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Armed forces offences and PTSD19th October 2020 Criminal Defence
JMW’s Business Crime and Regulation department specialise in representing current and ex-military personnel who face criminal proceedings in the Court Martial. We appreciate that each case before the Court Martial is unique and that individuals we represent have their own history and background, both from their time serving in the armed forces and from a personal capacity.
We recognise that service men and women are likely to have encountered traumatic and often life changing events. We routinely represent serving and ex-military personnel who are suffering from Post-Traumatic Stress Disorder (“PTSD”), whether diagnosed or un-diagnosed. We explore below the importance of fully considering the existence of PTSD and indeed any other mental health conditions, for those facing court martial proceedings.
What is PTSD?
Post-Traumatic Stress Disorder (“PTSD”) is a recognised mental health disorder, which is typically caused by a very stressful, frightening or distressing event. In military personnel, it is common for PTSD to have been caused by highly traumatic events witnessed or experienced during deployment. PTSD may however also arise from a traumatic event in the personal lives of service men and women, such as childhood abuse.
In some cases, symptoms of PTSD may not present for many years after the event; this is because as a means of coping the individual avoids thinking about the event, a strategy which can be ‘successful’ for many years until ‘triggered’. We understand that the symptoms of PTSD can have a significant impact on day-to-day life and can persist for many years. Common symptoms include experiencing flashbacks, nightmares and intrusive negative thoughts, which may be constant, or could be caused by certain ‘triggers’. It is common for the individuals that we represent who are suffering from these symptoms to detach themselves (both physically and emotionally) from family and loved ones in an attempt to avoid irritability and angry outbursts being taken out and directed at those around them. This can understandably lead to feelings of isolation and loneliness.
Why is PTSD relevant in Court Martial proceedings?
Where a member of the armed forces has been diagnosed with or is suffering from PTSD symptoms (un-diagnosed) and faces proceedings in the military court, their condition is highly relevant and will be considered by JMW’s military lawyers throughout the case.
It may be the case that the symptoms and presentation of PTSD directly affected the offending that is alleged, in which case the presence of PTSD may form an important part of a defence, which will be fully explored. There may be specific defences available linked to the symptoms of PTSD, such as automatism, diminished responsibility or self-defence, depending on the particular charge and nature of the allegations.
The existence and symptoms of PTSD may also form significant mitigation in a case where a defendant pleads guilty to the allegations, but the existence of the condition does not form a specific defence. For example, where an individual is charged with an assault, a medical expert may confirm that the symptoms of PTSD in the individual present as aggressive outbursts. This shall then form part of the mitigation that is put to the court, who will consider the defendant’s culpability for the offence when determining the eventual sentence.
Whether raised as a specific defence or as part of sentencing mitigation, the existence of PTSD can be pivotal to the outcome of the case, for the reasons set out above, as it may result in acquittal or a reduction in sentence.
How can we help?
It is important that any medical conditions are thoroughly explored in order that we can present any relevant material to the court. At the appropriate stage in proceedings, we shall arrange for a medical expert (a psychologist or psychiatrist) to examine you and prepare an expert report (also known as a medico-legal report). This can be arranged whether PTSD has already been formally diagnosed or whether it is currently un-diagnosed. If you are eligible for legal aid through the Armed Forces Criminal Legal Aid Authority (AFCLAA), the cost of obtaining a medical report on your behalf will, in most cases, but funded by the legal aid scheme.
The experts that we instruct are completely independent. The expert’s report will typically outline the nature of any mental health conditions by confirming a diagnosis, setting out the symptoms present and explaining the impact of symptoms on the offending that is alleged and day-to-day life. In addition, any recommendations for treatments will be considered. The report prepared may then be served upon the court to assist, either in support of a particular defence or at the sentencing stage of proceedings.
We often find that service men and women have previously struggled to discuss and been reluctant to seek medical assistance for their symptoms for a number of reasons. This could be due to the delayed onset of symptoms or due to concern about colleagues thinking that they cannot cope and fear of criticism. All of these reasons may have made seeking help or even speaking about concerns extremely difficult. Our team of military experts at JMW solicitors are completely independent from the armed forces and are understanding towards the concerns that our clients may have in discussing mental health concerns.
JMW Solicitors are a full service law firm and in addition to representing military personal in Court Martial proceedings, our personal injury military experts may be able to assist you should you wish to discuss a claim for compensation through the Armed Forces Compensation Scheme.