to their answers. If cross-examination shows that their knowledge and  expertise  in  a  particular  area  is  limited,  and  that  they  have

 

 

 

nevertheless gone on to give opinion evidence which proves to be of poor value or even erroneous, then the whole of their evidence, including that which they were well qualified to give, will be viewed in a poor light. It is therefore extremely important for expert witnesses to be aware of their own limitations with regard to their expertise: wherever questions are asked that appear to them to exceed the level of their knowledge and experience, they should inform the court of this immediately.

 

The area of expertise rule

 

As an extension to the above, an expert may not give evidence that is not yet accepted in a field of expertise, or not yet accepted by one’s peers as valid or reliable. For example, a forensic entomologist can Help in the determination of time of death based on the presence of particular insects on a corpse and a knowledge of their life-cycles. If however little is known about a particular insect and no sound scientific evidence exists to support the prevailing theories about its life-cycle and the reliability in determining time of death, then under this rule it would not be acceptable to give evidence regarding this insect.

 

The common knowledge rule

 

An expert witness may not give evidence about matters deemed to be already comprehended or known by the jury. The reasoning behind this is that a jury might then, inappropriately, place undue weight upon this evidence. For example, it might be inappropriate for a doctor to give evidence about the difficulty in being able to read a numberplate at a particular distance in twilight. This  rule  is discussed further in the reading (Gans & Palmer, 2004).

 

The basis rule

 

This dictates that the expert must reveal to the court all sources of information on which their opinion is based.

 

The ultimate issue rule

 

This particular rule states “that a witness may not give any evidence about a matter which amounts to an expression of the ultimate issue of the case”. For example, a medical expert may give evidence that wounds on a victim appeared to be defensive injuries, but may not give evidence that the accused inflicted them.

 

 

Preparation of formal reports for the Courts

Clinical notes

 

Ordinary witnesses are expected to give their evidence on the basis of their own personal direct recollection of the facts. If court hearings were to take place the day following the events alleged, most witnesses would have little difficulty in giving evidence from memory. However, most court hearings involving medical, psychological or psychiatric evidence take place months or  years later. As a result, mental health practitioners often cannot recall, from their memory alone, sufficient facts about the events that occurred and the examination they performed. Clearly courts are aware of this difficulty, and for this reason they are usually permitted to refresh their memory whilst giving their evidence by using the clinical notes that they made regarding the examination. However, for the notes to be admissible, it must be shown that they were made at the time of the consultation: that is, either during the consultation or immediately after it, when the information was fresh in the practitioner’s mind. The question as to whether notes can be used when they were made several days after an examination is a matter for the court to decide. In certain circumstances, such notes may be considered to be contemporaneous whilst in other  circumstances they will be held to have been made at another time. If the clinical notes are not considered by the court to have been made contemporaneously, the practitioner is not permitted to refer to them when giving evidence.

 

The legal theory behind this restricted use of notes is that  notes should refresh the practitioner’s original memories of the actual events. In theory, the practitioner should not give evidence by directly reading from their notes facts that they can no longer remember. Whilst the quality of such notes may vary and indeed the notes may occasionally be incorrect, the fact that practitioners take notes as part of their routine care for patients gives such notes and clinical records a special credibility with regard to the facts they contain, and this is recognised by the courts.

 

It is therefore important to time, date and sign all notes at the completion of the consultation. Such features help to assure the court that the notes were made contemporaneously with the consultation, and as a consequence can be used by the practitioner to refresh their memory whilst giving evidence.

 

 

 

It is important to realise that the actual set of clinical notes that are used by a practitioner whilst giving evidence will be made available within the court so that they can be scrutinised by both parties in the court proceedings. Indeed, the notes may be shown to other experts for a further specialist opinion.

Formal reports and statements

 

The consumer, and the fate of a report

 

It is useful when writing a report, to bear in mind the intended audience or consumers of the report. Overwhelmingly, this includes a lay audience, rather than one with a specialist background, thus the report must be written in terms which will be understood by this lay audience. Qualifying complex medical/technical terms or concepts in lay terms in the report itself is also beneficial to the author when subsequently appearing in court – a ready-made explanation is preferable to suddenly having to “think on one’s feet” and explain the term/concept in lay terms to the jury!

