Criminal courts and mental health

Some people who come into contact with the criminal justice system have to go to court. This page looks at the different criminal courts in England and Wales. It explains how they work, how mental health can be considered in court, and the possible outcomes of a court case.

Overview

  • The 2 types of criminal courts in England and Wales are magistrates’ courts and Crown Courts. All cases start at the magistrates’ court.
  • You may see and speak to lots of different professionals. It can be helpful to tell some of these professionals about your mental health.
  • You have certain rights when going to court.
  • It can help if you know what to expect when you go to court.
  • The court should think about how your mental illness might affect you when you’re in court.
  • The court should think about your mental health when deciding what your sentence should be.
  • You might be able to appeal the court’s decision if you don’t agree with it.

About

Why do I have to go to criminal court?

You will have to go to criminal court if the police charge you with an offence. This means that the police believe that you have done something against the law.

The police will send you a letter with the date, time, and address of the court you need to go to.

It is important that you go to court. It is against the law not to go to court and you could be arrested again.

What are the criminal courts in England and Wales?

The court system can be confusing. You can see a simple diagram of the system in England and Wales in the downloadable version of this page.  The diagram talks about ‘outcomes’. An outcome is the decision that the court will make about your case.

The magistrates’ court and Crown Court deal with criminal cases.

All cases start in the magistrates’ court. The magistrates or judge will decide if your case needs to be heard in the Crown Court. The Crown Court hears more serious offences.

You may have to go to the court in the area where the offence happened. This could be far from your home. You can ask the judge or magistrates to have the case heard nearer to your home, if travelling would affect your mental health. If you have a solicitor, they can ask for you.

What are the main differences between magistrates’ and Crown Courts?

The main differences between the 2 courts are the type of criminal cases they deal with. And the type of sentences they can give.

Magistrates’ courts deal with less serious offences. They include:

  • ‘summary’ offences. Such as most motor offences, minor criminal damage and drunk and disorderly, and
  • ‘triable either way’ offences. Such as burglary and drugs offences.

Triable either way offences can be heard in either court. This is because these offences can vary in how serious they are.

The Crown Court deals with more serious offences. The Crown Court has more sentencing options than the magistrates’ court. For example, higher fines and longer prison sentences. The judge can also give different types of hospital orders under the Mental Health Act. You can find more information about hospital orders further down this page. 

The offences heard at the Crown Court are called:

  • triable either way offences, or
  • indictable offences.

An indictable offence is so serious that it can only be heard at the Crown Court. An indictable offence could be the following.

  • Rape
  • Manslaughter
  • Murder

If the magistrates decide that your case can be heard in the magistrates’ court or Crown Court, they will ask for your permission to hear your case in the magistrates’ court. You can choose to have your case heard in the Crown Court in front of a judge and jury. But only if you are pleading not guilty.

The Crown Court can be more stressful than the magistrates’ court, because there will be more professionals there.

The magistrates’ court

At the magistrates’ court a panel of 2 or 3 magistrates, or 1 district judge, will usually hear your case.

A hearing can take place in a courtroom. There will be a place for members of the public to sit. The public will not be involved in the hearing at a magistrates’ court.

You can either plead guilty or not guilty. See ‘what does making a plea mean’ further down on this page for more information.

You can find more information about possible outcomes further down this page. 

The Crown Court

At Crown Court there is likely to be a judge and jury, defence and prosecution lawyers, and a public gallery. 

There will be a trial if you plead not guilty in a magistrates’ or Crown Court. At your trial, your case will be heard by a judge and a jury of 12 members of the public.

There won’t be a trial if you plead guilty. The judge will sentence you.

In court you are known as the defendant. The court expects you to sit in the ‘dock.’ This is a chair on a raised platform. You should stand when you are asked to.

Most trials last for a day or so. But they can last for weeks or months if there is a lot of evidence.

You will get used to the court environment and how things work. Even if you find it difficult to start with.

Who?

Who's involved?

