When ‘diversion’ is being debated, why is it that the examples used tend to be on the extremes? Murder and low value shoplifting; or rape and minor public order offences?
I think we’re probably all agreed: if you are alleged to have murdered or raped someone then you should be prosecuted so that the courts can assess all of the relevant information in a criminal trial, including if necessary, issues around a defendant’s ‘fitness’ to plead with the benefit of full psychiatric reports?
Equally, we’re probably all agreed that if you’ve stolen a few pounds worth of goods when acutely mentally ill; or you’ve become distressed whilst floridly unwell and you are found swearing at members of the public who are subsequently anxious about your conduct – you should certainly be diverted from justice for necessary treatment and care. The criminal offence being very minor, is quite properly able to be set aside in the circumstances.
But life is not always that straight forward, is it? It’s the slightly-more-serious, but not-the-end-of-the-world stuff that is more challenging. Here’s a scenario that I think could go either way:
- A known community patient has robbed a postman of his letters. The robbery involved threats of violence and it was implied that the offender had a weapon. However, no weapon was seen or used, no injury sustained and the letters were recovered by the police after a prompt response and an arrest based upon description and the possession of everyone’s mail. <<< A true story, incidentally.
So, upon assessment this patient was found to be sectionable. So do we divert from justice? (What now follows is hypothetical, to make the point.)
What if this was a first arrest? Although a known patient, he as never been in trouble before with the police and this episode of illness is particularly acute, perhaps as severe as it has been for him. He has no previous history of violence within mental health services, a solid history of engagement with services and staff are particularly concerned for his welfare, because this is so out of character after many years of contact. Although it is an indictable-only offence (triable only in the Crown Court) and although it carries the potential for life-imprisonment: I’d be tempted to argue that he should be diverted on bail, and if all is well during and after treatment, no further action. After all, no-one was actually hurt and the public interest appears met if he engages with mental health services after diversion from justice.
However, what if this was his ninth arrest? What if they included two detentions under s136 which led to admission, 3 other MHA admissions to hospital in the last few years which occurred without reference to the police; a history of repeatedly going AWOL from mental health units in which he has been detained, a history of violence against NHS staff within those units? What if his previous criminal convictions included robbery, theft and violence, including possession of weapons; what if there were previous diversions from justice for offences almost like this one and following detention in hospital, he absconded from the unit and failed to engage? Would it still be ‘right’ to divert from prosecution?
(I fully accept that to prosecute the offence needs to be able to be proved, so wish to preempt a response which suggests the focus needs to be on this, rather than on the desirability of either course of action. However, this is a subject in its own right and will be a blog at a later date.)
Again, all of this just highlights why the false dichotomy of ‘mad’ or ‘bad’, of mental health OR criminal justice, is so flawed. It also highlights that if you re-read the two paragraphs above regarding potential, hypothetical backgrounds, they each represent a combination of information from both the police and from health or social care sources.
This is why information sharing remains key to everything. If you re-read the paragraph about the hypothetical ‘9th arrest’ – take out of there the police information about convictions, AWOL incidents etc.. How would you feel as the psychiatric nurse receiving a patient after diversion with that police background and only learning about it later? Equally, what if you were the investigating or custody officer attempting to decide whether or not diversion should occur and you didn’t know the health information about violence against staff on wards, or refusals to engage with MH services. Imagine diverting from justice and then finding a ward nurse was seriously assaulted or that the man absented himself and offended again, perhaps more seriously. Information sharing is key.
Answers on a post-card with a better word than ‘diversion’. I’ve heard ‘liaison’ or ‘engagement’, but I’m not utterly convinced by either of them. Still thinking!