Offenders, Deviants or Patients?

An introduction to clinical criminology

Herschel Prins

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317494867
• Edition: 5
• Topic: Law
• Subtopic: Forensic Science
• Index: Law

Offenders, Deviants or Patients? provides a practical approach to understanding both the social context and treatment of mentally disordered offenders. Taking into account the current public concern, often heightened by media sensationalism; it addresses issues such as sex and 'historic sex offending, 'hate' crime, homicide and other acts of serious bodily harm.

This fifth edition is fully updated and incorporates the latest research and reflects recent changes in law, policy and practice, including:

DSM-V criteria

groundbreaking work on neuro-physiological aspects of psychopathy

the Coroners and Justice Act

Using new case examples, Herschel Prins draws on his own expertise and experience to examine the relationship between mental disorders and crime and looks at the ways in which it should be dealt with by the mental health care and criminal justice systems. Offenders, Deviants or Patients? is unique in its multidisciplinary approach and will be invaluable to all those who come into contact with serious offenders or those who study crime and criminal behaviour.

Chapter 1

Concerning the author – reflections and recollections

‘Been there, done that, got the T-Shirt’.

Late twentieth-century advertising slogan. Jonathon Green (ed.), Cassell’s Dictionary of Slang, 1998, p.74

‘Those who cannot remember the past are condemned to repeat it’.

George Santanya, philosopher, The Life of Reason, 1905, Vol.1, Ch.12

I must stress at the outset that what follows is somewhat partial. A number of my readers may even find it idiosyncratic. For example I have not included anything but the barest details of my early life. These may be found in Prins (2010). Suffice it to say that some members of my family were heavily involved in work with adult offenders and disadvantaged young people. Being orphaned as an adolescent no doubt played an important part in my later career choices.¹ Following a period of not particularly glorious employment in industry and commerce and a period of national service in the Royal Air Force, I opted for teacher training. However, my applications to teacher training colleges were not successful; thus countless numbers of young minds were saved from my ministrations! A social science diploma was followed by probation training and subsequent entry into the Bedfordshire service early in 1952. Training for probation work in those far-off days was provided by the Home Office. It was very much practice based and, by today’s standards, might be regarded as not very ‘academic’. In my view such criticism would be unwarranted because the course equipped students for the very wide range of duties undertaken at that time.² What follows presents merely a ‘birds-eye view’ of my experiences in criminal justice and forensic mental health care. My reminiscences are not presented in discrete compartments. Instead, I have tried to provide a sequential account covering almost 60 years, divided, where helpful, into year ‘bands’.

One phenomenon stood out very clearly. This was the small-scale nature of probation work and its organisation. For example, by today’s standards, the service was a comparatively small enterprise. It was not particularly hierarchical, neither was its organisation complex, as is the case today. Some areas did not even have a principal probation officer (as they were then called) in charge. Bedfordshire was one such area. It was headed by a senior probation officer with a comparatively small number of main-grade staff. Contact with ‘clients’ in what was a predominantly rural area (apart from the boroughs of Bedford, Luton and Dunstable) was facilitated by ‘reporting centres’. These were situated in a variety of locations, for example church halls or local authority offices such as health centres. These were often in quite isolated locations. Today, I have little doubt that these would be regarded as quite inappropriate (pace Dr Reid – ‘not fit for purpose’). This would be largely on the grounds of breaching health and safety regulations. I think few of us considered the possible hazards to which we were exposing ourselves. Whether this blithe indifference was a good or a bad thing is no doubt open to debate. In five years’ service in the county I recall being physically intimidated by a client on only one occasion (I found the chairman of our quarter sessions far more intimidating – see later!). Another more general aspect of the service in those early days was its country-wide small-scale membership. One could attend an annual general meeting of the National Association of Probation Officers (NAPO) and know personally more than a handful of those attending. Another notable feature was the almost total absence of women principal officers in the service. I recall an exception being the redoubtable Kate Fowler, principal officer in Sheffield. As I shall demonstrate later, in more recent times some things have changed significantly for the better.

Not only was the Probation Service small-scale, but other services were similarly constituted. The fairly recently established Children’s Departments (through the Children Act of 1948) were only just beginning to get into their stride. A notable exception to the predominantly male leadership in the Probation Service was the appointment of women as Children’s Officers as heads of the new departments. Perhaps this reflected the notion that women were more likely to have a better understanding of children’s (particularly small children’s) needs. Mental health services were also very small-scale, having their origins in Poor Law organisation and practice. In those early days mental health duties were carried out by Relieving Officers, subsequently entitled Duly Authorised Officers, and then by Mental Welfare Officers and of course much later by Approved Social Workers under the 1983 Mental Health Act as subsequently amended by the 2007 Act.³

The Prison Service was also comparatively small-scale. Local prisons (for example Bedford) were run by a governor (sometimes a former senior military officer), a handful of ‘warders’ (prison officers), a chaplain and a part-time medical officer (usually a visiting GP). In the ensuing decades things have changed quite dramatically. The independent Prison Commission disappeared when the Home Office assumed total responsibility for prison affairs, and luminaries such as Sir Lionel Fox and Alexander Paterson disappeared from the scene. Today, prison administration consists of a mixture of complex organisation and gross overcrowding, leading to hardship for inmates and staff alike.

