I made passing comment in the last post I wrote about crime recording rules and I’m assuming you’ve nothing better to do on a Sunday than read about statistical counting procedures put together for the purposes of not-really-understanding-crime at all because a lot of it is not reported to the police? This issue arose recently about incidents on the strategic transport networks involving those of us who are suicidal but there are many other mental health related issues and observations which arise from these rules. For those who are not aware of them: the Home Office sets out requirements for all police forces around the recording of crime – when should officers issue a ‘crime number’ following an incident they have dealt with? They are known, imaginatively, as the Counting Rules for Recorded Crime or the ‘National Crime Recording Standard’ and there is a Government website with various materials and the rules themselves, if you really want to fill your boots with this stuff. The reports generated as a consequence are the basis of the statistics you hear on the news when we talk about ‘police recorded crime’ or ‘reported crime rates’.
They are a complete joy to comprehend! As a PC on night duties, if things abated and I needed something stimulating to keep me awake, I would sometimes sit in my inspector’s office with a cuppa and read through the massive folder outlining the rules. It was then seen as absolutely crucial to how we ‘detected’ crime because in addition to prosecuting someone or issuing a police caution, there were various administrative ways you could file an offence without prosecution and it would still be regarded as ‘detected’ (or solved). Easiest example would be, if a 9yr old had committed an offence and they would have been prosecuted or cautioned had they been above the age of criminal responsibility (10yrs of age), then you wrote it all up in that way and it was ‘detected’ albeit no-one was charged because of the suspect’s age.
Mental health related considerations feature within these rules, but it is a hot topic in policing, not least because the merest discussion of recording a ‘crime’ arising from an incident where someone is suicidal is complex and sensitive. The rules as a whole aren’t always well understood and quite frankly, the rules don’t make any kind of logical sense – at least not to me. But this is important stuff because a lot of people conflate the issue of police recording a crime with assumptions about what this should mean for the question of prosecution of that ‘crime’. And there are also legitimate concerns to be understood about disclosure of recorded crime information when those of us who live with mental health problems are applying for jobs which require enhanced criminal records checks (now known as ‘DBS checks’ – disclosure and barring service). So this post aims to explain most of the above.
It’s not easy reading, because it’s largely tedious illogical bureaucracy, so treat yourself to a cuppa or a mid-strength beer before you do this!
EXAMPLES IN PRACTICE
So, to sum up the dilemma, a hypothetical situation for you:
- It is a criminal offence to possess a ‘bladed or sharply pointed instrument in a public place’, contrary to section 139 Criminal Justice Act 1988.
- This could include possession of a 7-inch knife, for example.
- There is a defence to such possession, if someone possess the item for a ‘good reason or lawful purpose’ – so a family going camping for a week might have such an item for food preparation whilst on holiday; a gardener might have such an item for cutting various things in the course of their work; a police officer might possess such a thing after confiscating it as evidence from someone not entitled to possess it.
- If someone were found in possession of such an item, they would be potentially liable to arrest and prosecution and a crime would be recorded whether or not a prosecution occurred.
- If the police found a 9yr old in such possession, they would seize the item and record a crime, but the child could not be prosecuted because of their age. It would be written up to that effect and filed; police would give advice, warning, social services or other referral as appropriate to the situation, but not criminal prosecution.
- If the police found an adult in possession of such an item without any apparent lawful authority, they would also seize the item and record a crime:
- This remains true if the adult in question had mental health problems; including those of a nature or degree which meant they may need admission to hospital, either voluntarily or under the Mental Health Act.
- The fact that the police respond to an incident then found and seized a knife does not mean the person must be arrested for the offence; they could be detained under s136 MHA instead or assisted on a unrestricted, voluntary basis, if appropriate.
- Even where someone had been arrested in the first instance, this fact does not mean they must be prosecuted; and regardless of all of this – the fact a person was found in possession of a knife, apparently possessed unlawfully, means a crime would be recorded even if the person was not arrested and not prosecuted.
