Mental Health and Crime

Jill Peay

• Publisher: Routledge-Cavendish
• Year: 2010
• eBook ISBN: 9781136906282
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Does mental disorder cause crime? Does crime cause mental disorder? And if either of these could be proved to be true what consequences should stem for those who find themselves deemed mentally disordered offenders? Mental Health and Crime examines the nature of the relationship between mental disorder and crime. It concludes that the broad definition of what is an all too common human condition – mental disorder – and the widespread occurrence of an equally all too common human behaviour – that of offending – would make unlikely any definitive or easy answer to such questions.

For those who offend in the context of mental disorder, many aspects of the criminal justice process, and of the disposals that follow, are adapted to take account of a relationship between mental disorder and crime. But if the very relationship is questionable, is the way in which we deal with such offenders discriminatory? Or is it perhaps to their benefit to be thought of as less responsible for their offending than fully culpable offenders? The book thus explores not only the nature of the relationship, but also the human rights and legal issues arising. It also looks at some of the permutations in the therapeutic process that can ensue when those with mental health problems are treated in the context of their offending behaviour.

Chapter 1
Mental health and crime

The link between mental illness and crime is well known.

(General Synod, 13 Feb 2008)

The first chapters of this book examine the complicated relationship between mental disorder and crime. Teasing out the various strands makes considerable demands. By way of introduction it is important to bear in mind the broad range of the manifestations of mental disorder: personality disorder, learning disability, and psychotic disorders such as schizophrenia, have at one time or another all been deemed to be mental disorders. But equally, some of these manifestations have, at other times, been contested as properly falling within a definition of mental disorder. At present, the legal definition of mental disorder under s 1 of the Mental Health Act 1983 (MHA 1983), as amended by the Mental Health Act 2007, is ‘any disorder or disability of the mind’; a definition seemingly so broad as to include the world at large. Indeed, it includes many who might consider themselves, and who might be considered by others, to be mentally healthy. For example, whilst learning disability needs to be associated with ‘abnormally aggressive or seriously irresponsible conduct’ in order to invoke a number of the Act’s other sections, it is not wholly excluded (see s 1(2A) and (2B) of the MHA 1983). Similarly, whilst ‘dependence on alcohol or drugs’ alone is not considered to be a mental disorder (s 1(3)), the Code of Practice 2008 under the MHA 1983 (Department of Health 2008: para 3.8–3.12) sets out the situations in which such dependence might bring one within the scope of the definition of mental disorder.

The scope of offending behaviour is similarly wide, embracing property and commercial crimes, offences of personal violence (from the petty to the most heinous) and a host of other activities which do not immediately come to mind as offences, but which range from the terrifying and bizarre to the merely ridiculous. The likelihood therefore of there being any straightforward relationship between the constructs of mental disorder and crime is small. And whilst a number of texts (eg Stone, 2003; Littlechild and Fearns, 2005) have sought to describe the process whereby the criminal justice system in England and Wales deals with mentally disordered offenders, there is less available in an accessible form that reflects on the fundamental nature of the relationship. Indeed, even those texts that engage admirably with the difficulties (for example, Blumenthal and Lavender, 2000) tend to take mental disorder and violence as their focus, and then trail in its wake issues of risk prediction and management, without really grappling with crime per se.

So what fundamental questions dog the field? Does mental disorder cause or contribute to offending behaviour; does engagement with the criminal justice process through offending lead or contribute to mental disorder; does the occurrence of mental disorder make offending less likely; does engagement with the criminal justice process reduce the incidence of further offending and/or lead to the successful treatment of mental disorder; are crime and mental disorder generally unrelated, but the relevant populations of those with mental disorder and those who have offended overlap by reason of other factors (discrimination, exclusion, poverty etc)? Are offenders who have mental health problems coterminous with people who have mental health problems who offend (James et al, 2002)? Indeed, whatever the complex nature of the relationship between crime and mental disorder, that relationship has implications for the relevant procedures utilised in both the criminal justice and mental health systems. Do those procedures and systems deal fairly and equitably with either or both mentally disordered people who have offended, or offenders with mental disorders?

