Criminalisation of the vulnerable

My bio on twitter states I’m interested in criminalisation.  I’ve had comments made about my ‘mission’ to eradicate criminalisation: I want to make a few comments on this and I want to be absolutely clear at the start.

  • If by criminalisation you mean that the access to necessary services if and only if you have had contact with the criminal justice system; then YES – I’m trying to end criminalisation.
  • If by criminalisation you mean, as I do, proper, lawful, defendable decisions taken which are proportionate to incidents and individuals brought to the attention of the police or courts; then NO – I’m not trying to end criminalisation.

Some criminalisation of individuals is absolutely necessary and let me give just two obvious why:

1.  Offending behaviour is occasionally little or nothing whatsoever to do with the fact that someone has a mental health problem.  Sometimes, mental illness is a mitigation to be considered, not a defence to the whole affair.

2.  If offending behaviour poses a “serious risk of harm to the public”, the relevant sections of the Mental Health Act (1983) can only be accessed via the criminal justice system, so prosecution is constitutionally necessary not only to the issue of public protection, but quite potentially in the best interests of the patient.

But here’s my main claim:  policing, quite rightly, UNDER-CRIMINALISES mental illness.  Let me explain why:

Most legal jurisdications have an equivalent of s136 Mental Health Act 1983 – s297 of the Mental Health (Care and Treatment) (Scotland) Act 2003; a130 Mental Health (Northern Ireland) Order 1986.  This legal power is exactly intended to allow police officers to respond to situations, including those involving minor criminal offences, and upon recognising a mental health crisis, prioritise that whilst (at least initially) ignoring the criminal offence. More often than not, the offence is set aside if someone is acutely ill.

  • We also know from research (BITTNER, MORABITO) that where police officers have an opportunity NOT to arrest at all, because they can refer to or access services, they will take this option where appropriate.  Of course, if those services do not exist or decline to respond, that is beyond the control of police who should and do take appropriate decisions.
  • We also know from research (JAMES, RIORDAN) that where opportunity exists to divert offenders from police and / or court custody after arrest / prosecution, that this is often done where services exist.

If you set up a hypothetical police incident involving an offence and run it through 100 cops; and then re-run it whilst explaining that the person is acutely mentally ill, the number of officers arguing for an arrest interventions will drop.  The nature of the arrests will also change because some will choose Mental Health Act instead of the Public Order Act or arrest for assault or damage.

In other words, where the opportunity NOT to criminalise exists, police officers and courts will often take it, but whether such services exist is something that is ultimately a matter for the NHS.  Numerous times I’ve heard CJ professionals  – police, prosecutors and magistrates – regret an inability to access services or access them in a timely fashion  and regret yet further the subsequent necessity of arrest or prosecution or remand in order to continue to maintain public safety or the safety of the individual.

What I do know is this: there is anecdotal evidence from professionals I have worked with that without the ability to access Place of Safety services, police custody or court custody diversion services, some offenders will end up prosecuted until eventually they are subject to Part III MHA orders and require secure mental health care.  As one MH trust I know is currently spending over 45% of its whole MH budget on high secure and medium secure care for approximately 60 of its 2,500 patients, the longer intervention is left for those who are mentally ill AND criminally offending, the more this budget will be squeezed by ever greater numbers of patients requiring secure care.

I’m advocating diversion where it is available and appropriate; I’m advocating that where it is not, the criminal justice system has a responsibility to prevent crime, protect life and property.  Sometimes this necessitates a regretable prosecution, always done with a heavy heart.

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9 thoughts on “Criminalisation of the vulnerable

  1. I think “criminalisation of the vulnerable” probably encompasses more than just prosecutions and arrest. I was detained under section 136 for attempting to throw myself off a flyover. I was driven to a police station, strip searched, given a copy of my rights to solicitors and things as if I had been arrested and then locked in a police cell for hours. Throughout the entire ordeal I was never a danger to anyone but myself.

    I felt that I was treated as a criminal, even though I wasn’t arrested. I didn’t understand why I was strip searched and made to squat. I don’t think many suicidal women hide an offensive weapon in their vagina before attempting to kill themselves.

    I’m not entirely sure wether my experience is representative and I do know that there is a big push for special 136 suites instead of police cells, but I guess that I feel that it’s almost inevitable that someone involved with the police due to their mental health feels criminalised. I guess that mental health seems an unusual social care bolt-on to the normal police role. Maybe any legal powers of coercion, such as sectioning, cannot feel like anything other than criminalisation.

