Here’s a situation for you: someone arrested for a criminal offence is in custody at the point where an Approved Mental Health Professional and two Doctors decide the person should be ‘sectioned’ under the Mental Health Act 1983. They complete the paperwork for admission and intend to take the person to hospital within an hour or so however, the investigators dealing with the allegation decide to approach the Crown Prosecution Service for authority to bring charges for the offences which gave rise to the arrest.
What happens where someone is needs to be ‘sectioned’ but where the CPS authorise prosecution? – well first things first, discussion between agencies should prevent the situation where we have this conflict in the first place. Prior to MHA application, I would like to think AMHPs assessing people in police custody are asking the ofifcers what their intentions may be around the offences; and police should be asking what the AMHP may be thinking if there were evidence to charge.
Sensible discussion should prevent the actual conflict arising, but if it should occur –
As a general rule of law, conflicts of laws are resolved with criminal law taking priority (because criminal law is about the protection of others or the public as a whole) so one might imagine the prosecution goes ahead and considerations around the defendant’s mental health are then managed within the criminal justice system. On the other hand, the investigators and / or CPS may have a view that whilst charges are necessary, they do not need to be brought immediately and if an AMHP has finalised an application and admission is possible, they might think about whether it may be preferred to prioritise someone’s health and wellbeing and do the administration of justice later. This would assist, for example, the potential for defendant who is seriously unwell being unfit to stand trial at the point of legal proceedings being live.
So there are two things to think about here: COULD the criminal prosecution move ahead immediately and SHOULD it do so?
COULD / SHOULD
The first question is easy: YES, it could move ahead immediately if the CPS are content to authorise it, but it’s the second question which is all the more interesting. There is no easy answer to it and no doubt, those of you reading this will have differing opinions. Public policy on prosecution is, essentially, the more serious the offence and the more concerning the background, the more likely it is to be in the public interest to prosecute. It is self-evident how there will be a different set of considerations for those accused of murder or attempted murder compared to those accused of robbery or theft. But we do know that some people arrested for murder and attempted murder are not immediately prosecuted for the offence, because of the need to hospitalise them due to acute mental illness. Doing this first does not in any way derail the criminal justice process, it merely means the formalities of that process begin once more is known about the person’s mental health or once it becomes more likely they will be able to understand the justice process.
For example, you may recall the awful and tragic case in 2013 of Christina Edkins in Birmingham? – she was killed by Philip Simelane on a bus in Edgbaston on a Thursday morning on her way to school and he was arrested a few hours later. On the Friday afternoon, he was ‘sectioned’ under the MHA and taken to a medium secure unit without being charged. The following week, he was formally charged with her killing and produced via video link to a courtroom in the Crown Court where a Magistrate dealt with the initial appearance. Once that hearing was over, he was more-or-less immediately produced via the same link to the same courtroom where a Crown Court judge dealt with his second appearance – and you might ask yourself why? Well, the Crown Court has powers the Magistrate doesn’t – the Magistrate cannot remand a patient to hospital under Part III of the MHA for psychiatric reports prior to trial, a Crown Court judge can. By having both hearings done back-to-back, the outcome from that day in court was Simelane became a s35 MHA patient at the same medium secure unit, but now under a framework which allowed the doctors to assess his condition for the court’s benefit at trial including the production of a psychiatric report.
None of this would have been possible if he’d been immediately prosecuted on the Friday afternoon.
In other cases I’ve known, a man arrested for attempted murder in 2000 was ‘sectioned’ almost immediately despite obvious evidence of his responsibility for a very serious stabbing. It was several months before the doctors thought him well enough to be interviewed about the allegation and he was charged with the offence at that stage. All the while, he had been detained under the MHA in a secure unit and would almost certainly have been unfit to plead had the criminal justice process begun immediately. By delaying charges until treatment had occurred, the man was in a position to understand the important legal process which would affect the rest of his life.
FACTORS TO CONSIDER
So there is a lot to consider – and don’t I make the point on this blog a lot that this stuff is complicated?!
How serious is the offence, what is the evidence NOW to prosecute; what is the assessment by mental health professionals telling us about the applicability of the MHA to the patient NOW; what kind of mental health unit will the person be in, if ‘sectioned’; is there a risk of further offences or absconding if we proceed to admit the person to hospital without charging them with the offence now; will delay in charging someone result in more likelihood of their mental state at court allowing them to understand and participate in the process … etc, etc.
And therefore, there is a lot to discuss because you’ll notice, above, the questions are not all within the control or gift of the police officers investigating or the mental health professionals who may be assessing and it’s important to make sure nobody is making assumptions about the other ‘half’ of the system – this is something we know can happen.
In 2019, Alexander Lewis-Ranwell was arrested for a serious offence committed whilst on bail for burglary. During detention in custody for that offence where he had attacked someone with a four-foot logging saw, there were various assumptions made by police and mental health professionals that he would be charged with the offence and it seems likely there was no assessment under the MHA because of that assumption. In the end, the CPS declined to authorise charges, requesting further investigation, and without having been assessed MHA and despite serious concerns about what he would do if released, he was released nonetheless. He subsequently killed three people and was ‘sectioned’ before then being charged with three murders and eventually, found not guilty by reason of insanity.
NO RIGHT ANSWER
It’s hard to say what should be done in a given situation, because they all turn on their individual merits. All we can really say with confidence is take the decisions in discussion with those in the other services about what they can or will do and how they’d prefer to see things progress. Remember that whilst in principle you CAN prosecute immediately, you don’t have to do so and there can be advantages for people’s health and the administration of justice if you don’t. But always remember, sometimes things are serious enough to justify ploughing on without delay and this may be necessary where, for example, the NHS is not able to ensure secure care for those who may pose a risk to others, esp if they abscond. In the examples above, those who were ‘sectioned’ without immediate prosecution were admitted to secure units which have similar levels of security to some prisons and it mitigates the risk of absconding to a large degree. But if that’s not an option, for whatever reason, prosecution is an option where the evidence and public interests justifies it – and assessment of the public interest is affected by the actual availability of viable alternatives.
Of course, if someone is prosecuted there is a potential they may be remanded by a Magistrate to prison, which is less than ideal if they were assessed in police custody as being suitable for admission to hospital under the MHA. But remember, section 48 MHA allows a prison to apply to transfer a remanded prisoner to the hospital system and whilst this rarely happens within hours, it can happen within days, especially if someone who arrives in prison is known to have been assessed MHA in police custody before being charged. It’s also worth noting, in the Mental Health Act Review by Professor Sir Simon Wessely in 2018, it was recommended that Magistrates’ powers to remand under the MHA be changed to allow for it at the first appearance and this is reflected in the draft Mental Health Bill which may make its way through Parliament after the next General Election.
All cases turn on their individual merits – whilst you CAN prosecute immediately if you believe you must relative to the other options you have, you don’t HAVE to do so and there could be benefits to delay. Professionals should make sure they’re communicating about their perspectives on the options available and trying to reach joint agreement about how best to proceed, whilst avoiding the creation of the gaps we saw in the ALR case in 2019 and the conflicts which arise from prosecution and MHA applications.
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 