Can a public order offence take place in a mental health facility?

14 December 2020

Not reviewed after the date of publication

Question: 

Can a person commit an offence under section 5, 4a or 4 of the Public Order Act 1986 while in the communal lounge area of a medium secure mental health facility?

Answer:

An offence under section 4, 4A or 5 of the Public Order Act 1986 may take place in a public or private place. No offence is committed, however, if such conduct takes place inside a 'dwelling' and the person to whom it is directed is inside that or another dwelling.

The definition of a 'dwelling' is set out in section 8 of the Act.

'dwelling' means any structure or part of a structure occupied as a person's home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose 'structure' includes a tent, caravan, vehicle, vessel or other temporary or movable structure;'

A number of cases have sought to discuss the meaning of 'dwelling' in the light of the particular circumstances, for example:

In Le Vine v DPP 2010 - a laundry room that could be used by the residents of a block of flats was not part of the dwelling of an individual resident.

In R v CPS Leicester 2006 - a police Cell is NOT a home or 'other accommodation where a person lives'.

In Rukwira v DPP 1993 - the court ruled on appeal that the expression 'dwelling' in section 4(2) of the Public Order Act 1986, did NOT include communal landings outside self-contained flats.

As can be seen, there has not been a case so far which reflects the exact circumstances you describe. However, it could be argued, that it bears similarities to the case of R v CPS Leicester, in that the person is likely to be held in this centre as a result of a court order, in the same way a person in a cell is detained there upon arrest. As such, they stay there under the rules of that institution and thus it is not deemed a 'home or other accommodation where a person lives'. It is our opinion therefore that offences under the Public Order Act 1986 could be committed in any part of this building, however ultimately, this would be an issue for the court to determine.

We would advise that you consider exactly where the behaviour took place - a room where a person sleeps or eats could be dwelling, but a communal corridor etc. may not be (as per Rukwira , above). Ultimately, this would be an issue for the court to determine, if challenged.

We would advise discussing the circumstances with the staff in the first instance, to see if any internal measures can be put in place to improve the behaviour of the patients / residents. Where patients have mental health issues, then although the other patients and the staff should not have to be subject to abuse, criminalising the patient's behaviour may not be the best route to help them. It may be worth looking at other options before a criminal prosecution is sought.

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