A new role in supporting the vulnerable

In law, most defendants are ruled as either fit to plead and stand trial, or not. However, there are borderline cases where defendants are generally fit, but may become unfit without support. The Office for the Judiciary view is that providing such support is both fair to the vulnerable defendant, and cost-effective. Compared with the cost of an abandoned trial, the expertise of an appropriate person is cheap.

The Barry George case, in which I was involved, is an example of such a borderline case. I believe it has implications for the work of psychologists.

The system
The Police and Criminal Evidence Act provides guidelines about the detention and questioning of suspects in police stations, requiring that special provisions are made for vulnerable detainees. They are entitled to access an ‘appropriate adult’, usually people who have greater insight into the mental health problems or other vulnerabilities of the detainee. They are present to further communication, give advice and ensure that the interview is conducted fairly.

By contrast, it is not so well recognised that vulnerable defendants may continue to need support when their case goes to court. Trials can be lengthy and complex, causing some defendants to have difficulty following proceedings and instructing counsel. Police interviews are conducted in a small, contained environment, with relatively few people present. At trial, everything is on a much grander scale: defendants find themselves in a court room with a judge, court personnel, a jury, two sets of counsel, a public gallery, sometimes co-defendants and possibly media representatives. This is likely to increase feelings of anxiety and exacerbate cognitive problems.

The ‘normal’ provision for vulnerable defendants in court is that they are given frequent breaks and counsel will explain proceedings and developments carefully. When vulnerable defendants give evidence, counsel may be asked to use simple language and put one question at a time, as opposed to two or more in one sentence.

Thus the system, as it stands, helps people into the dock but they are usually on their own once they start answering questions. Not everyone will require ‘specialist input’, but some will benefit from it. This could be provided by extending the appropriate adult role to ensure the defendant understands the proceedings and to facilitate communication. Such a person may not need to be in the dock itself, but could be on hand if required in the well of the court or to meet with the defendant in breaks. 

The Barry George case
When borderline cases arise, it is vital that the person appointed to support them has a real understanding of the complexities of the underlying problem, be this learning disability, mental health or cognitive problems, or other factors.

Mr George suffered with generalised idiopathic epilepsy, cognitive impairment and mental health problems. He was preoccupied with somatic symptoms and had a history of psychological problems. A particular problem was his tendency to perseverate on topics or ideas which may have related to the case in some way but were often not relevant to the proceedings.

The first trial had to be aborted in February 2001. Mr George became unfit to stand trial following a rapid deterioration in his mental state in response to intense media coverage and the publication of his photograph. It became clear that anxiety, and a most likely associated increase in absence seizures, led to him being unable to follow the proceedings or properly instruct his solicitors.

Mr George returned to HMP Belmarsh and the second trial was set for April 2001. In the intervening period he underwent further psychological and psychiatric assessment. On that basis it was agreed that Mr George was borderline in terms of his fitness to stand trial, but that he would be fit if he received psychological support and intervention.

In this case the role had to be fulfilled by a specialist, such as a clinical psychologist, who had an understanding of clinical presentation associated with brain damage and how this might impact on his ability to follow proceedings (e.g. lapses in concentration, perseveration). The person would need to provide clinical interventions to help Mr George stay calm and in control of his emotions.

Thus the main objective of my presence in the dock was to monitor Mr George’s fluctuating mental state, manage his emotional lability, and ensure that he followed and understood court proceedings. Mr George had 10-minute breaks approximately every hour, and in this period I provided specific anxiety management techniques to control his feelings of anxiety and panic attacks. This was achieved by adopting cognitive behavioural techniques to challenge negative thinking, the use of self-instructional training and positive self-statements, breathing exercises and progressive muscle relaxation techniques.

Even with this provision there were difficulties and disruptions in the second trial, as Mr George had difficulty following the lengthy and complicated legal arguments. He reported absence seizures on a daily basis. His anxiety elevated to the point that he developed psychogenic blindness which lasted five days. This was eventually successfully treated by Professor Gisli Gudjonsson with a brief session of hypnosis. There were fewer disruptions to the third trial in 2008, although he missed several days in court due to health-related issues and symptoms associated with anxiety.

The future
The court’s recognition of how the exceptional vulnerabilities of Barry George may have prevented him receiving a fair hearing and caused costly delays to the trials is a welcome innovation. Borderline fitness to plead and stand trial is rare, but it has happened before (I have been consulted about supporting defendants in high-profile cases in a similar way twice before) and it will happen again. 

The specific role and who is best placed to provide it will depend on the complexity of the case. Each case will need to be carefully considered on its own merit. In many cases involving mental health problems and especially those that require psychological intervention, the best person may be a clinical psychologist. Because of the interface with the court process, some forensic psychologists may also be able to fulfill such roles.

It has taken a high-profile case to identify a gap in the criminal justice system process. The gap was recognised by the criminal justice system, which responded to the needs of a vulnerable defendant. This has opened the gate. It is now the turn of the psychology profession to respond to the demand for this new role.