Brazilian Money Laundering

This week there was a very high-profile killing and within just a few hours, we heard that the offender had a history of mental health problems and sought help only the day before. Since that time and despite the fact that there are other obvious points of interest and lines of enquiry to establish a motive or reason for the attack which has destroyed a family and reached to the very top of government, the internet and social media have been replete with comments which show that little else needs to be known: the mental health history explains the crime.

I want to show talk you through a far less high-profile case which also hit the news this week after the conclusion of a trial to show how potentially complicated the relationship is between mental health and criminal offending. It concerned a robbery in Dudley, West Midlands in February 2015 and the defendant’s trial was concluded at Wolverhampton Crown Court on Friday. The various twists in the investigation and trial process show how complex things can potentially be but ultimately how these things are determined. Needless to say, it is not the sort of thing that gets sorted out in police custody in the hours or even days following arrest.

In February 2015 Tommy SMITH attempted to steal a Range Rover that was on a driveway but was interrupted by the victim, Peter CHURM. In a sustained attack using an 8inch knife which snapped during the attack, Mr CHURM was stabbed to the back of the head and neck and SMITH fled the scene. He later attempted to flee an address where officers had traced him during arrest enquiries and was detained by a police dog handler. SMITH was charged with offences including attempted murder and appeared at the Crown Court.

SECTIONED, UNFITNESS AND INSANITY

I want to distinguish between these three separate issues, which can come up during criminal proceedings –

  • ‘Sectioned’ – sometimes in police custody, suspects are ‘sectioned’ under the Mental Health Act 1983 before they are charged and an assessment undertaken about whether it is in the public interest to prosecute them. We still conflate the issue of being ‘sectioned’ with the possibility of being prosecuted – yes, you can found guilty of a crime even though you were ‘sectionable’ throughout the whole investigation and trial process.
  • ‘Unfitness’ – we hear of unfitness to stand trial and unfitness to plead at the court stage, but also of unfitness to be interviewed in police custody.  These concepts are all different to being ‘sectioned’, even where mental ill-health is involved and many suspects who require inpatient hospital care are capable of following criminal proceedings, partaking in their own trial and instructing their lawyer. Broadly speaking, that’s what we mean by unfitness.
  • ‘Insanity’ – this is a legal concept in criminal law, not a medical one so it should come as no surprise that insanity and the clinical criteria for compulsory detention in hospital are overlapping, but ultimately unrelated concepts. Everyone is assumed to be sane and capable of being held responsible for their actions unless they prove otherwise to the satisfaction of a jury.

Tommy SMITH, who was 17yrs old at the time of the attack, was charged with the attempted murder of Mr CHURM as well as other offences including burglary. In the first instance, the trial took over a year to start so that Mr SMITH was well enough to participate in his trial – unfitness is something that is determined by the mental condition of the defendant at the point of trial, not the point of the offence. This is in contrast to insanity, which is based upon the condition of the defendant at the time of the offence. Thus, someone who may have been incredibly unwell during an incident, could be perfectly fit to stand trial and yet put forward a defence of insanity.

That is what happened here: the defence put forward that he was legally insane and therefore not guilty of the offences and the whole question was put before a jury. They had to make the ultimate determination of the issues, not least because two psychiatrists giving expert opinion in court, disagreed with each other. They ultimately found, on the balance of probabilities, that SMITH was not insane – in other words, the requirement to show that “he did not know what he was doing or did not know what he was doing was wrong” was not satisfied in this case. However, they also found that he was not guilty of attempted murder, finding him guilty instead of the still serious offence of unlawful wounding with intent to cause grievous bodily harm and burglary.

So this means he is now a convicted criminal, held fully responsible in law for his unlawful actions towards Mr CHURM. The court must then move to the matter of sentencing him in connection with those offences.

SENTENCING

None of this so far means that Tommy SMITH wasn’t mentally ill: it just means that the particular nature of his particular condition means that he did not convince the court that he qualified for a defence to the charges because of insanity. It is quite a high threshold to reach, that of insanity – hence there are comparatively few findings each year of criminal defendants being not guilty by reason of insanity. A much lower threshold in connection with someone’s mental illness is that required for compulsory inpatient care under the Mental Health Act 1983 and this is the direction the judge turned after the jury’s verdict.