You may come across a lot of different professionals and unusual words in the court system. Some of these may be:

Barrister. A specialist legal adviser. They can also be called an advocate or counsel. They can represent you in Crown Court. They can advise on complicated areas of law.

Clerk. They are fully legally trained and can give magistrates advice on the law. They can also help you if you do not have a solicitor.

Crown Prosecution Service (CPS). A government department that prosecutes criminal cases. The police will discuss their investigation with them. They will decide if your case should go to court. They prepare and present cases in court. They aim to prove you are guilty.

Defence. The team that will defend you in criminal court.

Defendant. You are the defendant. This is the person in court who has been accused of a crime.
District Judge. They are legally trained. They deal with more complicated cases in a magistrates’ court. They usually hear cases on their own.

Judge. They are legally trained. They hear cases in Crown Court. They decide what the outcome of your case should be.

Jury. A jury’s made up of 12 members of the public who have been randomly selected. They listen to your case. They decide if you're guilty or not guilty. You find juries in Crown Courts. But not in magistrates’ courts.

Lawyer. A legal professional who can help you with your court case. There are 2 types of lawyer in England. They’re called solicitors and barristers.

Magistrates. You will find them in a magistrates’ court. They sit in a panel of 2 or 3 to hear the case. They are not legal professionals, but have some legal training.6 They are supported by a legally trained clerk who advises them on areas of law.

Liaison and Diversion service. These services are made up of health and social care professionals. They are available in some courts and police stations. They can do a brief assessment of your mental health and give the court information about your condition. They can arrange for a Mental Health Act assessment if you are unwell and need to go to hospital. This is called diversion. They can refer or signpost you to other services for support.

National Probation Service (NPS). If you have been found guilty in court the NPS will write a report to help the court decide on a sentence. They supervise some people who get a community order or have left prison.

Prosecution. The team that tries to prove that you have done the crime that you’re accused of.

Solicitor. Someone who is legally trained to give advice and prepare cases for court. Your solicitor will represent you in court or pass your case to another legal representative.

Duty Solicitor. At a magistrates’ court, a duty solicitor can help you if you don’t have a solicitor to represent you. Each magistrates’ court will have at least 1 duty solicitor available on any day. There are no duty solicitors available at Crown Court.

Usher. They are in charge of the list of cases being heard in court each day. Sometimes they are called the ‘list caller.’ You should let them know when you arrive at court. They will tell you where to go. You can ask them about how to get a duty solicitor if you don’t have legal representation. They wear smart clothes and carry a list of names with them so you can spot them easily.

Rights

What are my rights at court?

Defendants have rights in court. Article 6 of the European Convention on Human Rights lays out these rights. You have the right to:

  • be assumed to be innocent. Unless you are proven guilty,
  • a fair and public trial,
  • be told what you have been accused of,
  • have enough time to prepare your defence,
  • have access to the things you need to prepare your defence,
  • call any witnesses to defend yourself,
  • question any witnesses called against you,
  • defend yourself personally or with legal help, and
  • have a free interpreter, if you are not able to speak or understand the language used in court.

In court

Going to court can be an anxious time for you, and for those close to you. Below are some things you can do to help everyone feel more prepared on the day. The checklist on the downloadable version of this page might also help.

What should I do when I get to court?

Check the notice board when you arrive. This will tell you what time your case will be heard and in what court number.

If you have a mental illness, you may be vulnerable in court. You may not understand all of the process and language. You may feel anxious and scared by the court building. And by lots of people.

The court can make special arrangements to help with this. For example, staff can change their language style, such as how they explain things to you. Or you could have someone in the court room to help you to communicate with the court staff. This is called an intermediary. If you have a solicitor they can advise you about this.

Speak to the customer services officer or usher at the court if you are worried about anything else. They may be able to help you. For example, you may want to see the courtroom before your hearing to make you feel more relaxed. If you don't feel comfortable speaking to them, a relative, friend, advocate, or solicitor could do it for you.

The usher is usually in the court waiting area. You should be able to spot them easily. Or you can ask any court staff to point them out.

You can contact the customer services officer through the switchboard or reception desk at the court.

If you have a solicitor, speak to them about any difficulties you might have in court. They may be able to help you during your court case.

What support is available at the court?

You might have a solicitor representing you. This could be the duty solicitor that represented you at the police station. Or one you have found yourself.

On the day of your court appearance your solicitor should be there to meet you before you go into court. They should be supportive and understanding if you are worried or concerned.

At magistrates’ court there will be a duty solicitor scheme that you can use if you don’t have a solicitor. The court usher or reception staff can tell you how to access this. There are no duty solicitor schemes at Crown Court.

A friend, relative, support worker or advocate can support you in the courtroom. Although they are not allowed to speak during proceedings, they may be able to sit close to you, or in the public gallery. Sometimes just knowing that someone is there for you might make you feel more comfortable.

How can I make a good impression?

Court is a formal environment. It is important to make a good impression. It’s a good idea to wear a suit or smart clothing. It may help you feel more confident in the courtroom.

What does making a plea mean?

Your first court appearance will always be at the magistrates’ court. The magistrates or district judge will hear your plea of guilty or not guilty.

What happens if I plead guilty?

If you plead guilty, this means that you admit that you did the crime. A court will give you a sentence.

This might happen on another day, if the court needs to get more information. Such as information about your mental health.

Who will sentence me in a magistrates' court after a guilty plea?

The judge or magistrates might sentence you. Or they might pass your case to the Crown Court. This will happen if they think your offence is serious.

Who will sentence me in a Crown Court after a guilty plea?

At Crown Court a judge will sentence you. There won’t be a jury. There is only a jury if you plead not guilty

What happens if I plead not guilty?

If you plead not guilty the court will hear your case and decide if you are guilty, or not. This is called a trial.

If you are found guilty after pleading not guilty, you might get a harsher sentence than if you’d pleaded guilty straight away. You should speak to your solicitor for advice.

Your trial might be at the magistrates’ court in front of the magistrates or district judge. Or your case might be passed to the Crown Court, if your offence is serious. This is because a Crown Court has the power to give more sentencing options and harsher sentencing options than the magistrates’ court.

It can take a long time for a case to be heard in the Crown Court.

What will happen at the trial?

During a trial the prosecution will try to prove that you are guilty of the crime. Your defence will try to prove you are not guilty.

Before you give evidence you will be asked to swear that you will tell the truth. You can do this by giving an oath on a holy book of your choice. If you are not religious, you can choose to ‘affirm’. This is a non-religious oath.

The prosecution and the defence can call witnesses to the case. Your solicitor should question any witnesses from the prosecution side. This is called ‘cross examining’. They will do this to see how reliable or trustworthy they are. The prosecution can do the same to any witnesses that are called to defend you.

Who will decide if I am guilty in a magistrates’ court?

The magistrates or district judge will usually decide if you are guilty or not.

Who will decide if I am guilty in a Crown Court?

In a Crown Court the jury and judge will decide if you are guilty.

The jury is made up of 12 members of the public. They will go to a private room to discuss your case once they have heard all of the evidence. They will decide if you are guilty or not.

If the jury can’t all agree on a decision, the judge can allow a majority verdict instead. This is where 10 of the 12 jurors agree. 1 member of the jury, called the foreman, will tell the court their decision.

What happens if I am found not guilty?

You are free to leave if you are found not guilty. This is called being acquitted.

What happens if I am found guilty?

The judge will sentence you if you are found guilty.

The court might need reports before they can sentence you. Usually a medical and a pre-sentence report. You can find more information about these reports further down the web page. 

How will the court decide how to sentence me?

If you have a mental health condition, the court will usually need an up-to-date pre-sentence report and medical report before they can sentence you. These reports can help the court decide on the right sentence.

Sentencing can be very complicated. The judge has to weigh up many different things. Such as: 

  • how serious the offence is,
  • what is in the interests of the wider public, and
  • how the sentence will affect your mental health.