 

The report will generally be made available to all parties involved in the case. Thus in clinical cases it is important to carefully consider what sensitive information is really required and relevant to include within the report.

 

Practical issues

 

Reports should be printed/ typed/word-processed – there is  no place for hand-written reports. When used in judicial proceedings, several persons may need to peruse and refer to the document simultaneously, thus ease and expediency in locating particular information within the report is of importance. Numbering paragraphs can facilitate this.13

 

Practitioners who frequently write reports in particular will derive great benefit from setting up “proformas” or “templates” on their computer which can be used to construct their reports. Information which is frequently used, such as the practitioner’s background qualifications and work address, and perhaps explanations of frequently cited conditions or findings, may be appropriate materials for proformas.

 

 

 

 

13    This can be done using the “bullets and numbering” tool under “format” in Microsoft WORDã.

 

 

 

A copy of the report should be retained together with any clinical notes.

 

It is useful, particularly early in one’s forensic career, to have an experienced colleague read over the final draft of the report to check that it “makes sense” and that the conclusions drawn are sensible and readily supported.

 

Finally, it is important to consider that the report is a reflection of its author: a logical, ordered, well reasoned and balanced report will help to establish the author as a credible expert witness.

 

Format of the report and suggested elements

 

A structured report with subheadings is suggested, with  the following areas clearly separated:

 

• the information base (findings and facts) upon which that opinion is The source(s) of any information/history should be explicit. This is important as the author/expert may have only been provided with limited information, and the discovery of further information may legitimately alter the opinion. Clearly, a limited information base (e.g., a one-off interview with little collateral information) should result in a suitably cautious, qualified and measured opinion;

 

• opinion (i.e., separate it from findings and facts). The following elements should be included:
• date the report was prepared;

 

• professional address and contact details of the author (may be employer’s letterhead if report was written as part of author’s role with that employer);

 

• identification of the subject of the report:

 

• name, DOB and any relevant case number;

 

• the address of the subject is not Remember that this report may be made available to a number of parties and release of such details may cause distress to the subject;

 

• qualifications, professional positions held and experience/ expertise of the author;

 

 

 

• the reason for the report and the This will vary according to the circumstances in which the report is being generated. It may include details about who requested the initial examination/report and why, and reiteration of the questions asked and information given;

 

• date/time/place of examination(s);

 

• indicate what consent has been obtained for release of information;

 

• materials provided, information given, or other information upon which the report is based;

 

• summary of circumstances/history;

 

• examination/interview findings:

 

• it is important to describe the extent of any examination, and detail any difficulties with the exam process (e.g., poor cooperativeness);

 

• it may be appropriate to have a number of subheadings;

 

• remember to include all relevant negative findings (e.g., lack of psychotic symptoms evident on mental state examination). Reasons for the possible absence of a finding (e.g., guardedness) can then be addressed in the opinion section;

 

• additional elements depend largely upon the context/ nature of the expert’s role;

 

• Great care and attention must be given to the construction of the final comments. It is useful to summarise the case and the key examination findings: this can be of great help in setting the scene for the more analytical comments to follow. There should be no new information introduced in the opinion. In concluding a report think carefully about the comments you have made. Will they still represent your opinion of the facts in six months time when the case comes to court Will they still represent your opinion in three years time when the case is being retried If you have any doubt about an inference or the result of an analysis, consider whether and how to include it within your comments. It is always possible to state a further opinion at a

 

 

 

later date, but it is much more difficult to alter a comment once the report has been issued. Where appropriate, any conclusions drawn should be referenced to the relevant literature;

 

• Any report which is to be tendered to a court for evidentiary purposes should have an acknowledgement that its contents are true and correct. The various jurisdictions may have varying requirements in this respect, and some require an acknowledgment that the author is conversant with the expert witness rules. The student is advised to check on the specific requirements for their jurisdiction.

 

The reading (Melton, Petrila, Poythress, & Slobogin, 1997) includes more detail on report writing and giving evidence in Court in the mental health context.

