My best guess is that when Inspector (then PC) Katie Eustace attended a disturbance in Nottingham involving criminal damage on 24th May 2020, she had absolutely no idea she would be sat six years later in a live-televised public inquiry, trying to recall and explain in intimate detail the various investigative considerations, lines of enquiry that were undertaken – or not. Likewise for her Nottinghamshire Police colleagues PC Richard Marsden and PC Gail Collins who both found themselves being taken in to the depths of criminal law and psychiatric evidence.
I’ve found it hard this week to think about how to respond to events at the Nottingham Inquiry and have started typing a blog at least four times only to delete it because it’s not working. It’s hard to know what to say or where to start but even typing that feels like a cop-out for me when real human beings, traumatically and irretrievably affected by the “limitless” grief attacks in June 2023 are having to face their worst fears each day attending the evidence sessions and working out how to process it and respond in the media to what they’re hearing.
I had day almost entirely free so as I did various things on my laptop, I had the inquiry running on television.
CAPACITY
I covered this issue in a blog on Monday which itself contains about five links to various posts of mine about the utter nonsense of “capacity” in criminal proceedings. Suffice to repeat here, because Thursday’s evidence was replete with this nonsense, that people need to realise there is non-statutory guidance on the prosecution of mentally disordered offenders.
It says various things, including about “capacity”, but this is the most important part –
“The prosecutor should consider the information available and decide whether a decision to prosecute can be made or whether further information should be sought.
…
“A request for further information should articulate whether it is related to an assessment of the evidence in the case, or the public interest, or both, and how. Precision is needed to inform any further investigation of this issue. A request for “evidence of capacity” for instance, lacks precision. Whilst this term appears elsewhere in mental health law and in some criminal offences, such a request is not clear about what the evidential and/or public interest relevance of such evidence might be. A prosecution does not have to prove as part of the evidence the suspect’s “capacity”. It implies that a prosecution would not proceed if the suspect lacks “capacity”: as will be discussed below, a prosecution may nonetheless proceed even where a defendant is likely to be found not guilty by reason of insanity, or is unfit to plead.”
That couldn’t be clearer, could it? Only slightly later in the same document, it points out how medical confidentiality and patient consent may mean no further information can be lawfully obtained, however desirable, and then states –
“When no further material can be obtained, the charging decision must be taken on the information available.”
TRAINING
What we heard today, were three frontline officers parading some very considerable ignorance, HOWEVER! – the evidence included them pointing out they get next to no training on this. Referring to the practice of emailing psychiatrists to ask if “sectioned” patients “have capacity” for offences committed prior to being admitted to hospital under the MHA, PC Marsden said, “I know what the processes are and how it works.” He had described how his training on policing and mental health was largely eLearning and powerpoints. If his force had delivered the two-day classroom based College of Policing mental health training which was published in 2016, it may well be the case he would have had a different understanding.
He agreed with counsel’s suggestion that they were treating the doctor as a decision-maker, rather than recognising the doctor would merely be offering non-binding opinion and suggested various cases in his experience had been dealt with like this. Of course it should need saying, but the fact that may be true has absolutely no bearing whatsoever on whether it’s legally correct or the appropriate way to proceed. And so if you were the victim who jumped from the window to escape Calocane as he attempted to break in to your student room, why wouldn’t you be angry at the failure to prosecute?!
If I can go right back to basics, when he was emailing Calocane’s psychiatrist on 30th May 2020 to ask if Calocane “had capacity” for something he allegedly did six days earlier, how on earth is the psychiatrist meant to know that. Apart from the obvious point you are asking legal questions of a psychiatrist who is not a forensic psychiatrist, the doctor’s opinion about “capacity” (whatever that actually means) is not the dependent variable which would determine whether a prosecution could or should occur. Those are legal assessments for investigators and prosecutors – of course they would find doctor’s opinion about mental state useful, but they are not binding and cannot be wrapped up in mistaken ideas of “capacity”.
LEADERSHIP
People who “lack capacity” and are almost certain to be found unfit to plead or legally insane are prosecuted regularly for offences, and rightly so where they are serious enough and behaviour will likely continue to place the public at risk. But what matters just as much as the particular risk from a person, is the structural risk that police policies and programmes either build or mitigate. The idea that prosecution turns on “capacity” – as Nottinghamshire Police very obvious widely believe – is an example of where a failure to counter that widespread myth, is building risk in to the system.
And look where it’s getting them.
So rather than these three officers, I’d have much preferred to see far more senior officers being asked to explain why they do not lead and train their officers to know how to handle criminal investigations where suspects are thought or know to be seriously mentally ill? – perhaps we’ll see that later in the inquiry. What we already know has happened here is they have inadvertently, through inaction, built risk and adverse potential in to the system, failed to investigate effectively and made untoward outcomes more likely, not less.
And for reasons I’ll go in to again later, no doubt, programmes like Right Care, Right Person make this kind of things more likely, because it has undoubtedly had an impact on policing culture in a way which makes this kind of wilful ignorance by the police, even more likely to push crime and risk related mental health demand towards a health system that shouldn’t be expected to deal alone with complicated people whose behaviour is touching upon both mental health and criminal law.
This inquiry has months to run – brace for impact.
Awarded the President’s Medal, by
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, 2026
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 