Judges should think about how your sentence could affect your mental health. For example, prison may make your mental health worse. You can find information on the outcomes related to mental health further down this page. 

Courts use guidelines from the Sentencing Council and Court of Appeal to decide on the right sentence.

Sometimes it can take a long time for the court to hear your case or sentence you. Not knowing what might happen can make this a difficult time.

Considerations

How will the court consider my mental health?

Talk to your solicitor about any mental health problems that you have. You can discuss how your mental illness may affect you in court. Or if it had a part to play in your offence. Your solicitor can talk to you about telling the court, this may help your defence.

Your solicitor, the prosecution, or the court can ask for a medical report if they know, or think, you have a mental illness.

If you don’t have a solicitor, you could find out if the court has a duty solicitor who can help you.

If you don’t want a solicitor, or can’t get one, you can tell the courts yourself that you have a mental illness. Or you can contact Liaison and Diversion services.

What are Liaison and Diversion services?

You can find Liaison and Diversion (L&D) services in some police stations and courts.

They are there to help vulnerable people who are involved in the criminal justice system. You can be vulnerable for reasons like having a:

  • mental health problem,
  • learning disability, or
  • substance abuse issue.

L&D services can assess your mental health. And give information to the court about your mental health. The team is made up of a psychiatrist, a social worker, and a community psychiatric nurse (CPN).

They can give you other kinds of support too. At the moment, the kind of support you can get depends on where you are in the country. But the NHS has developed a ‘standard service specification’. This means that soon all L&D teams should give the same level of support.

L&D services may only be at court on certain days. The court can delay your case if they think you should see the team.

In some areas you can refer yourself to the L&D service. If you would like help from an L&D service, please tell the customer services officer or usher at the court where your case is being heard. You can find the court’s contact details using the tribunal finder at the end of this web page. 

L&D services have different names in some areas. Such as:

  • Court Diversion Scheme, or
  • Criminal Justice Mental Health Liaison Team.

L&D services are run by local Clinical Commissioning Groups, which are part of the NHS.

They are not available everywhere. But the NHS aims to have them covering all areas of England by March 2021.

To find out whether there’s an L&D service in your area, you can search on NHS England’s website here: www.england.nhs.uk/commissioning/health-just/liaison-and-diversion/region-contacts.

What information can the court ask for?

The 2 main reports that the court can ask for are a:

  • medical report and
  • pre-sentence report.

Some courts have drug and alcohol workers who will write reports for the court if you have drug or alcohol issues.

You should be allowed to read the reports. If you disagree with anything you need to tell your solicitor.

What is a medical report?

The court can ask for a medical report to get professional evidence about your mental health. It can help the court decide the following.

  • If you are well enough to be in court and plead guilty or not guilty.
  • If you need any help and support during the court case.
  • If your mental health had a part to play in the offence.

The report can help the court decide on the right sentence if you are found guilty.

The person who writes the report will be a mental healthcare professional, such as a psychiatrist or psychologist. If the court has an L&D service, they could write a report. The report will have information about your background such as the following information.

  • Your family history.
  • Your education and employment history.
  • Your past medical history, including any contact with mental health professionals.
  • Any history of problems with drugs or alcohol.
  • Any criminal history and risk behaviours. For example, using weapons or starting fires.
  • Your description of the offence. You should say what happened leading up to the offence. And why you did it. You should mention if you had any mental health symptoms or you were using drugs at the time.
  • Your mental state now. And how you feel about the offence.
  •  Their professional recommendations.

What is a pre-sentence report?

This report can help the court decide how to sentence you. The court can ask for a pre-sentence report after you plead guilty. Or if you have been found guilty.

The National Probation Service will write your report. It could have the following information in it.

  • How you feel about the offence.
  • Your family history.
  • What is happening at the moment. For example, are you getting help from mental health services? And do you have any drug or alcohol issues?
  • The type of offence you are guilty of. And how serious it is.
  • How your offence affected the victim.
  • Your level of risk and how likely you are to reoffend.

