Just had this from a Tribunal Judge in an ‘Interlocutory Decision Before Hearing’:
“Victims are not permitted to make … statements about questions of future risk”
Can anyone tell me if this is correct, and if so, on what basis?
It’s difficult to give a full answer based on a fraction of a sentence, particularly as it’s not clear what exactly was meant by “statements about questions of future risk”.
The received wisdom is that victims can only give evidence relevant to whether any discharge should be conditional and, if so, what the conditions should be: Practice Guidance on Procedures Concerning Handling Representations from Victims in the First-tier Tribunal (Mental Health) (1/7/11), para 15.
However, tribunals regularly hear evidence from non-parties, and if a victim offers evidence potentially relevant to any aspect of the tribunal’s statutory function, including in relation to whether to discharge, then I think the tribunal should decide whether to admit or exclude it based on the facts of the case.
Here is a redacted copy of the document in question - Is the second part of Paragraph 2 of the Reasons correct? I know Victim impact statements are not currently allowed, but surely statements of risk of which the tribunal might be unaware ought to be considered for public protection purposes?
My (lay) reading of the LN v Surrey case is it does appear to allow information to be introduced if it informs the assessment of risk.
But happy to be corrected.
The First-tier Tribunal (Health, Education and Social Care Chamber) Mental Health
Interlocutory Decision Before Hearing
The Tribunal Procedure (First-tier Tribunal) (Health, Education & Social Care Chamber) Rules 2008…
Patient: Mr AA (born xxxxx)
Before: YYYY (Judge)
Details of Application / Request to Tribunal
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The Victim Liaison Officer has contacted the Tribunal with an application for the victim to attend a forthcoming hearing which they have an interest in.
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A separate email has been attached from the XXXX of the victim who is sadly deceased. This email indicates that she wishes to have an opportunity to make representations in person that the patient is too dangerous to be discharged and that she has more information available to her than the panel will be aware of.
Decision
- The application is refused, although a further application can be made once the reasons below have been digested by the VLO and the victim’s XXXX.
Reasons
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Victims are permitted to make limited representations in such cases. They are permitted to make representations about: -
a) Whether the patient should, in the event of discharge or release from detention, be subject to any conditions and, if so,
b) What those particular conditions should be. -
Victims are not permitted to make impact statements or statements about questions of future risk.
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Where a victim asserts that they need to give oral evidence, then they need to make a written application which explains why they cannot address the above matters by way of written representations.
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The application which is before me fails to provide a written explanation as to why the victim cannot make written representations in respect of paragraphs 1(a) and 1(b) above.
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As such, the application to attend an oral hearing is refused. As I indicate above, this application can be renewed by the victim if they so wish once they have digested the reasons set out within this notice.
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The victim should be aware of the fact that not all evidence from victims is admissible in law. This has been set out by the Upper Tribunal in LN v Surrey NHS Primary Care Trust [2011] UKUT 76 (AAC). Any evidence which is lodged will not necessarily be admitted. If the evidence is ruled admissible then it is ordinarily information which is to be disclosed to the patient.
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I make the above points for the benefit of the victim and the VLO, should he lodge a further application.
Judge: YYYY
Date: BBBB
Notice
If a party, or any person given notice of this decision, wishes to challenge the decision, they may do so by renewing their request or by applying for another interlocutory decision that amends, suspends or sets aside the first decision.
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I suppose there are two distinct issues to grapple with:
(1) is the victim entitled to provide any evidence at all on risk? and
(2) if the victim was entitled to do so, would it be admissible in any event?
On the latter point, LN provides some good guidance. Rule 15 of the Tribunal Procedure Rules allows a lot of discretion to the Tribunal to decide whether to admit evidence, and is quite clear that the usual rules of admissibility don’t apply. Ultimately, it comes down to relevance and probative value. I think its the latter point on which the Victim would struggle. It is difficult to imagine that a victim (or in this case someone representing the victim’s interests) would have much evidence to offer the Tribunal that is relevant to the s.72(1)(b) criteria. I am assuming that the patient is a restricted patient, and between the MOJ and the Responsible Authority, there is normally a wealth of evidence (including from expert assessors of risk) regarding the risks that the patient may pose to themselves or the public if discharged from hospital. There is no scope for things such as Victim Impact Statements in the MHT simply because they wouldn’t really assist the Judge at all in determining whether the Responsible Authority has satisfied the MHT of the s.72 matters. Of course, it is difficult for victims to be assured that this is so when they don’t have access to the reports that the witnesses have prepared.
In terms of victims’ entitlement to produce representations, I think the STJ has made the right call: victims are only entitled to provide representations on the issue of whether the patient should be subject to conditions and if so what those conditions should be. This is clear from paragraph (4) of the Practice Direction that Jonathan shared, and the Domestic Violence, Crime and Victims Act 2004.
Victims can ask to attend Hearings but if their attendance is allowed, they can still only make representations as to the conditions to which the patient should be subject if discharged. I really can’t envisage a situation in which putting in a short statement via the VLO wouldn’t suffice in this regard, and I have never attended a hearing in which the victim was present. Ultimately, a decision regarding attendance is based on an application of the overriding objective in Rule 2.
I hope this helps, although i suspect that it doesn’t!
From a practical perspective, as the STJ says, the victim/VLO can provide further reasons and see if the MHT is willing to allow their attendance. As set out above, they would have to satisfy the MHT that their attendance (as opposed to written representations) is necessary to provide their position on conditions, and that it would be fair and just to do so (and I think most well-advised patients would contest the application). Without more information it is hard to say whether there are any merits to that application.
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The tribunal judge, and the current tribunal practice guidance, state that the victim can only give evidence about two matters. These are the two matters specified in the DVCVA 2004 in relation to that Act’s procedures. I do not think the tribunal is prevented from hearing from victims about matters beyond the scope of those procedures. For instance:
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The Act only applies to the cases of patients sentenced on or after certain dates (1 July 2005 for restricted patients and 3 November 2008 for unrestricted patients) but since July 2005 the tribunal guidance has provided for evidence to be received from victims of crimes outside those dates – beyond the scope of the Act entirely.
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Tribunal guidance issued in March 2007 (which has been superseded by the current guidance but is not obviously wrong) stated that evidence submitted by those patients “may be used by the Tribunal to address any of the matters set out in s72-3 of the Mental Health Act 1983, if it is deemed by the tribunal to be relevant to these matters”.
The tribunal judge, and the current tribunal practice guidance, has as the starting point that the victim will not be allowed to give oral evidence. It’s interesting that the original tribunal practice guidance in July 2005 took the opposite approach:
- Mental Health Reviews Tribunal Rules 1983, Rule 7 (f), allows the tribunal to give notice of the hearing to any person who in the opinion of the Tribunal, ‘should have an opportunity of being heard’. In the interests of equity, justice and a fair hearing and in line with the developing jurisprudence of Articles 6 and 8 of the European Convention of Human Rights, the Regional Chairmen of the MHRT have determined that there should be a presumption in favour of granting the right to the victim to give evidence at the hearing in question. This presumption could in limited circumstances still be rebutted, if evidence is provided by the patient, the Home Office or the responsible authority justifying such a rebuttal, and the Tribunal agrees.
The victim will have to argue against the application of the blanket policy (as discussed above), then argue on the facts that her evidence should be received and admitted (as discussed by Charlie), and finally argue that she should be allowed to attend. It would be hard to argue any of this without first preparing some written evidence.
(The old versions of the guidance are available via links on the current guidance page.)