I subscribe to a couple of different online groups for people interested in mental health issues. In a couple of them today, discussion has been had about the use of s136 of the Mental Health Act in connection with our railway network.
A couple of facts about the railways –
- They railways are privately owned property, the network itself being owned and run by Network Rail.
- They are mostly policed by a unique police service – British Transport Police, who cover the railways as well as other travel networks like the London Underground and the Birmingham to Wolverhampton metro line.
- The Police Service of Northern Ireland are responsible for the policing of their rail networks. The suicide rate in Northern Ireland has been rising in recent years, so this is a challenge for PSNI too in an area of the UK where suicide rates are higher than the average.
- To conceive the extent of the problem: British Transport Police operate in two different legal jurisdictions with their own laws (England / Wales and Scotland)
- They cover three different health systems (England, Wales and Scotland) including over 150 Primary Care Trusts; 58 Mental Health Trusts and 11 Ambulance Services – in addition to A&E Trusts, local authorities, etc., etc..
- PSNI are slightly better off in that regard – having just one health and legal system.
- All three legal systems contain laws specific to railways, with unique criminal offences that can only be committed on the railway network, such as trespass on a railway line and endangering rail users.
- The relationship between BTP and the geographical police forces in the rest of the UK is good, in my experience – for example, BTP and West Midlands Police work together, literally, in the Safer Travel Team which looks to reduce crime and disorder across the whole public transport network in my region.
We work very closely together: for example, during football matches BTP will have public order (riot) trained officers deployed to major railways stations like Birmingham New Street or Euston and they travel on the rail network. That said, because they cover such an area as vast as the whole UK, they are not always proximate to offences that need an immediate response and my officers and I have often found ourselves on railway lines taking initial action to events and handed it over to BTP as soon as they are able to take it.
Imagine being the British Transport Police officer asked to “sort out” mental health or s136 for BTP?! I’ve met him and he drinks a lot of coffee. But where to start?! How to you give guidance to nearly 3,000 police officers about how to ‘do’ section 136 properly when you have to work alongside over 50 different ways of doing it? Are they ever going to get this right about exclusion criteria, remaining in support of the NHS or making decisions around children – when they may not know local procedure? How would you like to have 50 different ways of doing your job and never be sure which rules apply today?! Remember – an officer who lives and starts work in Birmingham could make an arrest anywhere in the Midlands, Wales or South West of England and s136 detentions tend to occur unpredictably.
MENTAL HEALTH ISSUES ON THE RAILWAYS
Mental health issues are a significant issue for British Transport Police. Suicide on the rail network is not an infrequent event and the impact upon the network and the economy as a whole as well as upon the family concerned, is absolutely immense. There are few years in the last decade or more where the number of suicides on the rail network has numbered below 200. That’s 4 a week, at least.
A suicide on a commuter line into central London, for example, can cost tens of millions to the economy and whilst we may ask “at what cost a human life?”, we can also ask other questions that may assist in reducing the occurence or the impact when these tragedies do occur. Methods by which suicide may be prevented or discouraged are of great interest to Network Rail and British Transport Police because they are also legally charged with protecting life and property, as well with ensuring a safe and efficient railway that doesn’t negatively impact upon and inconvenience millions of people, literally. Of course, it is also important that fatalities on the network are effectively investigated so that Coroners are in possession of the fullest possible information during Inquests and families can obtain answers.
I would add a final, quick word about the impact upon railway drivers and emergency services: suicide on the railways has all the potential to impact massively upon them. Who is protecting the protectors? … and also in this example, the drivers? It is important.
Of course, section 136 of the Mental Health Act could be of use here or a130 of the Mental Health (Northern Ireland) Order 1986 or s297 of the Scottish Mental Health (Care and Treatment) Act 2003. After all, they are legal mechanisms by which any police officer may potentially intervene before such events. Where someone is standing on a bridge above a railway line or is present on a railway platform, this presents no problem. Each of these places is a “place to which the public have access” and s136 MHA or a129 may be used as with anywhere else.
