Officers attend a mental health incident in private premises where section 136 Mental Health Act 1983 cannot be used. The situation is volatile and threatening, sufficiently so they could justify detaining the man to prevent a Breach of the Peace because those present have been threatened and are at risk.
Exam question: if they use this provision, can they subsequently detain him under s136 once outside the premises?
Exam answer: no, they can’t – and there’s legal background to this.
The officer making the enquiry had obviously discussed this with colleagues and been told by someone this approach was unlawful but the lack of explanation as to why had made them inclined to wonder and double check by emailing in.
SEAL v CC SOUTH WALES
This is all about the Seal case from 1997, which first hit the UK courts in 2003. Mr Seal was someone in the same position as the incident generating our exam question. Having been arrested to prevent a Breach of the Peace, he was then de-arrested outside the premises, detained under s136 MHA and ultimately, sectioned under s2 MHA for a week in a psychiatric unit. His legal challenge was specifically about this “BoP to 136” issue where officers arrest for the breach in a location where s136 cannot be applied and then switch it ’round once they are in location where s136 would have been lawful had they found the man in there to start with.
The legal action against the Chief Constable of South Wales Police was brought in the County Court by Mr Seal, close to the limitation on bringing proceedings. Lawyers from the police immediately countered that Mr Seal had not secured permission from the High Court to sue the Chief Constable and his legal action must fail, for that reason and this argument made the case about something else entirely – section 139 MHA.
Mr Seal appealed against this dismissal of his claim and that case proceeded through the lower courts, to the Court of Appeal and ultimately the House of Lords (now the Supreme Court). It eventually made its way to the European Court of Human Rights in Strasbourg but it made no difference in the end, UK law demands anyone who brings action against those who purport to do things under the MHA must have high court permission in order to commence their case.
It cannot be obtained retrospectively, hence he lost his case all the way to the House of Lords and ECHR.
CHANGED WORDING
Now, it’s worth reflecting on something which has happened since the 2010 judgment from the European Court and ask ourselves whether this would affect the question now. The wording of section 136 MHA changed several years ago, all thanks to the Policing and Crime Act 2017.
Section 136(1) used to say –
“If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control …”
It now says –
“If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control …”
So you’ll notice the clause in s136(1) referring to the location of usage is removed, so perhaps that changes things? Not quite – not only was that clause removed, but a whole new sub-section was inserted on that issue, and s136(1A) now states –
“The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than —
(a) any house, flat or room where that person, or any other person, is living, or
(b) any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.
Essentially this all means, “anywhere other than a dwelling and its private gardens”.
So does this change the answer to our exam question in 2024, compared to 2003 when Mr Seal brought his legal claim or 2010 when the European Court ruled UK law was entitled to demand High Court authorisation to legal redress?
No, it doesn’t – use of s136 is not permitted in a dwelling and any misuse of BoP provisions to ‘create’ section 136 conditions would still face the difficulty Baroness Hale anticipated when the Seal case was heard in the Court of Appeal. Some may ask whether this is a misue of Breach of the Peace, given the threats and risk described?
HOMES AS CASTLES
All arrests must be made with a genuine intent to proceed – so there is caselaw which states the police should not arrest someone for an offence if they already know there is no intention to prosecute them for it, for example. The Hicks case, which is not about mental health law, argued over whether arrest for a Breach of the Peace can be lawful and whether or not there needs to be an intention to bring the person before a court for it.
My own, non-legal view? – where officers arrest for a Breach of the Peace which they genuinely believe is imminent or ongoing, they should remove the person to a police station where they can be detained if necessary and seen by healthcare staff whilst there and this can include convening a Mental Health Act assessment by an Approved Mental Health Professional and two doctors. I doubt it would be considered lawful to simply repeat what happened in the Seal case where arrest is used to ‘create’ the conditions in which s136 appears to be lawful.
There is caselaw (Winzar v Chief Constable of Kent, 1983) which is about someone being found drunk in a public place. Officers were asked to assist NHS security at a hospital where a drunk man had been located in a part of the hospital to which the public did not have access. They used force under common law to remove him from the hospital and as they exited the building informed him he was under arrest for being found drunk in a public place. He was convicted but appealed, his argument being he was not found drunk in a public place – he was forced there by the officers. His appeal was dismissed, the court pointing out the officers were legally entitled to remove him as they did and were then entitled to regard him as having been found in the place to which he was lawfully removed.
I’d therefore suggest, if a person who had been legitimately detained in police custody for a breach of the peace and they were to be released, for example because circumstances having changed there was no likelihood of a continuance or recurrence, they could then consider whether s136 was necessary. It would be very different consideration about whether s136 MHA could be applied to a person being released from custody compared to exam question we’re addressing here, obviously subject to whether the grounds for use of s136 are satisfied at that point in time.
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
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