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.