TRESPASSING ON THE RAILWAY LINE
What about the example where officers turn up to find someone already trespassing on the railway line itself? If you remember the bullet points from above, they are trespassing on private property and it is in no way “a place to which the public have access”. Not for a moment. Of course, it is easy enough to physically access a railway line if you really want to, but you always find clear signage telling you that you are not allowed to do so – except for accessing railways stations and railways crossings. Enter a crossing and then walk up the track and you’ve started committed a criminal offence.
Officers could, of course, arrest the person for trespassing on the railway line or endangering the safety of rail users but this then leads to police cells after arrest for an offence. What if the principle concern during the incident is the mental welfare of the person brought to police attention? This is not dissimilar to other possible-136 scenarios in non-railway situations where people may be committing minor public order offences, assault or damage offences, but where the principle concern is about mental ill-health.
So this is what the debate has been about: British Transport Police do use s136 in these circumstances. It immediately begs the question – how can they do this, if the person is trespassing on private property?! Surely that is like arresting people in their own front garden? … to use just one comparison made.
No – here is a legal argument and it is more than mere ‘technicality’.
- Officers have a common law power to use force to evict trespassers.
- Officers also have a legal right to use force to prevent crime – s3 CLA 67.
- It is a crime to trespass on the railway line so we can safely say that if an officer turns up to a job where they find someone on a railway line, they can either evict them (under one of two grounds); or arrest them for the offence.
- If they arrest – they can remove the person to custody and handle any MH issues there. You may have a view about whether this is ideal or not, but for example ensures that people are supported if the MH issues come to light after arrest.
- But the police do not HAVE to arrest for the offence – they can exercise discretion.
- They could equally well take the view that they will evict the person.
- They can rely upon s3 of the Criminal Law Act 1967 to prevent crime (trespass / endangerment) OR use Common Law powers because they know that Network Rail want trespassers evicted – they always do, for the safety of the network.
Now this is where the legal lesson gets interesting for me, and this is precisely where the debate focussed! >;>;
- Having evicted a trespasser to the nearest public place, the police may then regard that person has having been ‘found’ there.
- This was shown in Winzar v Chief Constable of Kent (1983)
In Winzar, a man was taken to hospital whilst drunk by his friend because of concerns for his health. After the medical assessment, the hospital concluded he was ‘just’ drunk and told him to leave. Instead, he slumped in the hospital corridor. The police turned up and evicted him from the hospital and having done so, arrested him for being ‘found’ drunk in a public place and he was convicted. He appealed against this conviction and lost.
How could he be ‘found’ there if the police had forced him there?! The essence of the court case, and that of another drunk and incapable appeal from the 1950s (whose name I admit I can’t remember!) was that you are considered ‘found’ there if you were previously evicted from a place you had no right to be.
SEAL v CHIEF CONSTABLE OF SOUTH WALES POLICE
In the case of ‘Seal’, a man in his own home was arrested to prevent a breach of the peace, arising from an incident where his mental health was a major concern. Having removed the man outside the premises under the Breach of the Peace provisions, he was then arrested under s136 MHA. The legal case was not principally about this illegal arrest, it focussed on other matters. But in ruling upon them, the court did make mention of the issues which arise from the practice of detaining for something in the dwelling where s136 cannot be exercised and then detaining s136 outside the address. It is illegal – precisely because the person was not ‘found’ in the place where they were subsequently detained under the MHA.
But the difference between Seal and the Winzar case is that question of whether the person was entitled to be where they were originally encountered by the officers. Seal was; Winzar was not. I am arguing here, that where officers have lawfully used powers to evict someone (from a railway line or ANY other place where they are found as a trespasser) they may then be regarded as ‘found’ for the purposes of other legislation. So they may detained for drunkenness offences (as in Winzar) and under the Mental Health Act. No-one will have artificially created a condition where use of s136 then ‘appears’ warranted.
West Midlands Police officers have twice recently removed someone from the railway network and then detained them under s136 Mental Health Act. My former boss, Chief Superintendent NICHOLSON who is now the police commander for Coventry, recently commended two of his officers for precisely this. Some of the arguments I have heard today suggest he should instead have disciplined them for illegally arresting people. This doesn’t survive contact with common sense experts and probably not with the individual’s family.
It’s all nonsense – they quite probably saved this person’s life and they did it lawfully. Don’t worry about the wording of the news article, either – the journalist isn’t mental health lawyer. 🙂
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
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