Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview

9
Diversion, Europeanization and the Mentally Disordered Offender

PHIL FENNELL AND FRANS KOENRAADT


INTRODUCTION

In recent years diversion policies for mentally disordered offenders have been adopted with particular fervour in England and Wales. They rest on three principles: (1) that special safeguards are necessary governing questioning of mentally disordered suspects in the police station and their confession evidence, since they may be especially liable to make false admissions;1 (2) that mentally disordered suspects and offenders should be diverted away from the penal system and into the health and social care system; (3) that, once in the psychiatric system, patients are entitled to be cared for in the least restrictive setting commensurate with the need to protect the public.2 However, the gulf between policy and practice remains wide because, although a legal framework for diversion has existed since 1959 and since 1984 for the protection of vulnerable suspects in the police station, it was not until 1990 that Circular 66/90 on the Diversion of Mentally Disordered Offenders from Custody was issued following renewed expressions of concern about the high numbers of mentally disordered prison inmates and the increasing numbers of suicides in prisons.3

In the Netherlands, which has a reputation as a model for humanitarian forensic psychiatric practice, the demand for forensic psychiatric assessment has decreased in recent years, reflecting concerns to limit the psychiatrization of criminal justice, lack of faith in the efficacy of psychiatric treatment, and an increasing belief that the TBS regime for dangerous mentally

____________________
With thanks to Nico Jörg, Bert Swart, and Johan Legemaate for their help concerning the legal position in the Netherlands
1
See R. v. Ward ( 1993) 96 CrAppR 1; R. v. Raghip, The Times, 9 December 1991; and R. v. McKenzie, Independent, 28 July 1992--where convictions based on confession evidence of mentally-vulnerable defendants were quashed.
2
The principle of the least restrictive alternative was frequently mentioned in the debates leading to the Mental Health Act 1983, and its importance was re-emphasized in the Review of Health and Social Services for Mentally Disturbed Offenders and Others Requiring Similar Services (Chairman Dr John Reed), HMSO 1992, Cm 2088.
3
The Report of a Review by Her Majesty's Chief Inspector of Prisons of Suicide and Self Harm in Prison Service Establishments (The Tumim Report), 1990, Cm 1383.

-171-

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