In 2017, the law of England and Wales changed – section 136 Mental Health Act 1983 was amended by the Police and Crime Act 2017 and that change came in to effect in early December of 2017. At the time this happened, I was the College of Policing’s national mental health coordinator and it was my job to work with Home Office officials about the changes and to smooth the way for their introduction.
There were a few aspects to the changes, but the one which is relevant here is the type of location where this important power could be used. Previously, the phrase “place to which the public has access” was within s136(1) MHA and it was much debated. Various incidents and cases gave rise to endless and circular discussion about whether it can be used in Emergency Departments behind the triage door or in police custody. None of those debates resulted in a stated case capable of settling the ambiguities and when the government changed the law, this phrase difficult phrase was removed from s136(1) and an entire new sub-section was inserted to the Act.
Section 136(1A) –
“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.”
We could paraphrase this to keep it simple: “anywhere other than a dwelling (and unshared gardens or buildings connected to them).” What’s important to what follows is just this – police custody is not a dwelling and nobody lives there.
ALR
Approximately seven years ago, Alexander Lewis Ranwell was found not guilty of three murders at Exeter Crown Court on the grounds of insanity. In February 2019, he had been arrested twice in two days by Devon and Cornwall Police and released both times on bail.
- On 8th February 2019, he was arrested for a burglary, assessed in custody under the Mental Health Act and then not sectioned and bailed for further enquiries.
- On 9th February 2019, he was arrested for GBH after an assault on a farmer with a four-foot ‘logging saw’. He was not assessed under the Mental Health Act and was then bailed for further enquiries.
On the second release, Devon and Cornwall Police had significant concerns about the risk he posed. The duty inspector in custody on the morning of the 10th February had made an extensive entry in the record about his concern about release and fear about what ALR may do, concerns which had been made clear by the suspect’s mother when she implored the police not to release him.
After the insanity finding at Exeter Crown Court, Detective Superintendent Mike West stood on the steps of the Crown Court and said –
“We fully accept our responsibilities to look after those detained in our custody units. However, it is unreasonable to suggest that police officers or staff, in these circumstances, should have over-ridden decisions made by those who are trained, qualified and skilled in health care.”
I remember immediately wondering about the precise circumstances of the release and I was already thinking “I wonder if they considered using s136 MHA and why that would be discounted?!” On the superintendent’s remarks about the doctor or Approved Mental Health Professional’s decision not to convene a Mental Health Act assessment I remember thinking things like this –
“That’s a false choice – between following a doctor’s opinion and exercising 136 powers – they are not mutually exclusive. The relevant question is whether grounds exist at the point the power is used and a previous decision not to assess or detain someone under the Mental Health Act does not preclude later use of 136. I suspect a misunderstanding of what the law says, what it’s for and why it might be needed.”
COLLEGE OF POLICING GUIDANCE
When the legal changes were introduced in 2017, I remember going to the NPCC National Mental Health Forum meeting where we had discussed impending changes from the Policing and Crime Act many times. There had been discussion about the potential for s136 to be used in police custody, given custody is not a dwelling or any kind of building connected to one and I offered to produce some guidance on when, if ever, s136 might be appropriate. This was because, amongst those present some had stated they looked on the change positively and believed s136 could be used to good effect, to legitimately solve problems like patients being left in police custody for days whilst AMHPs looked towards doctors and the NHS for inpatient beds.
Meanwhile, some other forces stated they were of the view that to use s136 in custody would amount to an abuse of process because they didn’t see that the grounds for using the power would be met. I was more of the first position than the second, but I also had a fear that some forces may use s136 too much in police custody and cause problems for themselves and those in the NHS. It struck me some guidance might be useful and this was discussed in the forum meeting. Those present believed the legal changes were straight-forward enough: that it creates the option for use of s136 and it would usually be self-evident when use of the power was needed.
Fair enough: no guidance produced as forces felt it was not needed.
Fast-forward a few months to early 2018 and there was a request for guidance. Some forces had found their custody officers were reaching for the 136 option far too soon after arrested suspects arrived in custody and other forces who had essentially told officers never to use the power in custody were tolerating days of unlawful detention in custody because they wouldn’t use s136. So guidance was produced – and I still have a copy of it which was legally checked in early 2018 and circulated as an informal guidance to all forces in England and Wales. I circulated it personally.