Whilst the latter parts of this book focus on questions of how mentally disordered offenders are processed by the criminal justice and health systems, and whether those dealings are indeed fair and equitable, the first chapters examine the fundamental nature of the relationship between mental disorder and crime, and the evidence relied upon to support the various assertions made. This is difficult terrain and it will be necessary to proceed slowly, charting a path through definitions of crime and mental disorder, and of concepts of causation. There will be a slow descent through levels of detail, both in respect of particular types of crime, and particular types of disorder. And paradoxically, as one digs into the detail, the evidence becomes more persuasive in respect of the logic of limited associations, but at the same time the empirical strength of those associations is undermined because of the progressively smaller number of people involved. Moreover, it simultaneously becomes evident that the associations are not between particular disorders and particular crimes, but between the specific symptoms people can experience at given times, the context in which they experience them and the likelihood of the occurrence of particular kinds of behaviour.

Preliminary difficulties

Crimes and criminals are not coterminous. People who commit crime are not necessarily deemed criminals by the law. The most obvious example of this concerns under-age ‘offenders’. In England and Wales the legal age of criminal responsibility is 10; before the abolition of the presumption of doli incapax by s 34 of the Crime and Disorder Act 1998 it used to be, for all intents and purposes, 14 years old.¹ The age limit is also culturally determined; in Scotland it is eight, in Germany and Italy 14, and Belgium 18. What it means is that no matter how heinous an act committed in England by a nine year old, he or she cannot be convicted of a crime or deemed a criminal. Yet it is well known that under-age ‘offending’ is commonplace: figures released under the Freedom of Information Act 2000 noted that, in 2006, children were the chief suspects in no fewer than 2,840 crimes. Although over half of these were offences of criminal damage or arson, 66 sexual offences were noted, together with offences of burglary and wounding (Glendinning, 2007).

Similarly, people who fall within the terms of the 1843 M’Naghten Rules, that is those who are found not guilty by reason of insanity, may well have committed the act deemed an offence by society, but they will not be held criminally responsible (and hence do not become convicted criminals) because at the time the act was committed the individual concerned did not have the requisite mens rea or guilty mind. Where a person labours under a ‘defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that he was doing wrong’ then that person will receive a therapeutic disposal determined on health grounds rather than a punitive disposal in response to criminal offending (Loughnan, 2007; Mackay, 2006, 2009).

Thus, superficially what looks like a good starting point – to examine what causes crime – becomes complicated by the meaning of ‘crime’ per se. Indeed, if one were to ask the question ‘what causes crime?’ the answer would, I suspect, depend on who is answering the question, and when. The man in the street, in the pub or on the Clapham omnibus may answer, ‘people commit crime’. This answer is, in many respects, not ill-informed. Alternatively a feminist in any of those locations might respond, somewhat more accurately, ‘men commit crime’. But both would be indicating an explanation based in normal individual behaviour, whether motivated by opportunity, greed, lust, wickedness, testosterone or any other of a legion of explanations that may, or may not, verge at their extremes into individual pathology. Ask the question of a criminologist and the answer may come back in a different form or forms, depending on whether the criminologist

1 R v JTB (Appellant)(on appeal from the Court of Appeal (Criminal Division)) [2009] UKHL 20.

has more of a sociological or psychological bent. For the sociologist perhaps the emphasis would be on inequalities in social structure; for the psychologist, some variant of social learning theory may be at the forefront or an emphasis on neurobiological factors beyond an individual’s seeming control. Moreover, whatever the professional explanation or explanations offered, when the question is asked will also be critical, for academic opinion is fluid; causal explanations are like hemlines, they go up and down, and are in and out of fashion. There is perhaps, one positive glimmer here. For, as both psychological and sociological criminologists have gone through periods where they have been variously disenchanted with one another’s explanations, a consensus seems to be emerging, albeit one that is so broad as to be all-embracing; namely, that crime is caused by a multiplicity of factors, some individually based, some in the individual’s environment and some the interaction between the two, whether historical or contemporaneous. And, whilst it may seem self-evident that the causes of crime are complex, it is important to remember that this basic insight can sometimes be lost when thinking about crimes committed by people who are mentally disordered.

