Contact with the police

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If you find yourself approached by the police about your behaviour, it is important to co-operate and listen to what they are saying. Use this guide as a way of making sure you know what your rights and responsibilities are.*

• Mental Health Act 1983, as amended by the Mental Health Act 2007

The police have powers under the Mental Health Act to take you to “a place of safety” if they believe you are suffering from a mental disorder and they are seriously concerned about your health or about the safety of others. These powers are set out in Section 135 and 136 of the Mental Health Act, depending on whether you are in a private house or a public place.

Under Section 135 the police have the power to enter your home or another private house, together with a doctor and an approved mental health professional, and take you to a place of safety but, before they can do this, they must obtain a warrant from a magistrate.

If the police and mental health professionals enter your home, it is important to ask to see their authorisation from the magistrate. When you have seen this, try to remember that the reason they are there is because they are concerned about your health, safety and well-being. It is unlikely you have done anything wrong, but you may be very unwell and not realise that you need some help and assistance.

Try to stay calm and ask that they contact your family or carer, and also try to ensure that the mental health professionals take time to explain what is happening to you.

If you are in police custody and you do not speak or understand English, or you have a speech or hearing impediment, the police must provide an interpreter or a sign interpreter, for example.

Under Section 136 the police have powers to take you from a public place to a place of safety if you appear to be behaving strangely and showing signs of being seriously unwell.

 

• Assessments in a Place of Safety

The police powers in Section 135 and 136 have just one purpose – to create the opportunity for you to be examined and assessed by a doctor and an approved mental health professional in order to ensure you have access to the care and treatment you need. (The term “approved mental health professional” is in the 2007 Act and replaces the term “approved social worker” in the 1983 Act. An “approved mental health professional” can now be a nurse, occupational therapist or psychologist as well as a social worker.)

You can be held in a “place of safety” (the term used in the Act) for up to 24 hours after detention under S135 or S136, although in practice your assessment should be completed in a much shorter time, usually within a few hours. However, a police officer should call health professionals prior to using a S136. A place of safety could be a hospital (including A&E) or other mental health accommodation. Individuals should be taken to a health-based place of safety, not a police cell, unless indicated that this would not be safe.

In Wales the Crisis Care Concordat works to reduce the powers of detention under Section 135 or 136 and to prevent the use of the police custody suite as a place of safety except in exceptional circumstances (e.g. if significant violence has taken place), and to ensure that custody suites are never used as a place of safety for a child or young person under the age of 18.

Once you are assessed there could be three outcomes:
1. You are released from the place of safety and allowed to return home, hopefully with the help and support you need.
2. You agree to be admitted to hospital on a voluntary basis.
3. You are compulsorily admitted to hospital under a further Section (normally Section 2 or 3) of the Mental Health Act.

• Stop and Search

The police also have the power to stop and search people if they think they have reasonable grounds for suspicion. Remember, the police do not have general powers to stop and search you unless you consent.

A ‘stop’ is when an officer stops you and asks you what you are doing, where you are going and what you are carrying. A ‘stop and search’ can take place if an officer believes that you are carrying drugs/weapons/stolen property, or items that could be used to commit an act of crime/terrorism. It does not mean you are being arrested.

The officer who stops you must give you the reason why you have been stopped, give you their details (including name, police number and station) and a copy of the stop/search form. You can ask that the officer who searches you is the same sex as you.

• Arrest

The police can arrest you with or without a warrant if they suspect that you have committed an offence. The Serious and Organised Crime & Police Act 2005 got rid of the term ‘Arrestable Offence’, meaning that today any Constable can arrest for any offence. The police have the power to use ‘reasonable force’ in arresting you. This is a level of force “no more than absolutely necessary” to achieve the arrest. If the police exceed that level of force, they may violate your human rights.

When you are arrested you cannot be locked up indefinitely. The general rule is that you may not be kept in police detention for more than 24 hours without being charged. This period can be extended to 36 hours by an officer at the rank of Superintendent. If the police wish to detain you for over 36 hours a magistrate’s extension is needed. The general maximum period of detention is 96 hours after which they must either let you go, ask a magistrate for another 24 hours in which to question you, or charge you.

After being arrested you have three basic rights:
1. The right to free and independent legal advice.
2. The right to have someone informed of your arrest – usually a relative or friend.
3. The right to consult the Codes of Practice (a booklet concerning police powers and procedures).

  • Hafal’s advice: Make sure you ask for legal advice as soon as possible. Everyone is entitled to free legal advice at the police station from a solicitor whose office is contracted with the Legal Services Commission (LSC) or from a Public Defenders office. You can ask the police to contact the duty solicitor (if there is one available), or for a list of local solicitors, or to contact your own solicitor. Also make sure you ask the police to inform a relative/ friend that you have been arrested and make sure your Care Coordinator knows what has happened.

 

 

 

In very rare and unusual circumstances access to legal advice may be delayed by the police for up to 36 hours. However the police would need to have extremely strong grounds for thinking it necessary, and it must be authorised by a Superintendent. When the solicitor arrives, they will:
1. Tell you what is happening to you.
2. Explain any legal terms to you.
3. Speak on your behalf and present a case for your defence.

People with a mental illness are particularly vulnerable to the distress and pressures caused by the experience of arrest and police detention, and an ‘appropriate adult’ must be offered to people who find themselves in such situations (and anyone under the age of 17). This is a responsible adult who is independent of the police and whose role is to:
• Look after the detained person’s welfare.
• Help them understand what is happening and why.
• Explain police procedures.
• Provide information about rights and ensure that these are protected.
• Facilitate communication with police.

  • Hafal’s advice: Make sure you ask for an appropriate adult to attend, if one hasn’t been offered to you. Make sure you ask the solicitor and appropriate adult to request that a mental health practitioner assess you.

 

If you are taking regular medication let the police know as soon as possible. At this point if you are very unwell (for example experiencing psychosis) the police can ask a police surgeon to examine you to decide whether you are fit to be detained and/or interviewed. This is the point where the medical examiner can ask for an approved mental health professional to be called so that a psychiatric assessment can take place. If you need to be taken out of the criminal justice process because of your mental ill health, a psychiatrist will normally need to make this decision. They work alongside the solicitor and are there to support you.

The police have the right to take your fingerprints, to photograph you and to take samples from you. When the police interview you, they will tape record the interview.

There are several possible outcomes following an interview with the police:

1. No further action – where the police decide that there is insufficient evidence to prosecute or that a warning would be sufficient.
2. Caution – if it isn’t in the public interest to prosecute you, the police can give you a formal caution for your conduct.
3. Fixed Penalty Notice – this is a fine and it is used for a variety of minor offences (e.g. causing noise).
4. Penalty Notice for Disorder – these are also fines but they are for more serious behaviour like causing alarm and distress to others, being drunk and disorderly, retail theft under £200 and using threatening words or behaviour.
5. Prosecution – this is where it has been decided that the case needs to go to court. The Government Department responsible for determining the charge and prosecuting criminal cases instigated by the police in England and Wales is the Crown Prosecution Service (CPS). The CPS must “prosecute cases firmly, fairly and effectively when there is sufficient evidence to provide a realistic prospect of a conviction and when it is in the public interest to do so”.

*Please note that the Police and Crime Act is due to be published in December 2017, and this content will be updated accordingly