He was first of all remanded in to secure psychiatric care pending pre-sentence reports and this could have been under a number of provisions, the media coverage I have seen doesn’t specify it.  Section 35 MHA allows the Crown Court to remand for treatment and psychiatric reports – I’m guessing this wasn’t used, because reports were already available and used in the trial itself. Section 36 MHA allows the court to remand for treatment, during which time the Probation Service would be able to prepare the PSR; section 38 MHA allows the court to instigate an interim hospital order, which is something of a trial run for twelve weeks in hospital, to allow the court to understand whether or not a hospital order is the correct sentence, based on further advice from forensic psychiatrists. In sentencing this week, Tommy SMITH, now 18yrs old, was given a restricted hospital order under s37/41 MHA. This means he will be detained indefinitely and until such time as a review tribunal, authorised by the Ministry of Justice grants him conditional discharge from hospital.

Most importantly for anyone who might ask, why not just ‘section’ him anyway? – this process also means, having been convicted of serious offences and given such a sentence, that he will be subject to the public protection frameworks of MAPPA … Multi Agency Public Protection Arrangements. Alongside the conditional discharge framework in s42 of the Mental Health Act, this means there is considerable opportunity to manage any problems that occur once he is discharged from hospital, although that will probably be many years from now.

MENTAL HEALTH AND CRIME

I hope this disentangles various concepts that can come up during criminal investigation and trial where the suspect or defendant is thought to be mentally ill. It’s not often that they all come up during one case, which is why I decided to do this post. We should keep in mind, most people who live with a mental health problem are still capable, in theory, of being held responsible for their actions in a criminal court. Whether we chose to do so, is quite a different matter! Generally speaking, the less serious the alleged crime and the more serious someone’s illness, the less public interest there will be in a prosecution. The more serious the offence or the more risk there is to the public at large, the less relevant someone’s condition becomes to the police or CPS charging decision and the more important it is to let the courts make the necessary decisions against being able to fully weigh-up the relevant factors about fitness, insanity or sentencing.

Ironically enough, where someone is found unfit to plead, where they are found insane or where they are fully convicted of the offence, it remains open to the court to consider imposing a hospital order (s37 MHA) supported by a restriction order (s41), where necessary. So a restricted hospital order can be diversionary mechanism for someone who cannot participate in the trial process, it can be a diversionary mechanism for someone who is found legally insane and is therefore not guilty; or it can be a sentence in its own right after a full finding of guilt. It is therefore really important not to conclude anything about the relationship between mental disorder and crime just because a particular defendant has a mental health problem, was prosecuted or received a hospital order – those are just broad legal concepts and frameworks: each case needs to be treated on its individual merits.

What has all of this got to do with Brazilian Money Laundering, you may ask?! – Detective Constable Pete MILLER from West Midlands Police, the investigating officer in this case, knows only too well.  This tweed-wearing, criminal hunter’s devastatingly thorough professional skills we’re brought to true detective-readiness only when one of his former uniformed inspectors made him learn the importance of going the extra mile in the matter of ‘the Brazilian Money Laundering job’ that had started to appear doomed to collapse … and has never let him forget it since. 😉


IMG_0053IMG_0052Awarded the President’s Medal by
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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8 thoughts on “Brazilian Money Laundering

  1. Thanks for laying the distinctions out so clearly – especially in differentiating legal from clinical determinations. I’m sure it confuses many people.

    A couple of points to make:

    1) In Australia at least it’s very common for forensic prisoners detained under the mental health act to spend much longer in detention than they would have if they had been found guilty of the most serious offence they could potentially have been charged with. What’s more, there’s usually no fixed limit on their detention – it must be periodically reviewed by a tribunal. In NSW the MHRT is supposed to carry out such reviews every six months for everyone detained under relevant mental health laws, whether or not they were charged with criminal offences. In practice they do it far less frequently and pretty much rubber stamp the assessment of ‘dangerousness’ made by a prison system forensic psychiatrist using tools that are utter rubbish. So such prisoners have no idea when or if they will ever be released and are much more likely to receive compulsory medication on top of all the other losses of rights imposed under custody. They are imprisoned both bodily and mentally.

    2) Although courts often make findings of criminal culpability/responsibility based on capacity there is no scientific equivalent at all to this polite legal fiction (despite the expert testimony of mental health professionals to the contrary). Science – almost by definition – deals with cause and effect and its reproducibility. Free will – by definition – is the degree to which an agent might overcome the dictates of causality. Obviously if it’s scientifically possible to predict your decision it wasn’t really a decision at all. The conflict between determinism and free will is one that has exercised philosophers at lease since Plato and is nowhere near settled for mankind as a whole, much less for individuals of varying capacities. It’s not going to be sorted out by lawyers interrogating shrinks under oath. So legal culpability is a social convention, not a scientifically determinable fact. As such, the threshold is a political question that should be a matter for the public (in supposedly democratic societies), not a technical question to leave to experts.

