Those who have followed this blog from the beginning will remember various posts or comments about the way medicine and law categorises human behaviours and distress. We often hear the so-called “mad” or “bad” debate which attempts to suggest humans should be considered either mentally ill or criminal where behaviours transgress social norms. Academics have written whole books on that topic. The reality of both medicine and law, however, is human behaviours can be caused or contributed to by mental illness and also violate criminal laws – and some are neither mental illnesses nor crimes, despite being socially inappropriate.
Nothing in criminal law prevents in principle someone living with a mental illness from being investigated, prosecuted or convicted – nothing in law demands they always are, either, but this is no different than for anyone else whose behaviour has transgressed a criminal law. The point, to which I will again object in this post, is the ignoring of obvious, sometimes more serious crime as being “(just) mental health crisis”.
Maybe there was a mental health crisis – but if behaviour has led to serious or potentially serious criminal offences with substantive victims who were hurt or terrified, it may be necessary and proportionate to fully investigate someone and consider prosecution. It’s for two main reasons.
WHAT’S THE POINT?
- Only criminal courts can compel psychiatric reports which attempt to weigh any relationship between someone’s alleged offending and their mental health.
- Only criminal courts have powers of sentencing under the Mental Health Act 1983 to hospitalise someone in circumstances where there are restrictions on their care and discharge for reasons connected to public safety.
Let’s look at some examples, using some high-profile incidents because you may have heard of them or can read about them in media coverage as well:
Alexander Lewis-Ranwell (ALR) was found not guilty of three murders by reason of insanity in 2018, having been arrested twice in the 48hrs prior to the killings for offences which were serious enough already and increasing in seriousness. Firstly, he was arrested for burglary and during detention, assessed under the MHA and known to be mentally ill – he was bailed for further enquiries but arrested again within hours for GBH after he attacked a man with a four-foot logging saw and again, he was bailed for further enquiries despite having serious offended whilst on bail for burglary. Having been released for the second time, he travelled to Exeter, murdered three elderly men and was then arrested for public order offences after making threats of violence in a hotel. When arrested for that, he had not yet been linked to the killings so he was ‘sectioned’ under the MHA (something which had not happened after either of the first two arrests) and he was then arrested from the psychiatric hospital for murder after the link was made.
He was found not guilty by reason of insanity – but it was fully admitted he had killed the victims.
Of course, the fact he was “sectioned” after his third arrest and the fact he was then found not guilty because of a serious mental illness does not mean anything directly about the first two arrests. Hindsight being the wonderful lens it is, we can’t help but reflect on the burglary and GBH arrests without knowing he went on to kill three people but I admit to thinking, after reading the detailed reports about the mental health assessment and investigations, it should have been obvious the second bail decision, after the GBH was questionable. Indeed, the police duty inspector for the area thought it was questionable, because he wrote his concerns down, on the custody record.
WHY WORRY?
I’ve worried about this kind of conflation and confusion on MH and CJ for years and for one specific reason:
I’ve always been concerned that our understandable, humane instinct not to criminalise people for offences committed whilst seriously ill means we miss occasions where our system should mean prosecution is either desirable, on balance or entirely unavoidable in more serious cases, to protect the public. If you’ve read posts of mine from the last twelve months, you will remember there are reviews ongoing in to the police handling of criminal allegations where prosecutions did not result until something really serious happened.
In the past we’ve known such reviews and in some cases we end up concerned at non-prosecution, other times we’re reassured it would have made little difference but even in those cases, it dents public confidence in policing and the justice system to know someone who eventually did something very serious was not “gripped” earlier by either the CJ or MH systems, amidst a hope that it may have prevented some heinous end to the story, as in ARL’s case, above.
You may not remember a very early post on this website, from 12-years ago where I detailed the research I did for my Master’s degree in Criminology and Criminal Justice where I examined 10,000 custody records to see how the police handled criminal suspects who were mentally ill. Long story made short, after identifying 1,076 individuals from the 10,000 as having a potential mental health problem, I found not one of them had been prosecuted for the various offences committed. Those offences included possessing a live, loaded firearm, GBH, sexual offences and other serious crimes.
PUBLIC INTEREST TEST
Another theory I’ve offered on this site is about why police officers seem to think prosecution either cannot or should not occur, where serious mental illness is in play. Prosecution requires police and CPS lawyers to satisfy two parts of the test for prosecution, always to be addressed in this particular order –
- The evidential test – is there actually criminal evidence of guilt, likely to be sufficient to satisfy a jury?
