Place To Which The Public Has Access

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 [1992] 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 [2005], 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 [1983].  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.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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8 thoughts on “Place To Which The Public Has Access

  1. Ha ha …I have sat tight asserting my ‘rights’ passively in my front garden while the police debated whether s136 applied and AMHP’s whether their s135 could be used. All I knew was that the public had no right of access so I was safe and I was not committing a criminal offence of any sort and dont have a history of such (altho a seasoned demonstrator). My probably rather deluded and distorted memory is of holding court where I was the judge dismissing the case and awarding myself costs . Apparently I also decided it was a UN zone of protection and thought all those being threatened with detention should gather in the same spot and asked someone to tweet this globally!. Until I needed the loo and some sense of modesty kicked in as quite a crowd by then. However it did provide an ‘alternative’ place of safety for a few hours …maybe I should erect a tent and portaloo for the future…

  2. One of our trainers used to tell the tale of a service user who had been detained under 136 on numerous occasions, who started to jump into peoples gardens when he saw police officers walking down the street. According to him that ruled out the use of 136

  3. only trespassing if land owner agrees?? or maybe there is some bylaw where police decide what trespass is even when they dont know who owns the land? good luck when you are dealing with house converted in to flats as rarely clear who owns what without deeds. Think copious cups of tea might get them moving quicker..And despite Michales assetions re WINZAR unless the person is actually ejected for committing a real offence then surely that takes us back to the territory of coercing/encouraging someone in to a place where public have access solely to contrive a 136 situation? Which we know is illegal.

  4. How hard would knocking on the door and asking be? As for flats even in the comunal area I’d just need one tenant to say they’re not welcome. It has little to do with the land owner (think of a house with a leasehold) Besides I’d be concidering substantial offences if it got that far (burglary, found on enclosed etc) and the MH assesment can be done in custody. Not perfect but that’s the system for you!

  5. round here a bit harder than you might think !! mixed use converted houses with some leashold owner occupiers and other council tenants within same street property with no one ever knowing who owned or had responsibility for front garden. quiet but distressed person not breaching the peace, not threatening and not going equiped just frightened.

    apart from wanting to criminalise in order to make effecient use of officers time and get over the anomoly that exists wouldnt it be illegal to arrest on a bogus offence ? wouldnt that then make subsequent action challengable? not a cop but would expect you to have to justify in great detail what had happened and why this was the course of action you took. seems like that could cause you a lot more time and problems than sitting it out. put down the riot shield and batons, lose the taser and get some deck chairs out and join them! believe me as a strategy it is worth a try.

    one of the very real criticisms of police response is the amount of officers who attend an incident. attending in numbers to potentially contain an unknown risk situation – fine. once you have assessed the risk and the person is simply non compliant but non violent (and in this case contained in a front garden)then it is unecessary so much of the time to have large numbers officers present. it is only ever seen as extremely threatening. using Michael’s RAVE tool should be compulsory. tea and sympathy goes a long way….but is also more time efficient. at point of incident and any subsequent attendance as compliance much more likely if treated humanely when encountering the police.

    i actually had a s136 issue that i wanted to be able to informally discuss with the station concerned to try and understand why they had acted as they did – just wanted a simple explanation (had been so compliant that they did not need to lay a hand on me let alone cuff me and had asked for an ambulance), bit of heads knocking together and for the officers to think what they might do next time was what was needed. maybe a sorry!. but i was asked repeatedly by the station commander {?) to raise it as a formal complaint as otherwise there wasnt a process to deal with the issue.

    . so much time was then spent on ‘investigating’ the 5 officer’s actions it was ridiculous waste of resources and for the officers a very heavy handed way of being dealt with. complaint upheld on 7 out of 8 counts , illegal detention yada yada yada. I had no intention of taking legal action they had simply made poor choices and just needed them to understand there was a different way to go about this. the very laboured point i am trying to make is that get it right at the flashpoint and it is so worth the investment for all parties.

  6. You say

    “We’ve known for a while that section 136 MHA could not be used [on an individual] in the front garden of … [the individual’s own private] house.”

    I think this must be true and that its basis is a legal judgement. But I don’t know of any source. I would be very grateful if you could provide a reference to a legal authority!

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