Baroness Carr of Walton-On-The-Hill, Lady Chief Justice
Society Of Editors
30 April 2024

1. It is a pleasure to be invited to give a Keynote Address to this year’s Society of Editors Conference – and Happy 25th Birthday! I understand that the Prime Minister was your surprise guest earlier today. Not a bad line-up with the heads of two out of the three arms of state speaking to you. Of course, we all know that Kamal is the head of the fourth…..
2. I am the second Chief Justice in recent memory to have something of a link with journalism. Lord Judge, whom we very sadly lost last year, had a deep passion for the media. I believe that stemmed from his father. A trawl through our records tells me that he spoke to you at this very conference back in November 2009.
3. In a similar vein, my family’s journalistic roots run deep. My great-grandfather’s uncle, Henry Carr, was steeped in local and regional journalism. He trained as a journalist in Liverpool, before becoming in turn sub-editor, editor and then owner of the Western Mail, Wales’ oldest daily newspaper (which I am happy to say is still going. I bought a copy when I was last in Cardiff). I say steeped in journalism. That is perhaps an understatement. One Saturday night in 1893, the Western Mail was itself the news. Its premises had burnt to the ground. Undeterred by what some might have taken as something of a setback, Henry organised new offices and presses at double speed. By the following Monday, the Western Mail hit the newsstands reporting on its own fire! Like any good journalist, he knew that the key was to get the story out.
4. So much of the past. What of the present. I am already on the record as a firm believer in the fundamentally important role that a free, robust, high-quality, and rigorously independent local, regional, and national press has in our civic society. It is that role that I would very much like to see strengthened and invigorated in a legal context, particularly where the local and regional press are concerned, so that it can continue its crucial role in scrutinising the justice system as well as it does the other branches of the state.
5. We have only to see, for instance, the work of journalists, such as Nick Wallis, in bringing to light matters concerning the Post Office scandal. Or the work of Joshua Rozenberg, the legal journalist who has done so much to make the law clear and accessible to all, to increase public understanding of the issues, and to promote informed debate. This makes us all appreciate the truly important role that journalism and the media, at its best, plays in society. Joshua kindly invited me to participate in his final edition of Law in Action, after 40 years. This gave me the opportunity to cast my mind over that period. 1984 was when I first properly opened a law book. Back then life was very different. Amongst other things, there were no mobile telephones or emails. Since then:
   • 1988: appointment of Dame Elizabeth Butler-Sloss as first woman in the Court of Appeal. Not known as Lady Justice until 1994!
   • 1990s: women were allowed to wear trousers in courts in England Wales
   • 1991: marital rape recognised
   • 1998: Good Friday Agreement
   • 2005: Constitutional Reform Act
   • 2008: judges no longer to wear wigs when hearing civil and family cases; new judicial robes introduced
   • 2009: Lady Hale the first woman to be appointed to the Supreme Court
   • 2010: the Equality Act
   • 2013: the Marriage (Same-Sex Couples) Act
   • 2014: electronic courts filing introduced
   • 2013: first Court of Appeal proceedings televised
   • 2020: civil partnerships for heterosexual couples
   • 2020: European Union (Withdrawal Agreement) Act 2020
   • 2020: Covid
   • 2022: sentencing remarks livestreamed for the first time
   • 2023: first female Lady Chief Justice
6. And it also gave me the opportunity to pay tribute to Joshua’s contribution to the legal world, and the public’s understanding of it.
7. With all this in mind I am very much concerned to ensure you have the tools to scrutinise the justice system effectively. To this end I am establishing a new Transparency and Open Justice Board, chaired by Mr Justice Nicklin.
8. Its aim is to examine and modernise our approach to open justice, not least to ensure that we take proper account of wider societal changes as well as those being effected by the courts. It will set objectives for all Courts and Tribunals, focussing on timely and effective access in terms of listing, documents and public hearings. It will engage with the public and interested parties to make sure that these objectives properly reflect what should be delivered by a modern justice system.
9. Historically, work relevant to open justice has been dealt with piecemeal by reference to individual jurisdictions. As I have said, the Board’s remit covers all Courts and Tribunals. It will be looking in particular at what can be done to increase public and media access. That our courts are open to the press is as important as being open to the public.
10. The judiciary and media share a common duty: we are and must continue to be the guardians of open justice. The greatest threat comes not from direct attack on the principle, but rather from careless – sometimes inadvertent – failures to protect its ideals. I intend the judiciary to step up, continuing to play our important constitutional role of protecting and promoting open justice as an essential element of the rule of law. The Board that I have established will take this important work forward, and I am delighted to be publishing its terms of reference today. It will review and challenge the way that the judiciary works and ensure that openness and transparency is at the heart of what we do. We will renew the promise that justice will not only be done, but will be seen to be done.
11. No doubt one of those ways may be through the careful expansion of broadcasting hearings. I say “careful” because we will need to consider the effect that expansion may have on the parties to proceedings and, particularly, on any adverse effect it may have on the administration of justice, public trust, and confidence in the courts.
12. Greater broadcasting of Courts and Tribunals cannot be achieved by the judiciary alone. Changes in legislation, which are of course always a matter for Parliament, will be required and there will be resource implications. This is just one area where investment in the justice system is required, together with long-term planning – a topic that I have not been afraid to raise with government. Whether it be the estate, staffing and resourcing, digitisation and more.