Accepting some level of individual responsibility for crime merely raises the further question of why people commit crime. When posed to one 12 year old, this question was answered with ‘because they are greedy or not right in the head’. These admittedly instant responses were subsequently supplemented by the more generalised suggestion that people who commit crime do so ‘to benefit themselves’ and then by the much more specific ‘because voices in their head tell them what to do’. Ironically, the former displays considerable insight as a generalised explanation; Cornish and Clarke (1986) for example, argue that personal benefit is the prime motivation for crime and that social factors play only a background role: whether a crime is committed at any particular point by the ‘reasoning criminal’ will depend upon the prevailing circumstances at the point of potential commission. In this sense they are not interested in dispositional accounts, although it is fair to observe that in drawing on the economic notion of bounded rationality there is an acknowledgement that such rationality is governed by the information available, the time in which the decision has to be made and the cognitive abilities of the decision-maker. In this context, mental disorder is a relevant, albeit neglected, factor.

The latter explanation, that the person is ‘not right in the head’, arguably illustrates the influence that the media have had in forging common understandings of the link between mental illness and crime (Shift, 2008, Thornicroft, 2006). And that these understandings are present even in the comparatively young. For not only does this youngster’s explanation reflect that of many adults, but it also illustrates a reversal of the received wisdom with respect to normal offending: thus, pathology is dominant in explaining the behaviour of those with mental disorder, but environment, heredity and choice dominate the explanation of normal criminal behaviour. Somehow, if people have a mental disorder, this becomes the primary explanatory factor. Yet the research does not bear this out. When meta-analyses (statistical procedures designed to combine the results of a number of studies with related hypotheses) are performed of our predictive abilities with respect to recidivism amongst those with mental disorder, it seems that the routine criminological factors outperform those relating to mental disorder (Bonta et al, 1998). Indeed, John Monahan, perhaps the most influential thinker in the field of violence risk assessment, has asserted in his recent review of the violence-related literature that:

Compared to the magnitude of risk associated with the combination of male gender, young age, and lower socio-economic status, for example, the risk of violence presented by mental disorder is modest. Compared to the magnitude of risk associated with alcoholism and other drug use, the risk associated with ‘major’ mental disorders such as schizophrenia and affective disorder is modest indeed.

(Monahan, 2007:144)

Thus, the critical question that the early parts of this book will address becomes why should mental disorder make any difference to the incidence of criminal behaviour? Like many simple questions this is deceptive. And to answer the question it will be necessary to unpack, albeit briefly, our understanding of what we mean by crime, by mental disorder and by what causes crime. And of course, the causes of crime are notably elusive, as New Labour discovered with its ambitions to be ‘tough on crime, tough on the causes of crime’. In practice, being tough on crime was both seductive and pursuable. Being tough on the causes of crime proved arguably too problematic to address and certainly too tough to solve within the policy constraints, for example, in relation to tackling inequality, that New Labour adopted.

Problems of definition

There is thus one inherent difficulty in thinking about the relationship between mental disorder and crime: namely, both are ill-defined concepts. We recognise them when we see them in their most frank forms: the person suffering from paranoid schizophrenia, who believes that thoughts are being broadcast into their head by aliens, is by most yardsticks mentally ill; the man convicted of raping a stranger deserves punishment as an offender. But most mental disorder and much of what is deemed crime are not so self-evident, so determining the relationship between them is problematic. In many respects, it would be like trying to think of the relationship between happiness and wealth: both are culturally and individually defined; people can rightly think of themselves as wealthy when they have little money or happy in the face of adversity. Similarly, when I ask my criminal law students to assert with a show of hands that they have never committed a crime, it is clear that many, if not most of the class, consider themselves to be law abiding. But as I ask them further questions about driving, copying videos or, more recently, downloading music, buying alcohol, travelling beyond their stop on public transport, failing to return excess change to shops and many other of the day-to-day infractions of the criminal law which they will have committed, but for which they will most certainly not have been caught or convicted, hands quickly go down. Indeed in a recent survey of 3,118 teenagers aged 17–18, seven per cent admitted to driving under the influence of drugs, 20 per cent to drinking and driving and 32 per cent to being a passenger in a car with a driver under the influence of drink or drugs (The Guardian, 30 August 2007). It is a common misunderstanding to assume that crime is only committed by criminals, namely, those who have been publicly caught, convicted and censured for their actions. Committing crime is almost a hazard of living.