I return to my early days in the Probation Service. My reason for doing so is that it was in those early days that I first developed my long-standing interest in forensic psychiatric matters (known today as forensic mental health). This new title reflects today’s greater multidisciplinary approach to mentally disordered offenders. My immediate predecessor had decided to emigrate with his family to Australia. However, his planned departure was in jeopardy because one of his ‘clients’ had killed his wife. The police were anxious that my former colleague should stay in the UK to give evidence at the Assizes. In the event, they were persuaded to rely on a sworn statement as to his knowledge of his client. The latter was subsequently committed to Broadmoor (High Security) Hospital. I recall that there was no formal inquiry held into the circumstances leading up to the murder. The client had been on probation and was known to the mental health authorities. Today, an independent inquiry would have of course been mandatory (see later comments). Although I had no personal involvement in the case, its features intrigued me. My interest was heightened by the fact that the local asylum (as it was then called) was located within one of my court areas. Under the 1948 Criminal Justice Act, the hospital could, if it agreed, receive offenders on probation with a requirement that they receive in- or outpatient treatment for their mental condition if this was of a fairly minor nature, and they agreed to the treatment. Thus began my acquaintance with those offenders who became the subject of both criminal justice and mental health interventions, often a complex relationship. In those early days the probation officer’s statutory functions were solely concerned with making arrangements (in consultation with the treating psychiatrist) for the amendment or discharge of the order. However, this limitation did not stop me from furthering my interest in matters forensic-psychiatric! This interest had been lying dormant since my student days on the Home Office training course. During our training we were fortunate in having excellent lecturers on the topic of psychiatric aspects of delinquency; examples being the late Professor Trevor Gibbens, the late distinguished psychoanalytic psychiatrist Dr Denis Carroll and the late Dr Peter Scott, with whom I was subsequently to work as a psychiatric social worker at Stamford House Remand Home for Boys.⁴ This is an appropriate point to refer to the ground-breaking Criminal Justice Act of 1948; ground-breaking because some of its provisions tend to be forgotten in the welter of criminal justice legislation passed in the past few decades. Not so long ago Lord Justice Judge, addressing an audience of law students and lawyers, noted that in the past 10 years Labour had created more than 3,000 new criminal offences, produced 115,000 pages of legislation and passed numerous bills including 24 criminal justice measures. He commented on the fact that between 1925 and 1985 we managed with only one each decade.⁵

The 1948 Act had appeared as a bill in 1939, but was shelved on the outbreak of World War II, as were plans for the East-Hubert psychiatric prison, later to become Grendon Underwood and now known simply as Grendon (see Home Office, 1939). This milestone piece of legislation abolished flogging as a penalty (except for assaults on prison staff; that penalty was also subsequently abolished). The Act introduced two new sentences – Corrective Training (CT) and Preventive Detention (PD) for ‘habitual criminals’ (a provision introduced in the Prevention of Crime Act, 1908). Borstal was brought more into line with contemporary ideas, in the new guise of Borstal Training. And, as already noted, the Act introduced a new power for the courts to impose probation orders with a requirement for mental treatment. The statutory frameworks for this penalty have been modified over the years; for example the offender’s consent to the making of such an order is no longer required, and the imposition of such an order counts as a conviction for sentencing purposes. The other point to note is that the term ‘probation order’ is now subsumed as an option under a ‘community treatment order’. The term ‘probation’ and all that goes with it is sadly fast disappearing and, in particular, the discrete work of the probation officer (see later). Many of the provisions of the 1948 Act were subsequently abolished or amended substantially. For example, the sentences of Corrective Training, Borstal Training and Preventive Detention were also abolished but have, to a certain extent, made a number of fresh appearances as the ‘extended sentence’ in its various guises, for example the current provision in the Criminal Justice Act, 2003, for those convicted of certain violent and serious sexual crimes to be given indeterminate sentences. One consequence of this particular penalty has been the exacerbation of the current overcrowding in our prisons. Later enactments introduced the Parole System, the Suspended Sentence and an ever-increasing range of community sanctions. It is worthy of note that the Parole System (as amended from time to time) relies heavily on forensic-psychiatric input and, from its inception through the Criminal Justice Act, 1967, has mandated the presence of a psychiatrist on those panels of the Parole Board considering life-sentence and other serious cases. In recent times, other forensic mental health professionals (such as forensic psychologists) have become involved in the Board’s work.

