This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017.
For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest late November / early December – but this is subject to a number of factors and may change.
When the police refer to powers of search, we are referring typically two types of power and there are examples of each in the Policing and Crime Act (PaCA). Firstly, it refers to powers to search premises; secondly a power to search people. For the first time ever, the Mental Health Act (MHA) will have a power for the police to enter and search premises without the need for obtaining a warrant from a Magistrates Court (see section 135, for examples of warrants being required). And there will now be explicit powers of search relating to people who are detained under the MHA by the police, whether that is as part of a s135 warrant or under the police power of section 136. A small personal note here: there was originally no plan to clarify powers of search around people and I asked the Home Office as the Bill was being developed whether it could be looked at? Lawyers first suggested that existing powers of search would apply to ss135/6 and didn’t think it was necessary but a few emails back and forth demonstrated this was not the case and that officers were facing difficulties. So s83 PaCA is a little personal victory where I managed to get the law changed, or at least clarified; and to ensure that officers can easily see what their powers are to keep people safe whilst detained.
Dealing with premises searches is fairly straight forward. The PaCA will amend the places in which s136 MHA can be used. I will cover details on the ins and outs of all of that in a future post but to over-simplify things, it will be able to be used anywhere other than private homes. The police will therefore have a power to force entry –
“S136(1B) – for the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.”
So this will be a power to enter premises to use s136 including situations where s17(1)(e) PACE does not always apply. Section 17 of the Police and Criminal Evidence Act (PACE) includes powers to force entry to various premises in a range of different situations, but subsection (1)(e) relates to protecting ‘life and limb or preventing serious damage to property’ and can be exercised to enter any kind of premises. The combined effect of this existing law and the new amendments will therefore be, if the police have reasonable grounds to believe that a person is on the premises and that there is a risk to life or limb. Where concerns for someone’s welfare are not quite that serious, but there is a suggestion that someone is in immediate need of care or control because of a mental disorder, the police can force entry to private premises, other than dwellings, in order to exercise powers under s136. If the police have entered a dwelling under s17 PACE, they cannot usually exercise powers under s136 MHA. (I will flesh out details around where the power can be used in a future post.)
Section 136 MHA is an arrest, in law. It’s not an arrest for an offence! – but it is an arrest. We know this because of s26 and schedule 2 of PACE. The importance of this legal pedantry, is that powers to ‘search upon arrest’ exists under s32 PACE and therefore, there has always been a power to search someone if there are reasonable grounds to believe they may present a danger to themselves or others and are in possession of something which may be used to escape from lawful custody.
However, s83 PaCA now introduces particular powers of search for ss135/6 and the scope is broadened. Whereas s32 PACE is a power to ‘search upon arrest’, s83 introduces powers which allow for other searches or further searches. The constable may search the person –
- Section 135(1) – at any time after the warrant is used until such time as the person is no longer held under s135 — the power is s136C(1).
- Section 135(2) – at any time whilst removing the person under the warrant — the power is s136C(1).
- Section 136(2) – at any time whilst they are held at a Place of Safety following use of s136 — the power is s136C(3)
- Section 136(4) – at any time after they have been transferred from one Place of Safety to another — the power is s136C(3).
So, for s136 MHA any initial search upon first being detained must be justified under s32 PACE and once the person has arrived at a PoS, they can be searched under the MHA, s136C(3). For section 135 MHA, initial and any subsequent searches must all be justified under s136C(1). This is not a blanket power of search: for any of those new MHA searches, the officer must have reasonable grounds to believe the person –
“(a) may present a danger to himself or herself or to others, and (b) is concealing on his or her person an item that could be used to cause physical injury to himself or herself or to others.”
Finally, there are limits to the extent of any search. The person detained may only be searched to the extent that is necessary to uncover the item the officer believes the person has and in any event, this cannot extend to requiring removal of anything other than someone’s outer coat, jacket or gloves. You cannot request a person to remove their hat or shoes, notwithstanding any suspicion they may have concealed an item to which this section would otherwise apply in that part of clothing. There can be no request for would be termed a ‘strip search’, in police custody – despite the name, a ‘strip search’ is just any search that goes beyond the kind we are referring to here, which is limited to outer coat, jacket and gloves.
The next post in the series will focus on the new time limits on Place of Safety detention.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk