Criminal Justice System / Specific Offences

Under the Police and Criminal Evidence (PACE) Act (1984), the police have a number of powers relevant to safeguarding adults.

Under section 17 the police have a power to enter and search premises without a warrant, in order to save life or limb or prevent serious damage to property. Also, the police can enter and search premises without a warrant to effect arrest for an indictable offence, or for recapturing somebody who is unlawfully at large and whom they are pursuing.

Under section 24, the police can arrest, without a warrant, somebody who is or is about to commit or an offence, or where there are reasonable grounds for suspecting this is about to happen.

However, this ‘summary’ power of arrest is dependent on the police believing that certain conditions are made out, which necessitate the arrest.

The Crown Prosecution Service (CPS) is responsible (in most cases) for taking the decision to prosecute; it is then responsible for conducting the prosecution. In deciding whether to prosecute, the CPS has to apply a two-stage test.

The first, the evidential stage, is whether there is enough evidence to provide a realistic prospect of conviction. The evidence has to be capable of being used in court and to be reliable. If there is enough evidence, the second, the public interest stage, is about whether it is in the public interest to prosecute.

Certain groups of individuals, who may be more vulnerable, may be eligible for special measures under the Youth Justice and Criminal Evidence Act (1999).

The Code for Crown Prosecutors emphasises that before taking such a decision, the victim’s views, and the consequences for the victim, will be taken into account.

However, the CPS will consider prosecution contrary to a victim’s wishes (assuming there is sufficient evidence) due to the public interest test being not just about the victim’s wishes, but about the wider public issue of protecting the victim (and other people) from serious harm.

Technically, assault means that a person intentionally or recklessly causes somebody else to apprehend or anticipate any immediate and unlawful violence or touching.

Assault is often wrongly associated with the subsequent violence or touching (battery).

However, assault need not be associated with violence - an assault could stop at the threat. For example, were a person to threaten, with a raised hand – the person being cared for, this could constitute an assault.

Types of assault that have involved staff working with adults at risk have included, bending back the fingers of care home residents, a nurse stuffing deodorant into the mouth of an older person, a nurse slapping nursing home residents across the face, a care worker throwing a cup of tea at a care home resident for not standing up or rough manual massage for constipation.

Section 47 of The Offences against the Person Act (1861), deals with the offence of an assault which leaves physical injury, such as grazes, scratches, abrasions, minor bruising, swelling, reddening of the skin, superficial cuts or a black eye.

Where physical injury is more serious, the offences of actual bodily harm or wounding with intent to do grievous bodily harm (sections 18 and 20) may apply.

Battery may apply where a person intentionally or recklessly applies unlawful force to somebody else, in the form of intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, rude or aggressive.

The type of injury typically associated with such an offence includes loss or breaking of a tooth or teeth, temporary loss of sensory functions including consciousness, extensive or multiple bruising, displaced or broken nose, minor fractures, minor but not superficial cuts or psychiatric injury (that is more than just fear, distress or panic).

Wounding is typically associated with more serious cuts or lacerations, as opposed to more minor ones.

Grievous bodily harm is typically associated with serious bodily harm including, injury resulting in permanent disability or permanent loss of sensory function, permanent, visible disfigurement, broken bones, compound fractures, substantial loss of blood, injuries resulting in lengthy treatment or incapacity or psychiatric injury.

False imprisonment is a common law offence involving the unlawful, intentional or reckless detention (restraint of freedom of movement of a person).

Manslaughter is an offence that comes in different forms, some in common law and some in legislation. It can arise in respect of the actions of professionals and other practitioners treating or caring for vulnerable people; the actions of family relatives, friends or acquaintances; or the corporate, institutional actions of organisations involved in caring or treating people.

The offence often contains gross negligence, as opposed to ordinary negligence, as ordinary negligence - even if death had resulted, would give rise to a civil case only. For example, in a case where an adult in need of care and support person drowns in the bath at a care home, the court might accept that there might have been negligence, but not criminality (wilful neglect) that would be required for the threshold of manslaughter to be met.

Involuntary manslaughter occurs if the accused person intentionally did an act that was unlawful and dangerous and that that act inadvertently caused death.

It is unnecessary to prove that the accused knew that the act was unlawful or dangerous. The test is an objective one – whether a reasonable person would recognise that the act was dangerous.

The Sexual Offences Act (2003) sets out a number of general offences involving issues of consent. They can be used to prosecute, whether or not the victim has a mental disorder and whether or not the victim had the ability to consent.

The Act includes measures to help juries make fair and balanced decisions on the question of consent whilst also introducing new offences to improve protection for children and vulnerable adults, such as:

• Abuse of position of trust - designed to protect young people who are potentially vulnerable to sexual abuse from people in positions of trust
• Offences against persons with mental disorder – includes offences against people who cannot legally consent to sexual activity because of a mental disorder (sections 30-33) and offences against people who may or may not be able to consent to sexual activity but who are vulnerable to inducements, threats or deceptions because of a mental disorder. (sections 34-37)

A further set of offences relates to victims with a mental disorder and care workers (sections 38–41). Conviction for offences under this Act may mean that the offender is placed on the Sex Offenders Register.

