If the Police know that the detainee has a mental disorder, they are required under the Police and Criminal Evidence Act (1984) (PACE) to get an appropriate adult to attend the Police station in order to be present at an interview. It is also possible for the person to be classed as being unfit for an interview or even for no interview to be carried out. Sometimes the appropriate adult called is a mental health or social worker, as they are usually more able to respond quickly to requests of this nature from the Police.
It is unlikely that further criminal proceedings will be taken against those who have been certified as mentally ill at this stage. Usually no formal charges are brought and the local health authority is informed.
Another Home Office Research Study that was carried out in 1995 by Robertson et al looked at 2739 people who had been arrested by the Police. 18 of these were considered as being mentally ill and in need of control in a place of care and safety. This was carried out under the Mental Health Act (1983) section 136. A further 37 of the remaining 2721 were classified as showing signs of serious mental disorder of which 52% had been arrested on charges of public order and breach of the peace offences. Of these detainees, 46% were released without further charge, in comparison to 11% of those who had no signs of mental illness who had been arrested for similar offences.
In order for a person to be prosecuted for an offence, they must first be seen as being ‘fit to plead’. This means that the defendant knows and understands the charges, and is also capable of instructing a lawyer. A person is therefore deemed unfit to plead if they are either physically or mentally incapable of instructing lawyers, following the proceedings or objecting to jurors. (Davies, Croall & Tyrer (2000)
The rules establishing the procedure to assess someone’s ability to plead are set out in the Criminal Procedure (Insanity) Act (1964) as amended by the Criminal Procedure (insanity and Unfitness to Plead) Act (1991). This states that the issue can be addressed at any time up to the beginning of the trial. The evidence of two or more doctors must establish the unfitness of a defendant. If a person is found unfit to plead, the trial continues to establish whether they committed the actus reus of the crime, (i.e. actually carried out the act of the offence). This is to prevent a person from being sentenced without proof of an offence.
If they are deemed unfit to plead and guilty of committing the offence, the court has a range of sanctions at its disposal including hospital orders, guardianship orders and supervision orders. If the defendant is deemed fit to plead, the trial continues in the normal manner, and any issues of mental health problems are raised in defence or mitigation.
As previously mentioned, there are many different options available to the courts in the cases of mentally disordered offenders. Many of the sanctions available do however raise the issue of the rights of the offender. This is because those with mental illnesses are likely to be detained for longer than those without mental problems are. This problem arises as a result of the tensions between the desire of the court to protect both the public and the offender, and the offender’s human rights, which are now secured to a degree under the Human Rights Act (1998). Another problem lies in the diagnosis and treatment of mental disorders. Some mental disorders are more difficult to diagnose and treat than others, and determining the actual disorder a person is suffering from, and how to treat it, are the essentials in deciding how to ‘deal with’ individual offenders.
The main options available to the courts when presented with a mentally disordered offender are as follows:
If the court is satisfied (on the evidence of an approved medical practitioner) that the offenders’ mental condition requires treatment but not necessarily a full hospital order, then a supervision order or probation with treatment order may be made.
Mental Health Hospital or Guardianship orders can be made if the court can be satisfied that the defendant is suffering from a mental illness, psychopathic disorder, mental impairment or severe mental impairment, and that the illness is such that it is appropriate for detention. Some disorders such as psychopathic disorders are likely to improve with treatment.
It is also possible for a defendant/offender to be detained under the Mental Health Act (1983) section 37(3) without conviction, if the magistrate is satisfied that the accused carried out the actus reus, even if there was no mens rea (usually intent).
If there is a belief that releasing the defendant would pose a serious threat to the public, then a restriction order can be imposed under the Mental Health Act (1983) section 41. The Crown Court can only impose this type of order, after taking into account the nature of the offence, the defendant’s history, and the risk of re-offending. These orders can be indefinite, and the offender may only be discharged from mental hospital with the permission of the Secretary of State or the Mental Health Tribunal.
Finally, those offenders who have been diagnosed as having a psychopathic disorder can have an imprisonment sentence imposed, and be sent to hospital. This Hospital and Limitation Direction was created by the Crime (Sentences) Act (1997) section 46. (Davies, Croall & Tyrer 2000)
The growing call for offenders with mental health problems to be de-institutionalised and cared for in the community was partially answered by the Mental Health Act (1959). This introduced the concept of ‘care in the community’, which was based on a new-found respect for ‘patients’. It was an attempt to bring to an end the use of dark and gloomy institutions, which had sometimes brutal but usually uncaring regimes that had originally been set up in the 17th century. The wider availability of drugs as a method of treatment and behaviour control also allowed the care in the community concept to appear more workable.
The idea of care in the community became increasingly popular during the 1980s and 1990s, and the orders outlined previously may seem rather unnecessary in the new ‘caring’ society. However the care in the community idea didn’t seem to work as effectively as it was hoped for. A number of highly publicised cases in the mid 1990s drew attention to the fact that some mentally disordered offenders were prone to re-offend, had they not received appropriate treatment. Also a study by the Zito Trust in 1997 found that there had been 141 homicides committed by people who had been released from institutions and were receiving care in the community. (guardian.co.uk)
A major problem in the treatment of mentally disordered offenders is that a person’s mental condition is highly changeable, and is also affected by detention. It has recently been found that many people who have been detained under the provisions of the Mental Health Act (1983) are not receiving the review at the appropriate time, and could therefore be being detained for longer than necessary. (bbc.co.uk)
Offenders with mental disorders appear to receive a great deal of the publics’ attention. There can be a high amount of unease, in the public and also within the judiciary, as to what is the best way to deal with them effectively. Is locking up the mentally ill the best way to protect both them and the public and themselves, or is it inhumane as it seems to prevent them from receiving proper treatment and also can worsen their condition.
A balance needs to be struck between the rights of mentally disordered offenders and the public safety and also ensuring that justice is seen to be done. How is the best way to do this is the ultimate question. It is clear that the basis for dealing with offenders with mental disorders is in place, but it is also obvious that some things need to be changed in order to satisfy all sides of the equation.
BIBLIOGRAPHY
Brown, D. PACE ten years on: a review of the research. Home Office Study No. 155. Home Office (1997) (In Davies, Croall &Tyrer (2000))
Davies, Croall & Tyrer. Criminal justice (2nd edition). Longman (1998)
Harrower, J. Applying psychology to crime. Hodder & Stoughton (1998)
Reiner, R. The politics of the police. Oxford (2000)
Stephens, M. Crime and social policy. Gildredge (2000)
OTHER SOURCES
bbc.co.uk
guardian.co.uk
independent.co.uk
times.co.uk
