Society
When it's right to charge the insane
Published 19 January 2004
Observations on mental illness and the law
In last week's NS, Nick Cohen quite rightly drew attention to the latest, and so far the most dangerous, erosion of due process yet to be proposed in this country: the preventive detention of people believed by "experts" to be dangerous. The government would thereby be able to claim that it was firm in its struggle against violent crime, while being able at the same time to displace the blame for any rise in such crime on the "experts" who failed to predict each individual instance of it.
But Cohen missed an important reason for the government's enthusiasm for pre-emption, and that is the failure of the police and the Crown Prosecution Service seriously to enforce the law as it stands, with all its safeguards for the accused.
Many of the crimes, even very serious ones, committed by psychiatric patients go unrecorded because the police or the CPS simply refuse to prosecute them on the grounds that the perpetrator was, as they say, "psychiatric". They pretend to believe that if a person is under psychiatric treatment, or ought to be under such treatment, the law does not allow them to bring charges and to prosecute. In reality, they want to avoid filling in the forms and doing all the work that bringing a charge and prosecution entail. Anything from theft to arson and attempted murder is often simply disregarded by the police and the CPS, and thereby goes without any legal trace. They say in their defence that the Home Office has issued circulars to discourage them from prosecuting the psychiatrically ill.
In fact, the law permits the prosecution of the psychiatrically ill who, if the court is satisfied that they did the act of which they are accused, are then liable to detention and treatment in psychiatric hospital under a section of the Mental Health Act. There is nothing at all inhumane in this, rather the reverse, and nothing whatever, except incompetence, stupidity and laziness, to prevent or prohibit the prosecution of the mentally ill.
Only last week, I had a discussion with a member of the CID about a man who had committed a very serious offence while psychotic. He had committed many such offences before. He was held temporarily in prison, but - said the CID man - the CPS was refusing to prosecute because he was mad. The failure to prosecute meant that, in practice, he would be released straight on to the street from prison, still mad, and likely to commit an even worse crime. In this particular case, similar to many others I have known, only prosecution would have secured the treatment the man obviously needed and established a legally admissible record. Someone may yet be killed because of the CPS's frivolity.
It is not only psychiatric cases that escape proper prosecution. For example, two non-psychiatric patients at the hospital in which I work attacked a nurse and a consultant respectively, but nothing was done about it, and they went on within a short time to commit brutal murders.
It is cases such as these (all too numerous, as the inhabitants of any of our inner cities will tell you) that fuel calls for pre-emptive action. Instead of taking seriously what people have done, we start speculating on what they might do, in the hope that draconian prediction will compensate for inaction about the past. As so often these days, we have got things exactly the wrong way round, and thereby erode our heritage of due process.
Theodore Dalrymple is a prison doctor
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