Can Dementia Exempt You From Criminal Responsibility? The Latest on the Mohammed Al Fayed Case
Sexual allegations resurfaced following the death of Mohammed Al Fayed, leading to worldwide news reports, and a BBC documentary Al Fayed: Predator at Harrods. The documentary examined various sexual assaults on women and girls. Now it seems that allegations had been made when Al Fayed was alive, but due to his health no further action was taken was taking by the Crown Prosecution Service.
On three occasions - in 2018, 2021 and 2023 - the CPS was asked for what is called early investigative advice, but the matters were not pursued further by police. Early investigative advice is where the police request for the CPS Lawyer to review the case against the accused and the work they have completed to date, the CPS then provide advice to the police on the necessary steps they need to take to enable the CPS to make the correct decisions when it comes to charge. Early investigative advice is very common in serious or complex cases, but also where there are high profile individuals involved.
Mohammed Al Fayed’s son said individuals surrounding Al Fayed helped him avoid further police probing "on the grounds he was mentally incapacitated" and had dementia, but that when he returned to business affairs he was "as sharp as a tack". We can almost be certain that medical professionals would have been assisting Al Fayed in obtaining his diagnosis and providing "evidence" of this to law enforcement.
Now following his death more than 90 complainants have come forward to the Metropolitan police to report the sexual abuse they suffered at the hands of Mohammed Al Fayed, including the most serious sexual offence of rape.
There is no doubt that Mohammed Al Fayed was one of the most powerful men in the world, and had the most trusted team around him that not only potentially facilitated the alleged offences but helped to also cover them by lending their support to his dementia claims.
Dementia and Criminal Proceedings
Dementia is often considered a condition where people suffer memory loss, but there is more to it than this. Dementia presents other symptoms which can put a person accused of a criminal offence immediately on the backfoot. The problems that may arise for someone suffering with dementia include difficulty with problem solving, organising and communicating ; all of which are required to ensure a person understands the allegations against them and can provide instructions to their defence team, formulate their plea and process information.
Mental capacity is crucial in criminal proceedings, a person who has mental capacity is able to make decisions at a certain time where required to do so. Someone who cannot do this is said to lack capacity, and one condition where this can be apparent is with dementia.
The fact that someone has a mental health condition or disorder may have a bearing on the decision to prosecute, but it may not and the bar is very high to pass often requiring in depth medical evidence and reports.
“English law describes those who lack sufficient capacity to participate meaningfully in criminal proceedings as being unfit to plead”.
The law developed in 2004 with the introduction of the Youth Justice and Criminal Evidence Act 1999, which seen the use of intermediaries in criminal proceedings throughout courts in England and Wales. The role of the intermediary is to assist those with communication difficulties, however in cases where dementia is a key issue, their assistance is not going to aide memory recall and there really is very little assistance in cases where a defendant or witness lacks memory due to dementia.
Article 6 ECHR - The Accused's Right to a Fair Trial
There is a strong argument that a person who is suffering with dementia and does not have any memory, or struggles to remember events properly will not have a fair trial. The CPS as a public authority should identify disadvantages that disabled defendants may experience, and consider what steps could remove or minimise them, or what adjustments could be made. Whether this process was correctly followed or considered when the police requested charging advice from the CPS in respect of Mohammed Al Fayed we do not know, and if so what the results of the assessment was.
The Decision To Prosecute
Prosecutors must apply the Director's Guidance on Charging. The investigator must notify the prosecutor that the suspect's mental health condition or disorder may be a live issue. This must be done clearly in the request for early advice or for a charging decision, stating the grounds on which it is based and drawing the prosecutor's attention to any relevant material. This information may potentially come from different sources: not only the suspect, but their friends, family, defence representative or a professional involved in their treatment or care. In the Mohammed Al Fayed's case it is likely that various sources would have provided the police and CPS with evidence of his condition and when considering the evidential threshold their evidence would have been a very relevant and key factor.
What Might Happen Next in the Mohammed Al Fayed Case?
Although I am sure a trial by media, which can be dangerous in itself when court proceedings may commence, will continue to play out in respect of Mohammed Al Fayed, the reality is he can never be tried, convicted or exonerated of the alleged offences. However, those who are still living may be investigated and prosecuted in respect of the part they played in any alleged historic offence.
The developments that have taken place within the law from the 1980's have changed the way in which the police and CPS view historic alleged sexual offences and therefore, there is no doubt that police investigations into those still living, who are alleged to have been involved will be taken seriously and pursued where there is sufficient evidence to do so.
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