Tuesday 20 January 2009

What is a public place?


Where a person who is in a public place appears to be suffering from mental disorder, section 136 of the Mental Health Act allows him to be arrested by a police constable and detained for up to 72 hours in an appropriate place of safety.

It is hard to find definitive statistics on section 136. The Mental Health Act Commission has suggested that between 2002/3 and 2003/4, the power was used 4,450 times, with patients detained either in hospital or in a police station. (MHAC, 2006, In Place of Fear? Eleventh Biennial Report, 2003-2005, paragraph 4.165 and figure 76) The Independent Police Complaints Commission, however, has calculated that in 2005/6, patients detained under section 136 were held in police cells on 11,517 occasions. (Maria Docking et al, September 2008, Police Custody as a “Place of Safety”: Examining the Use of Section 136 of the Mental Health Act 1983, IPCC Research and Statistics Series: Paper 11, pages 10 & 11)

Because the concept of a public place is used in a wide variety of statutes, the cases it produces are rarely collected together, and as a result, it is hard to know quite what the law permits.

The new Reference Guide to the Mental Health Act 1983 says that a ‘public place’ is “any place (whether indoors or outdoors) to which the public have access, whether by right, by explicit or implied permission, on payment, or otherwise.” (Paragraph 30.17). Because of the courts, however, we also know: that the grounds of a bail hostel have been held not to be a public place. (Harriott v DPP [2005] EWHC (Admin) 965) The contrary may be true both of the upper landing and of a communal balcony in a block of flats. (Knox v Anderson (1983) 76 Cr App R 156; Carter v Metropolitan Police Commissioner [1975] 1 WLR 507)The front garden of a private house will not usually be a public place, (R v Edwards (1978) 67 Cr App R 228) even if it is so small that someone standing in it could inflict harm on a pedestrian on an adjacent pavement. (R v Leroy Lloyd Roberts [2003] EWCA Crim 2753) A car park is a public place, at least during licensing hours, (David Lewis v DPP [2004] EWHC (Admin) 3081) and, even if it is said to be for customers only, if it is attached to commercial premises and accessible from a public place. (May v DPP [2005] EWHC (Admin) 1280) Finally, a private driveway shared by neighbouring private properties is not a public place; members of the public who use it do so as visitors rather than as members of the public. (R v Bogdal [2008] EWCA Crim 1)

It is felt that sometimes, where a person with mental disorder is found in a private place, police constables will attempt to entice him into a public place simply so that the section 136 power can be used. The standard texts say that such a tactic would be unlawful, but a brand new case suggests that it is not.

In that case, a police officer was held to have acted lawfully where he arrested a woman for being drunk and disorderly in a public place, having physically escorted her from a garden to a private footpath. The High Court accepted that the constable had been attempting to reach a negotiated conclusion that would have been in the woman’s own interests, and that he was not motivated by the desire to justify an arrest for an offence that could only be committed in a public place. The High Court said he could properly be said to have acted in conformity with generally acceptable standards of conduct. (McMillan v CPS [2008] EWHC (Admin) 1457)

In order to understand the limits of the section 136 power, practitioners will have to look beyond the Mental Health Act, which was responsible for only one of the cases mentioned above. The other cases were brought under statutes as diverse as the Public Order Act 1936, the Prevention of Crime Act 1953, the Criminal Justice Act 1988, the Road Traffic Act 1988 and the Dangerous Dogs Act 1991. Conventional guidance is rarely so diverse as to embrace all these sources.