It’s been a very complex and sensitive subject to discuss for many, many years: when, if ever, is it “right” to prosecute someone who is encountered by the police and emergency services on the adverse side of a motorway bridge barrier, if the situation appears to relate to their mental health? There are only three possible answers to this question and, whether or not we like it, whether or not we’ve thought it through or are reacting by instinct and regardless of how sensitive and complex it is, we must choose one – even if only bey default. Where a situation like this can be influenced and the person climbs back across the barrier to walk away from the risk, any officers involved are going to have to decide what they do next. In most situations, I know I’ve not thought about prosecution or arrest at all, but we’ve seen examples where this happens and I admit I’ve thought of it a few times and been involved where it happens more than once.
I’m going to try to explain why this happens, but one massive caveat first:
No-one, anywhere, is pretending that prosecution ‘fixes’ the problems faced by the person and which underpin the multi-faceted reasons they have presented to the emergency services in this way. What is being argued, I think, is that where all other options have been tried and failed, this can sometimes influence behaviour in a way which reduces overall risk. And the challenge here is, if you’ve tried the other options and they repeatedly haven’t worked, is the potential of reducing overall risk by trying something else worth considering?
Anyway, your three answers are –
- Never – apparent suicidal ideation, manifested over motorway bridges (or any major road or railway bridges), should never, ever be ‘criminalised’ with reference to court action or prosecution. It’s always unethical, inherently uncompassionte and should never, ever be contemplated in a civilised society because we de-criminalised suicide in the 1960s and shouldn’t scheme to do it by the back door using obscure laws.
- Always – conduct which amounts to a criminal offence and which has a widespread and this isn’t about whether someone is suicidal, it’s about the potentially serious impact on the public (more on that in a moment) and we should see enforcement action to ensure consequences to actions and deterrents against that individual or others doing this in the future.
- Sometimes – all cases turn on their merits and it would lead to appalling outcomes in some cases if we adopted either of the other two approaches. The relationship between human behaviour, mental health conditions of various types and criminal law is complex and there is no simple ‘mad’ or ‘bad’ debate: that’s not really a thing and we need to be nuanced in our approach.
I’m in the ‘sometimes’ (albeit rarely) camp, for reasons I’m about to explain, but before I do I’d say just this: it is almost never possible to judge these matters from media coverage or from social media reaction. And I’ll explain that, too, with reference to work I’ve done over the last 15yrs or so. Yes, for the record: I’ve policed incidents like this because I’ve worked in policing areas immediately adjacent to the M5 motorway running through the West Midlands and along the west of Birmingham. Yes, I have policed some incidents where the reaction to it was ‘prosecution’, although this was the exception to the norm: most people were either just helped to access NHS services and a few were detained under s136 of the Mental Health Act to ensure they were assessed when they did not want to be, but where serious concerns existed about their health.
SOMETIMES
One or two basics, for those who may not be aware (apologies if you know this already): our criminal law makes it a criminal offence to put yourself on or over a road in circumstances where this causes a danger to road users (s22A Road Traffic Act 1988); it is also an offence (at common law) to cause a public nuisance. << This is awful language when we are contemplating vulnerable people with a mental health condition of some kind, but it essentially means causing a level of very serious disruption to a wide number of the public. It’s about much more than inconvenience, despite what reports on such cases say. There are also offences connected to causing a danger to the rail network where road traffic offences don’t apply and public nuisance could be committed on the tracks as well, given it is a strategic transport network, too. This is just background, saying these things does not mean I’m suggesting they should always be the option chosen or be chosen more often. They are merely options – but so is s136 MHA and non-restrictive support via the NHS.
So the law allows for prosecution but it does not demand it. When might it be reasonable to contemplate it, if we know the person on the bridge has a background of mental illness? First things first: I don’t think I’ve ever met a police officer who thinks the answer to the question above is ‘always’. I’ve met some who think it is ‘never’, but I’ve met no police officer in 21yrs who thinks that first responses should not be based upon compassion, safety and ensuring the person has timely access to assessment, and support of whatever kind for their particular mental, social and emotional needs. This is very obviously sensitive stuff, isn’t it?! – no officer is blind to the fact that prosecution of anyone for a criminal offence is capable of having a massive negative effect and in some instances we know that prosecution can lead to mental health problems, worsening mental health problems and suicide. It’s only to be chosen in extremis or after everything else has been tried and failed.
