I’m not sure anyone knows the size of the problem, regarding how many people with mental health problems become involved in the criminal justice process. I’ve stated previously that if we leave the police to their own devices, they will spot around 12-15% of detainees in police custody and suspect a mental health problem which needs at least the Force Medical Examiner’s attention. If the custody sergeant had fired off a list of all people arrested in the preceding 24 hours to the local mental health trust, they would have found that as many as 50% of those people arrested are known, have been known or need to be known by secondary care mental health services.
Then even if we knew the size of the ‘problem’, do we have an adequate understanding of what we’re trying to do, or how where arrests for criminal offences have been made and mental health issues are suspected or known? Do we have one really clear vision?
I keep hearing and reading things which talk about “appropriate” diversion (whatever that means). Who is deciding ‘appropriate’? And on what basis? What factors of variables influence that assessment of ‘appropriateness’ and who decided them?
For example, we could conceive of a situation where a young, unemployed mother, who has a history of suffering from depression and anxiety disorders under the care of GP, who is caught for shoplifting food from a supermarket to feed her kids because of ongoing money problems. We could conceive of an adult man, without dependents who has a history of schizophrenia under the care of a community mental health team, with a history of short-term admissions to a psychiatric unit, who is caught shoplifting the same foodstuffs from the same supermarket to feed himself because he has been living rough in crisis for several days.
Imagine that upon arrest and medical assessment in the police station – firstly by the FME, but followed by Mental Health Act assessment by the NHS – a similar conclusion: neither person was in need of admission to hospital under the MHA. We have two very different contexts to similar offending. Should this affect the outcome? There will be CCTV and store security witnesses for both (most usually there is, in large supermarkets where offenders are caught and detained – actually, the CCTV is often highly impressive and extremely clear); there will be evidence of either security or police officers recovering items, there will be a police interview in which questions will either have been answered or not.
In each case, we can see unmet need: perhaps the former is more around money, social support; perhaps the latter is around psychiatric care that breaks a cycle of “crisis – admission – release”. Either way, we have passed the “evidential test” for prosecution. Is it in the public interest to charge (or caution)?
This is potentially where police officers or prosecutors get into very subjective territory.
CONTEXT IS EVERYTHING
Various things could alter the above scenarios, what if the theft occurred had occurred amidst threats of violence, which makes the offence robbery? What if, it still having been ‘simple’ theft matter, the store detective had been assaulted whilst detaining the offender pending arrival of the police; or if the officers had been assaulted? Would these aggravating features alter the perspective on an ‘appropriate’ criminal justice disposal or diversion decision?
Would the previous offending history be relevant? What if the single mother had never been arrested before; what if the man living rough had been arrested several times for offending whilst in crisis and had a history of non-engagement with mental health services?
It’s all relevant isn’t it? As I’ve frequently remarked, Professor Jill PEAY of the London School of Economics has argued that decision-making at the interface of criminal justice and mental health is the most challenging that either group of professionals will undertake. You can see from the above, that the ‘appropriateness’ of any decision to prosecute and / or divert someone is complex and subjective.
So what are actually we trying to do?!
One could argue about what the ‘right’ decision is – and whose decision it is. Is it the decision which address any unmet health or social care needs whilst using criminal justice powers to ensure or encourage engagement; or is it the one which maximizes the possibility or preventing further offences? How do we make decisions where we are not sure or are these the same thing?!
What matters, is utility - and to know this, we must research and learn more about the efficacy of prosecution and diverision (whatever that means).
It could be the decision which ensures an appropriate legal framework to ensure over-parternalistically that unmet needs are ‘met’ to discourage further offending – that framework could be one focussed upon ‘therapeutic jurisprudence’ like prosecution for the man in crisis to achieve a Mental Health Treatment Requirement on the back of a community sentence. This may successfully address his previous non-engagement with MH services because if he now doesn’t engage he ends up back before the courts. But maybe he won’t care?
I suspect we often confuse the “evidential test” and the “public interest test” – these are the two parts of the Code for Crown Prosecutors which must be weighted in order to establish whether a prosecution is a) possible and b) necessary. I am convinced from my experience it is far more frequently possible to prosecute a mentally ill offender than we think: even if they are in need of hospital admission. Where I think we need to articulate a clear vision is around necessity; or “the public interest.”
In 1951 the Attorney General said in Parliament, “It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution.” He added that prosecution should occur only “where it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest.”
This is another reason why I’m unconvinced of the word “diversion” for the deliberations that criminal justice and mental health professionals have to make, because a consideration of just some of the issues around two hypothetical, fairly straight-forward shoplifter cases reveals the difficult balancing act that is required to get it right and the assessment of the public interest by police, prosecutors is sometimes something I don’t think we get right.
We should not forget cultural issues within this debate: public attitudes towards sentencing are a political and social reality and the validity of our justice system and our policing is inherently connected to public trust in their actions.
For all these reasons, we need to be better co-join our criminal justice and mental health services to undertake the work at the interface and in order to do so, we need a clearly articulated vision of what we’re trying to achieve so we can use all the legal tools at our disposal:
- prosecution / diversion,
- cautions / conditional-cautions,
- police / court bail,
- Part III MHA, inc, s35/36 MHA;
- community sentencing, inc MHTRs; etc.. – to do so.
- prison << Yes, it has a place.
A main problem is, too many people don’t really know in practice what the list I have just given, actually means.