The courts and mental health

At your trial

• When will my trial happen?
• What will happen at the trial?
• Can I use my mental health as a defence?
• What happens if I'm found guilty?
• What will the court consider when deciding my sentence?
• Can I appeal against my conviction or sentence?

When will my trial happen?

If your trial is in the Magistrates’ Court, you’ll be given a fixed date. This will usually be a few months after your first hearing – although it could be shorter or longer than this.

If your trial is in the Crown Court, you may be given a fixed date for your trial. But sometimes, your case might be put onto a 'warned list' instead.

This means that you’ll be given a range of dates when the trial might happen. This will usually be a period of one or two weeks. Your trial could start on any day during this period.

If you’re on a warned list, you or your solicitor will be told when your trial is on the afternoon before it starts. So you should call your solicitor around 4pm every day of this period, in case you need to go to court the next day.

What will happen at the trial?

At a Magistrates’ Court trial, the magistrates will decide whether you’re guilty or not. At the Crown Court trial, the jury will decide this.

In either court:

• The prosecution will try to prove that you’re guilty.
• You’ll try to argue that you might be innocent. If you have a lawyer, they’ll argue this for you.
• You may be asked to give evidence at your trial. This may involve answering questions from your lawyer, the prosecution’s lawyer, and the judge or magistrate. You don’t have to give evidence if you don’t want to. But if you choose not to, this might count against you.
• There may be other witnesses who give evidence about the crime.

Can I use my mental health as a defence?

Mental health problems cannot generally be used as a defence. But there are some exceptions, including the following:

Unfit to plead

The court may decide that you're unfit to plead. This is when it seems that you're not able to understand the court process or instruct a lawyer to represent you. See our page on pleading guilty or not guilty to learn more about this.

Legal insanity

The court may find you not guilty as you were legally insane when you committed the offence. If this happens, the judge must decide whether you still have mental health problems.

If they decide that you do, they can send you to hospital. Or they can make a supervision order. This means that you will have to get support or treatment.

If you no longer have mental health problems, they can give you an absolute discharge.

Diminished responsibility

If you’re charged with murder, the court may decide that you had an 'abnormality of the mind' when you committed the crime. In this case, the court will convict you of manslaughter instead.

This is called diminished responsibility. It could mean your punishment is less severe.

Sentencing

If you’re found guilty, the court may consider your mental health when deciding your sentence.

What happens if I'm found guilty?

If you’re found guilty, the courts have several options:

Absolute discharge

This means that you won't get any punishment.

Conditional discharge

This means that you won't get any punishment unless you commit a further offence during a certain period, usually 1 to 2 years.

Pay a fine

This means you’ll be asked to pay money.

Community sentence

This means that you won't have to go to prison. But you will have to meet certain conditions. For example, doing unpaid work or living at a certain place.

The community sentence might require you to have mental health treatment. But only if you consent to the treatment. You may also get help for alcohol or recreational drug problems.

It’s important to stick to the conditions of this type of sentence. If you don't, the court can order you to come back and be re-sentenced. This could mean that you’re sent to prison.

Prison sentence

If the court chooses to give you a prison sentence, it’ll also need to decide the type of sentence and how long it should be.
The court can give you what is called a 'suspended prison sentence'. This means that you won't go to prison unless you commit a further offence during a certain period, usually 1 to 2 years.

Section 37 hospital order

This would be an order given under section 37 of the Mental Health Act, to send you to hospital instead of prison. The Crown Court can also add restrictions under section 41, known as a section 37/41. But the Magistrates’ Court cannot add these restrictions.

Guardianship order

This means that a guardian will supervise you in the community. And make you live at a particular place. The guardian will usually be a local authority.

What will the court consider when deciding my sentence?

The court has many things to consider when choosing the outcome, including:

• The seriousness of the offence
• Any previous convictions
• Your mental health

The court may also take other things into account, such as:

• Guidance from the Sentencing Council and the Court of Appeal
• A pre-sentence report or a report on your mental health

Can I appeal against my conviction or sentence?

You may be able to appeal if you disagree with your sentence or conviction. But this can be a complicated process, so it’s important to get legal advice.

This information was published in April 2024. We'll revise it in 2027.

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.