It can take 3 weeks for the National Probation Service to do this report. The National Probation Service will make recommendations for sentencing. But the court doesn’t have to accept them.

Can mental health be used as a defence?

The law has different mental health defences. They can only be used in specific situations. The 3 most common defences are the following.

Insanity. If you were so ill at the time of the offence that you didn’t know what you were doing. Or that what you were doing was wrong.

Diminished responsibility. If you are charged with murder, this would lower the charge to manslaughter. You can argue diminished responsibility if you were so unwell when you did the offence that it highly affected:

  • your ability to understand what you were doing,
  • your ability to make a logical, reasonable decision, or
  • your self-control.

Automatism. If your conscious mind had no control over your actions when you offended. An example of this might be if someone commits an offence when they are sleep walking.

Speak to a solicitor for more information on these defences.

Getting support

What can a friend or relative do to help?

Your family or close friends could give statements to your solicitor, or to court. Statements could be concerns about your behaviour and mental health. This could be background information about what was going on at the time of the offence. Or suspected offence.

Information from friends and family could help to get the court to consider your mental health.

The magistrates or judge should consider any information they get about you. It might help them to decide whether they need to ask for more information about you. Such as a medical report. At the end of this factsheet there are template letters that you and your family or friends can use to make statements to the court.

Your family or close friend should write their statement down and send it to your solicitor first. It is important that your solicitor looks at this information to make sure that it can help your case. Your solicitor may then use it in court. Or suggest that it is sent to the court.

Your family or close friend can address their statement to the pre-court team. Or to the judge who is hearing the case in Crown Court.

Bail & remand

Where will I be during my court case?

If you have to go to court more than once for the same case you will be put on ‘bail’ or ‘remand’ during your court case.

What does bail mean?

Bail means you stay in the community during your court case. You may have bail conditions. Conditions could be things like:

  • living at a particular address,
  • not having contact with certain people, or
  • keeping appointments for medical or psychological treatment.

What does remand mean?

This means that you will be kept in prison or hospital while your case is being heard.

The court can remand you to prison or hospital if they think you shouldn’t be in the community.

Professionals may write reports that would tell the court more about your mental health when you are on remand.

If you go to prison, you should be kept away from convicted prisoners as much as possible. And you shouldn’t be asked to share a cell with them.

Some prisons have healthcare units where people who are unwell can stay. Your solicitor and family members can contact the prison about any worries they have about your mental health.

For more information click this link Healthcare in prison.

End of case

What might happen at the end of my case?

There are lots of possible outcomes at the end of a court case. These are explained below.

I have been acquitted. What does that mean?

This means the court finds you not guilty. You can leave.

I have been found guilty of an offence. What happens next?

The court will decide what sentence to give you if you plead guilty. Or if you are found guilty of an offence. Being found guilty of an offence is known as being convicted.

What is a prison sentence?

A prison sentence means that you have to spend time in prison. For each type of offence there are minimum and maximum lengths of prison sentences. The court will decide how long you should stay in prison.

Prison can affect your mental health. The court should think about whether prison is the right sentencing option for you. Sometimes it will be.

You can find more information about:

Community order

A community order means you will serve your sentence in the community. The court will decide how long your community order will last. The court will set out what you have to do in a community order. You might have to do the following things. 

  • Be supervised by probation.
  • Community payback work. Such as street cleaning, or removing graffiti.
  • Specific activities, like improving your reading and writing.
  • Take part in ’victim reparation’. This means writing a letter to say sorry for what you did, which could help to repair the damage caused by the offence.
  • Have a curfew. This means having to be at your address during certain times of the day.
  • Respect an exclusion zone. This means staying away from certain areas.
  • Have treatment for your mental health, if you agree. This is called a ‘mental health treatment requirement.’
  • Have treatment for your drug or alcohol problems if you agree.

Evidence shows that community orders are better than short prison sentences for stopping people re-offending.

