I keep encountering stories of incidents where potentially very serious crimes may have been committed and the criminal justice system appears to take no action because we have ‘transferred the person into the care of mental health professionals’ or similar. Responses to crime where we fully and completely divert people into the mental health system without necessarily knowing the nature of the relationship between a suspects mental disorder and the act they are alleged to have committed. That is, if there was any relationship at all. I first wondered about all this when I was a custody sergeant – it seemed to me that if someone came into custody for an offence with mental health problems, they were never prosecuted if they were thought so unwell on that day to need hospital admission.
It seems fair enough that we give priority in most circumstances to health issues, but surely that isn’t the end of it if the original offence is serious? … or where someone is offending a lot?!
It’s all about how police officers and prosecutors interpret Home Office Circular 66/1990. This is the current – yes, the current! – government policy on diversion of mentally disordered offenders from the criminal justice system. This document is now approaching its twenty-fourth birthday and has not been superseded or updated. It’s really is worth clicking the link to see a facsimile copy of a typed document! … that is how old our current government policy is.
It’s all very twentieth century, along with our mental health laws.
IN THE PUBLIC INTEREST
I often wonder about crime incidents where no specific reference is made in the police press releases we see about what is going to happen next. For example, a man in Essex recently discharged a high-powered air rifle towards police officers and mental health professionals who were there to conduct an assessment under the Mental Health Act. Having shot at them nine times he was swiftly arrested but all we currently know is that he was sectioned. What happens with the firearm side of things? … if you shoot at the police nine times you generally expect to face a judge at some point so I would always expect to hear why this isn’t happening or that the investigation is continuing pending more becoming known about the suspect’s mental ill-health. It’s about the public understanding how they are protected from future armed threats without a prosecution that has the potential to imprison someone.
I use this merely as an example because of the wording of the media coverage: not being involved in this particular case it may well be that the investigation is ongoing and the man is on bail. My point is that we don’t know because this sort of thing isn’t mentioned by press releases. Some may be wondering what business it is of the public to know this information, given that someone being sectioned is a medical matter and attracts considerations of confidentiality? We saw following the murder of Christina EDKINS in Birmingham (2013) a press release which announced the suspect had been sectioned and it made no reference to the investigation continuing – it inadvertently created the impression that him being sectioned was the end of the matter and there was a predictable public uproar, especially on social media. Whether we like it or not, the investigation of and the police response to serious crime is something which attracts public interest and it is in the public interest to understand why some of us who offend seriously are not prosecuted.
You will notice in some other high-profile cases in recent days that we have been told suspects are retained on police bail after being sectioned under the Mental Health Act. I would like to see this more often – it either reassures the public that matters are still looked into or ensures we explains why they’re not. The recent examples include the 47-year-old man who was arrested for a bomb hoax on a Qatar Airlines flight into Manchester Airport; and also the 23-year-old woman who was arrested (by my response team) on Monday evening on suspicion of administering a noxious substance to numerous people in a residential care home. In each case, the inquiry is still active despite the person being ‘sectioned’ and both police forces were content to say so.
This means that once psychiatrists have established the nature and degree of any mental disorder, they can then decide what support is required and whether or not a prolonged stay in hospital under s3 of the Act would be necessary. In due course, investigating officers can determine whether the psychiatric issues and the broader circumstances of arrest still give rise to the need for a prosecution in the public interest. If a prosecution does follow – which it usually should for indictable-only offences, those triable only in the Crown Court – then Part III of the Mental Health Act 1983 allows the courts all the options it needs to manage any risk to the public whilst still ensuring that people receive any necessary treatment or care.
OUTCOMES FROM DIVERSION
Let’s not forget this: diversion was never intended to mean that people responsible for serious offences do not face justice and in the main we do expect to see people charged where they have committed more serious matters. Being charged and going to court does not presume guilt, but it does allow the courts to request full psychiatric reports and allows them to weigh the circumstances – criminal courts have a huge range of options available to them that are not available to the police and prosecutors or to doctors and AMHPs. We should never forget that most people who are diverted from police custody under the MHA after arrest for an offence are under section 2 of the Act. This simply means that mental health assessment is occurring against a certain. background and it may conclude that there is nothing to know.
Examples exist of patients being sectioned only for the conclusion to be reached that they are not mentally disordered – at all! So imagine if this conclusion was reached after someone had been arrested for a serious offence and then diverted? … what happens with that original allegation and the victim’s rights to justice? Perhaps nothing, unless the suspect had been retained on police bail when sectioned or otherwise followed up by an investigating officer who didn’t close their mind to the possibility that someone’s mental health problem may be quite incidental and entirely unrelated to the original circumstances. Perhaps more importantly, diverting people from justice and taking no formal action on criminal allegations assumes a relationship that often just isn’t there: mental disorder does not usually cause criminal behaviour. There are normally other contributory, far more important variables in play likes drugs and alcohol. And even if you did have a case where someone’s mental disorder was a causative feature of a serious offence: Part III of the Mental Health Act may still have a role to play in balancing public protection and the right to treatment.
Hospital Orders are the main sentencing option in Part III – they authorise the inpatient admission of those who have committed acts of crime, irrespective of whether they were found guilty of an offence or whether they were thought to be insane or unfit to plead or stand trial. The fact that hospital orders can be imposed both with and without conviction is what shows us that the law makes no assumption about the relationship between mental health and criminal offending. Where a hospital order has been imposed – whether or not it was restricted under s41 – the person concerned will then be subject to MAPPA processes upon discharge from hospital. MAPPA will ensure a risk management plan is drawn up after information sharing across relevant agencies and this will form the basis of ensuring as far as we can, that any risk of further offences is minimised. But MAPPA only applies to mentally disordered offenders who have been made subject of a hospital order.
If you don’t prosecute someone for something, you can’t get a hospital order which means they will never be subject to MAPPA and other risk management processes that the police service and probation services have. All well and good if that offender was arrested for shoplifting in an isolated incident but not if they’ve shot at the police nine times causing the AMHP to be run for their life or if their offending behaviour is more serious and / or repetitive.
I’ve written specifically about my vision for liaison and diversion elsewhere on this blog and it addresses what I see as real shortcomings in the way we hear these new services currently framed. We need to be thinking about potential sentencing outcomes and public protection frameworks when suspects are in police custody otherwise we will end up building hidden risks and that is not in the public interest.
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