AG v Nicolle [2022] JRC 268 (11 May 2022)

JUDGMENT THE commissioner: 1. This day was fixed for the court to consider whether the defendant is fit to participate effectively in the proceedings against him, and if so whether a treatment order should be made.

2. The two psychiatrists, Dr De instructed by the prosecution and Dr Hillier by the defence, have filed two reports in which they both agreed following slightly different routes that the defendant was not fit to participate in the proceedings and that the defendant should be treated in hospital in a secure environment.

3. The defendant through his mother Mrs Nicolle takes no issue with the advice on capacity. However, the defendant communicating again through his mother is vehemently against the making of a treatment order. The day before the hearing we gave notice that the instruction to Advocate Dale was terminated, and a new lawyer was to be appointed to represent him. It also transpired that the prosecution were not in a position to seek an order under Article 63 of the Mental Health (Jersey) Law 2016 because the arrangements for the defendant to be admitted to an approved establishment, should the court so order, had not been completed.

4. The court decided therefore to proceed with the issue of the defendant's capacity with Advocate Dale kindly acting as amicus curiae as both experts were in attendance Dr Hillier via video link. Both experts confirmed their reports and the conclusions that they had reached, namely that the defendant was not fit to participate effectively in the proceedings for the reasons set out in their reports.

5. In brief Dr De said the defendant appeared to have traits of obsessive compulsive disorder, a vulnerability and predisposition to developing and suffering further mental disorder of a nature and degree necessitating treatment. The defendant was also suffering from a major depressive disorder. He said this at paragraph 5.6: "He has demonstrated that he is incapable of 'participating effectively' in the process leading to any trial at court. He has repeatedly been incapable of personally meeting his counsel and providing instructions including indicating a plea. Thus far he has been unable to comply with instructions to attend court. His low mood, anxiety and avoidance as a result of mental disorder impairs his ability to present himself at court to give evidence on his own behalf and understand the proceedings at trial. This would suggest he is incapable by reason of mental disorder in effective participation with the court proceedings as described under Article 55 of Mental Health (Jersey) Law 2016." 6. Dr Hillier said, the defendant presents with features of post-traumatic stress disorder with significant traumatic events going back to his childhood, on the background of an obsessive compulsive or an anankastic personality structure. He said this at paragraph 178 of his report: "It is clear at present that Mr Nicolle does suffer from a relevant mental disorder that renders

him incapable with regards to his legal proceedings, namely PTSD, OCPD and associated severe anxiety within the PTSD context. By virtue of these disorders and their interaction with each other, Mr Nicolle is unable to think or communicate meaningfully in any way about his legal case, and it does appear to be an ongoing traumatic experience. It is on this limb of the test that he is incapable. I am unable to identify any immediate modifications that could be made to proceedings, except for consideration of a meaningful period in hospital where treatment could occur, which may lead to Mr Nicolle recovering sufficiently to be able to do what is required of him as a defendant." 7. Both doctors agreed that whilst manipulation by the defendant or as Dr Hillier put, "malingering" can never be wholly excluded the situation of the defendant was genuine given his history of trauma and behaviour in detention. Dr Hillier said, " it was not easy to malinger". Neither expert could foresee any change in his disposition in the foreseeable future. There is no need for the court to expand further on the detailed advice given by both doctors as set out in their comprehensive reports and as confirmed by them in evidence.

8. Having addressed the criteria in Article 57(1) of the 2016 Law both doctors advise that the defendant lacked capacity and that pursuant to Article 57(4) there are no special measures that might alleviate that incapacity other than treatment. The court accepts that advice and determines that the defendant is incapable of participating effectively in the proceedings.

9. We will adjourn the proceedings so that a further date can be fixed before the court is currently constituted, if possible, when the court can hear further evidence from Dr De and Dr Hillier on whether a treatment order should be made under Article 63 of the 2016 Law.

10. The appointment of a new lawyer for the defendant should proceed without delay and we invite the Attorney General to confirm to the court within 14 days whether or not a lawyer has been so appointed. 11. [Redacted]. 12. [Redacted].

13. We note what Dr Hillier says at paragraph 21 of his report: "Should it be the case Mr Nicolle does regain fitness, it is likely he will have psychiatric defences available to him, which may lead to a similar outcome as a finding of unfitness." 14. [Redacted]. Authorities Mental Health (Jersey) Law 2016. Page Last Updated: 05 Dec 2022 Back to top About JLIB Accessibility Contacts Disclaimer Feedback Privacy policy Site map © Jersey Legal Information Board 2001- This website is not compatible with your web browser. You should install a newer browser . If you live in Jersey and need help upgrading call the States of Jersey web team on 440099. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII