It’s rearing its head again: whether or not somebody has the ‘capacity’ to be a victim or ‘capacity’ to be a suspect. One thing that promotes a blog post is a conversation with someone who is noticing a particular problem and today’s post is an example of that: an inspector who has been reviewing crime reports and crime recording standards, wondering if sometimes the police are too quick to try to latch on to misunderstood ideas of ‘capacity’, as a quick proxy for whether to record or investigate a crime. I think he’s on to something here, as we’ve seen high-profile examples of this. It also flicks that switch of mine that ‘capacity’ is a legal concept to be discussed when referring to the Mental Capacity Act 2005 and someone’s ability to take a particular decision for themselves when they be putting themselves at risk. But it’s not really the thing to do when you’re investigating a crime allegation to ask, “Does he have capacity?”
Let’s just be really clear: it’s a stupid question that tells you nothing because it doesn’t mean anything in the context of crime; and whenever we’re asking about capacity it has to be about capacity for something specific. Does the person have capacity to decline medical treatment for a head injury, for example – there is a legal way to work this out. But if someone with dementia, who doesn’t know what day of the week it is and who doesn’t recognise their daughter’s face when she visits them, says they’ve been assaulted and hurt by care staff, it doesn’t mean they’re wrong and that it didn’t happen just because aspects of their allegation or testimony may be questionable. Maybe the assault upon them was witness by someone else or caught on CCTV?! … perhaps there is other evidence that corroborates enough of the allegation for us to know the kernel of it is true, even if certain details are found to be untrue?
ASPECTS OF FACT AND TRUTH
Just because somebody in a care home says they’ve been poisoned, doesn’t mean it isn’t true – I know this because I dealt with such a report and the quick action we took on the night of the first report, including an arrest which allowed us to preserve evidence early on that may otherwise have been lost, meant someone was convicted of attempted murder and various related offences and jailed for life. If you remember the scandal a few years back at Winterbourne View, Bristol – we learned that care staff were assaulting and neglecting patients and thankfully, eventually, they were brought before a court and sentenced for criminal acts.
But what we learned afterwards was, perhaps more important to the point I’m making in this post. When the whole matter had been reviewed, is that residents were calling the police to report being victims and they were less likely to be taken seriously because they were residents in a care home for people with learning disabilities who had all been assessed, by virtue of the fact that they were living there, as lacking the capacity to take certain decisions about their lives. In reality, when those people asked their police service for help, we ended up asking the offenders whether or not that request was something we needed to take seriously, and, oddly enough! – the offenders said, “No – it’s just [insert name of resident], you know what they’re like! Leave it with us officer.”
Just because someone has cognitive problems doesn’t mean that everything they say is in some way wrong or fabricated because of some feature of their condition. It may be the only empirically correct thing they’ve said all day, but if examined it may well be there is evidence to support that allegation and it’s the police’s role to treat all cases on their merits, make reasonable adjustments for disabled people – including victims and witnesses – and to try to go that extra mile to see if there is corroborative evidence that helps.
Several years ago, Victim Support published a report which taught us, if we didn’t already know, that people with mental health problems and / or learning disabilities and other developmental conditions were more likely than most to be a victim of crime. Three times more likely, in all fairness. However, where those victims came to the criminal justice system for help, they were less likely to be believed by the police, when false notions of ‘capacity’ would creep in to assumptions about their ‘reliability’.
This was then compounded further by our other criminal justice partners: CPS would be less likely to take a case forward even where the police did believe it should do so and courts were less likely to convict defendants whose victim was vulnerable because of assumptions about reliability of someone’s testimony. Some may say, for example, that if a person whose grasp on the realities of their own life is such, that they cannot currently comprehend enough about events around them for their evidence to be compelling – and where a criminal prosecution rests on one person’s word against another person’s, there may be problems in proving an offence beyond all reasonable doubt.
However, what the victim support report also made clear is that insufficient use is made of best evidence procedures; and examples were given of where dogged pursuit of truth by some investigators of lawyers meant that corroborative evidence, even just corroborative circumstantial evidence, might make the difference between a case succeeding or not because the victim’s allegation is buttressed by something that shows the allegation is not borne of something resulting from their condition.
PRESUMPTIONS AND ASSUMPTIONS
Ask yourself, to what extent does a victim’s poor mental health or their learning disability cause you write-off reports prematurely? How many call handlers have had conversations with victims or their families or carers where they’ve heard the allegation of theft and then asked a professional, “Does he have capacity?” How may officers record a crime where an allegation has been made that cannot be quickly disproved and then written it up for filing on the basis that the victim ‘doesn’t have capacity’?
Well, a chance discussion with an inspector for HMICFRS today, caused me to think about this – he wants us all to ask more questions about this: how often do we make presumptions about someone’s competence as a victim or witness based on knowing they have.a particular condition? And what do we know about people with the same condition? … they’re ALL very different. As the National Autistic Society say, “If you’ve met someone with autism then you’ve met just one person with autism.” Some people with autism are doing world-class, ground-breaking work in science and mathematics or running companies; others are unable to live their lives outside fairly restrictive institutions. Saying that someone has autism doesn’t, of itself, tell you a damned thing about their agency as victims.
You could repeat all of that for every other condition: some people live with depression and they get up every day, take an anti-depressant and then go quietly about the business of living a life, raising a family and going to work. Others are trying to get through the day curled up in bed, unable to face the world and others are hospitalised. Saying that someone has depression doesn’t, of itself, tell you a damned thing about their agency as victims or witnesses.
VICTIMS, WITNESS and SUSPECTS
And this is not a question just about those on the receiving end of crime: the same problems emerge for witnesses and a slightly different, but nonetheless related set of problems for vulnerable suspects. How often do you hear the question raised about whether a suspect ‘has capacity’? I’ve covered these issues for suspects a number of times, but the point remains: we can and sometimes do prosecute patients for offences who ‘lack capacity’ – so asking a capacity question at the start of an investigation is a quick route to missing an opportunity to protect the public from crime.
92% of people who offend whilst living with a mental health or learning disability problem, do so not because of their health or development, because despite it. This figure was mentioned in the 2017 NICE Guidelines on the Mental Health of Adults in the Criminal Justice System. Fair enough: we have to work out very carefully who are the 8% are! But even with that small group, there will be a minority of people who have offending so seriously or persistently, no doubt because of their illness, but who are such a risk to the public that prosecution is necessary to ensure a response that does afford them that right to access care,
So, a request from me: please stop talking about ‘capacity’ in criminal justice contexts – what we need to know is
- What is the allegation made?
- Does the allegation amount to a criminal offence, if true?
- Whether there is any evidence to corroborate it – could I get any evidence of that kind?
- Whether there is any evidence to support it – could I get any evidence of that kind?
- Then listen to what the victim is asking for.
- Weigh up the potential for arrest and prosecution, based on the evidence.
And challenge other police officers, too: ‘capacity’ has a specific legal meaning and it’s not usually what we mean when we’re talking about action taken to safeguard someone who is a risk their own health, for example.
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