- To fail to record the offence would be a breach of the rules.
Therefore, the first thing to understand is a general principle, a crime is recorded if it appears that behaviour from an incident or allegation appears to amount to a ‘recordable offence’ (I won’t bore you with detail that not every offence in the criminal code is considered ‘recordable’ for the purpose of these rules; the vast majority are). The requirement to record remains, regardless of whether criminal liability would be affected by issues arising from someone’s mental health. So even if someone is so unwell that a court would rule they were legally insane and not guilty of whatever they’re accused of, a crime would still be recorded. As with any 9yr old who seriously assaults someone, we should still record offences if an acutely unwell patient assaults someone.
So this principle also applies to many incidents which have caused significant serious debate in police forces over the years and relates back to the last post:
What if someone is on the adverse side of a motorway bridge barrier? Well, if a protestor did that and unfolded a banner protesting about climate change, would you record a crime? If so, the chances are that you would record an offence if a person in distress also caused a similar danger. NB: vital to say here – the fact someone is over a barrier does not, of itself mean the offence is there and a crime should be recorded. In each individual instance, the precise circumstances would have to justify the decision. Was there, in fact, a danger to road users? Well, if the person is over the barrier at the part of the bridge which is over the grass verge at the side of the carriageway, then no – the offence is not fully made out and no record is required. If disruption were so serious that a protestor would be investigated for causing a public nuisance, then the recording rules state that a similar incident which also causes such disruption should see a record made.
RAM THIS POINT HOME!
Now this is absolutely crucial: I make no absolutely no apology for all the bold emphasis and the capital letters which (correctly!) imply I’m SHOUTING THIS AT YOU VERY LOUDLY … I’ve seen this explained only to hear evidence it hadn’t been understood:
The fact that a crime report record is generated from an incident involving behaviour ordinarily amounting to an offence does not in ANY WAY, SHAPE OR FORM mean ANYTHING about whether the police should investigate or prosecute someone.
It does not and it should not prevent the police making an incident-specific decision about whether it would be far better and much more appropriate to immediately divert someone away from investigation, just as they would with a 9yr old who had ‘offended’. They could do this under the Mental Health Act 1983 or without employing the law at all, as appropriate. But the requirement to record the crime remains, in the current rules. << I’m not defending the rules, I’m merely trying to explain them.
Recording crimes is about statistical collation: it is NOT about investigation and prosecution. The one thing does not affect the other – they just happen to run in parallel most of the time. They might run in parallel for much more serious matters where investigation and / or prosecution may still be required notwithstanding someone is seriously unwell. But the police are perfectly at liberty to ‘divert’ someone away from the CJS under the MHA even if they’ve found someone in possession of cannabis. They’d still record the possession offence; but have the professional discretion about the proportionality, the appropriateness and the public interest in any investigation and / or prosecution.
ESCAPING LAWFUL CUSTODY
This crime recording debate arises in other contexts:
One police force raised the question a few years ago about whether they should record an offence of ‘escaping lawful custody’ if a person detained under the Mental Health Act leaves hospital without permission and becomes absent without leave? In all fairness to those thinking MHA admission is not ‘custody’ in the way that being arrested in a police station or convicted and imprisoned is ‘legal custody’, it is fair to point out that the MHA itself states (in section 137) that detention under the various sections amounts to a condition of legal custody. So if you leave (or escape) this custody without lawful authority, you have escaped from lawful custody, right?! Sort of – and the point remains, whether you have escaped custody in law and whether the police record an offence of ‘escape custody’ can be two different things.
