This short post follows the recent one on criminalising children and relates to the pervading claim, which I heard again last week, that when it comes to the investigation of crime it is not the job of the police to investigate and prove mens rea, that this is a matter for courts. You will remember that mens rea is the latin term for the ‘guilty mind’ component of a criminal offence. To prove any offence in a criminal court, the prosecution must show that the accused defendant did the act or omission alleged and did so with a guilty mind. It’s not enough to show that they punched the victim, it must be shown to have been unlawful.
Well, it seems to be more widespread than I’d realised than when discussing the potential liability of inpatients on psychiatric wards, that there is an emerging train of thought that we, the police, don’t need to concern our selves with such matters, that these loftier cognitive type assessment are for courts to labour over. In one version of this explanation, it is sufficient to show the act done and to show that the person knows the difference between right and wrong.
So here are some of the consequences of this approach —
KNOWING RIGHT FROM WRONG
A s2 patient on a ward, newly admitted and acutely unwell, is offered anti-psychotic medication on day two of their admission. Having refused it, the clinical team make a decision under Part IV of the Mental Health Act to administer treatment without consent. The patient subsequently rings 999 from the ward telephone to allege assault following this trespass against their person. Upon police arrival it’s obvious that the patient was forced to receive an injection and that in order to administer it, staff forced them to the ground, pulling down their trousers sufficient down to expose the correct area of the body to administer that kind of medication.
Result of this approach: all staff charged with assault and indecent assault and bailed to appear before the Magistrates Court where they can all sort out whether or not the nursing staff had ‘the guilty mind’. It’s not for the police, apparently, to concern themselves with mens rea: it’s merely enough to show the act was done and that the accused would know the difference between right and wrong. So off to court we go and the Consultant in charge needs to be charged with conspiracy or incitement depending on how they worded their contribution!
A s3 patient in a PICU wants to go home for the weekend and discussions were had during that week about allowing s17 leave. However, on the Thursday, the patient was involved in an incident on the ward and as a consequence of reviewing them, the consultant has now declined to authorise this leave but has indicated she will keep this in her mind and continue to consider granting leave as part of that patient’s ongoing recovery. Unhappy at the decision, the patient contacts the police to allege false imprisonment saying he’s been held against his will. The actus reus here is the compulsory detention of another person. The mens rea is knowingly doing it without lawful authority.
So the result of this approach: all the relevant ward staff and the consultant need to be charged with this offence, as well as any assaults committed in the course of keeping that patient detained, obviously. They can sort out that mens rea stuff at court, right because these people would know the difference between right and wrong?!
LABOURING THE POINT
I freely admit I’m just trying to ram this point home: it is absolutely a part of the police role in criminal investigation to examine the issues around mens rea. It is absolutely possible that a police officer would look at the circumstances of an allegation and conclude that the act was done, but there was a lawful defence available in that incident and no further action is needed. Not everything reported to the police has to be taken to the CPS for a charging decision or to court for a trial. Indeed, our courts would grind to a halt. If the police attempted to prosecute mental health professionals in these circumstances, I’m confident the CPS would laugh them away at the charging decision point and that the professional staff concerned may look to bring a civil action against the police for their disproportionate decision-making. With some allegations it is obvious at the point of reporting that the accused person would have a lawful defence; in other cases people are formally interviewed and it emerges at that stage. Of course, some people are charged with offences and sent to court despite the police and CPS knowing that the person is claiming a legal defence and can occurs because of how fine a balance it is as to whether a defendant was acting lawfully or not. What some people think is ‘self-defence’ or ‘lawful excuse’, for example, actually isn’t; or maybe the force used in self-defence is at the higher end of reasonable at the view is taken that this should be decided by a jury! So off to court we go if you just think it’s about the police proving the act done or the omission made.
So the same standards of justice have to be applied to vulnerable people detained, not least because of the reasons given in that previous post on criminalising children. It is absolutely an essential part of the police role to investigate the actus reus and the mens rea in any alleged criminal offence.
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