 

Practical aspects of giving evidence

Subpoenas and summons

 

Having provided a statement or opinion report regarding a legal matter you are likely to receive a subpoena or summons requesting your attendance to give evidence at a court hearing. These are important legal documents which should not be ignored. They are essentially similar and the differing terms reflect differing court hierarchy, with summons pertaining to the lower court and subpoena to the higher courts.

 

The summons/subpoena should detail

 

• the police informant’s name and contact details;
• the defendant’s or accused’s name;
• the charges against the above-named;
• the Court address;
• the date/time you are required.

 

Note that the name of the person you may have examined or written a statement about may be a victim or complainant in the matter and their name will not appear on the document. You may then need to contact the informant to establish your involvement in the case.

 

Frequently, court cases do not go ahead as initially planned – the case may “settle” prior to the nominated court date, or may be adjourned for a variety of reasons. For these reasons it is important to contact the police informant at the earliest opportunity and establish a means

 

 

 

by which you can be informed of such developments to save yourself from an unnecessary trip to court. Particularly with professional/ expert witnesses, the courts can show a degree of flexibility in accommodating their professional commitments and it may be possible for you to arrange to be “on standby” for a particular date/ time.

Before Court

 

Having established that you are in fact required to attend court, the following are useful preparation tips:

 

• Read over your notes and statement some time before the Know your case well. Check for any errors in your statement or notes– you may be asked if there are any amendments you wish to make. Where possible seek peer review of the case and/or discuss it with a colleague (preferably one with experience in the field or in giving evidence in court).

 

• Consider making photocopies of your clinical notes – you may be asked to hand over copies of Make sure they are marked “copy” and delete any data identifying the address of the patient. If the notes contain sensitive information which you are unsure about releasing, separate this and await the decision of the judge/magistrate on the day.

 

• Bring copies of any literature you may have quoted or utilized in your opinion, and other materials that may be required to demonstrate the veracity of your evidence (this should however first be discussed with the legal party who called you).

 

• The legal advocates representing each party may wish to discuss your evidence with you prior to you entering the court and witness This is a “pre-trial conference” and is perfectly reasonable and proper. If such a request has not been made yet you feel you would like to have this opportunity to ascertain what they think are the important issues, you may yourself request a meeting with the side that has called you to court. Etiquette dictates that if the party other than that which called you wishes to have a pre-trial discussion, it should be done with the knowledge of the party who called you.

 

• Courts are conservative Your manner of dress should reflect your professional status and be respectful to the court.

 

 

In Court

 

• Be punctual and wait outside the court until you are approached by the informant/legal advocate or tipstaff.

 

• Do not discuss the case with anyone outside the court (except in the case of a pre-trial conference in a private area).

 

• When called to enter the court, bow your head slightly to the judge/magistrate as you enter (and leave).

 

• Remain standing in the witness box until invited to sit.

 

• Do not refer to your notes or statement until you have been invited to, or by gaining permission after asking the judge/magistrate if it is possible to do so.

 

• Address your answers to those who will be making the decision about the case (jury or judge/magistrate), not those asking the questions (legal advocates).

 

• Think before you Do not feel intimidated into giving an answer you are unhappy with. Remember that you are there to educate the court. Do not be pinned into answering a question with ‘yes or no’ when further explanation is warranted.

 

• Do not hesitate to seek clarification of a question asked if it is unclear, or to request that a question be

 

• Be clear: use lay terms; abandon detailed technical terminology and use words and concepts that the public would One eminent expert medical witness advises “seeking out a juror who looks like your mother and imagining you are talking to her”!

 

• Remain in your area of expertise and do not If you cannot answer a question, be ready to say so. Remember that it is acceptable to answer “I don’t know” or “that is not within my area of expertise.”

 

 

 

Reflective exercise

 

Reflect on what, if any, your key concerns would be about becoming an expert witness for court. How would you go about addressing or managing these concerns Jot your thoughts down in the space below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Suggested further reading

Evidence  Act  2008:  Version  incorporating  amendment  as  of  01 January, 2013. https://monkessays.com/write-my-essay/austlii.edu.au/au/legis/vic/consol_act/ea200880/

 

Freckelton, I. & Selby, H. (2009). Expert evidence: Law, practice and procedure (4th ed.). Sydney: Law Book Co.

