Last night’s episode was a belter wasn’t it? … see Channel 4 ‘catch up’ on the internet, if you missed it: 10pm on 25th June. It was right up my alley – Nyaar St Juste rang the police telling them to come with shovels because there was a body in a garden. Upon arrival officers arrested him because he had failed to turn up to Luton Crown Court the day before for unrelated matters involving a ‘taser’ type device and whilst he was in custody pending court he was interviewed. This was not a suspect interview; it concerned the call he made regarding the idea of body parts in the garden. The police were making enquiries in to it all of that, which started to suggest he may have been the one to dig the hole – nothing was quickly found to suggest a crime so he was taken to court, released by the judge on bail and proceeded to stab his mother, causing his brother to ring the police and report the whole thing.
Thus an attempted murder investigation began. Because of the way he was presenting with limited communication, whispers and unusual demeanour, the custody nurse quite rightly sought a mental health assessment, for which he had to be taken to A&E. This would have otherwise caused delays in custody that would start to affect the investigative “PACE clock” governing the amount of time the police have to hold someone under investigation without charging them with any offence. The mental health assessment – implied to have been a Mental Health Act assessment for potential admission to hospital, but this wasn’t precisely clear – concluded, according to the officers that he wasn’t unwell but that in any event, if he were, that they didn’t have any secure beds anyway, which would have been the type required.
MENTAL HEALTH v CRIMINAL JUSTICE
By this point, we now have the mental health and criminal justice systems bumping up against each other: the inability of Bedfordshire Police to secure assessment within timescales which fit the investigative framework and I was now also starting to wonder about the mental health response. At the risk of appearing to jump to the end of this story, Nyaar does ends up ‘sectioned’ (in the words of the programme) by a criminal court after being found not guilty by reason of insanity. Precisely, this means he was given a restricted hospital order, known sometimes as a “section 37/41” order – detention in hospital for treatment and unable to be released, granted leave or transferred between mental health hospitals without the authorisation of the Secretary of State for Justice because he poses “a risk of serious harm to the public”. And his ‘insanity’ relates to his mental state at the time of the offence, not his mental state at the time of trial. He was in custody immediately after the incident, so it seems likely to me he would have been ‘sectionable’ at that point. But what do I know?!
What I do know is, it wouldn’t be the first time we see mental health services assessing someone who could be admitted to hospital under the MHA and concluding that they can’t be. And this episode shows an example of what I call the criminalisation contingency – you need X kind of mental health care but you can’t have it unless the police prosecute you. Think parity of esteem: imagine the police response to a drink driver who crashed his car in to a brick wall, breaking his legs and smashing his head off the interior, causing a serious head injury. Imagine if either ambulance or police said, “Well, he obviously needs A&E, orthopaedic operations and a head injury assessment but he can’t have any of that until the police prosecute him.” We’d all be up in arms and the police and paramedics sacked for gross negligence. Different in mental health, though – isn’t it?!
And the episode shows what can go wrong, if this is what happened … because the initial CPS assessment was, “there is insufficient evidence to charge.” Which means he should be released. So what if it were true, as seems possible, if not likely – that he could have been sectioned but they chose not to do so because it was assumed the police will be able to prosecute him and then the police couldn’t gather sufficient evidence?! You could hear the anxiety in the words of the officers as they contemplated all of this – it got so worrying that we even heard an Assistant Chief Constable asking if the police couldn’t just “emergency charge him”, which they can’t. That’s not a thing once you’ve taken CPS advice. No doubt, all due to the horror of releasing someone.
A brief word on hearsay evidence, for those who don’t know what that means. Charlie, Dave and Steve are in a pub one evening: Steve asserts that the football World Cup is beneath his contempt, full of cheats who are diving all over the pitch making any attempt to watch it entirely unbearable and that rugby is a far superior game. Ardent football fan Dave punches Steve to reinforce a stereotype and teach him a lesson for his candid insights. Charlie then rings the police and says, “Dave just punched Steve”. Whether Dave is still on hand to hear this and react or challenge the assertion, as he sees fit, will determine whether or not the call tape and the call handler’s evidence is admissible evidence against him – Charlie himself is an eyewitness but the call handler is not: he or she can only say, “A man rang up and said …” and that’s hearsay. Same applies when the police or paramedics turn up to treat Steve: if he comes round and says, “Dave punched me after failing to understand how rugby is a far superior game”, the evidence of the police or paramedics will not be directly admissible against Dave if he had already left the scene.
So in this case, Nyaar is alleged to have stabbed his mother, his brother makes the call to the police (hearsay) and the victim and brother repeat the allegation to paramedics (hearsay) – you can see how it starts to become problematic as direct evidence. It’s useful information, but not direct evidence. Then they find a knife in the property that has blood and DNA on it – well, if you DNA tested all the knives in my kitchen, you’d find two or three traces of DNA on there, albeit hopefully no human blood. Doesn’t prove anything, of itself, though. If you found my DNA on one of my knives and human blood, it doesn’t mean that I stabbed anyone – it could have been my wife or son who did it and you’d still expect to find my DNA.
So we have police hoping MH services might be able to ‘section’ Nyaar; and mental health services potentially assuming the police will be able to charge him – if the latter is not true, MH services having said he’s not sectionable and in any event they didn’t have a bed, creates something of a problem doesn’t it?!
Imagine if the police had NOT won their appeal against the CPS’s original decision not to prosecute?! Release …
EVERY DAY THING
This kind of case is not isolated – we hear all the time of serious crime allegations where MH services really want the person prosecuted immediately, regardless of mental state or any care needs identified during a mental health (Act) assessment. I wrote about this only recently after some questions arose following a talk I did to Approved Mental Health Professionals about MHA assessments in police custody. The punchline being —
- You can only prosecute someone if you have evidence of guilt and determine it’s in the public interests to prosecute.
- You can admit a patient under Part II of the MHA (sections 2, 3 or 4) to a secure mental health unit for assessment – it’s what happened to Ian Huntley, amongst many other examples.
- Resistance to admission because NHS trusts would prefer people to go ‘via the criminal justice route’ is fine if there is actually evidence of guilty, but we know there are cases where their either is no evidence of guilt OR it is only forthcoming after weeks of enquiries and forensic examinations of physical evidence.
What I didn’t see on #TwentyFourHoursInPoliceCustody was evidence of close communication between whoever it was that did the mental health assessment at hospital and investigators and in any event, why would police investigators challenge and how could police investigators challenge any decision made, if they weren’t there to discuss matters? They may not be able to work out whether it is a genuine clinical view that thresholds for admission are not satisfied, or whether assumptions are being made about ‘going down the forensic route’.
So, some brief advice for investigators and custody sergeants who are faced with the potential situation that MH services may be implicitly relying upon the idea that the police will prosecute someone for something —
- Make it clear at the start of MH assessment that a criminal investigation is ongoing, that we do not yet know whether it will be legally possible to prosecute the suspect.
- We need to understand more about the suspect’s mental health and mental state, to know how the investigation proceeds and / or whether there are any clinical barriers to any aspect of it, like an interview.
- That following MH assessment or MHA assessment, we’ll need to discuss things and may need to do so again once the investigation reaches a conclusion or a barrier.
And then just bear in mind, and I’m not sorry for repeating this as police officers are told this very routinely —
- There is no legal barrier to the admission of a patient to a secure unit directly from a police station under s2 or s3 MHA, if secure care is the kind of care they require.
- Indeed, delay and obfuscation around this issue could amount to a human rights violation – see MS v UK .
- Any insistence by the NHS that prosecution must occur is not grounded in any law at all, it is NHS policy which does not bind the police, CPS or Courts in any way whatsoever.
- If these points are disputed by any AMHP or DR, just say the words, “Ian Huntley” over and over again, until the point is conceded. He not only went straight to secure care from a police station, but it was a High Secure care, even harder still. Merely makes the point: this is possible and sometimes necessary. There are many other examples.
All comes back down to three things —
- The police need to understand the legalities of the mental health system (not their policies, which are different);
- Mental health professionals need to understand the criminal justice process, including the investigative stage.
- WE ALL NEED TO COMMUNICATE ACCURATELY AND CLEARLY! … after gaining knowledge.
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 – http://www.legislation.gov.uk