Achieving justice for victims and witnesses with mental distress

A case-by-case and functionalapproach – existing legalmodelsA mental health diagnosis should not in itself be grounds forquestioning credibility and reliability, as all citizens have equalrights to access to justice. Rather than a condition-basedapproach, it is helpful to consider credibility and reliability inthe context of existing legal frameworks which are based onfunctional tests. These tests are what the law requires inanother setting and are practical models to follow whenassessing credibility and reliability.1. Testamentary capacityIn order to make a valid will, a person must be able to:1. know what they own (assets, mortgage etc) but not indetail2. know who might expect to have a claim3. not be influenced by delusions.This is a very functional test which makes no reference to anydiagnoses.2. Fitness to pleadThe fitness to plead test does not ask about conditions orsymptoms – eg, whether a defendant gets anxious, hearsvoices, or experience delusions. 29 It is explicitly task-based,requiring defendants to be able to understand charges,instruct a solicitor, follow the evidence, challenge jurors, andcross-examine witnesses. Advocates should apply this wellestablished legal standard for defendants to victims andwitnesses, to guard against assumptions and secure their rightto attend trial and give their best evidence before a jury.A test for credibility andreliabilityIn relation to the evidential test, the functions in question arewhether the victim or witness is able to give credible(believable) and reliable (consistent) evidence at materialtimes. The fact that a victim or witness is experiencing or has ahistory of mental distress may or may not have a bearing ontheir ability to perform these functions. Equally, a personwithout any history of mental distress may not be able to givecredible and reliable evidence. Given the fluctuating andvaried nature of mental distress, it is impossible to beprescriptive about the likely impact on a witness’s credibilityand reliability.Action• Assess each case on an individual basis and against thefunctions in question.• Use the following principles and process to determinecredibility and reliability in a fair, objective and unbiasedmanner.CAUTIONDecisions should be specific in relation to the credibility andreliability of evidence at the material time, as ability to giveevidence will often fluctuate in line with symptoms ofmental distress. It may be necessary to reassess credibilityand reliability at various stages of the process. For example,the witness may have given a credible and reliable accountof the incident when they reported it, but the trauma of theexperience could exacerbate their mental distress andaffect their testimony at a later stage. Post-traumatic stressdisorder can occur months after an event and may result inrepression of associated memories, creating difficulty inrecalling and recounting the experience consistently. Thisshould not, however, undermine the credibility andreliability of the evidence as a whole and, where necessary,expert evidence should be obtained to account for reasonsfor inconsistency.29. Although the fitness to plead test does require evidence fromtwo doctors, which will refer to condition(s) and symptoms, theseare considered specifically in relation to the functions required tostand trial.17