Diversion of Mentally Disordered Offenders

“The policy of diversion of mentally disordered offenders is sound. The problems are in the detail of its scope and application.” Discuss.
Diversion is a ‘decision- making process at various stages of the criminal justice system’[1] which enables offenders to avoid being prosecuted, imprisoned and punished but alternatively identified and treated in a different way. The treatment of mentally disordered offenders is a controversial area which provokes differences in opinion as to whether they should be treated as “mad or bad”? Should they be subject to the normal process of criminal law or should a more humane approach which focuses on treatment be employed? It has been acknowledged that mentally disordered offenders ‘cannot be said to deserve punishment if they lack the necessary responsibility to be aware of their crime.’[2]Alternatively, they should be treated similarly to sufferers of any other illness, ‘with care and compassion.’ [3] In determining whether policy of diversion is sound it is necessary to define “sound” to establish consistency within my argument. In the context of this essay, I believe sound to mean ‘free from defect’.[4] In theory, I consider the concept of diversion to be a positive method of dealing with mentally disordered offenders. In reality, however, the policy is subject to various limitations which affect the extent to which it may be deemed valuable. According to NACRO (2005) the situation is “far from ideal” [5]highlighting the problems which exist in relation to the policy. Problems in the detail of its scope and application can be held accountable for its lack of success. I will determine whether they are wholly responsible or whether there are other flaws which explain the limited success of the policy. I will, firstly, evaluate the policy of diversion and establish whether it fits the description of “sound” and then examine how successful the policy is in practice.
Diversion is considered to be a more appropriate method whereby

Bibliography: Books • Anderson-Ford, David, Halsey, Michael, Mental Health Law and Practice for Social Workers, 1st edn, (Butterworths, 1984) • Bartlett, Peter, Sandland, Ralph, Mental Health Law: Practice and Policy, 3rd edn, (OUP, 2009) • Cavadino, Michael, Mental Health Law in Context, 1st edn, (Dartmouth, 1989) • Cavadino, Michael, Dignan, James, The Penal System: An Introduction, 4th edn, (Sage 2007) • D • Gostin, Larry, Rassaby, Elaine, Representing the Mentally Ill and Handicapped, 1st edn, (Quartermaine House Ltd, 1980) • Hogett, Brenda, Mental Health Law, 4th edn, (Sweet and Maxwell, 1996) • Maguire, Mike, Morgan, Rod, Reiner, Robert, The Oxford Handbook of Criminology, 4th edn, (Oxford University Press, 2007) • M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999) • Peay, Jill, Tribunals on Trial, 1st edn, (Oxford University Press, 1989) • S • The Divided Self: An Existential Study of Insanity and Madness (Penguin 1990). • Webb, David, Harris, Robert, Mentally Disordered Offenders, 1st edn, (Routledge, 1999) Cases • R v Courtney (1987) • R v Birch (1989) 11 Cr App R(S) 202 (CA) • R. v Wellard (1884) Handouts • Sandland, Ralph, Criminal Justice and the Penal System: Mentally Disordered Offenders, (University of Nottingham School of Law, 2009-2010) Reports • The Butler Report • CPS Annual Report 1992-3 (HMSO 1993), 50. • Review of Health and Social Services for Mentally Disordered Offenders and Others Requiring Similar Services (Reed Report) (1992) Statute • James et. Al (2002) • Vaughan et al • Troubled Inside: Mental Healthcare in Prisons, (Prison Reform Trust, 2006) Available at: http://www.prisonreformtrust.org.uk/subsection.asp?id=438 ----------------------- [1] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Preface [2] The Divided Self: An Existential Study of Insanity and Madness (Penguin 1990). [3] Percy Commission, para 5; 1978 White Paper Cmnd. 7320 Note 1, p. v. [8] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 44 [9] S [10] Hogett, Brenda, Mental Health Law, 4th edn, (Sweet and Maxwell,1996), p.75 [11] James et al 6 The Bow Street and Marlborough Street Magistrates’ Courts’ Psychiatric Assessment Scheme [12] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999) [13] Hogett, Brenda, Mental Health Law, 4th edn, (Sweet and Maxwell,1996), p.86 [14] Mental Health Act 1983 s [15] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999) [16] Session 1982-3 vol [17] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999) [18] Peay, Jill, ‘Mentally Disordered Offenders, Mental Health, and Crime’ in Maguire, Mike, et al [19] Vaughan et al. 2001 [20] Peay, ‘Mentally Disordered Offenders’ in Maguire, Morgan and Reiner (eds), Oxford Handbook of Criminology [21] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 54 [22] M [23] Hoggett, Mental Health Law (1990), 48. [30] s.136(1) Mental Health Act 1983 [31] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 84 [32] A concept which has long been used under public order legislation; see R. v Wellard (1884) [33] Recent Mental Health Act Commission Reports have also expressed similar concerns about the regional variations [35] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 87 [36] Rogers and Faulkner, Place of Safety, 21; this is confirmed by the second stage of this research- P [37] s.136(1) Mental Health Act 1983 [38] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 54 [39] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 89 [40] NACRO, Revolving Doors, p [41] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 99 [42] Cm [43] CPS Annual Report 1992-3 (HMSO 1993), 50. [47] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 53 [48] Sanders, ‘Limits to Diversion’, 513. [50] Hogett, Brenda, Mental Health Law, 4th edn, (Sweet and Maxwell,1996), p.99 [51] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 68