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Assessment and Reporting for Pre-trial Issues


A suggested structure for considering this issue is as follows:


• Would they have had the ability to understand the words and the meaning of those words? • If not, why not? Were they likely preoccupied or distracted by psychosis? Did they possess insufficient intellectual capacity to understand?


• Was there intoxication with substances or were they suffering from withdrawal • Could they consider the impact of the caution in deciding how to proceed?


• Have they confirmed their understanding, or acquiesced in response to direct or forceful questions relating to understanding?


• Has the caution be repeated in a simplified way that might have led to understanding? • Is there any evidence of an ability to understand the police caution now?


Fitness to have been interviewed


Tis issue is of legal significance because of its implications for the likely reliability of admissions or confessions (see below). Again, there is a need to give an opinion on the likely mental state of the defendant at the time of any interview, and then to consider the likely impact of this on their ability to have participated in an interview, and nature of that participation. It is unlikely you will be asked to assess this at the time of any police interview, since this will usually be done by a Forensic Medical Examiner, commonly a general practitioner. Te fact that another doctor thought, even at the time, that the defendant was fit to be interviewed is not necessarily definitive on the point, since they are not likely to have been a consultant psychiatrist, and might not have had had sufficient time to consider the issue in detail, or to have had access to background information about the defendant.


Assessment will involve consideration of the following factors:


• What was the likely mental state at the time of interview? • What impact (if any) would this have had on their ability to understand the purpose of the interview?


• What impact (if any) would this have had on their ability to understand questions? • What impact (if any) would this have had on their ability to respond to questions?


• Is there evidence that the interview caused significant mental distress or harm?


• Is there evidence in the interview transcripts or recordings of them being unable to understand questions?


• Is there any aspect of their mental disorder or mental state that rendered them particularly susceptible to methods or styles of questioning?


Te transcript of the interview will assist in relation to considering these questions. Consider the nature of the questions in relation to what is now known, or was evident, about the specific abilities of the defendant in question. Examine their responses when asked about understanding: do they simply respond ‘yes’ to questions about understanding, or are they asked and able to confirm understanding? Is there evidence that questions are too complex or subtle based on the known abilities of the defendant? Is there evidence of misunderstanding; answering questions that have not been asked; long pauses; answers that seem to avoid the subject?


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