It is a criminal offence in the United Kingdom to abscond or escape from lawful custody – two separate ways of phrasing the same common law offence. Most typically, we think of this where someone has been arrested by the police and after arrest, they have found a way to escape; or perhaps someone who has absconded from a prison or a prison service vehicle. When you stand as a criminal defendant in a courtroom, you are also considered to be in the lawful custody of the court and if you leap the dock and then run, you are also liable for the offence. I remember about fifteen years ago a defendant did that at Birmingham Crown Court, which is a modern three-story building of courtrooms: to make good his escape from the building, he jumped all three floors of the atrium in one go, smashing his ankles upon landing and still trying to get away … security had little problem taking a leisurely stroll down the road to catch up with him as he attempted to hobble! Jailed, obviously.
But how does this all relate to the Mental Health Act (MHA) detention, which we don’t traditionally think of as ‘absconding lawful custody’ – we don’t usually think of it as ‘custody’ at all and as Dr Lesley STEVENS of Southern Health reminded us, “We don’t lock people up!”. As with all crimes, the Home Office issues guidance to when offences should be officially recorded in the crime statistics and the rules were updated in April 2016 – the overall guidelines are known as the Home Office Crime Recording Rules. I emailed all force mental health leads about this a few months ago, ahead of the change, but it didn’t occur to me to write a post about it until a recent case in London.
Mr DAVIS is a 23yr old man who was a patient at the Bethlem Hospital in Beckenham, south London. He was detained there under s37/41 MHA, which means he has already had contact with the criminal justice system after an alleged offence whilst mentally ill. The court obviously found it necessary to authorise a hospital order under s37 MHA because of mental health problems but they also imposed a restriction order under s41 having been satisfied that Mr DAVIS posed “a significant risk of harm to the public”. He was recently taken from the Bethlem Hospital to Croydon University Hospital from where it is alleged he escaped through a window. He was later arrested for attempted murder after a man claimed to have been stabbed whilst jogging.
From a criminal offence point of view, the question then arises, do we record an offence of escaping from lawful custody? These are the new and current rules –
- If someone is detained in hospital under Part II of the Mental Health Act 1983, no offence is recorded if that person absconds from hospital – this will cover sections 2, 3, 4, 5, 6, and 7.
- If someone who was detained under Part II has already absconded and then been re-detained by the police, an offence is recorded if that person escapes from police custody whilst being taken back to hospital – this would include patients who are AWOL under s18 and those who are re-detained under s138 MHA.
- Where someone has been detained under s37/41 of the MHA, the offence is recorded as soon as possible after they escape from hospital or from escorted leave, as in Mr DAVIS’s case – I’m having to infer that this would also cover patients who are transferred to hospital from prison under sections 47 or 48 and are then also ‘restricted’ under s49. The MHA requires such patients to be treated ‘as if’ they were restricted under s41.
What the Home Office were not clear upon, is those who abscond from sections 35, 36, 37 (without restriction), 38 or 45A – these are all Part III detention provisions and it seems sensible to me to record them for the same reasons but take advice from your crime recording registrar because this is not what the HOCR say, but neither do they say what should be done!
This gives the effect of meaning that absconding from civil detention under the MHA, where admission was not connected to criminal offending that was taken to court, should not lead to patients being criminalised if they absenting themselves from hospital or fail to return. However, where hospital admission is at the direction of the criminal justice system, the offence of escaping is recorded and in need of investigation straight away. Makes sense, if we think about it.
Winner of the Mind Digital Media Award