13. Just as you are considering how best to reach new audiences, the justice system must also consider how best to reach audiences that may never step into a court building. Increasing opportunities for access, whether it is to physical courts or via broadcasting, is only half of the story. High quality court reporting also calls for those opportunities to be taken. I appreciate all too well that the scope for that is not as it once was. Pressures on the press, and particularly local press, all too often mean that court reporting is not a priority. Local press used to play an important role in reliable, accurate court reporting; they knew the local staff and knew the local judges. Open, trusting and collaborative relationships were forged. But financial pressures on the media are, I am sure, an ever-increasing concern just as they are for the justice system; and one that may see journalists have to focus on other areas than the courts. This may particularly be the case where court reporting would require journalists to travel between courts to find good, newsworthy stories, of which there are many every day.
14. One development that the new Board will explore further in order to help promote increased access and reporting, is making online attendance at hearings easier. This will, amongst other things, ensure that you have access to advance information about hearings – so you know which proceedings are being heard, and where and when.
15. Comments to the Civil Justice Council in its examination of the effect on online hearings during the Covid-19 pandemic are telling in this respect. The Council reported that some journalists found that online attendance has enabled them to report more easily on a wider range of proceedings than in cases where they have physically to attend court. Again, increasing facilities for remote attendance is not something that the judiciary acting alone can achieve.
16. In many Courts and Tribunals, where there is routine use of written evidence and submissions, openness and transparency are only meaningful if, applying the relevant rules, important documents are also made available to those who are interested in following and understanding the proceedings. I hope you have all considered, and responded to, the recent consultation on revising the provisions on access to documents in civil proceedings, commissioned by Civil Procedure Rule Committee. Just as with increasing transparency in Family proceedings, which continues to be developed by the President of the Family Division, I very much hope that you will be able to take advantage of the increased openness that the Rule Committee’s proposed reform will, over time, provide.
17. There are, of course, times when proper exceptions can and must be made to the general rule of open justice. There may, for instance, be times when reporting restrictions need to be put in place to protect the proper administration of justice for the parties or others involved. Even here though there is and should be a place for proper and effective press scrutiny.
18. Reporters in court can always apply to make representations on the question of reporting restrictions. If they have a well-founded challenge to the imposition of restrictions, there is no reason why they cannot stand up and request permission to explain the nature of their challenge. A well-founded point, respectfully put, would seem to fall within the accountability role that you play. It is one of the ways in which, as Bentham put it, you keep judges on trial while they are trying.
19. Not all journalists may feel entirely comfortable standing up in court and training is important – on both sides. Journalists need to know the law and not be afraid to challenge, and judges need to support open justice and facilitate the work of journalists. I am aware of the great training that goes on in many journalism schools which are staffed by excellent professionals – this work is invaluable. I would like to encourage ongoing professional development and enhanced awareness in this area. I am pleased to see that training is on your agenda later this afternoon. And as a sitting judge I always welcome reporters in my court, indeed, I look forward to seeing some of you in court 4 in the not too distant future!
20. Improving access and increasing reporting does, however, bring with it increased responsibility. You are the eyes and ears of the public. You are the means by which issues are brought to their attention. The means by which the judiciary and what happens in court is subject to informed and intelligent debate. There should be no shying away from press discussion of the good, the bad, and the ugly where the justice system is concerned. Its democratic accountability depends upon it. As has been said before, and it bears repeating, both the independent judiciary and the independent press are essential features of a healthy democracy. Both must, however, carry out their role fairly and effectively. That is why I would stress that debate concerning what goes on in courts should be informed and intelligent. It should be issue-focused.
21. Debate and scrutiny are good things. There will, though, be times when the scrutiny you apply to the judiciary will be uncomfortable for us. That is rightly so. Acting consistently with the judicial oath will often require judges to reach decisions that are challenging and uncomfortable. Some will be controversial. Such decisions are, no doubt, the ones where informed public debate is most necessary, and your role in reporting accurately what is said in court and what judges say through their judgments, is all the more important. It is, in those cases however, all the more important not to fall into the trap of playing the man or woman but not the ball. It is all too easy to target judges, their private lives or their families, to make personal criticisms of them arising from their judgments when what they are doing is conscientiously and properly giving effect to their judicial oath.
22. Simply put, such an approach is not acceptable. Judges are entitled to respect for their private lives, like anyone else. And as importantly, such an approach does nothing to advance public debate on the issues. It fails as an effective means of holding the justice system to account.
23. And this takes me back to my key point. A robust and independent press is an essential part of the fabric of a healthy democracy. Just as a robust and independent judiciary is an essential part of that fabric. While we may play our parts in different ways, we both do so to secure the rule of law. Nick Wallis played a significant part in raising public awareness of concerns over the prosecution of sub-postmasters and mistresses. Mr Justice Fraser played his part in the civil proceedings. Each independent of the other. Each ensuring that the rule of law is not just done but is seen to be done. As for the courts and judiciary, they play their role best when they are subject to informed and intelligent scrutiny and debate. I very much hope that you and your members will continue to ensure that we play our role as best we can by making that so.
24. Thank you.