 

References

Ebbesen, E. & Rienick, C. (1998). Retention interval and witness memory for events and personal identifying attributes. Journal of Applied Psychology, 83, 745-762.

 

Evidence  Act  2008:  Version  incorporating  amendment  as  of  01 January, 2013. https://monkessays.com/write-my-essay/austlii.edu.au/au/legis/vic/consol_act/ea200880/

 

 

 

Houston, K., Clifford, B., Phillips. L., Memon, A. (2013). The emotional eyewitness: The effects of emotion on specific aspects of eyewitness recall and recognition performance. Emotion, 13(1), 118-128.

 

Lindsay, R., Semmier, C., Weber, N., Brewer, N., Lindsay, M. (2008). How variations in distance affect eyewitness reports and identification accuracy. Law and Human Behavior, 32(6), 526-535.

 

Loftus, G., Harley, E. (2005). Why is it easier to identify someone close than far away Psychonomic Bulletin and Review, 12, 43-65.

 

Palmer, F., Flowe, H., Takarangi, M. & Humphries, J. (2013). Intoxicated witnesses and suspects: An archival analysis of their involvement in criminal case processing. Law and Human Behaviour, 37(1), 54-99.

 

Van Oorsouw, K. & Merkelbach, H. (2012). The effects of alcohol on crime-related memories: A field study. Applied Cognitive Psychology, 26, 82-90.

 

 

 

 

Session 5

Ethical Challenges in Forensic Mental Health

 

Contents

Objectives…………………………………………………………………….. 141

Readings………………………………………………………………………. 142

Introduction…………………………………………………………………. 142

The philosophical framework………………………………………… 143

Dual roles and their conflicts…………………………………………. 143

Consent and competence………………………………………………. 146

Mental health in the courts……………………………………………. 148

Working in prisons……………………………………………………….. 149

Boundaries…………………………………………………………………… 151

Conclusions………………………………………………………………….. 152

Suggested further reading……………………………………………… 152

References……………………………………………………………………. 153

 

 

 

 

 

 

Ethical Challenges in Forensic Mental Health

 

Objectives

At the completion of this session it is expected that you should be able to:

 

• understand  the   theoretical   ethical   underpinnings   of   good forensic practice;

 

• develop a  critical  ability  to  identify  ethical  issues  in  clinical practice;

 

• appreciate the legal framework in which ethical challenges must be viewed;

 

• engage in reflective discussion about resolving ethical

 

 

Readings

Reading 5.1  Adshead, G. (2000). Care or custody Ethical dilemmas in forensic psychiatry. Journal of Medical Ethics, 26, 302-304.

 

Reading 5.2 Appelbaum, P.S. (1997). A theory of ethics for forensic psychiatry. Journal of American Academy of Psychiatry & Law, 25(3), 233-247.

 

Reading 5.3 Beauchamp, T.L. (1999). The philosophical basis of psychiatric ethics. In S. Bloch, P. Chodoff & S.A. Green (eds), Psychiatric ethics (3rd ed., pp.25-48). Oxford: Oxford University Press.

 

Reading 5.4 Mullen, P. (1993). Care and containment in forensic psychiatry. Criminal Behaviour & Mental Health, 3, 212-225.

 

Reading 5.5 Stone, A.A. (1984). The ethics of forensic psychiatry: A view from the ivory tower. In A.A. Stone (ed.), Law, psychiatry and morality (pp.57-73). Washington DC: American Psychiatric Press Inc.

 

Introduction

Ethics refers to doing what is right. Forensic (and indeed general) mental health involves frequent ethical challenges which may tax the unwary practitioner. An awareness of these issues will help prevent significant pitfalls. Ethical thinking involves the application of abstract principles to practical problems; consequently, an individual’s underlying values and the contexts of the problem will alter the framing of the problem and potential solutions. Nevertheless, many ethical issues rely not only upon critical thinking and philosophical concepts, but also upon an understanding of the laws which may codify appropriate practice. In forensic mental health, conflicts between duties owed to different stakeholders, and inherently coercive practices define the moral terrain.

 

The examples of dilemmas provided in the boxes are intended to stimulate thought and do not require a written response.