My experience is, that officers try to do everything else, usually by removing someone under mental health law or otherwise helping them access NHS services, at A&E, via the Mental Health Act or more recently via ‘street triage’ schemes where nurses have attended bridge related incidents or people in precarious positions at height in other contexts. However, from a strictly policing point of view, we know several things about what happens to people after assessment and it sometimes involves them choosing (with mental capacity to do so) to reject offers of help and support and repeat the dangerous behaviours that originally led to a more welfare-oriented approach on the first occasion. We also know that sometimes, NHS services do not offer appropriate support and I realise this is an outrageous thing to say: the Coroner’s Court cases and there to show it, frankly. And we know that officers are sometimes policing subsequent incidents shortly after the first one or two where they are wondering why someone won’t engage with help and / or why help doesn’t appear to be there. And we revisit what we might be able to do differently that might help with either of those things.
INCONVENIENCE
In some of the media articles, we hear emphasis of how closing motorways or stopping trains has been an ‘inconvenience’ to the public affected. I desperately wish we used another word, because inconvenience to me implies something fairly trivial and yet we know that impact of some of these incidents is way beyond that. I live in Bromsgrove, Worcestershire – we have the M5 motorway to the west of the town (you can hear it from my back garden!) and we have the M42 to the north of the town. If there is a big delay on the network, the A38 by-pass is used as a cut through by everyone and his dog, including lorries, because it can take you from J1 of the M42 to J5 of the M5 and passes various amenities that may be handy if you’ve been delayed (KFC, supermarket and petrol station at Morrisons, there are even pubs and hotels if you wanted a meal or a room). It grinds Bromsgrove to a halt if the delay goes on long enough and I have known it to be near impossible to get out of the town by car. In November 2014, there was a 27hr incident of this kind at J1 of the M42 and it was nothing more than inconvenient to us as a family because we weren’t up to anything critical. But business had to close down during the period because of the necessary roadblocks and diversions.
But we know that these incidents have caused even more serious impacts:
- Planes unable to take off from airports because fight and cabin crew travelling to the airport were jammed in stationary traffic
- Ambulances unable to make progress through congestion and someone died in the back of the truck.
- A man missed a job interview which he desperately needed to nail, because he’d recently been made redundant and he needed the money to pay his mortgage.
- People being unable to get to a hospital where a relative lay dying.
Now, none of this means the decision to prosecute should be considered more often – it doesn’t. It just means that when we consider these matters, it’s not just people in queues who may be a bit late for work or miss a football match. It’s perfectly fair enough to ask if that inconvenience should be prioritised over a human in distress whose life is at risk, either by jumping or falling. And yes: the roads do need to be closed in these situations because there are stories around that would shock you. TRIGGER WARNING NOW: you may wish to leap beyond this paragraphs to the next one … but we know that in some cases where people have jumped, we’ve ended up with parts of human bodies inside vehicles that have hit them unavoidably after the fell.
One final thing to outline: there is a debate going on in policing about when, if ever, should an offence be recorded under the Home Office crime recording rules if the handling of the incident does not involve prosecution. I’m not going to get in to that for one simple reason: whether we record things for statistical purposes is entirely unrelated to the question of when, if ever, is it appropriate to prosecute. They are two seperate things, but I will say this: far too many people allow the bureacracy debate about crime recording to influence their thinking about prosecution. If a 9yr old stabbed someone, we’d record an offence of GBH. Doesn’t mean we’d prosecute – nor could we. But this fact does prevent the crime behind recorded, because that’s what the HOCR demand. Are they rules sensible and appropriate? – I don’t always think so, no. That’s for another blog later on!
SO WHAT’S BEST?