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The Lady Chief Justice has created a new Transparency and Open Justice Board.

Chaired by Mr Justice Nicklin, the new board will lead and coordinate the promotion of transparency and open justice across the courts and tribunals of England & Wales.

The members of the board and an outline of its work are set out in the terms of reference that are published today. The board’s first task will be to engage widely in setting key objectives to guide its work. Thereafter, and in partnership with HMCTS and MoJ, the board will support and coordinate a programme of changes to promote transparency and open justice. The board will establish a stakeholder committee to assist in this work.

Further announcements and updates will be published at a dedicated page on this website.

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A warm welcome to Michelle Crotty who joins the Judicial Office this week as Chief Executive.

Michelle brings a wealth and breadth of legal and civil service experience having started her legal career as a criminal defence solicitor in the late 90s. She practiced as a public prosecutor before joining the Sentencing Council as a legal adviser and was subsequently appointed as Head of the Office for the Sentencing Council. Michelle was the Director at the Attorney General’s Office for four years before joining the National Crime Agency as its Director of Strategy.

Before joining the Judicial Office, Michelle was Chief Capability Officer at the Serious Fraud Office, overseeing corporate services and technology functions, as well as leading on the SFO’s strategy, communications and business planning, change delivery and chief investigator functions.

On joining, Michelle said “I am excited to begin my journey as Chief Executive of the Judicial Office.

I look forward to working with teams across the Judicial Office to support and deliver the priorities of the Lady Chief Justice in promoting and safeguarding judicial independence and protecting the rule of law.”

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In exercise of the powers conferred on her by section 77(3) of the Constitution, Her Excellency the Governor Rena Lalgie invites applications from suitably qualified candidates for the position of Justice of Appeal for the Court of Appeal of Bermuda.

The Court of Appeal for Bermuda is an intermediate Court of Appeal and its principal function is to adjudicate appeals from the Supreme Court of Bermuda in civil and criminal cases. Appeals from the Court of Appeal lie to the Judicial Committee of the Privy Council. It hears both criminal and civil appeals in varying proportions.

The position of Justice of Appeal for the Court of Appeal for Bermuda presently entails sitting for typically one or two of the Court’s three sessions per year.  The usual pattern is to sit twice in one year and once in a second. The Court’s regular sessions are in March, June and November each year; each session is usually of three weeks’ duration. In addition, from time to time special sessions are needed, which are often heard remotely. Appointees must hold or have held high judicial office in Bermuda or elsewhere in the Commonwealth. Acting Justices of Appeal are also appointed to sit in relation to specific cases or sessions from time to time.

