Twenty Four Hours in Police Custody

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.

HEARSAY

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 [2012].
  • 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 —

  1. The police need to understand the legalities of the mental health system (not their policies, which are different);
  2. Mental health professionals need to understand the criminal justice process, including the investigative stage.
  3. WE ALL NEED TO COMMUNICATE ACCURATELY AND CLEARLY! … after gaining knowledge.

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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14 thoughts on “Twenty Four Hours in Police Custody

  1. I watched this last night thinking how long would it be before it would end up as one of your blogs. I thought the initial hospital ‘assessment’ didn’t take place because they couldn’t “find a bed”, which reminded me of your ‘point of law’ circulation earlier this year. A great episode , particularly where the custody Sergeant explained to the custody health worker who would ‘carry the blame’ if he was released and went onto to do something……..

  2. Haven’t watched it yet…. but also if he is unwell I think it is accepted that the sooner treatment is started the better the chances of recovery. So by refusing to admit to hospital they are adversely impacting his chances of recovery? Why is this OK in any way? Why is the NHS allowed to refuse treatment which may be life saving?

  3. I haven’t watched the programme and have only skimmed your post but should like to make two suggestions – if only as talking points.
    As you have so ably described, this whole issue can be immensely complex on many different levels and each case probably requires expertise and time to address adequately. I therefore hope that there is a groundswell of goodwill that will petition the decision-makers to ensure that there is both time and expertise available instead of pressurizing already stretched frontline, untrained staff.
    Although I appreciate there are many overworked yet good hearted people in the NHS, there are many who are not. The recent Gosport scandal has all the hallmarks of being but the tip of the iceberg. The reason why NHS whistle-blowers are crushed underfoot is, I would suggest, because there are so many ‘unacceptable activities’ going on. If Police Stations have a nurse in attendance, I should like to see a specialist Police Officer in attendance who can, not only advise on the law as you describe above, but also keep an eye on other aspects of our caring culture.
    Thank you, and please accept my kind regards.

  4. Thank you Michael, I’m so glad you picked this up- I suspected you might! My reaction was one of horror frankly that a lack of secure Beds was used by the FME as a reason not to arrange a swift MH assessment in custody and section. This left the police in a position that forced them to transport a potentially very dangerous and volatile detainee (who it was fair to suspect may have also had a threat to his life from opposing gang members) to A&E, putting him, the officers, nurse, hospital docters and other patients at much increased risk. My second thought was – what a ludicrous waste of public money on a unnecessary CJ process – police time, court time, CPS time and more when he seemingly should have been sectioned as you suggest from custody following the initial assessment – or better still from home, before things escalated, by his family when they initially believed he was volatile and seriously unwell. One more observation for luck – another young black man for whom access to mental health care came too late, I need to understand if this was relevant to his case and care. I think the other moral for me is – we need more secure MH Beds in Beds! It’s something we are working on.

  5. You have raised some very interesting points. Firstly, the 2nd HCP is a Registered Nurse Adult and clearly does not know the Mental Health (MH) Pathways but comments on MH like she is an expert. Access to MH Secure Services has to be agreed by the Specialised Commissioning Group (SCG) under NHS England due to funding and the right criteria being met. Having a MHA Assessment does not mean that the person has been assessed by a Consultant Forensic Psychiatrist. I do not think diversion from Custody on a Civil Section would be appropriate due to the nature of the offence and risks posed. What needs to be considered is an appropriate environment and appropriate treatment. The idea of any MH facility will do does not work. Hence why we have the 3 Special Hospitals – Broadmoor, Rampton and Ashworth along with Regional Secure Units with varying levels of security. What environments are able to manage the risks posed and able to provide appropriate treatment? The nature of the offence would suggest Secure Services. A recommendation for a 37/41 on this instance, I think was appropriate. The man has ended up on a better care package as a result. His future care pathway under MH Services should ensure better monitoring etc. which should minimise the risk. Unfortunately, to arrange the right care package, environment etc. takes time and being remanded was the right decision for a detailed assessment to be completed by someone trained in the field of Forensic MH.

    1. The whole point of the blog being that examples exist – many of them – where admission under civil provisions to secure happens, including from police custody and including after arrests for serious offences. Sometimes this is because although a serious allegation is made, there simply is not enough evidence to prosecute. For such an example, see MS v UK [2012], a human rights case – a man battered his aunt unrecognisable to the extent she needed serious surgery to rebuild her face. No witnesses to this other than the aunt who would not complain or support a prosecution. No other evidence available, so despite the police seeking to charge, the CPS would not authorise it as there was no available evidence to put before a court.

      In other cases, evidence takes time to build – not least because it is forensic in nature and that stuff sometimes needs days or weeks or months of analysis to reach the point where it’s usable in criminal proceedings to show guilty. If you want an example of that, look up the murder of Nicole Cartmell in Birmingham in 2011. Murder inquiry launched after a body was found under floor boards, the offender was arrested within minutes as he was in the address where the body was found: about 27hrs later he had been assessed as seriously mentally ill and in need of admission and because the whole murder inquiry was starting from scratch with a clock ticking on his detention, there was only evidence after 27hrs that he had been discovered in a house with a body in it. Which is not an offence. He was sectioned under s2 MHA to a secure unit; once the forensic and other enquiries were complete and evidence existed, he was charged.

      No-one anywhere is arguing that where the evidence exists, serious crime suspects who are also seriously mentally ill should go through the justice system – this BLOG is full of posts arguing for that. The point of this post was to highlight the particular problems we saw emerge on the programme about how this works in practice and to debunk myths AGAIN of the kind you’ve posted. And nobody, anywhere suggested that “any MH facility will do”.

      My point is this: if you need a certain kind of care, you should not be denied access to it because of inherently unrelated matters such as whether or not you were or were not criminally prosecuted for something when it may have been literally impossible to prosecute you (MS v UK). We would not deny a drink-driver care in ICU if he serious injured himself crashing the car whilst drunk just because the police didn’t first prosecute him for drink-driving and as for things taking time – the law of the country gives us 24hrs to make these decisions, 36hrs in extremis. We all have broader human rights obligations to get these things sorted in those timescales, lest those human rights liabilities be highlighted in courts. Again, see MS v UK where protracted detention in police custody, insisting on the taking of time that wasn’t available in law, denying someone access to the secure care that he needed was an Article 3 violation.

      So no doubt unintentionally, what you’re arguing for above is in many instances a human rights violation. Section 6 HRA ‘98 says you can’t do that, I’m afraid. As a police officer, it’s part of my duty to point out that whatever your personal or professional opinions on things being difficult and complex, you have a duty to process this stuff legally.

  6. Have finally watched it. Am very glad that the final result was detention to hospital, sad that it took a serious offence to end up with an admission. I wondered how long family had been trying to get help? It sounded like it had been some time? The response when he was taken to A and E was unbelievable, who assessed him? I am assuming it was a CPN not a full MHA assessment. Why is getting help so difficult…..

  7. I think there are a few issues here
    -we have a man who was arrested for attempted murder. To take him to an A+E department for assessment was very risky to other vulnerable patients
    -the tv show was a brief part of a 36 hour period in custody. These sound bites about ‘no bed’ and ‘not sectionable’ may not reflect the whole story.
    -he was arrested for attempted murder. One outcome of the mental health assessment was that he was fit for interview. I believe it was correct he was kept in custody for the interview and completion of the interview up to the charging decision. I don’t think this was a psychiatric emergency of someone floridly psychotic and agitated, unmanageable and needing rapid tranquilisation so I don’t think he needed immediate sectioning and hospital treatment. I imagine Ian Huntley was actively suicidal and unmanageable in police custody he was sent to a high secure unit.
    -having people with mental illness who commit serious crimes being dealt with by the criminal justice system enables their risk to be managed by mental health services and the ministry of justice so it can be better.
    -if he was going to be released by police then they could have had more conversations with mental health services to explain their concerns and make a plan
    -someone who stabbed their mum with force multiple times being dealt with by the criminal justice system is the right thing here. If the outcome is remanded to custody you would have section 36 to transfer to hospital. It is onviously ideal to treat someone in hospital but if there is delay there is healthcare wings, psychiatrists and mental health teams in prisons.
    -if there is not sufficient evidence to charge him for the stabbing then what implications would it have to admit a young man to a secure unit based on hearsay evidence?
    -I take it from your blog post you feel he should have been admitted to hospital right from when he first arrived at custody. He was being processed for attempted murder. Why not process this first and then come to a decision about mental health treatment when a charging decision is made. What if a police investigation shows he did not do it or shows he is much more violent and risky than we thought. That would affect decision on place to treat him.
    -if he were to be admitted to a high secure unit as an emergency overnight they would ask if he cannot he managed where he is, if he is floridly psychotic and agitated. If not admissions to secure units are best done in a planned way within working hours where risks can be appropriately managed by the MDT from the time of admission.

    What I’m saying is I don’t think it’s as easy as saying psychotic man in police custody, let’s admit him as an emergency to a secure unit.

    1. To address your points in turn – yes: they knew it was risky and did it after protestations that the legal timescales for assessment were running out. By transferring to A&E for this assessment, the PACE clocks stops.

      Yes, everyone commenting on popular telly generally acknowledges that they’re seeing only part of the picture – this blog is a comment on the programme we saw, not on the whole incident and investigation.

      The outcome of the assessment was nothing whatsoever to do with his fitness for interview – that is always a police decision. The MH assessment (or MHA assessment, we don’t know which) was about his healthcare and whether or not he may need admission to hospital or statutory to assessment to determine whether he needed admission to hospital.

      Whether or not it was a psychiatric emergency of a “floridly psychotic and agitate, unmanageable patient needing rapid tranquillisation” isn’t the entire point: it’s about whether or not he meets the threshold for compulsory admission under the Act and then consideration of whether that does or does not need to take primacy over the criminal justice process – the first part being a non-police assessment, the second being a police / CPS assessment, taken in discussion with the AMHP / DRs concerned.

      “Having people who commit serious crimes dealt with by the justice system enables their risk to be managed” misses the ENTIRE point of this post. Firstly, that can ONLY happen where there is evidence for the prosecution. Initial assessment of this, for which I have some sympathy, was that there was insufficient evidence. Therefore whatever preference the health system has for the ‘forensic route’ is irrelevant. And moreover, whatever risk is perceived to exist can be managed through whatever kind of hospital is deemed appropriate – a lack of prosecution removes none of the options available for admission to whatever kind of psychiatric hospital is deemed appropriate.

      However much we might all agree that it was better people who stab other people be dealt with in the criminal justice system, you’re still missing the point – if that is not possible (either because the evidence is simply not available to support a prosecution OR because it is still being gathered and not YET available; as other criminal investigations have shown), then there still needs to be a plan to ensure people who do need care get it.

      You cannot use s35 or s36 on a first appearance at the magistrates court, so if a person were to proceed into the justice system after being charged, the magistrates would have to remand the person to prison and then we go through the process of transferring under s48 MHA. We all know that can take nine months so in reality, it would mean a person needing treatment being in prison until their first appearance at the Crown Court, where s35/36 can be used.

      I’m not discussing Ian Huntley on here despite having discussed his detention in detail with the man who was one of his custody sergeants whilst under arrest. Suffice to say the ONLY reason I’ve mentioned him on here is to give the example, based on information already in the public domain, that he was transferred from being under arrest in police custody for murder to being a s2 patient in a High Secure hospital. The ONLY point of mentioning this being, it shows it is possible to be admitted from custody to secure care, including high secure care, under the civil admissions provisions.

      AMHP / DRs can use a range of information to influence their assessments and are not at all bound by evidence which hits a criminal standard of proof. If they were satisfied that it was relevant to operate on the probably assumption that the stabbing occurred, they’re entitled to make use of that even though it may not (yet) have been criminally proved.

      I don’t argue for admission to a High Secure Unit at all; or to any unit – I’m a policeman: my job is to respond to incidents and investigate these things. Where evidence exists of attempted murder of GBH with intent, the offender would go to court after being remanded and be dealt with there if I had anything to do with it. But that’s only going to happen based on evidence. I’ve merely set out the problems we saw in a television programme with particular emphasis on the assumptions that prosecution should always occur when it sometimes can’t, and that people who need secure MUST go through the justice system first. In reality, there are some proper barriers to prosecution in some cases and we need a plan B. We can’t just prosecute someone without evidence any more than an AMHP can section someone without 2 medical recommendations. It’s simply not legal.

      Nowhere did I suggest it was a simple matter of admitting a psychotic man as a emergency to a secure unit – I just rejected the oft-floated idea that it is never possible or right to do so from police custody by using one high profile example that people would recognise because using the many other low profile examples would probably be less impactive in prompting thought.

      1. If someone is mentally unwell and going to be released from police custody and it is believed they are high risk of harm to others or themselves then a mental health treatment plan obviously needs to be made at that point.

        I think if offence is being investigated while he’s in police custody and we’re waiting for a decision from the CPS the mental health services should take a step back and await the outcome of this before discussing the best treatment plan.

    2. As ever I am appalled at the idea that it would be OK to remand to prison. He will then have to wait to be transferred to hospital, which as a complete outsider can take ages, If it appears that the only reason someone has committed a crime is because they are unwell how can it ever be OK to remand them to prison? Also I don’t really understand why you have to be loud and shouty before anyone believes you are psychotic………..

  8. I didn’t catch the very beginning of the documentary….. but Nyaar St Juste was clearly mentally unstable!
    He was in custody the day before he allegedly stabbed his mother. I am not a mental health professional and I instantly was shouting at the television he is “ not all there” .. “ he is ill” ….. “ Awww poor baby “ ! The POLICE in the documentary were saying “ he’s strange” “ it’s a odd one” “ I can’t work him out” “not sure if he’s putting it on”! Mate…… the young man was clearly displaying traits of mental health issues, all those officers are clearly in need of intricate training re : MH matters and compentency skills! They could of prevented the aftermath….. everyone wanted to act shocked when he returned 24hrs later under investigation…. and he was displaying exactly the same mental health traits as the day before.. absent from this world to say the least…. the police need to pull there socks up , re: mental health, prevention will always be better than cure!

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