Monday, 4 May 2009

No wonder they were angry

Someone who suffers from mental disorder cannot sit on a jury. That much is clear. The law was altered recently, to take account of the new Mental Health Act, but some rather older changes reveal a distinct shift of emphasis.

Juries are common in the Crown Court, where they will deal with criminal cases, and they can even be used in the High Court or in the county courts. The relevant piece of legislation is the Juries Act 1974, section 1(1)(a) of which now says that a person suffering from mental disorder is disqualified from sitting as a juror. According to the Act, this covers:

* Anyone who suffers from mental disorder within the meaning of the Mental Health Act 1983 (MHA) and consequently either resides in a hospital “or similar institution” or regularly attends for treatment by a medical practitioner. This will cover informal as well as detained hospital patients, and also those whose mental health care is provided on an out-patient basis or even, arguably, by a GP.

* Anyone who is subject to guardianship or to a Community Treatment Order under the MHA.

* Anyone who lacks capacity, within the meaning of the Mental Capacity Act 2005, to act as a juror.

It is said that 750 people are month are barred from jury service on these grounds and a survey suggests that 12 per cent of people with mental illness have been excluded from jury service at some time in their lives.

In fact, the obligation lies with the potential juror, who, when he receives a jury summons, must submit a detailed form. He can be fined up to £1,000 if he fails to do so, or to do so properly.

The form asks the potential juror, amongst other things, whether he suffers from mental disorder. Confusingly, perhaps, the 4-page guide that is sent with the jury summons does not reflect the revised MHA. Ignoring crucial – and controversial – changes made by the Mental Health Act 2007, it says that mental disorder consists of mental illness, psychotic disorder, mental handicap or severe mental handicap. This discrepancy raises the possibility that someone with an acquired brain injury, for example, who would not have fallen within the old definition of mental disorder but might fall within the new, will declare himself qualified for jury service when the law deems him not to be so. What would be done with such a person?

The recipient of a jury summons must inform the court of the existence of factors that would disqualify him from service. Originally, the 1974 Act said simply that if those factors, or their mid-70s equivalents, existed, the potential juror “shall be entitled, if he so wishes, to be excused from jury service”. It seems he could have chosen not to disclose his mental disorder. Now, it seems that instead of that discretion, he will face a hard, inflexible obligation.

There is a further official error that is instructive. In its current edition, the jury summons guide says that a further reason someone might be disqualified from jury service is because a judge has found him to be incapable, by reason of mental disorder, of managing or administering, his property and affairs. But this reflects the old position, which obtained before Part VII of the Mental Health Act 1983 was replaced by the Mental Capacity Act 2005. Now, and as the Juries Act 1974 itself provides, an incapable person will be disqualified, first where his capacity has been assessed (and found wanting) under the MCA (not the MHA); and secondly, where the effect of his incapacity is, specifically, to render him incapable of serving as a juror.

In fact, it might be argued that the capacity ground subsumes all the others, and that the only question to be asked is whether the individual concerned is fit to fulfil the purpose for which he has been summoned. Because, like the guidance that accompanies it, the jury summons does not reflect recent amendments, this last possibility is not one upon which a would-be juror is invited to reflect.

There are, however, places where incapacity alone – and not its cause – is the criterion. In many provinces of Canada, for example, it will exclude a person from jury service; while in Texas, it would be a ground upon which someone called to sit on a jury might ask – or might decide not to ask - to be excused. Which is more or less where we came in.