Justices of Appeal are usually appointed for renewable three year terms. In addition to a modest annual retainer, Justices are paid on a per diem basis. Justices residing overseas are provided with travel and accommodation benefits.

We are seeking two (2) new Justices of Appeal for the year beginning January 2025. Experience of the culture of Bermuda, its courts and legal system would be an advantage, as would wide-ranging experience of the law and in particular criminal or commercial/trust work.

The selection process will recognise the importance of:

• selecting candidates solely on merit;
• selecting only people of good character;
• the need to encourage diversity in the range of persons selected for appointment.

Expressions of interest in the position together with a short biography or curriculum vitae, should be sent to the Executive Officer, Governor’s Residence, Los Zorros, 9 Inglewood Lane, Paget PG 06, Bermuda or by electronic mail at executiveofficer@gov.bm

The closing date for applications is Wednesday 15 May 2024.

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PS48   $205,067.96 p.a. (plus allowances)

In exercise of the powers conferred on her by section 73(4) of the Constitution, the Governor invites applications from suitably qualified candidates for the post of Puisne Judge of the Supreme Court of Bermuda.

Applicants should be barristers and attorneys having at least ten years post admission experience. A sound and thorough knowledge of all branches of the law is a minimum requirement but specialist experience of commercial matters is essential. Applicants should be able to handle a high volume of complex work quickly and confidently. Computer and typing skills are highly desirable. The caseload will be primarily commercial matters but the Puisne Judge would also be expected to preside over civil cases, as required.

Duties of the post holder will include:

1. Sitting as Judge in cases in the Supreme Court, and performing the functions and exercising the jurisdiction conferred upon that Court by the Supreme Court Act 1905 and any other legislation.
2. Sitting as Chairman or Member of Statutory Boards and Tribunals which require a Judge;
3. Delivering papers at local and international conferences;
4. Undertaking such other duties and responsibilities as may be assigned by the Chief Justice or Governor.

The selection process will recognise the importance of:

• selecting candidates solely on merit;
• selecting only people of good character;
• the need to encourage diversity in the range of persons selected for appointment.

The statutory retirement age is 65 years, but may be extended to an upper limit of 70 years with the consent of the Governor.

Applications should be sent to the Executive Officer, Governor’s Residence, Los Zorros, 9 Inglewood Lane, Paget PG 06, Bermuda, or by electronic mail at executiveofficer@gov.bm

The closing date for applications is Wednesday 15 May 2024.

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Unlike in criminal proceedings, robes are not normally worn by judges in family courts.

Judges in the pilot will not wear wigs, and practitioners will not be expected to wear robes. The pilot has been approved by Sir Andrew McFarlane, the President of the Family Division, and it will run for an initial three-month period.

A survey will be conducted before, during and after the pilot to assess if robing makes a difference to family court proceedings. This evaluation will consider the number of behavioural incidents experienced and judges’ perceptions of their own authority and safety.

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This week Muslims around the world will be celebrating the annual festival of Eid al-Fitr, which marks the end of Ramadan.

The month of Ramadan marks the revelation of the holy book, the Quran to Prophet Muhammad (PBUH) and is also a time for self-reflection and spiritual growth. 

Ramadan is one of the five pillars of Islam and involves Muslims fasting for a month from the break of dawn to sunset. It is common to have one meal (known as the suhoor), just before dawn and another (known as the iftar), directly after sunset.   I have been fasting since childhood and find that I can adapt to the routine within a couple of days.

Ramadan is also a time to think about those less fortunate than us and spend time with our families and loved ones. 

Ramadan ends with the festival of Eid al-Fitr, which falls on the first day of Shawwal in the Islamic calendar; and is based on when the new moon is sighted by local religious authorities. Eid al-Fitr is commemorated by a large, community-wide prayer service in the morning. A mandatory charity called Zakat al-Fitr is collected before the prayer and distributed to the poor and needy to ensure all can participate in the festivities.

Eid is a time of joy and traditionally, spent celebrating with family, friends and loved ones.

The Equal Treatment Bench Book provides judges and court users with useful guidance for all parties observing Ramadan, such as ensuring adequate breaks during proceedings and taking time off to celebrate the end of Ramadan known as ‘Eid al-Fitr’.