1950s and 1960s – the wider field

This period saw a further number of far-reaching innovations in the delivery of criminal justice and mental health care. My justification for a high degree of selectivity is that my observations arise out of personal acquaintance with some of them. The year 1957 witnessed a significant change in the law concerning the relationship between mental disorders and homicide. As I shall show in a later chapter, the Homicide Act of 1957 was introduced following the 1953 Report of the Royal Commission on Capital Punishment (Gowers Commission, 1953). In general terms, the Commission had recommended a widening of the scope for seriously disordered mental states to be proffered as a defence to a charge of murder. If such a defence was accepted the charge of murder would be reduced to that of manslaughter on the grounds of diminished responsibility. This provision derived in part from its long-standing use in Scotland. In practice, it currently sits alongside the more restrictive McNaghten Rules. As is so often the case with new legislation, high hopes were raised during the statute’s early days. However, the wording of Section 2 of the Act, and to some extent Section 3 (which dealt with the vexed issue of provocation), have led over the years to a number of somewhat difficult exchanges between the law and psychiatry. Such exchanges were, of course, not new. For example, the late Dr Henry Yellowlees received something of a ‘mauling’ when he gave evidence for the defence in the trial of John George Haigh – the so-called acid bath murderer. It is a sad fact that, because of such encounters, some general psychiatrists of my acquaintance have become reluctant to enter the criminal court arena.⁶ Following closely on the heels of the Homicide Act came the Mental Health Act of 1959. The Act modernised existing mental health legislation which had its roots in the outmoded nineteenth-century emphasis on legalism. The Act was of considerable forensic-psychiatric importance. Under the new legislation, it became possible, on the basis of medical evidence, for the courts to commit seriously mentally disordered offenders to hospital in lieu of other penalties. Written medical evidence from two authorised medical practitioners (almost always psychiatrists) was required for the implementation of an unrestricted order. However, for the implementation of an order restricting the discharge of the patient (to protect the public from serious harm) one of the medical practitioners was required to give oral evidence. Prior to the 1959 Act, the procedures for admitting seriously mentally disordered offenders to hospital had proved somewhat cumbersome and were used infrequently. Another important feature of the 1959 Act was the introduction of the controversial category of psychopathic disorder. This category continues to bedevil law, psychiatry and psychology, and is dealt with in detail later in this book and in Prins (2013). The Act also introduced Mental Health Review Tribunals enabling patients, under the Act’s civil and criminal powers, to appeal their detention. As with the Parole Board, psychiatric inputs (in respect of both reports to Tribunals and membership of Tribunal panels) were of considerable significance. During the 1960s I witnessed a number of other changes of ‘socio-forensic’ interest. The Suicide Act of 1961 removed the offence of attempted suicide from the statute book. This liberalising piece of legislation eliminated the comparatively rare, but nonetheless distressing, criminal prosecutions for such behaviour. Not only distressing for the defendant, but for any relatives and professionals who might also be involved (as in my case, as a probation officer). Another highly significant change occurred during this period. As a result of the Sexual Offences Act, 1967, private acts of adult consenting male homosexuality were decriminalised. In my early days as a probation officer, I had to attend court and to provide reports on adult males who were likely to receive a prison sentence for this behaviour. In addition, they were sometimes subjected to quite inappropriate homilies by sentencers (for example recorders or chairmen of quarter sessions). The manner in which the change in the law came about is of considerable interest. It reveals the complex chains of events often involved in changes in policy and practice. In 1957, the Wolfenden Committee on Homosexuality and Prostitution (Home Office, 1957) recommended a change in the law on what it had come to regard as essentially private acts. The Committee acknowledged that although many people considered these actions immoral and/or irreligious they should no longer be the concern of the criminal law. Some considerable time later a cause célèbre seems to have added weight to the Committee’s proposals. A group of well-known older men had been sentenced to varying terms of imprisonment for acts of indecency with young airmen. An assumption seems to have been made that the older men had ‘corrupted’ the younger. It subsequently transpired that this might not have been entirely the case. The imprisonment of the perpetrators caused some disquiet. As a result, those at the highest levels of law enforcement advised police forces to exercise discretion in bringing prosecutions unless public decency had been infringed or consent was in doubt. Subsequently, the existing law appears to have fallen into disuse and the time became right for the 1967 Act to be passed, with the decriminalisation that followed.

Two further developments during this period are worthy of note. First, the ultimate success of the long-fought battle to abolish the death penalty for murder (by the Murder, Abolition of Death Penalty Act, 1965). The cause had been championed by the efforts of protagonists such as the late Sidney Silverman, MP in the House of Commons, and by the late Frank Dawtry, who had been the secretary of the National Council for the Abolition of the Death Penalty (later the highly effective secretary of NAPO), and others. Various attempts to re-introduce the death penalty since the 1965 Act have always failed, in my view mercifully. Not only had a number of people been hanged in error before abolition, but a number of others would have suffered this fate as a result of wrong convictions. A further humane outcome for members of the psychiatric profession is that they do not have to attest to an offender’s mental fitness to be hanged, as is the case with some of their American counterparts; in my view an odious and unethical practice. Another enactment that demonstrated a more sympathetic approach to human frailty was the introduction of a woman’s lawful right to an abortion by the Abortion Act of 1967. The movement for reform had been spearhe...