Prior to December 2017, there was an ambiguity and an absence in explicit powers to search people detained under sections 135 and 136 of the Mental Health Act 1983 (MHA) in order to ensure they didn’t have possession of something which could be used to cause harm. A recent question on a legal forum I use raised this again, not long after the issue became relevant to a discussion I had about understanding powers of detention under s136 itself, so this is a quick reminder post on search powers after use of sections 135 or 136 MHA.
Prior to the 2017 changes, the only obvious power of search was s32 of the Police and Criminal Evidence Act 1984 (PACE) but there is still confusion about the applicability of this because of misunderstanding about the meaning of the word ‘arrest’. Section 32 is a power for ‘search upon arrest’ – this is the title of the section. Now, an ‘arrest’ usually means ‘arrest for an offence’ but it’s not the only meaning. An arrest is merely the detention of someone in accordance with law and whilst most people who are arrested are arrested for an offence, it’s not the only reason to arrest. Some may be arrested under warrants issued by courts and those warrants may sometimes be issued in relation to criminal proceedings which had originated from an arrest for an offence (like a subject who failed to show up at court after being charged). That said, they may also be issued, for example, to bring a victim or witness before a court to give evidence. This doesn’t happen very often and when it does happen in rare cases, the victim / witness is not arrested ‘for an offence’, they are arrested on warrant.
In that vein, someone who is detained by the police under s136 MHA is ‘arrested’ – but they are not ‘arrested for an offence’. This legal terminology goes against the grain, because we spend a lot of time telling people who are detained that they are not under arrest, precisely because most people think an arrest means ‘arrest for an offence’. We now know it doesn’t always mean this but when the Police and Criminal Evidence Act was brought in, s26 of that Act abolished all specific powers of arrest which had previously existed and replaced them with general powers of arrest for the police and the public — but there were some exceptions to this. They are listed in schedule 2 of PACE and they include various ‘preserved powers of arrest’, including powers under the MHA, but notably not s135. Where someone had been arrested (for an offence or otherwise), s32 PACE allowed a constable to search that person for one of various reasons. To search for evidence of an offence was one reason (ie, the products stolen in a shoplifting offence) or items which could be used to cause harm or facilitate escape. Clearly, those latter two reasons can still apply if someone is detained under s136 MHA.
POWERS OF SEARCH
All clear so far?! – excellent! So the new powers of search under section 136C were introduced to solve some problems you may have spotted reading the background to it all —
Where someone is detained under s136 MHA and not searched (let’s say because the grounds didn’t exist), what happens if you arrived at the Place of Safety and there is then new information to justify a search. You could be half an hour or more down the line by this point and can you really say that a search done on arrival is ‘search upon arrest’? – previously, the Code of Practice MHA stated that people could be searched upon arrival at a Place of Safety, but there was some ambiguity with this: firstly, it didn’t say who could search and there could be disagreement between police and NHS staff as to who should search someone for a bladed item, for example. Secondly, this is a legal power that isn’t explicit in law so there was discussion about how lawful it could be. When the law was being updated in 2017, there was an opportunity to put this beyond doubt, but it was done in a way that could be considered a little confusing!
What you need to bear in mind, is that the MHA regards s136(1) and s136(2) MHA as two separate, albeit related, powers of detention. The first is the constables power to detain someone at the point where they are encounter in ‘immediate need of care or control’, etc.. The second, is the power to hold someone at a Place of Safety for 24hrs (or 36hrs) after they have been removed there by the officers involved in the initial detention. (Of course, if s136(1) to initially detain someone is used on respect of someone who is already in a building that can act as a Place of Safety for them and the decision is immediately or quickly taken to keep them there, it may well be that s136(2) detention follows immediately or quickly after s136(1) detention, but in most cases, the initial power is used in a street or a park, for example and someone is then removed to either A&E or a mental health unit PoS.)
So here goes on the search powers: buckle up! —
- At the point of initial detention, under s136(1) MHA – s32 PACE, for search upon arrest.
- Upon arrival at a Place of Safety after s136(2) – s136C(3) MHA
- Upon arrival after transfer to a second PoS after s136(4) – s136C(3) MHA.
Those powers all require the officer to have ‘reasonable grounds to believe’ that the person “may present a danger to himself or herself or to others, and is concealing on his or her person an item that could be used to cause physical injury to himself or herself or to others.” It’s important to realise these various search discussions do not, at any stage, afford a blanket power of search for all those detained. Each search must be based on ‘reasonable grounds to believe’, which is a higher threshold that ‘reasonable grounds to suspect’.
SECTION 135
All clear?! Excellent, because you’ll notice nothing I’ve covered above is about s135 warrants. That’s all slightly different and for a few reasons! —
Some argued there was previously no power of search whatsoever, for people detained under warrants issued by Magistrates under s135(1) or s135(2). Section 32 of PACE doesn’t apply to detention under these warrants because s135 powers are not listed in Schedule 2 of PACE, as 136 is (along with other MHA powers including s18 for AWOL patients who can also be searched under s32). So there was a real difficulty if someone detained under s135(1) for assessment was believed to be in possession of items we really wouldn’t wish them to have because harm could be caused. Of course, the argument used to go that there was an implied power of search or that common law might justify it, etc., etc., but an absence of clarity on this point was submitted to the review of powers which led to the 2017 changes and the Home Office inserted s136C to take care it.
Where someone is first detained under either s135(1) or s135(2) because a warrant was issued, they may be searched under s136C(1) at any time whilst detained under the warrant, from the point of detention at the location where the warrant was issued, right up to the point where the detention under the warrant ends and the person is either released or detained under another MHA authority. So in one sense, s135 warrants are simpler: once detained, s136C(1) MHA covers it all, as long as the officer has reasonable grounds to believe the person “may present a danger to himself or herself or to others, and is concealing on his or her person an item that could be used to cause physical injury to himself or herself or to others.”
Ultimately, there are powers to cover all the various points of detention, no matter whether someone has been searched already or at what point the grounds emerge to justify the search and nothing prevents a person being searched more than once, if the justification exists to re-search someone already searched previously.
Section 136C MHA is fairly short and it covers almost all search situations – you might want to read it for yourself all you need to remember is the exception that s32 PACE covers the initial detention under s136(1) MHA.
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, 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 