It is a phrase mental health professionals are very used to hearing, “Sorry, it’s not in the public interest” [to prosecute a mental health patient with an offence]. It is a phrase the police and the Crown Prosecution Service have often used to defend the decision to take no formal criminal action against a patient who has assaulted, or stolen or damaged property, especially where the patient is an inpatient. Of course, it is often the case that they will have been quite right to do so.
I want to explore in this post whether we are currently drawing the line correctly in the sand and / or whether we are thinking correctly about the public interest in prosecuting mentally disordered offenders.
The Code for Crown Prosecutors is a statutory document, issued by the Director of Public Prosecutions under authority granted to him by the Prosecution of Offences Act 1985. By law, Crown Prosecutors MUST have regard to its contents when reaching prosecution decisions.
Government policy on the prosecution / diversion of mentally disordered offenders has, since the 1990s, been reflected by Home Office circular 66/90. Jointly issued with the Department of Health it reflects the “the desirability of ensuring effective cooperation between agencies to ensure that the best use is made of resources and that mentally disordered offenders are not prosecuted where this is not required by public interest.”
If you have never read this document, I would strongly encourage you do to so, as 22yrs after publication it is still the current government policy document on ‘diversion’. It makes numerous references to ‘not prosecuting, except where required by public interest’ and so this has to be worthy of further consideration. It is of note, that the document does encourage police officers to think from the very beginning of their response to incidents of the potential to divert from justice: it lists the use of s136 Mental Health Act as a diversionary approach. Of course, if an incident gives rise to a situation where an arrest could be made for an offence AND / OR under s136 Mental Health Act, the Circular encourages detention under the Mental Health Act if the offence is minor.
The Code for Crown Prosecutors (from p10) lists various considerations that would both tend in favour and against prosecution. For example, that a victim is a public servant; that the offence involved a weapon; or that prosecution is necessary to stop a repeat of the act: all are reasons to lean towards prosecution. That the offender has a serious mental health problem; that they would receive only a nominal penalty; or that the seriousness and consequences of the offence can be adequately dealt with by out-of-court disposal with which the suspect agrees to comply: all of these lean away.
It is not a question of counting these factors decide whether ‘for’ or ‘against’ has more going for them. It is also a question of balancing the value of each. Having worked on the concept of ‘diversion’ for many years, I have come to the conclusion that offences which are very minor (for example, ‘summary-only’ offences which are triable only in the Magistrate’s Court) are the only ones which should be completely set aside in favour of s136 arrests or set aside from police custody by diversion under the Mental Health Act.
What I mean by this: if an officer has attended an alleged assault, and there are no injuries to the victim despite being hit, it may be consistent with justice to arrest s136; or to take no formal action at all on the assault if a mental health problem is identified only after removal to the cells. We should remember the potential for informal and out-of-court disposals to provide a positive impact. However, had someone been injured to a standard of actual bodily harm or more, then arresting for the offence becomes important. Had the person been removed to custody after arrest, regardless of the stage at which mental disorder was first suspected, it is important that the ‘No Further Action’ option is not immediately selected.
I want to argue for greater use of police bail to determine appropriate conclusions.
Home Office Circular 66/90 argues that admission to hospital for compulsory admission for assessment or treatment (s2 or s3 of the Mental Health Act) may often by sufficient to negate the public interest in prosecution. I have two questions to ask about this, to promote consideration of whether this is always true:
- How many times are you going to do this before reviewing whether to do it again is consistent with the public interest?
- If you are going to do it, should police bail not be used to keep the person within the ‘grip’ of the justice system until the outcome of assessment / treatment is known?
I can give examples of where offenders have been arrested and diverted on multiple occasions. My favourite example – the most extreme one I have, to ram the point home! – is a man who was arrested 55 times in 5 years and whose offending patterns represented a clear escalation of behaviour over that period. What started as minor public order offences and shoplifting became theft and actual bodily harm; which became robbery and grievous bodily harm. Although much had occurred to mitigate the risks he posed – diversion to mental health services, anti-social behaviour order, and so on – it appears no-one got close to saying “Hang on” and re-thinking the case-by-case approach to escalating risks.
How many times is arrested s136 and / or ‘diverting’ under s2 or s3 MHA going to acceptable, before we wonder whether it is working in the longer term. Indeed, how many times is diversion under s2 MHA with release to community treatment after just a few days or a week going to happen at the expense of consideration of prosecution? <<< In case of doubt, this is no criticism of the decision-makers to divert. I have genuine questions about the total knowledge of the decision-makers in both the police and mental health services when they are considering case 47 of 55. Were they aware of cases 1-46? If not, do the information systems they have access to in police custody at 4pm on a Saturday allow them to find out? These things link to my next question.
USE OF BAIL
In my view: the use of police bail before charge can be the answer to a lot of this. If someone is arrested for an offence and removed to custody, but then assessed under the MHA and in need of admission, if they are arrested for what the law calls ‘either-way’ offences or ‘indictable only’ offences, then they should NEVER be just released without further action by the police because they have been delivered into the care of mental health services under s2 or s3. They should be bailed for 30 days, under an obligation to return to the police station.
Whilst in the care of mental health services, various things will then occur or apply:
- The investigating officer will then engage with MH professionals to share / request information relevant to making the right CJ decision.
- If the patient is assessed and released to community care within days or a week or so; then they remain under a duty to return where they can be assessed for fitness to interview by the FME, the investigating officer by then having a clear understanding of the MH issues.
- If the patient is assessed and deemed to be sufficiently unwell to remain in hospital, perhaps ‘converted’ to s3 of the MHA for treatment for up to six months, then bail can either be cancelled or varied, depending on the case.
This means, that a revolving door of ‘diversion’ is avoided; risks are better understood and mitigated.
NOT IN THE PUBLIC INTEREST
In some areas, such as Greater Manchester Police, they have formalised these information sharing mechanisms into Mentally Disordered Offender panels. Meetings of a certain frequency which come together to discuss the relevant cases, rather than do it ad hoc, case by case. For me, whilst there may be little public interest in prosecuting offenders in certain circumstances, that public interest begins to increase as ongoing offending behaviour continues, or even escalates. By the time you have someone with half a dozen arrests, perhaps starting to increase in seriousness or frequency, it is already beyond the point whether prosecution should be considered to access bail and sentencing options which are only available to courts.
For example, where someone is prosecuted for an offence, even where they are considered ‘sectionable’ under s2 MHA, a Magistrate or Crown Court have powers under s35 MHA to remand to a hospital for assessment, treatment or reports. This then places the right information in front of the trial about the person’s mental health and criminal justice background to make the right decisions at court. These outcome could include a Mental Health Treatment Requirement as part of a community sentence – very under-used sentencing option – as well hospital orders or restricted hospital orders. We should also have in mind during investigations, the potential for public protection and ‘offender-management’ approaches, such as drug-testing, MAPPA and so-on.
We need to think more about the value of prosecution in the public interest, but only where the background of particular patients or the individually serious nature of an offence necessitates it is proportionate.