  2. What point are you actually trying to make Cabrogal? I’ve seen you criticise on many occasions but never seen you offer viable alternatives. I’m genuinely interested to hear what you have to say in this area.

    1. I’m in broad agreement with the late Thomas Szasz though I don’t share his political and philosophical underpinnings.

      – Pleas relating to lack of mens rea, automatism and diminished responsibility should be abolished, partly because you can’t even make such determinations about your own mind – much less that of someone else in the context of a courtroom – and primarily because they are likely to lead to both reduced burden of proof and increased duration and strictures of sentencing. Decreased ‘guilt’ but increased punishment. To top it off, victims are prone to conclude the defendant ‘got off on an insanity plea’ and are also dissatisfied.

      – There is no place for psychiatric dangerousness assessment in determining release date or suitability for parole. The tools used are nowhere near fit for purpose and largely overlap normal sentencing considerations anyway (e.g. “Has the subject been violent on previous occasions?”), so they effectively double the weight of prior form. Also, they are punishing someone not for what they have done but for what some expert says they might do. If you’re into stats I can demonstrate fairly simply how hopeless these tools are, even if you accept the sensitivity and specificity claims made by their proponents.

      – In general our criminal justice system needs to be recognised as a political institution, not a technical one. And cases need to be treated on their specifics, not according to a table of metrics. So you don’t rule on culpability because the defendant was still two weeks from his 14th birthday or because he checks enough DSM boxes to qualify for a particular psychiatric label. Courts should recognise the unique contexts of each alleged offence and rule from those bases, not attempt to drop them into pigeonholes. And in recognition of the fact that what is determined to be an offence and what someone’s culpability in such an offence might be are social conventions, not technical facts, there should be greater scope for non-expert input into such determinations. In other words, character references and victim impact statements should carry far more weight than expert assessments.

      1. I know many lawyers who would argue with most of that. Of course policing and criminal justice is politics: it couldn’t be otherwise and doesn’t try to be. But you immediately get in to highly contested legal and philosophical territory when you start going down the route you suggest. If we’re getting rid of stuff because we know it’s inadequate, will that also include the DSM document you keep quoting? – many psychiatrists argue that’s a fairly hilarious non-scientific tome. I don’t think courts do automatically apply metrics – indeed there have been some experiments in the US to do exactly that in order to achieve at least some kind of consistency thought badly lacking. (Trial didn’t last very long.)

      2. I know many lawyers who would argue with most of that.

        Of course they would. Apart from the fact that many take a simplistic liberal approach to the question and, like so many others, think that calling someone insane rather than criminal is somehow more humane or tolerant, they also get to pretend they ‘won’ a case in which their client was declared innocent and drugged and locked up for a decade instead of being called ‘guilty’ and send down for three years in the non-medicalised part of the prison system.

        The legal system is also suffering an overall decrease in credibility and ‘majesty’ in the West, so hitching their wagons to something that can be portrayed as scientific is a way of protecting their status even as it reduces their autonomy.

        If we’re getting rid of stuff because we know it’s inadequate, will that also include the DSM document you keep quoting?

        I would dearly love to get rid of the DSM, which I agree is unscientific and built on fundamentally flawed 19th Century symptom-based nosology. But for now I’d rather focus on quarantining the damage it does to the field of psychiatry and try to stop it getting into the legal system where it can do so much more damage. The history of psychiatry wed to legal and political power is not a pretty one.

        I don’t think courts do automatically apply metrics – indeed there have been some experiments in the US to do exactly that in order to achieve at least some kind of consistency thought badly lacking.

        I’m not talking specific, above-the-board metrics like grid-sentencing that anyone can see and argue for or against. I’m talking about stealth metrics such as those used by scientific experts and applied without understanding by the courts. So whether your IQ tests to a certain level or you meet specific criteria for a mental illness or whether a numeric value can be realistically put on the likelihood there were three SIDS deaths in your family … It’s all scientism really. The idea that by making it numeric you’ve made it precise and accurate and removed human judgement and fallibility from the process.

      3. It somehow appeared in spam – which might mean I’ve knocked the relevant button whilst fiddling with fat fingers on blog comments on an iPhone – no offence intended and now fully restored.

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