Legislation – The Criminal Procedure Rules 2020

a magistrates’ court requires expert medical opinion about the potential suitability of a hospital order under section 37(3) of the Mental Health Act 198398 (hospital order without convicting the defendant);

(b)

the Crown Court requires expert medical opinion about the defendant’s fitness to participate at trial, under section 4 of the Criminal Procedure (Insanity) Act 196499; or

(c)

a magistrates’ court or the Crown Court requires expert medical opinion to help the court determine a question of intent or insanity,

other than such opinion introduced by a party.

(2)

A court may exercise the power to which this rule applies on its own initiative having regard to―

(a)

an assessment of the defendant’s health by a mental health practitioner acting independently of the parties to assist the court;

(b)

representations by a party; or

(c)

observations by the court.

(3)

A court that requires expert medical opinion to which this rule applies must―

(a)

identify each issue in respect of which the court requires such opinion and any legislation applicable;

(b)

specify the nature of the expertise likely to be required for giving such opinion;

(c)

identify each party or participant by whom a commission for such opinion must be prepared, who may be―

(i)

a party (or party’s representative) acting on that party’s own behalf,

(ii)

a party (or party’s representative) acting on behalf of the court, or

(iii)

the court officer acting on behalf of the court;

(d)

where there are available to the court arrangements with the National Health Service under which an assessment of a defendant’s mental health may be prepared, give such directions as are needed under those arrangements for obtaining the expert report or reports required;

(e)

where no such arrangements are available to the court, or they will not be used, give directions for the commissioning of an expert report or expert reports, including―

(i)

such directions as can be made about supplying the expert or experts with the defendant’s medical records,

(ii)

directions about the other information, about the defendant and about the offence or offences alleged to have been committed by the defendant, which is to be supplied to each expert, and

(iii)

directions about the arrangements that will apply for the payment of each expert;

(f)

set a timetable providing for—

(i)

the date by which a commission is to be delivered to each expert,

(ii)

the date by which any failure to accept a commission is to be reported to the court,

(iii)

the date or dates by which progress in the preparation of a report or reports is to be reviewed by the court officer, and

(iv)

the date by which each report commissioned is to be received by the court; and

(g)

identify the person (each person, if more than one) to whom a copy of a report is to be supplied, and by whom.

(4)

A commission addressed to an expert must—

(a)

identify each issue in respect of which the court requires expert medical opinion and any legislation applicable;

(b)

include—

(i)

the information required by the court to be supplied to the expert,

(ii)

details of the timetable set by the court, and

(iii)

details of the arrangements that will apply for the payment of the expert;

(c)

identify the person (each person, if more than one) to whom a copy of the expert’s report is to be supplied; and

(d)

request confirmation that the expert from whom the opinion is sought—

(i)

accepts the commission, and

(ii)

will adhere to the timetable.

[Note. See also rule 28.8 (Directions for commissioning medical reports for sentencing purposes).

The court may request a medical examination of the defendant and a report under—

(a)

section 4 of the Criminal Procedure (Insanity) Act 1964, under which the Crown Court may determine a defendant’s fitness to plead;

(b)

section 35 of the Mental Health Act 1983100, under which the court may order the defendant’s detention in hospital to obtain a medical report;

(c)

section 36 of the 1983 Act101, under which the Crown Court may order the defendant’s detention in hospital instead of in custody pending trial or sentence;

(d)

section 37 of the 1983 Act102, under which the court may order the defendant’s detention and treatment in hospital, or make a guardianship order, instead of disposing of the case in another way (section 37(3) allows a magistrates’ court to make such an order without convicting the defendant if satisfied that the defendant did the act or made the omission charged);

(e)

section 38 of the 1983 Act103, under which the court may order the defendant’s temporary detention and treatment in hospital instead of disposing of the case in another way;

(f)

section 157 of the Criminal Justice Act 2003104, under which the court must usually obtain and consider a medical report before passing a custodial sentence if the defendant is, or appears to be, mentally disordered;

(g)

section 207 of the 2003 Act105(in the case of a defendant aged 18 or over), or section 1(1)(k) of the Criminal Justice and Immigration Act 2008106 (in the case of a defendant who is under 18), under which the court may impose a mental health treatment requirement.

For the purposes of the legislation listed in (a), (c), (d) and (e) above, the court requires the written or oral evidence of at least two registered medical practitioners, at least one of whom is approved as having special experience in the diagnosis or treatment of mental disorder. For the purposes of (b), (f) and (g), the court requires the evidence of one medical practitioner so approved.

Under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000107, a magistrates’ court may adjourn a trial to obtain medical reports.

Part 19 (Expert evidence) contains rules about the content of expert medical reports.

For the authorities from whom the court may require information about hospital treatment or guardianship, see sections 39 and 39A of the 1983 Act108.

The Practice Direction includes a timetable for the commissioning and preparation of a report or reports which the court may adopt with such adjustments as the court directs.

Payments to medical practitioners for reports and for giving evidence are governed by section 19(3) of the Prosecution of Offences Act 1985109 and by the Costs in Criminal Cases (General) Regulations 1986110, regulation 17 (Determination of rates or scales of allowances payable out of central funds), regulation 20 (Expert witnesses, etc.) and regulation 25 (Written medical reports). The rates and scales of allowances payable under those Regulations are determined by the Lord Chancellor.]