You may have seen news coverage where police officers present in Westminster Hall whilst Her late Majesty Queen Elizabeth lay in state, had to intervene when a man approached the coffin. He was arrested and subsequently charged with two offences under the Public Order Act 1986, including s4A of the Act. This is an offence of intentionally causing harassment, alarm and distress through threatening, abusive or disorderly behaviour. Muhammed Khan’s first court hearing took place today at Westminster Magistrates Court, albeit he was not present because doctors have assessed him as not fit to take part in proceedings due to his mental health.
The BBC news coverage states “he was granted bail on condition he remains in a mental health hospital until his next court hearing”. This is a most interesting legal and practical point and it’s the only issue I want to focus on, not the particular case which is ongoing. I’ve known a number of examples of the criminal justice system using bail conditions to effectively remand a patient to hospital, whereby there are then two legal things going on here: the criminal justice’s bail / trial process after someone has been charged – and the Mental Health Act process for treatment and care.
What interests me in particular are the things can predictably go wrong in such cases where the two legal issues end up in conflict.
TWO STREAMS
The article does not say that Mr Khan has been “sectioned” under the MHA, but it seems highly likely this did happen at some stage, given he’s been bailed to remain at a mental health hospital – this will most likely be s2 MHA (admission for assessment) but could be s3 (admission for treatment). Meanwhile, his criminal justice status is that he’s bailed form court pre-trial, to return at a future date but with a condition of residence at the MH unit until that time.
This will become very interesting if the responsible clinician in charge of the MHA admission believes the grounds for MHA admission cease to apply and he looks to discharge the patient from inpatient treatment or care. This would immediately put the patient in breach of their bail conditions to remain at the hospital, largely for reasons beyond their control because the doctor has discharged them! Such a decision by the court to use bail conditions usually rests on the assumption the bail date is short enough to allow an estimate the patient-defendant will remain in hospital under the MHA.
Fair enough – as long as they do! This sort of thing used to be more common and I haven’t heard of a new example for some years and it’s precisely because it can end up becoming messy and complicated that I wonder why it’s ever done and I can only imagine it as a ‘work around’ ffor the legal reality that Magistrates can’t always remand defendants to hospital for psychiatric reports and / or treatment, as required. It’s just not permissible in law, in this kind of pre-trial hearing.
SECTIONS 35/36 MHA
Two sections of the MHA cover the remanding of un-sentenced defendants to hospital for assessment (s35) and / or treatment (s36), but the powers are not identical for Magistrates and Crown Courts. Crown Courts can remand any defendant who has appeared before them, regardless of whether this is their first Crown Court appearance or somewhere further in to the process, including during trial. Magistrates, on the other hand, cannot remand a person under either provision, unless they have admitted the accused offence or been found to have committed it. In other words, when someone first appears at a Magistrate’s court after being charged with an offence, they cannot be remanded to hospital. They can be remanded to prison (hence the notion of therapeutic remand) or released from court on bail.
This has always struck me as a difficulty, so much so that when I was seconded to the College of Policing and part of the Mental Health Act review advisory group in 2017, I suggested that reform of sections 35/36 was necessary – and I gave examples: I recall a young man who should have been “sectioned” from police custody but who ended up in prison after his grandfather (and MHA Nearest Relative) objected to the s3 order being made. Because of ongoing risk, he was charged with an offence and remanded by thje courts, only to be subsequently transferred from prison to hospital under s48 MHA, which provides for the transfer of remanded prisoners. The lad ended up in the hospital they’d wanted to put him in anyway, but he went via prison because Magistrates had no power to remand him directly, because he hadn’t been found guilty or responsible for the offence at the point they dealt with him.
Well, one “little victory” I was pleased to see in the MHA Review which has been mentioned again in the UK Government White Paper and it also features in the draft MHA Bill, published a few months ago. I’m conscious the new Bill may still take years to come in to force and that it may be changed by Parliament as it progresses but I’m delighted to think this anomaly may be corrected, because it would make just a little easier and fairer the kind of criminal justice and mental health process we’ve needed for a while.
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, 2022
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 – www.legislation.gov.uk
Mental Health Cop 