- The public interest test – is it in the public interest to prosecute, if and only if you have passed the evidential test?
I’ve often wondered if we unwittingly confuse these two things, by over-focussing on or misunderstanding mens rea? The evidential test involves determining whether we can show the actus reus (the act done) and whether we can prove the mens rea (or guilty mind)? In an assault, you would need to be able to prove the fist hit the face or the foot kicked the ribs (actus reus) and then you would need to be able to show the person had a criminal purpose in doing so – intending to scare or hurt the victim. It is not, for example, a criminal offence to punch someone in the face if they are busy trying to stab you to with a knife because there would be no guilty mind in that example of self-defence – you’re trying to stop yourself from being hurt which is legally legitimate.
But with mens rea, I’ve often known it be assumed that because someone is mentally ill, it would not be possible to show or prove mens rea: and nothing could be further from the truth. Attempted murder is probably the most difficult offence to prove from the point of view of intention because the mens rea involves proving a very specific kind of intention: to literally kill someone.
Murder can be committed by merely intending to seriously injure someone who then happens to die without you necessarily having that outcome in mind, but for attempted murder there must be an intent to kill and nothing less will do. Various seriously mentally ill suspects have been found guilty or pleaded guilty to attempted murder, including recently the Nottingham attacker, Valdo Calocane.
DAILY POLICING
Of course, routine police work does not usually involve responding to such serious crimes. The daily stuff is more likely to be theft, minor assault and public order offences. But even they can be serious, because sometimes theft is aggravated by violence or threats of violence in order to steal (robbery); some assaults leave no injury, but others can involve notable injury which may not be life-altering or life-threatening but which is a serious enough trespass to the person as to be worthy of us thinking the criminal justice system has a role.
What worried me for all of my service in policing is the tendency to take those more serious offences and still divert people from justice, when we know there will be criticism of that later should there be a serious untoward incident review and especially where there often is no sound rationale for that decision. Remember: of 10,000 custody records, all 97 people who were “sectioned” on the day of their arrest because of their health faced no justice process at all for the alleged crime committed. Yet we know some of those patients were discharged within days because assessment in the first 48hrs or 72hrs suggested no mental health problem in play or nothing so serious as to justify ongoing detention. Those were a minority of the 97, but they were notable.
In recent months, I’ve heard from officers of incidents involving arson, grievous bodily harm and assault involving weapons where no criminal justice action was taken, purely because someone was assessed under the Mental Health Act 1983 on the day of their arrest and it led to the person’s admission to hospital under the Act – and this sounds humane, doesn’t it, prioritising someone’s healthcare? … but there are some problems with this, too.
THE UTILITY OF PROSECUTION
- MHA admission is usually to non-secure psychiatric settings, perhaps an intensive care unit, at most – this is what happened for example, to Valdo Calocane after he was sectioned in September 2022 where he assaulted a police officer by punching them to the head three times.
- We need to think about the likelihood of such diversion working: I’ve known patients be admitted in a context where it was fairly obvious they will be a risk to NHS staff and likely to abscond. One example in my own career involved a man who had been arrested for possessing a live and loaded firearm and despite me saying “make sure he gets charged: he’s too risky for diversion under the MHA”, yet that’s exactly what happened.
- It means the police were then obliged to launch a high-risk missing person search where every premises checked to find him had to be searched by armed police officers, a resourcing and very expensive nightmare that was quite avoidable.
We need to stop pretending criminal conduct is not criminal conduct just because the accused person is mentally ill. Of course, it will be entirely appropriate to divert some offenders from custody without prosecution because unnecessary criminalisation is a massive stigmatiser for those of us who are affected by our mental health. But we need to remember that mental health care is about balancing off the right to treatment and care with the protection of the public and that, on occasion, is best met via the criminal justice system working alongside the mental health system – and we need to understand this complicated, nuanced work which is resistant to the over-simplification we often see when it’s all far too late by people talking about “mad” or “bad” or predicating the entire business of weird notions of whether someone has “capacity” which I never tire from point out is NOT a concept in criminal law – and even CPS Guidelines on prosecution of suspects with mental disorders tells us this.
This post is entirely about how the law is structured, regardless of what we think about how the law should be structured.
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, 2025.
I am not a police officer.
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 