A Sexual Offences Prevention Order (SOPO) can be made either at the time of conviction, or on application by the police, after conviction, if it is necessary to protect the public from serious sexual harm by the offender (section 104).

The order can be wide-ranging in terms of prohibitions placed on the person.

Section 1 of the Theft Act (1968) states that a person is guilty of theft if they dishonestly appropriate property belonging to somebody else. The intent must be to permanently deprive the other person of the property.

It will not be dishonest if the person believes they have a right in law to deprive the other person of it. It will also not be dishonest if the person believed that the other person would have consented, if the other person knew of both the appropriation and the circumstances.

There seems often to be an assumption that if a person makes a gift to somebody else, but is judged probably to have the mental capacity to make that gift, then it could never be regarded as theft. This view often seems to prevail even if the making of the gift is associated with what appears to be serious exploitation or coercion.

Sections 1-3 of The Fraud Act (2006) established a general offence of fraud, which can be committed by false representation, by failing to disclose information, or by abuse of position. The behaviour must be dishonest and aimed at making a gain or causing a loss.

Explanatory notes to the Act specifically envisage that fraud due to an abuse of position may be committed, for example, where a person employed to care for a person has access to that person’s bank account and transfers funds to invest in a business venture of their own.

False accounting entails dishonesty, with a view to gain or to cause loss to somebody else. It includes destruction, defacing, concealing or falsifying accounts, records or documents, or making use of them, when the person knows they may be misleading, false or deceptive (section 17 Theft Act).

Under section 1 of the Forgery and Counterfeiting Act (1981), forgery occurs when a person makes a false document, intending that it be used to induce somebody else to accept it as genuine, and prejudicially to act or not act in respect of that other person or somebody else.

For example, a professional regularly opens and reads the mail of an adult in need of care and support, and using this position of trust, forges the adult’s signature on a letter to the building society and withdraws money.

A person is guilty of robbery if they steal and, immediately before or at the time of doing so and in order to do so, they use force on any person or puts or seeks to put any person in fear of being subjected to force (section 8 of the Theft Act).

Offences of wilful neglect or ill treatment are referenced in both the Mental Capacity Act and Mental Health Act. The offences of ill treatment (generally more deliberate) and wilful neglect (tending toward omission, albeit with intent or recklessness) cover a wide range of behaviour perpetrated on vulnerable adults.

It is not necessary under the MHA that the person be detained or subject to compulsion under that Act, it is enough that the person, for example, be in a nursing home for treatment for mental disorder, or is simply in the care of anybody at all.

If there is no lack of mental capacity and no mental disorder, then – no matter how ill, vulnerable and helpless a person is – there is in English law no offence of wilful neglect or ill treatment.

However, if a person does not lack capacity, but the perpetrator believed that he or she did lack capacity, then under s.44 of MCA a prosecution can still take place.

The Criminal Justice and Courts Act (2015) section 20 creates an offence of ‘ill-treatment or wilful neglect by an individual who has the care of another individual by virtue of being a care worker’.

An individual guilty of an offence under this section is liable to up to 5 years imprisonment or a fine (or both). ‘Care worker’ means an individual who, as paid work, provides health care for an adult or child, other than excluded health care, or social care for an adult, including an individual who, as paid work, supervises or manages individuals providing such care or is a director or similar officer of an organisation which provides such care.

Under the Medication Act (1968) it is an offence to administer drugs that have been prescribed to someone else.

Under the Domestic Violence, Crime and Victims Act (2004), it is an offence to cause or to allow the death of a vulnerable adult.

This Act applies when a vulnerable adult dies when a member of the household had either caused or allowed the death. To be a member of the household, the person does not have to have lived there, if he or she visited frequently for such periods of time that it would be reasonable to consider him or her a member of that household.

The defendant must either have directly caused the death of the victim, or at least was, or should have been, aware of the risk, and failed to take reasonable steps to protect the victim and the act occurred in circumstances that the defendant foresaw or should have foreseen.

Torts in common law jurisdiction are civil wrongs which unfairly cause someone else to suffer loss or harm resulting in legal liability for the person who commits the act.

Injunctions may be available in respect of the torts of assault, battery, nuisance, false imprisonment or trespass. These may be useful in cases involving people who are not covered by legislation, although their scope is more limited. Injunctions may not restrain conduct which is classified as harassment and a person may not be excluded from a home which they have a right to occupy.

Injunctions under the Law of Tort for trespass may be the only appropriate remedy where the abuser is not the spouse/cohabitee, but possibly another member of the family.

The county courts can issue common law injunctions to stop a person being on another person’s property or to stop them assaulting the person. In some circumstances local authorities can seek injunctions (or conduct other legal proceedings) under the Local Government Act (1972) where it thinks it expedient for the promotion or protection of the interests of the inhabitants of their area (section 222).

Common law allows for the intervention - without the consent of the adult - to save ‘life and limb’, based upon the principle that the action was necessary and proportionate in the circumstances. Not to act under the most serious circumstances could be deemed negligent.

In high risk situations, where both physical and mental health needs may both be a critical factor, physical health needs should be given priority.

The resulting action - for example, removing the individual to a casualty department - would then be via a common law intervention. When it is physically safe to do so, the adult’s mental health needs should then be assessed, for example via the Mental Health Act.