Alex Ruck Keene KC (Hon) is a practising barrister, a visiting professor of law at King’s College, London and was the legal advisor to the 2018 Mental Health Act review. It’s fair to say he knows his mental health and capacity law onions and has had opportunity to demonstrate this in all the courts of this country, up to and including the Supreme Court.
My having set out just a few of his credentials as something of a fanboy, let me quote from his introductory remark during evidence at this week’s Nottingham Inquiry.
Referencing use of the term ‘capacity’ in consideration of criminal offences, he said –
“I think it’s really important to understand, that is a legally nonsensical idea. You simply can’t have ‘capacity’ to commit a criminal offence, if you were applying the term ‘capacity’ as it’s otherwise understood in English / Welsh law. I would really strongly emphasise it’s a very, very dangerous thing to start talking about. People start asking the wrong questions potentially of the wrong people and you start going down the wrong track.”
[Bold is my emphasis.]
Amen, Alex – and thank you for your public service on this important point because I’m getting nowhere fast with this!
ZOMBIE FACTS
Regular readers will know I’ve been pulling out my hair for DECADES on this point.
See these previous posts, all on the ridiculous use of the term capacity in criminal investigations –
I was so annoyed by all this during my tenure at the College of Policing / NPCC that I contacted the CPS about it when I heard they were reviewing their guidance on mentally disordered offenders and asked them to address it. Amongst my final acts before being required to depart that role, was to attend meetings with the CPS and be involved in that revision. You can see CPS guidance for yourself and it says what it needs to say.
But this ‘zombie’ idea just refuses to die – more than a full six years after the CPS, quite fairly, tried to kill it off. No matter the points made, no matter the fact there is official prosecution guidance from the state prosecution authority, it just won’t die! We hear “PIP3” senior investigation officers saying it. We saw frontline response officers at the Inquiry saying it regarding VC’s earlier offending in 2020/2021, etc. It just won’t die and in the end, you have to start wondering whether the ignorance of the approach that is maintained is wilful.
FOR THOSE AT THE BACK
It shouldn’t really need pointing out but here we go again – to investigate a criminal offence, officers have to consider whether they can prove the actus reus and if so, the mens rea of the particular crime. So for an assault, it would be whether you can prove the suspect did something to cause the apprehension of immediate unlawful violence and for more serious assaults, the actual or grievous bodily harm that is also required.
It’s usually things like, “can you prove that fist hit that person’s face”, or not? You do this in non-magical ways, by looking for the victim and witness accounts and then things like CCTV, phone footage, etc., and things like more circumstantial forensic evidence like DNA, digital evidence, etc. This is a non-exhaustive list of examples.
Then you consider the mens rea – the guilty mind. Can you prove the person who did this intended to cause fear, harm and injury and that they not have a lawful defence to their actions? – and even if they did, in principle, have a potential defence, was the force used was nevertheless excessive? – can you prove the intention to hurt or injury, or recklessness as to whether someone might be injured? Again, a non-exhaustive list.
Now, mens rea – the so-called mental element – has obvious potential to become confused or conflated with ‘mental’ or ‘mental health’ related things. But does psychosis, schizophrenia or Alzheimer’s mean it’s never possible to prove mens rea? No – it most certainly does not. I always like to use attempted murder cases to make this next point because that offence is one of the most difficult of all to prove. The mens rea of murder is proof of intent to kill or seriously injure whereas for the attempt, it is always and only the intent to kill. Quite a high bar, a very specific and narrow intent to try to prove. Yet a large number of mentally ill, even ‘sectionable’ patients have been convicted of attempted murder, or pleaded guilty to it. Including VC in Nottingham.
BACK TO CAPACITY
‘Capacity’ is not the same thing as mens rea – or any type of intent, or recklessness – it’s just “not a thing”, as some yoof might say. It’s not a concept in criminal law, you are going to push things in the wrong direction if you keep thinking about these issues in terms of ‘capacity’ and you’ll end up asking the wrong questions of the wrong people, as Alex pointed out in his evidence.
And we have seen this, haven’t we?
Officers who gave evidence in the earlier part of the Nottingham Inquiry spoke of this sort of thing – asking doctors caring for VC whether or not he “had capacity to form the mens rea”. That’s a meaningless sentence, unfortunately and more to the point, it’s not for the doctor to say.
Invariably, the doctor of whom that question is being asked was not there when the alleged offence took place and of course, ‘capacity’ being a legal concept and the investigation being a criminal inquiry, why would you ask a doctor or even a psychiatrist, when they are not a forensic psychiatrist working at the interface of mental health and criminal law? There are quite legitimate debates going on about whether doctors in general, or even psychiatrists specifically, should even be attempting to answer those kinds of legal questions, which inevitably sit outside of professional competence for most and in any event remember:
It’s just not a thing!
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 