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Tessa Boyd-Caine - Protecting the Public?: Detention and Release of Mentally Disordered Offenders

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Protecting the Public?: Detention and Release of Mentally Disordered Offenders
Author:
Tessa BoydCaine
Publisher:
Routledge
Genre:
Books / Politics
Year:
2012
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The separation of powers and independent, judicial decision-making are generally accepted as hallmarks of the rule of law in democratic societies. Yet the exercise of executive discretion remains an important aspect of criminal justice in many areas. Protecting the Public? explores the tension between the rights of individuals detained under criminal and mental health law and the responsibility for public protection in the little-known world of executive discretion over mentally disordered offenders. It is based on extensive and unique empirical research conducted at the UK Home Office, with legal and clinical practitioners, with civil society organisations and by reference to comparative jurisdictions. Central questions considered include: executive, judicial and tribunal decision-making; mental health and criminal law reform regarding serious or high-risk offenders; the influence of human rights law on policy and practice; and the role of civil society, particularly victim interest groups, in public policy. Through its analysis of decisions to release high-risk offenders, this book goes to the heart of the public protection agenda - examining how the public is constructed and what protection is provided by the exercise of executive discretion. This book will be of interest to academic and other researchers, students, policy-makers, law reformers, commentators and anyone interested in the field of criminal justice, mental health law and public policy.

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Protecting the Public?

Detention and release of mentally
disordered offenders

Tessa Boyd-Caine

First published by Willan Publishing 2010 This edition published by Routledge - photo 2

First published by Willan Publishing 2010
This edition published by Routledge 2012
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017 (8th Floor)

Routledge is an imprint of the Taylor & Francis Group, an informa business

First issued in paperback 2012

Tessa Boyd-Caine 2010

The rights of Tessa Boyd-Caine to be identified as the author of this book have been
asserted by her in accordance with the Copyright, Design and Patents Act of 1988.

All rights reserved; no part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior written permission of the Publishers or a licence
permitting copying in the UK issued by the Copyright Licensing Agency Ltd, Saffron
House, 610 Kirby Street, London EC1N 8TS.

First published 2010

ISBN 978-1-84392-527-9 (hbk)
ISBN 978-0-415-62796-2 (pbk)

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Project managed by Deer Park Productions, Tavistock, Devon
Typeset by GCS, Leighton Buzzard, Bedfordshire

Contents

Acknowledgements

As much as it defies orthodoxy to say so, I loved doing my PhD. This was thanks largely to excellent supervision and the ongoing support of great friends, colleagues and family. I undertook my doctorate at the London School of Economics and Political Sciences (LSE) primarily for the opportunity to work with Professors Paul Rock and Jill Peay. I could not have hoped for better supervisors. Their guidance challenged my own boundaries, as well as that of the terrain I was researching. Moreover, the immense respect with which they are held in their respective areas played no small role in the access I obtained to my own field of study. I am most appreciative of their ongoing advice, support and friendship. The Crime and Deviance research seminar at the LSE was another formative environment, albeit at times intimidating. A number of the chapters in this book began as papers to that group and I acknowledge their comments and suggestions with thanks. I also acknowledge institutional support in the form of scholarships and travel funding from the Department of Sociology, LSE and the Central Research Fund of the University of London; and the facilities of the Monash Centre at Prato, which made for the most pleasurable environment in which to draft a chapter.

I am grateful to Paul, Jill, Dr Linsay McGoey and to the publishers reviewers who generously read parts or all of the first draft of this manuscript and provided insightful comments. Throughout the PhD and writing of this book many dear friends and family provided advice and support and I thank them also: Larry Boyd, Barbara Caine, Marina Carman, Megan Clinch, Krisztina Csedo, Peter Dunn, Kim Frost, Chris Hamilton, Emma Keene, Dominic Millgate, Eva Neitzert, Ruth Poisson, Joanne Smith, Julie Stubbs, Gabrielle Walsh and Daniel Woods.

The care of family was a constant source of reassurance as well as providing wonderful locations for respite. I thank Boyds, Caines, Duffys and Murphys in that regard. I am particularly grateful to Barbara for comments on the final draft; and for an immense proofreading effort by Peter Duffy.

Finally, this work could not have been possible without the participation of practitioners, administrators and scholars in the field: Nigel Battson, Jon Basson, Richard Charlton, Jeremy Cooper, Nihal Danis, Mark Darby, Rowena Daw, Sarah Denvir, Nigel Eastman, Kelly Foreman, Julian Gibbs, Nick Hearn, Tony Maden, Richard Mendon, Elizabeth Moody, Claire Ratcliffe, Wendy Robinson, Lucy Scott-Moncrieff, Nigel Shackleford, Penny Snow, Tim Spencer-Lane, Sandra Sullivan, Geoff Tremelling and Jacqui Woodward-Smith. I hope the book provides some small return for their generosity of time and for their insights into the care, treatment and control of mentally disordered offenders.

This book is dedicated to Louise, Vanessa and Rebecca, who provided me with an idyllic Sydney beachside setting at an important point in the writing of it.

Preface

The separation of powers between executive and judicial functions is a crucial principle of law and justice and is central to most democratic penal systems. Yet the exercise of executive discretion remains a key element of decision-making in a number of areas of public policy. These range from the release of certain categories of criminal offenders, to assessing applications from refugees and asylum seekers. Most recently, the worldwide increase in anti-terrorism laws has featured an expansion of executive power on an unprecedented scale, from the detention of suspects without charge or trial, to extending police powers of surveillance and limiting movement. Far from an obsolete process, executive discretion seems to have increasing currency. The common element in each of these areas is the exercise of executive discretion over detention as a measure to contain certain people who are deemed to threaten public safety.

Protecting the Public? analyses the use of executive discretion at the intersection of the criminal justice and mental health systems, through an empirically grounded study of restricted patients in England and Wales. Restricted patients have been convicted of a criminal offence. Instead of being given a prison sentence, they are detained in hospital under the powers of the Mental Health Act 1983. This allows them to be detained indefinitely for the purpose of compulsory treatment of their mental disorder. Once a restricted patient, they become subject to executive discretion, via the powers vested in the Secretary of State. Decisions about the location and level of security of their detention; any change in those conditions; leave from that detention; and discharge to the community all require an order from the Secretary of State. The presence of an independent, quasi-judicial institution is reflected in the powers of the Mental Health Tribunal. However, the Tribunal's power over restricted patients is limited to discharging a patient from hospital into the community, either subject to ongoing conditions or unconditionally. While this is an essential element of the restriction process, it usually comes after a long period of care, treatment and detention, during which time patients have been solely subject to executive discretion.

The book explores what it is about this group of offenders that renders them subject to executive discretion. Why does a cabinet minister make decisions about their discharge and not the psychiatrists or hospitals usually authorized to do so for people detained under the compulsory provisions of mental health legislation? Why not the courts, tribunals and parole boards that determine the release of other offenders? What is it about the conflation of mental illness and criminal offending that necessitates a minister making decisions about movement and discharge, rather than the institutions usually charged with such responsibility?

Underpinning these questions is the increasing dominance of the public protection agenda in various areas of public policy. The function of executive discretion is directly related to the contemporary political (and hence policy) imperative to provide the public with a measure of protection. But this agenda begs many more questions. Who do we mean by the public? How are they protected through the function of executive discretion? Conversely, how is the public protection agenda reflected in the decisions made under executive authority?

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