My students’ experiences are replicated and amplified by the research. The Home Office Offenders Index (Home Office, 1995) relates to offenders convicted in a criminal court of standard list offences (that is, all indictable offences and some of the more serious summary offences). On the basis of this the Home Office have calculated that, of males born in 1953, 34 per cent of them will have a conviction for a standard list offence by their 40th birthday (and that figure excludes motoring offences): seven per cent had four or more convictions. The pattern for women is different, showing overall much lower rates of conviction (nine per cent by age 46). Similarly, self-report data, including the Cambridge Study in Delinquency Development (Farrington, 1995), document the prevalence of offending (with a peak age of 17), the influence of early onset (associated with persistent offending), and that offending frequency is the strongest predictor of someone being a violent offender. The study also notes that offenders are heterogenous in their offence patterns (but see also MacDonald et al, 2009, Vizard et al, 2007), that is they don’t specialise in violent offending; and that a small group of offenders are disproportionately responsible for offending. Being the victim of crime is, logically, also commonplace.² Thus, crime really is all around us, and very few are untainted by some history of legal infractions, even if comparatively trivial and even if undetected. A criminally blameless life is the aberration. Similar problems relate to the definition of mental disorder, but for the moment the focus will be on crime.

2 Again, this applies equally to children: 95 per cent of surveyed 10–15 year olds had experienced crime at least once, the majority of it perpetrated by other children. Hitting, kicking, being robbed of money or a mobile phone, often at school or between home and school were frequently cited (The Guardian, 10 October 2007).

Chapter 2
Crime

What do we mean by crime?

Agreeing that offences of violence, theft and burglary are crimes is not problematic. Getting agreement that various financial and environmental activities are crimes may take more elucidation. And whilst crimes committed by the state may elicit an agreement that technically they may be crimes, this can be accompanied by a desire to justify them by making reference to the particular political context in which they occur. Nor do regulatory offences and offences of strict liability come readily to mind when defining what is meant by crime; drug taking may be recognised as an offence, but not considered wrong; and the advent of a criminal penalty for the breach of a civil order, as happens with the anti-social behaviour order (ASBO), begins to confound people’s notions of w...

Table of contents

• Contemporary Issues in Public Policy
• Contents
• Foreword
• Acknowledgements
• Acronyms
• Table of cases
• Introduction
• Chapter 1 Mental health and crime
• Chapter 2 Crime
• Chapter 3 Mental disorder
• Chapter 4 Are mental disorder and crime related?
• Chapter 5 Types of crime
• Chapter 6 Mental disorder and violence
• Chapter 7 Symptoms and causality
• Chapter 8 Causal mechanisms, criminology and mental disorder
• Chapter 9 Human rights and mentally disordered offenders
• Chapter 10 Deprivation of liberty
• Chapter 11 Mental disorder and detention
• Chapter 12 The intersection between penalty and therapeutic detention
• Chapter 13 Medical treatment
• Chapter 14 Individual and personal consequences
• Chapter 15 Impossible paradoxes
• Chapter 16 Treatment, mental disorder, crime, responsibility and punishment
• Chapter 17 Fitness to plead
• Chapter 18 Dangerous and severe personality disorder
• Chapter 19 Culpability and treatment
• Chapter 20 Conclusions
• References
• Index