A number of questions in recent weeks about the types of location in which s136 MHA can be used. —
In one recent circumstance, a presenter asked this in a training setting and one attendee quite fairly and promptly came back with “anywhere other than a dwelling”. It’s as good an answer to give, unless you can quote the legislation but I want to go in to the reasons why we need to remember that this answer is, in the end, a short-hand summary of the legal situation. It’s no doubt useful, but it is short-hand and it’s not what the law itself states. I want to spend this post emphasising what the law in fact does state and why the short-hand can be problematic when it comes to some of the more unusual situations which do emerge.
First, let’s remember what sub-section, s136(1A) MHA states. This is the section introduced in 2017 which altered the law away from the old “place to which the public have access” idea —
“(1A) The power of a constable under subsection (1) may be exercised … [anywhere] other than — (a) any house, flat or room where that person, or any other person, is living, or (b) any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.”
You’ll notice the word “dwelling” does not appear. That’s why we need to remember it’s a non-legal shorthand, at best. There are seven key location types mentioned in the definition and a keyword of “living” that we need to consider.
Some people do live in locations which may not necessarily be a house, flat or room – it may well be a dwelling to them, but the legal definition is what determines all cases on their merits. Where someone lives in a tent or lives in a hotel on an ongoing basis – these places are a dwelling for that person, no doubt; but whether they are locations where s136 MHA can be used is a different question. Any officer having to make these decisions can only refer to the definition in s136(1A) above and ask themselves whether it applies.
For the avoidance of doubt: I’m not saying this legal position is right or wrong or that it’s good or bad – I’m just trying like others to work out and work with, what Parliament has given us. All you can do is look at 136(1A) and ask the question “is this a house, flat or room where that person or any other person lives”? These are ordinary English words, they have an ordinary English meaning and you can only try to think what these words mean in ordinary language and apply the common sense test – important not to over-think it, too!
You can tell me that the sub-division of a tent is a room if you want, but that’s not what we ordinarily think of when someone employs that word. When thinking about hotels, it’s obvious such a location is room but you’ll have to think carefully about what the word “living” means. In the oft-used example, some Grenfell Tower victims are living in hotel accommodation years after the fire, not yet having been permanently re-housed after the disaster. By any stretch, they are living in those hotels and s136 would not be lawful (in the individual room where the person has privacy – would be lawful in the bar area or restaurant). But in the oft-quoted counter-example, Dr Deborah Lamont was in her hotel room at a point where s136 was not employed because of a belief the power could not be exercised. She was staying only on a short-term basis and the Coroner who examined the circumstances of her suicide issued a Preventing Future Deaths report requiring clarification guidance about the applicability of s136 to hotel rooms.
Consider the various situations in which you’ve ever stayed in a hotel and imagine to yourself what answer you’d give if someone asked you whilst there, “where do you live?” Apply that to the situation of the hypothetical hotel resident about whom you’re having to make decisions?
But that’s only half the complexity! … this is fun to contemplate, isn’t it?!
Many dwellings have yards, gardens, garages or outhouses of various types – if those places are attached to a single house, flat or room (and let’s now use the word “dwelling” because it is easier in practice!) then they are out of play. My dwelling is a house and has a front and back garden, a garage and attached to the back of the garage, a brick outbuilding (outhouse) which has a utility room and brick shed. All of these things are purely associated with my house – not shared with my any neighbours. Therefore, s136 is out of play in those locations.
In a recent query, a MH colleague raised the situation of a homeless person who had improvised a dwelling amidst a covered area of a tower block, mainly used for the storage of various bins used by the residents of the tower block. This area is a part of the tower block footprint, but it is a shared use refuse location for all the residents – it is not connected to any one specific dwelling in the block. On consideration of s136 applicability, this location is being used by the man as his “dwelling” – so perhaps s136 MHA was out of play? Go back to the definition and ask: is such an area a house? – no; is it a flat? – no; is it a room?! – no. So even though he may be living there, none of those first three aspects are satisfied. Whether it is considered specifically to be yard, a garden, a garage or an outhouse is largely irrelevant because whatever it is, it is a shared space in connection with multiple flats in the block so s136 would be in play in any event (and entry may be forced to that location to use s136, assuming the grounds for use of the power are met).
“Anywhere other than a dwelling” … a useful short-hand for most situations. Not specific enough for the complexity of the more weird and wonderful situations which are inevitably thrown up by people living complex lives. You can only go back to the law and apply common sense to its application towards the situation under consideration by remembering the words used and being wary of shortcuts to understanding however useful they are most of the time.
Always go back to wording of the law itself.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.(c) Michael Brown, 2021
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk