Managing Hidden Risk Gaps

I came across the story of Daniel Stip online which bears some deconstruction, complex enough as it is involving three offending incidents across two police force areas, but also involving his detention under the Mental Health Act 1983 in a third police force area. Initially, based on the opening lines of the first coverage I read, I thought we had one of those situations where someone is arrested for a serious crime, with you which most people would be charged if the evidence permitted, only to be ‘diverted’ to hospital under the Mental Health Act because of serious mental illness; and then the hospital releases the person without informing the police who was obviously therefore not picked up again by the criminal justice system. It seemed like we might have one of those occasions where two systems weren’t properly communicating with each other before subsequent serious attacks took place, but in one piece of media coverage, the hospital claims this did occur. That said, two others specifically state that it did not so you’ll have to form your own view in the absence of any independent investigation!

This one case therefore seems to include a possible example of where the police-MH system falls short in a very common kind of way; and for that reason, I thought I’d highlight it (again), but we probably need to start with a timeline of events – as my best guess is you’re confused as to what exactly happened, even if you read the media hyperlinks, above!

• Daniel Spit attacks a Cambridge University student in Cambridge, September 2017.
• He is arrested in King’s Lynn, Norfolk a week later and ‘diverted’ to hospital under the Mental Health Act.
• He is discharged from hospital in October 2017 – either with or without the police being informed of this fact and moves to the south-west of England.

• 2nd January 2018: attacks a 25yr old woman in Paignton, Devon.
• 4th January 2018: interviewed by Devon and Cornwall Police in January 2018 about the Cambridgeshire allegation – whilst this interview took place after the Paignton attack, the CCTV connection between Mr Spit and that incident had not yet been made, hence he was only interviewed for the September 2017 attack.
• Released under investigation in relation to the Cambridgeshire incident.
• 5th January 2018: attacks a 72yr old woman in Paignton, Devon.
• 10th January 2018: detained by Avon and Somerset Police near the Clifton Suspension Bridge under the Mental Health Act.
• Arrested by Devon and Cornwall Police after his release from hospital.
• Interviewed and then charged with all three offences and appeared before Exeter Crown Court in November 2018.
• Mr Spit is convicted of all three attacks and given a restricted hospital order (s37/41 MHA) by the judge, supported by two medical recommendations.

HERE WE GO AGAIN

This kind of thing has been problematic for years and it is a joint problem across the MH-police-CJ system. Typically, it arises in cases of lower level offending where risks are considerably less, and it’s probably for that reason it slides under the radar. Of course, what I’m arguing here is also still is a timely opportunity to remind everyone that we don’t really have a ‘system’ in the designed and coordinated sense: the police are governed by the Home Office, the Courts by the Ministry of Justice, the mental health services by the Department of Health, etc. CPS report to the Attorney General and there are all manner of problems, cultural, legal and procedural about how society handles ‘risk’ where it straddles across these public bodies and services. The police and CPS can only prosecuted when there are certain evidential standards; the mental health system works to the MHA and clinical criteria unless someone has already been dealt with by the criminal courts and they come under Part III of the Mental Health where the Ministry of Justice play an additional role.

So what happens where there is a working theory that someone may pose a serious risk, but where evidential standards or procedures have not yet brought a prosecution and where clinical criteria for further detention are not satisfied? You might ask yourself, what could possibly go wrong?! But this stuff is vital and it’s not well understood: and yet it’s at the very heart of legitimacy for police and mental health services that in those rare cases, far from common but all important, where someone does pose a risk to the broader public and they have a serious mental illness, how do we ensure we do our utmost? And that’s before you consider the practical issues of three police forces, two different mental health areas and prosecuting authorities ensuring joined up communication.

You may remember from the early days of this blog – incidentally, I recently noticed we’ve just gone over the BLOG’s 7th birthday! – that one of my very early posts (December, 2011) was a short piece, all about this stuff: not least because, work I did for my Master’s degree at Cardiff was on precisely this issue: what factors influence prosecution decisions in police custody fort mentally disordered offenders? And it turns out it was largely simple: it’s whether or not someone is ‘sectionable’ on the day of their arrest. If they were, almost certainly no prosecution; and if they weren’t, it was as if their mental health were irrelevant. And I said at the time, I’ve said since and I’m still saying fifteen years after doing that work: this builds hidden risk in to the system and has no doubt, on some occasions, contributed to further offending. For the record and the absolute avoidance of any doubt at all, I’m not saying that in this case, because I don’t know the details. I’m piecing this together from three relatively poor media accounts, but it’s also fair to add that nothing I’ve read there convinces me that my concerns couldn’t apply to this case, if I knew more.

HIDDEN RISKS

Remember, public policy on the prosecution of mentally disordered offenders (contained in the archaic, but not yet withdrawn guidance in Home Office circulars 66/90 and 12/94) states, in summary that prosecution if necessary in the public interest where it is necessary to protect the public. If you’re a police officer, think of it like this: the more serious the offence you’re investigating, the less relevant someone’s illness is to your decision to prosecute if and only if you have the evidence to charge. If you’re an AMHP or a Doctor, think of it like this: unless the police have the evidence to charge someone with a criminal offence, they cannot do so and if someone is so seriously mentally ill that they require admission, you may have to give effect to that under Part II of the Act, notwithstanding the operating theory of suspicion that someone has committed a non-trivial offence. You may need to think about direct admission to an Medium Secure Unit (MSU), regardless of what NHS policy says; and to back my point up legally, this dilemma is precisely the one which occured in the MS v UK human rights case.

“MS” was a seriously unwell man, originally detained under s136 by officers before they discovered he’d seriously offended by attacking his aunt, causing her GBH requiring extensive surgery. Given he absolutely insistence that she would not make complaint of his offending because she wanted him to receive help for his behaviour from mental health services, police and CPS could not prosecute as there was no direct evidence to bring before a court in the absence of the victim’s consent. Thereafter ensued a debate between psychiatric intensive care services and medium secure services about who would receive the patient; each of them insisting the other did amidst suggestion that you cannot admit someone to an MSU directly from police custody. Of course, in reality, where necessary and unavoidable, plenty of people are admitted to secure services from police stations – Ian Huntley was admitted directly to a High Secure service and regardless of the rights and wrongs of that, my point is only that it did happen in the real world, showing it’s possible.

So the MH-police-CJ needs more discussion: much more discussion. In recent weeks I’ve had several discussions of various types about the prosecution of those of us who are seriously unwell where they’ve offended. There is still an enormous amount of myth and folklore flying around about the law and was is possible and not possible within its scope.

• Yes – you CAN prosecute someone who is seriously unwell for a criminal offence.
• Yes – there CAN be an effective court process for a defendant who is seriously unwell; including safeguards for them around any concern about their fitness to plead and stand trial.
• Yes – you CAN properly convict a defendant of a crime when they are unwell: and “CAPACITY” (whatever that means) is absolutely not the single and determining factor which governs whether or not you do.
• No – you CANNOT prosecute someone unless there is sufficient evidence to charge, but remember it is not always necessary to interview suspects before this threshold is reached. To use the same example, Ian Huntley was never interviewed by the police.

WHAT NEEDS TO HAPPEN

We need more discussion about this stuff, as one of the very many über-sensitive topics in MH-police-CJ that need greater cooperation, more knowledge in all agencies and that may well mean proper training, heaven forbid. I’m hoping to focus more work in 2019 on this matter, because traditionally the in-your-face and obvious problems are looked at, like s136 MHA and police stations as a place of safety, etc., etc.. But the bulk of policing and mental health was always been wrapped up in the criminal justice side of what we do – and at the risk of re-observing an irony I’ve noted many times before, it’s always struck me as interesting that some observations about the police being over-exposed to mental health demand are raised because it’s imagined that the knock-on-consequence must be less time spent by the police ‘dealing with crime’.

Of course, most of the cases where the police are responding to mental health crisis, they are responding to people’s private homes where s136 MHA can’t be used. As a result, most officers have at some stage used criminal law powers for minor offences within a mental health crisis as a route to safeguarding someone who they believe is in immediate risk of harm; or the ubiquitous breach of peace provision. That’s why I’ve always smiled when I hear politicians talking about how important it is to prevent ‘the mentally ill’ from being in police custody when they’ve committed no offence – the legislative reform in recent years may well have impacted upon the use of police station as a Place of Safety (albeit in a way that’s more resource intensive for the police than the original problem was! – a different story) but it has done precisely nothing to affect how often police officers use other legal provision, including Breach of the Peace because they are prevented from safeguarding people under mental health legislation as officers are in almost every other country.

We need to discuss crime investigation and mental illness: we need to remember that the MHA and PACE don’t talk to each other; that thresholds for criminal prosecution and compulsory admission to hospital are not the same thing nor are they necessarily related because the there is no direct link between illness and offending in the vast majority of cases. Even where there is such a link, it can all sometimes unfold in a way which means hospitalisation may be necessary before the evidence exists to prosecute someone so this interface we’ve evolved without design – a combination of law, policy and practice, (often based on misunderstandings of the different between law, policy and practice), needs to be flexible enough to admit patients fast, to prosecute some unwell people and crucially, to be able to share information readily and rapidly to make the best decisions in custody and at every stage thereafter, so that we don’t just release criminal suspects for serious offences from hospital, unless there is absolutely no legal alternative available.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2018

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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

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