The appalling attack in Kent on Tuesday against the British Army’s Lt Col Mark Teeton has seen the arrest and immediate prosecution of a suspect, Mr Anthony Esan, for attempted murder. In drafting another post, yet to be published, I was thinking back over cases of attempted murder because this offence often helps us infer quite a bit about how the law and mental health diagnoses interface where these serious offences have taken place. My own view is some of the myths about mental health and criminal law are exposed and untangled when we think about attempted murder charges properly and see how they are handled in criminal courts.
SPECIFIC INTENT
Attempted Murder is, quite arguably, the hardest offence to prove because it requires a very particular, specific kind of intent – the prosecution in any case must be able to prove the intent was to kill, specifically. It’s no good speculating somebody might have died because of how reckless an attack may have been or shouting about how the suspect was “obviously” trying to seriously injure the person – there are other criminal offences on the statute books to care of both of those situations. Attempted murder is, specifically, any attack which intends to kill – nothing less than intent to cause death will do.
It’s often wondered how such a specific level of intent can be proved where the defendant is seriously mentally ill; or where they were that ill at the time of the attack. Now in the recent tragedy in Kent, we don’t yet know enough and criminal proceedings are live, so I make no comment about what has gone on. This post will be general to the legal / mental health points I want to make and will refer back to other, completed criminal processes to help us understand that serious mental illness is no barrier to a prosecution where it is necessary to prove something so specific as an intent to kill.
By way of historic examples –
- Police officers in Harrow were attacked by Christopher Haughton in 2011 and he was prosecuted for attempted murder as well as GBH and other offences – the criminal outcome was a finding of guilt on all charges and he was sentenced to a restricted hospital order under the Mental Health Act 1983 (MHA).
- A musician in London was attacked at Leytonstone underground station in 2015 by Muhiddin Mire and he was found guilty despite serious mental illness – the criminal outcome was a hybrid order under the MHA.
- A police officer in Birmingham was attacked in 2013 whilst protecting the public at a mosque and Mohamoud Elmi was found not guilty by reason of insanity – the criminal outcome was a restricted hospital order.
SO WHAT HAPPENS NEXT?
24-year old Anthony Esan has been charged with attempted murder and remanded in custody to prison, in part for his own protection and that’s often legal parlance to mean the court are worried about his mental wellbeing and a risk of further offences, if released. You might wonder why the court did not send Mr Esan to a mental health hospital, especially because it has been made known his defence counsel are questioning his mental fitness. We know he gave strange answers to question posed to him in the Magistrate’s Court yesterday but the fact remains, magistrates’ courts have no legal power to remand to hospital at a first appearance. (This is something which may change in the forthcoming Mental Health Bill, incidentally.)
Mr Esan will appear before Maidstone Crown Court on Thursday 22nd August and there, for the first time, a court will have a power available to them to remand him to hospital, if that is thought medically appropriate. Until then, he is remanded in to the prison system, albeit if prison psychiatrists believe a more urgent transfer to hospital is necessary, there is a mechanism within section 48 MHA to move him earlier and they can apply to the Ministry of Justice for authority to do so.
Mr Esan’s defence counsel has already indicated they will seek to have psychiatric assessment undertaken to determine whether he is fit to stand trial. It’s important to remember, the legal question of fitness to stand trial is about someone’s mental fitness at the time of the trial; questions about someone’s mental state at the time of the offence is a question of insanity.
TWO BROAD OUTCOMES
We will see one of two outcomes, as you might imagine –
- He’s found fit to stand trial – so then a trial occurs and the defendant will have to decide whether or not to plead insanity as a defence and that will depend on what the medical evidence is for any psychiatric condition.
- For the avoidance of doubt, “diminished responsibility” is not relevant there – that only applies to prosecution for murder.
- He’s not fit to stand trial – so a “trial of the facts” occurs to determine whether or not Mr Esan did the actions which are the basis of the charge.
- If a jury decides he did, the court has powers under the Mental Health Act 1983 to ensure medical care and protect the public.
- Both of these options can lead to hospitalisation under the Mental Health Act 1983, potentially using a restricted hospital order under s37/41, but only a finding of guilty if fit to stand trial could lead to a hybrid order under s45A.
First step towards any of the above will be the prison psychiatrists assessment of Mr Esan on arrival in prison and whether they seek to have him transferred under s48 MHA. If not or if it cannot be done quickly enough, he could be remanded by the Crown Court after his first appearance there, under sections 35/36 MHA for psychiatric reports before trial. At a subsequent appearance there will be a decision taken about whether he is fit to stand trial then one of our two options, above, will unfold.
I’m sure we all wish Lt Col Teeton nothing but the very best for his full and swift recovery and that he and his family are being as well supported as the British Army can manage.
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, 2024
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 