    1. Thanks for sharing that, but it serves to prove my point precisely:

      1. If you were detained s136, then you were arrested because s136 is an arrest, in law.
      2. If you were arrested s136 after attempting to throw yourself over a flyover, then they chose that rather than s22 Road Traffic Act because it is an offence to put something on or over a road, causing a danger to road users; including yourself.
      3. You were treated as a criminal, because the process when s136 MHA leads to detention in a police cell, IS the same as that which would occur if you had been arrested for any offence.

      You are quite right; there has been a push, often lead by the police, for special s136 suites and I’ve been involved in establishing 5 of them and developing many others to work effectively.

      Don’t get me wrong: I fully, FULLY understand why you would feel criminalised by the experience. My main point in the blog, is that the officers had a choice. They could have arrested you for the criminal offence under s22 RTA and they chose not to. I can assure you, those officers would have wished for it to be possible that you could have been taken to a 136 suite rather than custody – trust me, no police officer wants a 136 in police custody if it’s at all avoidable.

      I fear that your final sentence may be correct and as for the search, I’ll simply say that I’ve seen some quite amazing things hidden in a human body and the primary concern would have been to keep you safe in custody. Whilst it may have been at the expense of your dignity, I have never seen or heard of anyone being strip-searched to humiliate them. Not least because that would be illegal.

      Thanks again for sharing – I hope my reply contextualises the blog to your experience, although I’m not sure whether it will help.

      1. That makes a lot of sense.
        I am surprised to hear that section 136 is an arrest though. Despite contacting theHome Office, a mental health lawyer and speaking to my local police force about getting it removed from a CRB check, no one explained that I had been arrested and no one explained that dangling over a barrier was in fact a criminal offence. I had no idea I had broken the law.
        Thankyou for replying,it actually fills in a lot of gaps as to why I experienced what I did. It also switches my experience from “person is criminalised for being mad ” to “person commits criminal offence and isn’tprosecuted because they are mad”.Which are two very different things!

  2. So glad to read your response. What I would add, is that different police forces have different policeis about whether the disclose s136 arrests on a CRB check, which is a shame. The term ‘arrest’ for s136 is legally right, but ethically wrong because it reality it is a mechanism to keep someone safe, either from themselves or from anything else.

    The reason the police sometimes appear pedantic about using it when many object to the term, is that following any ‘arrest’, other legal considerations kick in which it is important for officers to consider. Whether to search, legal rights to the person concerned etc., etc..

    Your conclusion is right, though: s136 often gets used in preference to substantive criminal offences of various types, precisely because the officers have recognised they are dealing with a mental health crisis and want to prioritise welfare.

  3. Hi Michael, just out of interest…if a s136 is an arrest, does that mean that someone needs to be breaking the law (or looking like they’re about to) in someway for you to use it?

    1. Hi Jo; not all. As long as the officer can evidence the following things, s136 is in play without a criminal offence being committed, attempted or even likely:

      1. Place to which the public have access
      2. Appears to be suffering from mental disorder
      3. Immediate need of care OR control
      4. Own interests or for the protection of others.

      You can probably imagine a few situations where crime doesn’t even enter the thoughts, but s136 would be desireable: elderly dementia patient, wandering lost and cold. The law classifies it as an arrest to ensure that legal rights kick in once detained, rights to be informed of what is happening, human rights considerations, right to have someone informed of arrest, solicitor, etc.; and that subsequent rights for the police to do things that they cannot do to un-arrested members of the public – ie, search them.

      1. Its a power of detention not an arrest. Which are different. The word arrest is never used nor does PACE kick in.

  4. Sectioned Detection,

    I’m afraid it really an arrest: s26 PACE preserves certain authorities which preceded that Act as powers of arrest and they are listed in Schedule 2 to PACE. They include, amongst other things, s18, s136 and a138 MHA. The word ‘arrest’ need not verbally be used as it has every potential to inflame a situation, or alarm; but it nevertheless remains, by law, an arrest. It is also true that you do not need to ‘caution’ the person arrested / detained.

    For that reason, a power of search becomes available under s32 PACE as PACE ‘kicks in’ and certainly if the person ends removed to a cell, Code C to PACE ‘kicks in’.

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