To celebrate the end of Ramadan and Eid al-Fitr, I shall be taking annual leave and going to Saudi Arabia to enjoy the festivities with my family.

Finally, I would like to wish Eid Mubarak to all those celebrating.

Tribunal Judge Thaira Bibi

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This an update on our work on safety and security.

Following the changes introduced last week we have seen an increased number of responses from
Responsible Authorities signing up to the minimum standards. We continue to work
with the rest of the Responsible Authorities who have not yet signed to understand why
they are unable to do so and what steps they can take moving forward to ensure the
safety of those attending tribunal hearings at their venues.

After much consideration we have decided that if the patient requests a face-to-face
hearing, we will list a face-to-face hearing supported by new directions which will be issued by the judiciary.

Following some national security concerns, His Majesty’s Courts and Tribunals Service
(HMCTS) has been reviewing safety measures across the courts and tribunals estate and
where judicial hearings take place. This includes the hospital and trust premises where
HMCTS hold mental health hearings. To this end, HMCTS has written to some 820+ MH
hearing venues asking them to confirm that the rooms we use on their premises comply
with the minimum safety and security requirements and published guidance for tribunal
hearings.

While the survey is ongoing, HMCTS has taken the difficult decision to suspend face to face hearings at
those venues that are not compliant with minimum safety standards or have not replied
to say they are, until HMCTS has a clearer picture of what the issue is for each hospital
and how quickly HMCTS can resolve it.

At venues where the safety of panel members has not been confirmed, cases will be listed
as ‘Video Hearing Only’ for the time being, (unless there is a particular medical or other
reason that the patient cannot have a VH hearing, in which case the representative
should apply and the matter will be referred to a DTJ to give listing directions.)

In those venues that are compliant, patients shall continue to be able to opt for face to
face or video hearings. This list will be added to by HMCTS regularly once safety and
security standards have been met.

The proposed listing regime will come into effect from Monday 8 April 2024.

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The seminar

For those interested in applying for a role, the Judicial Office is organising a pre-application seminar that will take place online via Microsoft Teams on Wednesday 17 April (5-6pm).

The seminar aims to help applicants be better prepared to make an application and to receive up-to-date guidance and advice on the JAC’s selection process. As well as a JAC representative, you will also hear from the Judge Advocate General, Judge Alan Large, and Assistant Judge Advocate General, Judge Andrew Smith, to explain the role.

Who should attend?

Judicial office holders and lawyers who have five years’ legal post qualification experience.

Applications are particularly welcome from under-represented groups (women, ethnic minority candidates, LGBTQ+ candidates, disabled candidates, solicitors). For information on eligibility, please visit the selection exercise information page (external link).

Deputy Assistant Judge Advocate Generals are appointed by the Lord Chancellor after a fair and open competition administered by the JAC. Training is provided for all appointed members.

What is a Deputy Assistant Judge Advocate General?

Deputy Assistant Judge Advocate Generals sit as the judge advocate, predominantly in the Military Court Centres at Bulford (Wiltshire) and Catterick (North Yorkshire).

They sit in the Court Martial for the majority of their time but also in the Summary Appeal Court and Service Civilian Court. The Court Martial has global jurisdiction over all service personnel and civilians subject to service discipline and hears all types of criminal case including murder and serious sexual offences.

All Deputy Assistant Judge Advocate Generals will, when appropriate, attend the Judicial College Course on Serious Sexual Offences and may be ticketed to hear such cases.

For information on what the Judge Advocate General does, visit the JAG webpage.

For information on the legal system which underlies the discipline of the British Armed Forces, see the Military webpage.

To sign up for the recruitment campaign alerts, visit the Judicial Appointments Commission website (external link).

For any queries regarding the recruitment campaign/selection exercise, contact the JAC selection exercise team: DAJAG189@judicialappointments.gov.uk

For any queries regarding the pre-application seminar, email: JudicialHROutreachEvents@judiciary.uk

Please note that although the Judicial Office will be running the pre-application seminar, the actual recruitment campaign is being done and led by the Judicial Appointments Commission. 

If you would like to register for the seminar, visit the Judicial Careers Portal.

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1. CS Lewis wrote in The Problem of Pain

“Mental pain is less dramatic than physical pain, but it is more common and also more hard to bear.”[1]

2. How does it feel to have mental pain rather than mental health? Listen to this description of the experience of psychosis.

“My awareness (of myself, of [the person before me], of the room, of the physical reality around and beyond us) instantly grows fuzzy. Or wobbly. I think I am dissolving. I feel – my mind feels – like a sandcastle with all the sand slicing away in the receding surf… The ‘me’ becomes a haze, and the solid centre from which one experiences reality breaks up like a bad radio signal. There is no longer a sturdy vantage point from which to look out, take things in, assess what’s happening. No core holds things together, providing the lens through which to see the world, to make judgments and comprehend risk. Random moments of time follow one another. Sights sounds thoughts and feelings don’t go together. And it’s all taking place in slow motion[2].

3. When this person hears houses talking to them directly, saying – “look closely. You are special. You are especially bad. Look closely and ye shall find” – they don’t hear literal sounds. The words just come into their head, but they know that the words belong to the houses.

4. The South Eastern circuit has asked me to deliver this brief address on the pressing issue that intersects two crucial aspects of society; mental health and the criminal justice system. This is complex terrain. I know everyone here wants to ensure that, on our watch, everything reasonably possible is done to reduce the burden of mental pain that CS Lewis described.

5. Mental health disorders affect a significant portion of the population and factors such as poverty, trauma, substance abuse and lack of access to mental health services contribute to the over representation of individuals with mental illness in the criminal justice system.

6. Studies[3] have found that the stigma and misunderstanding surrounding mental illness often lead to discrimination and inadequate treatment within the criminal justice system not least because it is harder for those affected to navigate due to difficulties with working memory, maintaining attention, understanding abstract information such as timelines and dates, and difficulties with comprehension and retention of information both written and verbal.

7. Such individuals also face a higher risk of victimisation, self harm and suicide. As if that wasn’t enough, the research finds that recidivism rates are higher among this population due to the lack of resources to address underlying mental health issues, perpetuating a cycle of incarceration and deteriorating mental health.

8. Improving the position requires a multifaceted approach that prioritises understanding, compassion, collaboration and systemic change. Both the legal professions and the judiciary have a role. Let me describe, briefly, three ways in which the judiciary is playing its part.

9. Judges receive training and access to resources in dealing with parties who have mental ill-health. The training is embedded in induction courses for courts and tribunals judiciary. Continuation courses offered by the Judicial College of England & Wales such as the Access to Justice: Procedural Fairness in the Crown Court course focus on the topic. It includes a training film with a mentally disordered defendant representing herself. A psychiatrist gives a practical and informative talk as part of the course. The course director is an experienced Old Bailey Judge HHJ Tayton KC.

10. The Judicial College has also recently taken over provision of training to all Legal advisers and Magistrates. A new course they are now receiving on mental disability has four central topics

1. Making reasonable adjustments.

2.Clarity of communication.

3. Dealing with unconscious biases and

4. Approaching a case where capacity is an issue.

11. All of this training is practical. It uses case studies and discussion in small tutor groups.

12. Each course spot-lights a number of resources including the Advocates Gateway and the Equal Treatment Bench Book. Chapter 4 of the ETBB covers what mental disability is, how to identify needs, achieve appropriate case management, possible adjustments and the correct terminology to use, as well providing a helpful glossary of terms.

13. One of the subjects covered in Chapter 4 is Mental Health Liaison and Diversion services and I want to move on to those. In practice as Treasury counsel at the Central Criminal Court I was aware of the value of having a mental health professional in the building every day to assist defendants, witnesses and the court. Then the service was unique to CCC. In 2022 when I was lead presiding judge on the South Eastern circuit I was keen to put in place a Mental Health Liaison and Diversion scheme to cover all the Crown Courts in London. With commitment from the NHS, Fiona Dixon the lead L&P person at CCC and a lot of work by many other people, I am delighted to say it has been a wonderful success and is ripe for further extension[4].

14. What is it? We are going to hear from one of the practitioners on the Panel about the detail but the aim is to facilitate the progression of cases through the crown courts with minimal delays resulting from mental health issues. The L&D practitioner will review the lists, check on defendants in the cells, speak to judges in chambers, facilitate sharing of medical (with consent) and other information and provide advice. One London court reports that they make 30-40 referrals to the L&D practitioner a month. That is, probably, an indication of the cases that have not been delayed with the consequent distress to the mentally unwell person. Advocates and instructing solicitors can ask for a referral, a practitioner will be available, typically, every day on site or if not, readily contactable from court.