The Home Office Crime Recording Rules address this specifically, to guide us: if someone escapes from MHA admission under s37/41 MHA, then an offence should automatically be recorded. This provision – the restricted hospital order – is imposed by the criminal courts at the end of a trial and therefore is a ‘sentence’, of sorts. You can therefore see the analogy with someone escapating a prison sentence and it is recorded according to the rules. But there is an argument that this doesn’t make complete sense because a 37/41 can result from a trial where someone is found not guilty by reason of insanity. So if that patient absconds, despite not having been found ‘not guilty’, their incident would be recorded as a crime. Also, the requirement to record applies to s37 and / or 41 orders only; if a patient escapes from a s45A hospital order then no offence of escape lawful should be recorded even thought such a patient would only be in hospital after being criminal convicted a a criminal offence!
The rules don’t make any kind of sense to me! … we record offences when unconvicted patients abscond from s37 and / or s41, but not when convicted patients abscond from s45A … err, OK. And we definitely do NOT record an escape lawful custody offence for patients who absent themselves from admission under s2, 3 or 4 of the MHA. But we do record an escape offence if a s2, 3 or 4 patient has been re-detained by the police (under s18 or s135(2) MHA) and then escape from their custody as they are being returned to hospital. You also record an offence if someone escapes from detention under s136 during conveyance to a Place of Safety by the police; but not if they escape from the Place of Safety itself whilst held there under s136(2) by the NHS.
Why? … I have absolutely no idea. It makes no sense to me at all, but those are the published rules.
ONE MORE TIME
Sorry to labour this point, but I’ve stressed the importance of it already – and it’s vital: everything said here about is about the recording of crime and it’s about nothing more than that. (Are you bored of me labouring this point, yet?!)
The investigation and the prosecution of crime is a related but entirely distinct issue. No decision to record a crime obliges the police to do anything other than write-up what they did with it. And if the investigating officer or force wants to write “The accused person in this case was found suicidal over a motorway bridge and was referred under s136 MHA to mental health services for assessment. Because of their background [details given] it will not be appropriate to prosecute for this offence and instead, clinical care, welfare support and advice has given and this matter is filed without criminal justice action” then that is entirely fair enough. No issues at all.
What about the DBS check thing? – doesn’t the crime record mean that will be disclosed to prospective employers. Not directly, no – it makes no difference to disclosure decisions at all. If the fact of the incident was something that would be disclosed because the legal criteria for disclosure were met, then the incident would be disclosed whether or not it had been recorded formally as a crime. If the police incident were not something that would be relevant to the employer and disclosure would not occur, then the fact the matter were also recorded in a formal crime report does not change the fact that it’s not directly relevant to the employment sought.
Crime reporting is about gathering statistics about police incidents which involve crime, regardless of whether it is prosecuted – the crime is there even if someone has a legal defence to it (insanity); and it’s still there whether or not it would be in the public interest to investigate and prosecute the crime.
Explaining this junk is no attempt by me to defend these rules, it’s merely an attempt to explain them! There are various reasons why I’d argue to bin the bloody lot of it and record police incidents in a very different way. But given the rules exist and the debate around them seems to be skewing operational decisions by officers when, in reality, these statistical recording requirements do not relate to legal decisions about investigation and prosecution, it seems worth stressing what it all means.
The over-arching point from the rules themselves is in this one (problematic) quotation (see p9) and it should guide all officers in respect of their crime recording-decisions (but should NOT guide the investigative / prosecution decisions):
All reports of crime made where the offender lacks the mental capacity to form the necessary criminal intent (the ‘Mens Rea’) must be recorded by the police.”
It will be an entirely different debate for another day(!) to point out to the HCRS authors that mental ‘capacity’ is not really a thing in criminal law and that ‘criminal intent‘ is only one type of mens rea; other types include ‘recklessness’ or ‘omission’, etc.. This point is worth stressing because legal recklessness is often the question in offending by those of us in distress; and the public interest test (and our humanity) is more often the reason we don’t prosecute unwell people for minor crimes. We often hear, “But if they’re really unwell, they have no intent!” I’ve heard officers say this. In some cases, intent is not the issue – it’s recklessness and this can be objective or subjective.
But all that is for another day!
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, 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