FEBRUARY 2019
Fast-forward to the month of ALR’s catastrophic offending and we have him being released on the morning of the 10th February, after the two arrests in two days following one MHA assessment and on further consideration of a second MHA assessment, which was decided against. What actually went on with all of that is quite confusing to piece together and after watching parts of the inquest as an observer with the Coroner’s permission, I re-read reports which were published in 2023 reviewing various healthcare and other aspects of this catalogue of disaster.
I remember when I read the reports in 2023 thinking the authors hadn’t understood section 136 MHA. To give just one example, the multi-agency review states in paragraph 5.2 –
“There were seven possible outcomes from custody after Mr A’s arrest on 9 February 2019, under PACE regulations:
● extension of the custody time limit
● charge and remand in custody
● charge and bail to court
● Section 136 MHA
● a Mental Health Act assessment (MHAA) resulting in a detention under the MHA and transfer to hospital
● release under investigation or bail
● release with no further action.”
It’s a pedantic point, but use of section 136 is not ‘under PACE regulation’ and PACE itself isn’t ‘regulations’, it’s a statute – it’s the law. Use of s136 is nothing to do with PACE – it’s an entirely distinct legal process under the Mental Health Act 1983.
The review further states, at paragraph 5.5 –
- He would need to be ‘de-arrested’ to apply the Section 136 MHA and there was a risk he could not be rearrested if he was not detained after the MHAA. This was a concern because of the seriousness of the alleged offence. Part of the rationale for not using the Section 136 option was also because they felt they were quite likely to secure charges and be able to charge with an offence overnight.
- The other concern was practical: police would have had to convey him to the Place of Safety which was at Exeter custody suite to apply Section 136 MHA. They were concerned about his presentation and the practical and operational challenges of conveying him safely to Exeter. While this is L&D2’s recollection of the conversations, the police have assured this review that operational issues would not have influenced decision making about conveyance to Exeter.
These statements are problematic because they appear to rest on assumptions about section 136 I do not believe are accurate or sustainable.
136 IN CUSTODY
Contrary to the evidence of certain officers and former officers from Devon and Cornwall Police, section 136 MHA can be used in police custody, where the grounds are met. The multi-agency review is unhelpfully reinforcing and propagating ignorance about this when it states (at 5.50 and 5.106) s136 is “detention for the purpose of [a mental health] assessment”.
It isn’t, not really – the immediate effect of s136 is protective, to ensure safety in some context. If you want to conduct a mental health assessment on someone, you can. 136 allows police officers to remove and detain someone so immediate risks to themselves or others can be managed and then, the arrangements are made for assessment about what needs to happens next. But the immediate issue is safety because you don’t have to use 136 in order to assess someone – it can happen whilst under arrest or whilst someone is not detained under any provision, all dependent on the circumstances.
So when NICHE completed their 2023 reviews on behalf of NHS England, I wasn’t convinced by their summation of the 136 issues or by Devon and Cornwall Police’s explanation to them or to the inquest about whether or when they could use the power. There were obvious problems with their position.
INQUEST CONCLUSION
And today, a jury found there were failures to understand s136 and a failure to use it when ALR was released on 10th February, just as I suspected there was when I heard Detective Superintendent West misunderstanding the power on the steps of Exeter Crown Court and contrary to guidance his force had already been issued by the College of Policing. And so I’m left feeling very frustrated by all this: it is a set of circumstances which were not just foreseeable, but which were, in fact, foreseen. They were highlighted in national meetings and made subject of informal guidance at the request of forces – a guidance note which I kept for my own future reference. I re-read it earlier today: it clearly countenances use of s136 to manage risk when someone whose risk has not been managed is required to be released from PACE detention.
There will be more to say on this one, so look out for a “part 2” which will focus more on the PhD ideas I am developing because this death after police contact is yet another where agnosis explains a lot of how we ended up where we are. It’s not just a lack of knowledge by frontline officers actually dealing, but a structural ignorance built in to police systems by virtue of inadequate policies and procedures and I fear Right Care, Right Person is only making this worse, as evidenced by the kinds of things we heard in evidence at the Nottingham Inquiry.
What continues to strike me is this does not appear to simply be a story about individual decision-making. Increasingly, it is a story about structural ignorance and how ignorance is produced and propagated. Knowledge that section 136 could be used in these circumstances existed – the legal change had been discussed nationally and guidance had been requested and circulated. Yet the possibility appears not to have been recognised when it mattered most and that takes us beyond questions of individuals into the territory of agnotology: how organisations come to not know things they once knew, were told or could and should have known.
The victims’ families were represented by DPG Solicitors who issued a press release.
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.
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