Over 20yrs ago, a defendant was convicted of an offence under the Protection from Harassment Act 1997, after sending a number of unusual, almost-incoherent and rambling letters to an MP which also contained threats that were disconcerting to say the least. The MP had to make adjustments to their professional and personal life in order to mitigate their concern about the potential the threats would be made out. Also worth noting now, in 2023, the incidents leading to conviction were before the murders of Jo Cox MP in Yorkshire and Sir David Amess MP in Essex.
After conviction for the offence, to which the defendant pleaded guilty, he was given a conditional discharge* and a restraining order was issued under that Act, to protect the victim and his family. The following year, there was an appeal against conviction for a reason I thought was worth covering on the blog: it was about the “reasonable person” test for offences of harassment and the debate in the (criminal) Court of Appeal was about the defendant’s schizophrenia and the medical view that he would have felt compelled to write the concerning letters he did and that a lack of response to them would have driven him to write more.
For a defendant to be convicted under the Protection from Harassment Act, it is necessary for the prosecution to show that the person engaged in a “course of conduct” amounting to harassment and which he “knew or ought to have known” amounted to harassment. The Act states that someone “ought to know” their conduct amounts to harassment if a reasonable person in possession of that information would think it did amount to harassment.
*NB: In this post ‘conditional discharge’ refers to a sentence by a criminal court – it does not refer to conditional discharge from hospital under the Mental Health Act 1983.
OBJECTIVE TEST?
Is this an objective test or a subjective test? – or a mix of the two?! The appellant’s lawyer argued that the test should be a subjective one. In other words, the hypothetical “reasonable person” should be someone who is considering the issue from the defendant’s point of view, in the defendant’s medical condition. The counter-argument is that the objective test should apply, where the appellant’s schizophrenia the particular ways in which it affected him and was manifest is not relevant.
The judgment is there to be read, but the Court of Appeal dismissed the appellant’s argument: they pointed out that if the “reasonable person” test were applied subjectively, it would remove from protection a great many victims and potential victims of harassment and stalking, who Parliament must have intended to protect by legislating as they did. The reasons for this are outlined in the ruling.
The Court of Appeal pointed out that allowance for the appellant’s illness was made at the point of sentencing – where the sentence was aimed at protection of the victim, rather than punishment of the offender. A conditional discharge, for those who are unaware of it, means the defendant was convicted by the Crown Court but they were not fined, imprisoned or subject to community sentencing like unpaid work, etc.. A conditional discharge is usually accompanied by a time period, like 12 or 18-months and it means the defendant can still be sentenced for this harassment offence if during the period specified, they are convicted. The idea is to discourage further offending in the future, by this remaining available to a future court.
MENTAL ILLNESS AND CRIME
More generally, I’ve written before about the complex relationship between crime and mental illness. As covered by Professor Jill Peay in her 2010 book Mental Health and Crime, the boundaries between these two social constructs are really quite opaque. It’s not easy to examine behaviour and say “this is crime, not illness” or vice versa: some patients present behaviours to the mental health and criminal justice systems which are or can be considered examples of criminal conduct and illness.
And it isn’t always obvious which way of responding should take priority. The medical evidence in this case seems to be that the appellant’s schizophrenia was driving his offending behaviour to a reasonable degree. And the lack of reply he received to the first letters sent seems to have incentivised him to write more letters. Some of you may remember my post from several years back about causal, contributory or coincidental relationships between someone’s crimes and illness?
Even where someone is so ill they require compulsory admission for treatment under the Mental Health Act 1983, it still remains true they can be held criminally liable under the law. In other cases defendants may be found insane because they simply did not know what they were doing or did not know what they were found was wrong. The insanity defence is available for all criminal charges and if supported by the medical evidence, that defence could have been run for this defendant.
SERIOUS ILLNESS AND SERIOUS CRIME
Complex stuff: and we know the police and Crown Prosecution Service under-investigate / under-prosecute offences where defendant’s are (seriously) mentally ill. It’s worth remembering: criminal courts are the only place that certain orders under the Mental Health Act can be issued and the only place which can compel or hear medical evidence about the wellbeing of those accused of crimes. As such – under the current system – it is the only place where proper consideration can be given in light of all the necessary criminal and medical evidence, to allegations of serious offending by those of us who are seriously mentally ill.
As such, police and prosecution authorities need to be prepared to contemplate when it may be appropriate and necessary to criminalise someone who may be affected, indeed traumatised, by the prosecution process (which can involved someone ending up in prison, either on remand or after conviction). This could hardly be more sensitive and complicated and a knowledge of the legal frameworks behind this post are required by police and prosecutors who may or may not know what a (restricted) hospital order actually is and when it may be a very good idea, both for the purposes of an offender’s health and the public’s protection, to persuade a prosecution in order to allow a court to consider the need for one.
In this Court of Appeal ruling from twenty years ago, for a case which wasn’t the most serious thing a court can hear, but which hinted towards threats and risks we now know can become examples of the most serious charges a court can hear, we see the need to understand that even though someone’s mental illness may be driving their conduct to a considerable degree, this does not protect them from criminal conviction and it may be necessary to do so to protect victims or the public more generally.
As I said: it could hardly be more sensitive or complicated.
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, 2023
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 