How Mental Health, Disability and Other Vulnerabilities Affect Criminal Proceedings

Being accused of a criminal offence can be overwhelming. This article explains how vulnerability can affect each stage of a criminal case, what support may be available, and how solicitors can help secure fair treatment.

For people living with mental health conditions, learning disabilities, autism, brain injuries, communication difficulties, or other vulnerabilities, the criminal justice process can feel particularly daunting. The good news is that there are safeguards and support mechanisms designed to address this.

For those who go on to have a trial, these support provisions ensure that everyone can participate effectively and receive a fair trial. If someone is convicted, their vulnerabilities may also help explain how they came to offend. This can affect how blame is assessed, what sentence is appropriate, and what support may reduce the risk of reoffending.

Vulnerability can be relevant at every stage of a criminal case:

1. Police station – understanding rights and interviews.
2. Case preparation – obtaining expert evidence.
3. Trial – intermediaries and reasonable adjustments.
4. Sentencing – assessing culpability, maturity, rehabilitation and risk.

Who might be considered vulnerable?

What makes one person vulnerable may not make another, so it is important to consider every individual on a case-by-case basis. Examples may include:

• people with Autism Spectrum Disorder;
• mental health conditions, including anxiety and depression;
• learning disabilities;
• ADHD;
• acquired brain injuries;
• cognitive impairments;
• speech, language and communication difficulties;
• hearing or visual impairments;
• physical conditions such as disabilities or chronic illnesses that limit a person’s ability to function independently; and
• people who have themselves been the victim of crime and may be experiencing trauma, which can also make them vulnerable.

How Hodge Jones & Allen incorporating Birds Solicitors can help

Support at the police station

When a suspect is detained, a risk assessment questionnaire will be completed by the custody officer. It is important that any vulnerabilities are mentioned. If someone you care about is arrested and may struggle to explain their needs to the police, you should inform their solicitor and the custody suite where they are being held.

At the police station, a solicitor can raise vulnerabilities with the police and may request that the police arrange for a mental health professional to assess our client. This may confirm that they are entitled to additional support at this stage from someone unconnected to the investigation, such as a family member or friend. This person is referred to as an Appropriate Adult (AA).

An AA may attend to support a suspect through the detention process. They can be present when rights are explained, during interviews, and while routine custody procedures such as fingerprints, photographs and samples are taken. They are not bound by the same legal professional privilege as a solicitor, so they are not always present during meetings between a suspect and their solicitor, but they will usually attend at least part of the process. Their role is to provide support, help with understanding, and enable the suspect to engage effectively with the process.

If there is not someone suitable, the police can arrange an AA through the Appropriate Adult Scheme. They are independent of the police. Both an AA and a solicitor can raise issues such as whether a suspect may not understand the language being used, or whether they need regular breaks to help with concentration.

What happens if someone is charged?

In some cases, a solicitor may request that the court give time to obtain medical or psychological evidence before a defendant is asked to say whether they are guilty or not guilty. This is because we may need an expert to help us understand our client better. This will help us to assess the evidence more accurately and advise more thoroughly on the case. A representative can ask the court to preserve credit for an early guilty plea. This means that the defendant will not lose the sentencing reduction normally available for pleading guilty at the earliest opportunity while expert evidence is being obtained.

Why expert reports matter

Experts help the court understand complex matters that might not otherwise be properly appreciated.

Case A

I represented a client (A) who had initially been represented by another firm at the police station. A was facing very serious charges that would result in a lengthy prison sentence if guilty. Following a detailed review of the case, a meeting with A where I had an opportunity to consider his presentation which suggested some differences in thought processing and comprehension. I spoke with a concerned family member who raised some concerns regarding A’s mental health. I obtained reports from a psychologist, a psychiatrist and an intermediary.

An intermediary is an independent communication specialist who helps ensure that a vulnerable defendant can understand questions and communicate their answers effectively. They do not provide legal advice and they are not a witness. Their role is to facilitate communication and recommend adjustments to questioning or court procedures where necessary.

The reports helped the court understand A’s vulnerabilities, how they processed information, and how those difficulties may have affected their behaviour and responses in the circumstances of the alleged offence. They also provided recommendations about the adjustments needed to enable A to participate effectively in the proceedings.

