Section 136 of the Mental Health Act is often debated in terms of whether or not the authority can be used in particular kinds of place – debate consumed by whether somewhere is a “public place” and what this term actually means. Does it include and Accident & Emergency department, or a general medical ward of a hospital? Would it include the communal hallways of a block of flats where access is only given either by residents granting access or via a concierge system? If a place may be a “public place” is it a public place all of the time or only part of the time?
There is no single, legal definition of a “public place”. The Public Order Act, the Road Traffic Act, the Highways Act: each of these Acts contain their own definition for the purposes of thThis at particular legislation. Other definitions are available on request like section s139(7) Criminal Justice Act 1988 and s1(4) Prevention of Crime Act 1953.
Confused? You will be!
If you wanted some kind of rough-rule of thumb, I quite like section 9 of the Public Order Act 1936: a “public place includes any highway and any other premises or place to which, at the material time, the public have or are permitted to have access, whether on payment or otherwise.”
But have you yet spotted why the above is all a waste of time, to a degree? I’m sure you recall that section 136 of the Mental Health Act does not refer to “a public place” but to “a place to which the public has access”. We must assume that this change of language signifies something different otherwise parliament would have used the same term. In some legislation, they even cross-reference what is meant by some phrases and this is not done in the case of the Mental Health Act.
And it is easy to get confused. In the case of Williams v DPP  a man was arrested in the communal hallway of a block of flats for being drunk and disorderly. This offence requires that the police find you in a public place. The man appealed against his conviction and won by arguing that this area of the block of flats was not a “public place”. So does this mean he could not be detained there under the Mental Health Act? We’ll see.
In the case of Harriot v DPP , a man at a bail hostel had returned to find his room had been burgled. He placed two knives in his pockets and started becoming agitated in the communal reception area. He then went outside into the front garden area of the hostel and the staff locked him out and the police were called. After searching him and finding the knives, they arrested him for possession of sharply pointed implements and he was convicted. He won his appeal by arguing that the private, front garden area was not a place where this offence could be committed, merely because the public’s access to that area was unimpeded. It is interesting that in this particular case, the language used by the judges frequently includes “place to which the public has access” and not just “public place.”
All clear?! Maybe not.
We’ve known for a while that section 136 MHA could not be used in the front garden of a property: whether this is an individual house or, as with HARRIOT, of a larger multi-occupancy dwelling. Although there is a general right in law of certain people like postal and other delivery workers to walk up your front path in order to knock on your door or deliver mail, this doesn’t mean your front garden is a public place.
But what happens if a person is trespassing in a private place – can you remove them as trespassers and then say that they are “found” in a public place or a place to which the public has access? I have argued for some while that you can, based on the judgement of the case of Winzar v Chief Constable of Kent . In this case a man had been taken to hospital by the ambulance service and a doctor examined him, concluding only that the man was drunk. He asked him to leave. Later, the man was found slumped in the hospital and the police removed him outside, to the nearest Highway. Because he was then (briefly) in a public place, they arrested him for being drunk in a public place and he was placed in a police car. The case relates to him challenging the outcome on the basis that he not been found drunk in a public place, he had been forced there by the police assisting the hospital to eject him. The court ruled that it made no difference because he had been lawfully ejected.
You could imagine another scenario where officers lawfully removed someone from a private place where they were trespassing and then used section 136 MHA — this is the stuff of railway trespass. British Transport Police officers have a right to remove trespassers from the railway network. Although it is a criminal offence to trespass on the railway network, if an officer formed the judgement that a major issue at play was a person’s mental ill-health, WINZAR supports the notion that having merely removed the person as trespasser to avoid criminalising them, officers could then detain the person under section 136 in order access care and support.
For the record, in paragraph 39 of the judgement in Sessey v SLAM and the Metropolitan Police Commissioner, the judge made clear his view that section 136 can be used in an A&E department and he didn’t concern himself with endless minutiae about swipe-access doors controlled by nurses or receptionists. There is, ultimately, no massive legal definition of “a place to which the public has access”, but we can see from the above that there is still very clear scope to act in scenarios where we’ve occasionally found officers tearing themselves apart over the definitions.
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