15. I have time to share just a fraction of the positive feedback from the judges in London on the scheme’s effectiveness. I can tell you the Resident Judges were universally appreciative of their L&D practitioners. In an appeal from the Magistrates’ Court in which the appellant had been convicted of harassment by sending vast numbers of emails to former employers, she sent numerous emails to the court seeking adjournments and threatening suicide. Because of her own conduct and unrealistic expectations she had become unrepresented and had no expert evidence about mental health or disability. The L&D practitioner met the appellant, provided reassurance about the court process and with her consent reported back to the court on the NHS records of her mental health issues, advising the judge on reasonable adjustments. The practitioner also provided advice on the best way to manage the flow of emails and respond to the suicidal messages which were time-consuming and caused distress to staff.

16. At another Crown Court the resident judge reports that,

“We are seeing more cases where an immediate initial assessment of fitness to plead, or mental fitness generally, can mean that PTPHs are not put off pending such an assessment, thus improving throughput and decreasing the number of hearings in accordance with better case management principles.”

17. Elsewhere,  a court was trying three defendants and proceeded to continue with the trial in the absence of one defendant as he had apparently voluntarily refused to attend court from prison. There was no resistance from the defence advocate. However, the court’s inquiries through the L&D practitioner revealed that the prison had had serious concerns about the defendant’s psychiatric state. Further deeper investigation demonstrated that he was unfit. As a consequence he was discharged from the trial, to be re-tried when fit. A much fairer outcome than being tried and possibly convicted, in absence and while mentally ill.

18. Sentencing. You will all be familiar with the Sentencing Council’s guideline for Sentencing Offenders with Mental disorders, Developmental disorders, or Neurological impairments[5]. It provides vital advice and information for judges, and every advocate should have a detailed understanding of the approach it mandates. There is no tolerance of a broad brush attitude. The court needs detailed information when it is to be argued that an offender’s mental ill-health, including co-morbidity of impairments and disorders, at the time of the offence or sentencing should bear on the sentence. The key question is expressed in paragraph 3,

“..in assessing whether the impairment or disorder has any impact on sentencing, the approach to sentencing should be individualistic and focused on the issues in the case.”

19. Evidence is usually required to establish this impact, it may come from the offender himself, his medical records or other sources including expert opinion. In April 2023 the Court of Appeal approved this methodology and said,

“the distinction between a mental disorder linked to the commission of the offence and one not so linked may sometimes be hard to draw. In this case the terms of the psychiatric report suggests that the appellant’s various conditions can be seen as linked to his misconduct, and we can detect no evidential basis to justify rejecting that analysis. It follows that the sentence that the judge imposed was manifestly excessive[6].”

20. I close with Rule 28.9 of the CPR which requires a sentencing court to send the prison ‘such information as the court has received that appears likely to assist in treating or otherwise dealing with the defendant’. A service level agreement between HMCTS and the prisons spells this out more clearly and enumerates the various documents including reports and factual information about the offence and offender. It is a vital step to give the mentally ill offender the best chance of appropriate provision in prison, and is sometimes overlooked. I am going to stop there as I am keen to hear from the expert and distinguished panel.

Thank you.

Mrs Justice Cheema-Grubb

[1] C S Lewis, The Problem of Pain, (1940) Re-issued Harper Collins 2015.

[2] Elyn Saks’s autobiography, The Centre Cannot Hold: My Journey through Madness (2007)

[3] Just a couple of egs www.justiceinspectorates.gov.uk/hmiprobation/inspections/a-joint-thematic-inspection-of-the-criminal-justice-journey-for-individuals-with-mental-health-needs-and-disorders/ & Mental Health and Criminal Justice: Bridging the Gap | Frontiers Research Topic (frontiersin.org)

[4] “A realistic evaluation of an enhanced court-based liaison and diversion service for defendants with neurodevelopmental disorders” Eddie Chaplin and others. A realist evaluation of an enhanced court‐based liaison and diversion service for defendants with neurodevelopmental disorders – Chaplin – Criminal Behaviour and Mental Health – Wiley Online Library

[5] Sentencing offenders with mental disorders, developmental disorders, or neurological impairments

[6] R v Andrew Saurin [2023] EWCA Crim 582

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