 

 

The philosophical framework

Ethical theories may provide a framework with which to resolve ethical dilemmas, or indeed to create dilemmas where none existed before! Among the more common theories are:

 

• religious ethics (guidance in resolving issues found in religious belief systems);

 

• deontology –  ‘rights’-based  ethics,  in  which  various  theoretical rights are invoked to support a claim;

 

• consequentialism – defined by a focus upon outcomes rather than the processes which lead to them;

 

• virtue ethics – in which the character of the moral decision-maker is the morally relevant issue in determining good outcomes.

 

The reader is directed to general ethics texts for more substantial details of underpinning theories, which may aid in decision-making. In general in Western societies, personal autonomy is prima facie valuable, and should only be overridden in situations which involve significant conflicting problems for others. Autonomy is the most significant ‘right’ invoked in forensic mental health, since its absence may be relevant to legal cases, involuntary commitment and may permit abrogation of other rights.

 

Dual roles and their conflicts

The essence of ethical challenges apparent in forensic mental health relates to dual roles (Mullen, 1993; Stone, 1984). The conflicts invoked by the clash of legal and biomedical paradigms may vex the shrewdest clinician. In general, health care clinicians hold duties to their patients and should work towards their patients’ interests. However, the legal system has justice as its primary outcome, and such patient loyalties may be disregarded in the face of the search for just outcomes. An attempt has been made to develop a compromise model – therapeutic jurisprudence (Wexler, 1990) – in  which outcomes beneficial to the individual concerned are the desired outcome of the criminal justice system, and the legal system may assume a ‘treating’ role.

 

 

 

Reflective exercise

 

A psychiatrist is asked to prepare a report on a patient, who they have treated for the last year for homosexual paedophilia. The patient voluntarily sought help due to distressing compulsions to molest young boys. They have now been charged with a range of indecent assaults on young boys. What issues does this request raise Jot down your thoughts in the space below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Forensic mental health clinicians often work within public health or correctional systems. The demands of the institutional employer may lead to ethical conflicts. The usual loyalty to patients, apparent in values such as beneficence and non-maleficence, may be absent when the primary concern is perceived as containment rather than treatment. Rather, clinicians may develop paternalistic or coercive practices based upon the sense that their primary responsibility is not to the patient, but to the community at large. Correctional goals may overwhelm therapeutic ones, care may segue into containment, and hospitals may appear increasingly carcereal.

 

Reading

 

Reading 5.4 Mullen, P. (1993). Care and containment in forensic psychiatry. Criminal Behaviour & Mental Health, 3, 212-225.

 

 

 

Reflective exercise

 

Following a serious assault on a secure hospital staff member, you are asked to develop a policy for security in the hospital. Opinions are divided between mechanical restraint of high-risk patients, and employing security staff to Help nursing staff. What issues do you see as flowing from your report

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Duties of clinicians to respect rights such as personal autonomy may also be diminished by the needs of the community. People who commit violent offences may be adjudicated by the criminal justice system to be detained (in hospital or prison). The purpose of detention frequently constitutes a mixture of punishment, treatment, rehabilitation, incapacitation, deterrence and retribution. Thus respect for autonomy diminishes: opportunities for access to the community and personal possessions may be limited in the interests of public safety, and there may be other significant restrictions upon the civil rights of the patient/prisoner.

 

 

 

Reflective exercise

 

Are prisoners allowed to vote What do you think should be the situation Why/why not Jot your thoughts down in the space below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A suggested approach to the resolution of such conflicts is to begin by identifying the issue, and the stakeholders. The loyalties owed to different parties should then become more apparent, as will the duties apparent because of the clinician’s role. Legal requirements may limit the range of options available or place other duties upon clinicians. Ideal solutions will accommodate the needs of all parties and involve a reflection upon the dual roles of the clinician, and the individual value system of the clinician. In some cases, adherence to absolute duties will be necessary, despite attacks upon the clinician. Examples of such conflicts involve confidentiality of the patient relationship, or participation in death penalty Assessments.