The Judge granted our application for an intermediary he attended court throughout the trial. The intermediary sat next to A. Their role included assisting communication, alerting the court when A became overwhelmed and required a break, and advising the professionals in the case on the use of appropriate language to ensure that questions and explanations could be properly understood. This is important to ensure that a defendant’s right to a fair trial is protected because to have a fair trial, they must be able to follow, understand and engage in their trial.

A was ultimately acquitted by the jury of the most serious allegations and, in relation to the remaining offence, received a sentence that resulted in their immediate release from custody, with conditions of monitoring and support by probation.

Case B

My client (B) had been diagnosed with schizophrenia and was a resident in hospital receiving psychiatric treatment. The allegation was that B had stabbed another patient. Two psychiatrists confirmed that B would not be able to understand the case and, even with support, would not be able to stand trial. The court therefore appointed us to represent B in a fact-finding hearing. That hearing did not address whether B was guilty, because guilt would have required a mental intent which B could not form. Instead, it addressed whether the act occurred. Having found that it did, the court made a hospital order with treatment requirements.

By identifying these needs at an early stage and putting appropriate support in place, the court was able to make informed decisions throughout the proceedings.

To obtain a report, a solicitor may need to request access to personal records. This could include medical, prison, school, probation or financial records, depending on the circumstances of the case. They can also request funding for a defendant to see a psychologist or psychiatrist, or for a particular expert to analyse an issue arising in the case. If the defendant is represented under legal aid, permission from the Legal Aid Agency will usually be needed before an expert is instructed.

The prosecution is under a continuing duty to review cases as evidence comes to light. In some cases, expert psychiatric or psychological evidence can support arguments that a prosecution is no longer in the public interest. This can lead to a decision not to prosecute, to discontinue a prosecution, or, in some cases, to exclude evidence that can no longer be considered reliable.

What sort of reasonable adjustments might be recommended?

• Frequent breaks
• Simplified language
• A more accessible court
• Giving evidence by live link (where appropriate)
• Adjusted questioning
• Use of hearing loops or visual aids

The overarching aim of these adjustments is to ensure that a defendant can participate effectively in proceedings and receive a fair trial.

Understanding the evidence against you

A fair trial requires that a defendant is able to understand the evidence being relied upon by the prosecution. Depending on the nature of the case, a solicitor may instruct independent experts to review evidence such as:

• Mobile phone and digital evidence
• DNA evidence
• Fingerprint evidence
• CCTV footage and image enhancement
• Cell-site analysis
• Drug analysis
• Firearms classification evidence
• Medical evidence

Expert review can help identify weaknesses in the prosecution case and ensure that technical evidence is properly understood and challenged where appropriate.

Vulnerability should never prevent someone from receiving a fair trial. The criminal justice system provides a range of safeguards to support individuals with mental health conditions, learning disabilities, communication difficulties and other vulnerabilities. Identifying those needs at an early stage is crucial.

Why vulnerability matters at sentencing

Public reaction to sentencing decisions often focuses on the seriousness of the offence alone. However, sentencing courts are required to take a broader and more individualised approach. In cases involving children, young people, or vulnerable defendants, the court must consider not only the harm caused, but also the offender’s age, maturity, cognitive functioning, mental health, communication needs, risk, and prospects of rehabilitation. None of this excuses offending. Rather, it reflects the legal duty to assess culpability and sentence in a way that is fair, lawful and tailored to the individual circumstances of the case.

This is one reason why some sentencing decisions attract strong public criticism while still reflecting established legal principles. A sentence that appears lenient at first glance may, in fact, be the product of a framework that requires the court to consider developmental immaturity, vulnerability and the long-term aim of reducing future harm.

An experienced criminal defence solicitor can help ensure that appropriate support, assessments and adjustments are put in place from the police station through to the conclusion of proceedings.

Not all cases require adjustments. However, if you or a family member are facing criminal proceedings and have concerns about mental health, disability or other vulnerabilities, our specialist criminal defence team can advise on the support and adjustments that may be available. Contact us today on 0330 822 3451 or request a callback online.