Ideally, prosecution would never be necessary: people would be signposted the first time (and in the case which prompts this post, the person was not prosecuted the first time occasions) and they would received assessment and follow up support which ensured their medical, social and emotional needs were met and the police wouldn’t attend a second incident. Even if there had been a second incident, we’d definitely hope not to see a third. But officers are not in control of the variables which will deliver upon this: that’s down to the individual and to mental health or other services to ensure the kind of support which prevents a recurrence. But in all fairness to my colleagues in the NHS, they also have limits on what they can do. They cannot follow people around to ensure they don’t re-attend bridges or put themselves in other positions of risk.
We know from some cases that individuals removed from bridges and detained under s136 MHA for urgent assessment have sometimes been discharged from assessment for community mental health follow up and have been back at the strategic networks within hours, despite their crisis presentation having appeared to have abated. Some years ago, Greater Manchester Police talked a man down from a roof and then detained him under s136 MHA but he died by suicide on a railway line within hours of being discharged by the NHS from the Place of Safety. We know in plenty of instances that people have chosen not to engage with the offer of support that has been made. Perhaps this is because the officer was not right for them, perhaps it was an appalling offer – but that’s not within the control of the police and officers cannot make someone engage with mental health services.
The relationship between human behaviour and mental illness is not straight-forward and obvious. Mental illness of whatever kind does not always drive human behaviour in a causal, direct sense. If it had, the court in any prosecution may have been invited to consider the insanity defence or a defence of automatism: if someone’s condition means they did not know what they were doing or did not know what they were doing was wrong, the court can find them not guilty (by reason of insanity). Equally, if someone’s condition had driven involuntary actions, then someone can be found not guilty (by reason of automatism). Courts can only convict people in any situation where they are satisfied beyond all reasonable doubt that the person is guilty of the offence. Mental illness which is not so acute or causal as to mean it has had more of a background effect can then be taken in to account at sentencing stage.
NOT NEVER
What’s usually missing in discussion or coverage of these kinds of issues is the background partnership work that will have gone on before a decision to prosecute is taken. There have often been professional discussions, exchanges of information including care plans around the individual; a weighing up of whether the support offered is what it needs to be or could it be revised, improved, delivered better. Ultimately, though: if the public health and social system has offered what it can or been unable (for whatever reason) to offer what is needed; and if behaviours which demonstrably enter the domain of criminal law, what do we want the police to do in the face of recidivism? This is not about inconvenience, and nor is about a lack of compassion. One reason for arrest (see s24 PACE) and for prosecution is about the need to protect the individual and what we do know about some of these cases (the one I dealt with over the M5 in 2006 was an example) is that following a prosecution the behaviour instantly stopped.
I mean instantly and for years following until I lost track of the young lady who had been a persistent presenter on the same bridge. No, prosecution did not sort out her mental health problems but it can allow the court the opportunity to consider legal orders which might have a supportive and protective effect: these days courts can consider community treatment orders, they can issue criminal behaviour orders which can target restrictions towards particular people to prevent further offending. No-one is arguing that prosecution is a solution or something to be relished, nor am I saying it always ‘works’ and should be done more. These remain complex and sensitive matters where no matter what you do, there will be a viewpoint that it was outrageous – “what does this person have to do before you deal with the crimes they are committing” versus “why are you prosecuting someone – mental illness isn’t a crime” and of course, the valid observation that we de-criminalised suicide in the 1960s and yet here we seem to be re-criminalising it through the back door by reaching for obscure road traffic or railway offences or publicly branding someone a ‘nuisance’ after relying upon an ancient common law offence. I get it.
But here’s a question: if someone has been removed from the strategic road or rail network not once, not twice by many times; if they have often been known to return to it within hours or days having been offered NHS assessment, services and support and if we know they have not engaged with those services; if we know they keep repeating behaviours which they have been supportively and educational cautioned against because of the risks to them (and not the inconvenience to others) and it has been explained that there are sometimes consequences for others that reach beyond mere inconvenience of being a bit late and puts other lives at risk – how many times do we keep doing the same thing before we ask ourselves whether we need to do something different?
No – criminal prosecution is not a solution. It rarely is a solution to anything: it’s more usually a reaction to events which cannot and will not fix the underlying issues. But it was never pretending it could – it was hoping to merely influence behaviour or help break a cycle which really does puts lives at risk after the less-blunt options had failed.
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
Mental Health Cop 