 

Consent and competence

As discussed in Session 3, decision-making competence has a central role in mental health. Its absence may be the basis for involuntary treatment. Its presence is required for consent to treatment. Many coercive interventions are legally permitted only when the person is assessed  as  incompetent  due  to  mental  disorder.  Treatment  is

 

 

 

premised upon, where possible, restoration to competence, but also permitted against a person’s expressed wishes by virtue of their lack of competence.

 

Civil commitment under mental health legislation is generally premised upon clinician assessment of mental disorder and incompetence, combined with some element of risk. It is relatively unusual that civil commitment can proceed when a competent person refuses intervention, even in the presence of a psychiatric diagnosis. In the civil forensic jurisdictions, assessment of testamentary capacity or of specific applied decision-making competence may require the expertise of a psychiatrist to determine abilities.

 

Reflective exercise

 

How should one go about assessing and managing a prisoner on hunger strike Is force-feeding permissible, and if so, when Jot your thoughts down in the space below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The capacity of individuals to consent to medical interventions requires, among others, voluntariness. Prisoners and psychiatric patients may be seen as less capable of consenting, even when mentally competent, due to their dependent and vulnerable positions. For instance, competent prisoners may consent to risky research because the remuneration for participation is relatively great, or because they hope that their participation leads  to favourable review by parole bodies.

 

 

Mental health in the courts

Mental health professionals may be called upon to give evidence in court. Clinicians appearing in court should be aware that the fundamental philosophical underpinnings of legal thought differ from health care. Consequently, ethical issues often arise. Clinical involvement at different stages of the legal process may lead to such issues.

 

Clinicians may give evidence as treaters or as experts. This divide has vast ethical repercussions. With respect to doctors, commentators have sought to distinguish whether forensic psychiatric practice can be thought of as a part of psychiatry and thus ethically consistent with other medical practice, or whether the duty to the court is so significant that the so-called ‘forensicist’, despite medical qualifications, might be regarded as operating outside the usual ethical framework of doctors.

 

As an expert, one should be impartial, whereas a treater must consider the duties they owe their patient – beneficence, non- maleficence and fidelity. A treater can address issues of fact, but should be wary of applying further opinions, which may compromise their rapport with a patient. An expert, however, is sought to provide impartial opinions to Help the courts. When preparing a report, the expert must advise the subject that the usual doctor-patient relationship is not present, and rather, that the information provided will inform the court. Failure to alert the subject of a medicolegal examination to this fact may lead to great distress. It has been argued that notwithstanding such warnings, subjects interact with the examiner as they would with a treater, and thus the examiner ‘seduces’ the subject into providing information which may not be in their own interests.

 

Mental health experts may provide opinions on a person’s ability to participate in legal process (fitness to plead) and whether they have available a mental state defence such as insanity or mental impairment. Their evidence may be the crux of a person being adjudged unable to participate in a trial, or being exempted from legal responsibility for their action, such as when they are found not guilty by reason of mental impairment. The role of the mental health expert thus extends to evidence which apportions responsibility or exculpates a person. In general, however, experts may not utter opinion on the ultimate issue (whether or not someone is guilty), which is a matter for the judge or jury.

 

 

Working in prisons

Prison mental health illustrates the difficulties of pursuing therapeutic goals in a correctional setting14. The role of mental health clinicians in prisons may be severely compromised. The likelihood of this occurring would appear to be reduced when health provision is operationally separate from the correctional service. Nevertheless, being located within a custodial institution will almost inevitably lead to gradual accommodation and the erosion of professional boundaries and values.

 

Mental health clinicians in prison settings may find that confidentiality is diminished and that health information is sought for operational purposes. Furthermore, the use of medication may be requested by correctional staff, not merely to address psychiatric disorder but also for behavioural management. Medical staff may be pressured to agree to a particular interpretation of behaviour, either to label it as mentally disordered or conversely to ignore signs of mental disorder15.