Fines

A court can give you a fine as well as a community or prison sentence.

A fine is money you may have to pay as part of your sentence. How much the fine is will depend on the offence. And how much you can afford. A court may give you a fine for a less serious crime such as speeding or minor theft.

The court will look at your financial circumstances to make sure you can pay the fine. If you are not able to pay the fine, you should let the court know as soon as possible and explain your reasons why.

If you claim benefits, the fine may come out of your benefits over a few months or years until it is paid.

Absolute Discharge

You can be given an absolute discharge if the court feels that you have broken the law, but you do not deserve a punishment. This means the court will take no further action. This is a conviction. But it’s a minor one.

Conditional Discharge

This is similar to absolute discharge. But the court will add a condition that you don’t commit an offence within a certain amount of time. If you break your condition and commit a crime, the court may sentence you for your original offence and the new offence.

Sentences

What sentences consider mental health?

When deciding what sentence to give you, the court should think about how a sentence will affect your mental health. They could decide on a sentence that means you get help for your mental health. The most common sentences to consider mental health are the following.

  • Mental Health Treatment Requirement
  • Guardianship Order
  • Hospital order

Mental Health Treatment Requirement (MHTR)

The court will give you an MHTR if they think it will reduce the chance of you committing more crimes.

The court can give you an MHTR as part of your community order or suspended sentence if you need mental health treatment. You will only get an MHTR if you do not need to be in hospital under the Mental Health Act.

Your MHTR could mean that you have certain treatment. Or that you work better with your mental health team. You need to agree to an MHTR. 

A healthcare service needs to agree to be responsible for your treatment under your MHTR.

Courts don’t use MHTR’s often. Reasons for this might be: 

  • staff in the criminal justice system do not know much about it,
  • healthcare services don’t understand it, or
  • your offence is not related to your mental health.

Guardianship Order

A guardianship order means that the court will tell a certain person to look after your wellbeing. This person will be your guardian. Your guardian’s role is to make sure you get care, protection, and treatment for your mental illness.

Your guardian could be someone from the local authority. Or a person approved by the local authority, such as a relative.

Hospital Order

The court can send you to hospital if you are unwell, by using different sections of the Mental Health Act. These sections are called ‘forensic sections’. The most common forensic sections are the following.

  • Section 37. This gives the court the power to send you to hospital, instead of prison.
  • Section 37/41. This is similar to Section 37. But it can only be used by a Crown Court. There are more restrictions on you if you’re sent to hospital under a section 37/41.

For more information click the links below

Appeals

Can I  appeal my conviction or sentence?

You may be able to appeal the court’s decision about your conviction or your sentence. An appeal means that you disagree with the court’s decision and you want them to look at it again.
You must have a good reason for appealing. And stick to the strict time limits.

You should get legal advice about making an appeal. Your legal advisor should be able to tell you how much it will cost.

How can I appeal a magistrates’ court decision?

You should send a letter asking for an appeal to the magistrates’ court where your case was heard.

The court will then send your papers to the closest Crown Court. A judge will look at your case and decide if you can appeal in the Crown Court.

How can I appeal a Crown Court decision?

The Court of Appeal Criminal Division will deal with your appeal. The Court of Appeal is based in the Royal Courts of Justice in London.

The staff at the Court of Appeal can give information on procedures. They can’t give legal advice. Or advise if you should ask for an appeal. Their contact details are below.

Court of Appeal Criminal Division
Telephone: 020 7947 6011
Address: Criminal Appeal Office, Court of Appeal, Royal Courts of Justice, Strand, London, WC2A 2LL
Email: criminalappealoffice.generaloffice@hmcts.x.gsi.gov.uk

 

Further reading

For more click the links below:

GOV.UK
This website has information and guidance on the criminal justice system, including legal aid, courts, prisons and probation. You can also search for
court details here.

Website: www.gov.uk/browse/justice
Website to search for a court:
www.courttribunalfinder.service.gov.uk/search

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