 

In some situations, medical expertise may be sought to lend approval to particular correctional practices. This may involve mental health staff being asked to determine whether a prisoner is “fit to be punished” or may be transferred to a management unit. In some situations, medical staff may be asked to assess whether a person is healthy enough to sustain interrogation or torture.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

14    These issues are covered in more detail in the Unit: “Correctional Mental Health”.

15    Often by relabelling it as “behavioural”.

 

 

 

Reflective exercise

 

‘Detainees’ at Guantanamo Bay were interrogated regularly, with physicians and psychologists providing Helpance by advising on how best to garner information, using their expert knowledge of psychological weaknesses and the effects of various stressors and their effects. Some have argued that doctors should not participate, as this contravenes the Hippocratic Oath; but psychologists may do so. What do you think Jot your thoughts down in the space below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In jurisdictions where the death sentence is in operation, mental health clinicians may be asked to participate in different ways – evaluating for mental illness or intellectual disability, determining whether the person is fit to be tried, and in some cases providing treatment to restore to fitness. This is contentious and in the USA, for example, many organisations leave decisions about participation to the individual discretion of clinicians. Other professional bodies argue that any participation is unethical and is  grounds  for expulsion.

 

Reading

 

Reading 5.5      Stone, A.A. (1984). The ethics of forensic psychiatry: A view from the ivory tower. In A.A. Stone (ed.), Law, psychiatry and morality (pp.57-73). Washington DC: American Psychiatric Press Inc.

 

 

 

Reflective exercise

 

Would you provide involuntary treatment to a  floridly  psychotic man on ‘death row’, if restoring him to mental stability then permitted execution to proceed (but he could not be executed if he remained psychotic) How would you handle such a situation Jot your thoughts down in the space below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Boundaries

Information obtained in health care situations may be of interest to criminal justice authorities. Psychiatric interviewing may lead to incriminating information being divulged by those charged with offences. At times, justice authorities seek legal permission to utilise information obtained in a health context. Although this is generally considered confidential, subpoena may force disclosure, or the public interest may be thought to override private interests in the protection of health care information. In other situations, legal precedent has enforced a duty of health professionals to breach the confidentiality of patients and warn potential victims of risk to them.

 

In treating mentally disordered offenders, it is important to reflect upon whether the treatment is for conditions which warrant coercive interventions in the person’s own interests, or whether treatment is in fact geared towards community protection. The traditional notion that health care expertise is provided in the interests of the patient may be subtly altered in forensic mental health practice.

 

 

 

Reflective exercise

 

Consider the issues raised by treatment with medication of a sexual offender on parole. Jot your thoughts down in the space below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusions

Forensic mental health raises myriad ethical issues, as it straddles philosophically and functionally different systems. The challenge of maintaining ethical and professional practice standards warrants ongoing attention and the review of peers and professional bodies.

 

Suggested further reading

Beauchamp, T.L., Childress, J.F. (1994). Principles of biomedical ethics

(4th ed.). New York: Oxford University Press.

 

Bloch, S., Chodoff, P. & Green, S. (eds) (1999). Psychiatric ethics (3rd ed.). Oxford: Oxford University Press.

 

 

References

Appelbaum, P.S. (1997). A theory of ethics for forensic psychiatry.

Journal of the Academy of Psychiatry and Law, 25, 233-247.

 

Bazelon, D. (1978). The role of the psychiatrist in the criminal justice system. American Academy of Psychiatry and the Law Bulletin, 6, 139-146.

 

Diamond, B.L. (1985). Reasonable medical certainty, diagnostic thresholds and definitions of mental illness in the legal context. Bulletin of the American Academy of Psychiatry and Law, 13, 121.

Foucault, M. (1977). Discipline and punish. London: Penguin. Freckelton, I., Keks, N., Howe, V., Foster, K., Jenkins, K., Copolov, D.

& Sullivan, D. (2003). How can valid informed consent be obtained

from a psychotic patient for research into psychosis Three perspectives. Monash Bioethics Review, 22(4), 60-75.

 

Hinshelwood, R.D. (1993). Locked in role: A psychotherapist within the social defence system of a prison. Journal of Forensic Psychiatry, 4, 427-440.

 

Roth, L. & Meisel, A. (1977). Dangerousness, confidentiality, and the duty to warn. American Journal of Psychiatry, 134(5), 508-511.

 

Wexler, D.B. & Winick, B.J. (1991). Essays in therapeutic jurisprudence.

North Carolina: North Carolina Academic Press.

 

Wexler, D.B. (1990). The law as a therapeutic agent. Durham, Carolina: Academic Press.

 

 

 

 

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