Friday, 6 March 2015

How do you define “a place to which the public have access” under Sec.136?

The ambulance or the highway?
There has recently been an interesting discussion on the Masked AMHP Facebook Mental Health Forum concerning whether or not an ambulance could be considered to be “a place to which the public have access” within the meaning of Sec.136 MHA.

Sec.136 permits a police officer who “finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control… if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety”. The person then has to be assessed by an AMHP and a doctor to see if they need to be detained in hospital.
The question is, of course, what exactly constitutes “a place to which the public have access”?
The New Code of Practice (para16.18) says that this “includes places to which members of the public have open access, access if a payment is made, or access at certain times of the day. It does not include private premises, such as the person’s own place of residence or private homes belonging to others”.
Richard Jones suggests that this “probably includes: public highway, public access if payment is made, eg a cinema, public access at certain times of the day, eg a public house.”
The problem with all this is that there appears to be almost no case law at all specifically relating to what constitutes “a place to which the public have access” under Sec.136. As Insp Michael Brown observed:
‘"A place to which the public has access" isn't legally defined. "A public place" is defined - at least five or six different times, depending on whether you're reading the Public Order Act, the Highways Act, the Road Traffic Act, etc., etc., etc.’
These definitions, and other case law relating to various Acts of Parliament, may assist in providing guidance. I consider some of these in an earlier blog post on this subject. In particular, they examine issues such as whether or not a garden is a public place (yes if it’s a pub garden, no if it’s a private individual’s front garden, however small.) Insp. Michael Brown, on the excellent Mental Health Cop blog, also considers possibly relevant case law at greater length.
But there’s no mention at all anywhere of whether or not a motor vehicle can be regarded as a public or a private space.
The general consensus in the Forum discussion was initially that an ambulance, or indeed any other vehicle, could not be regarded as “a place to which the public have access.”
But I was not so sure.
I took the view that a vehicle (apart possibly from a residential caravan, which although ostensibly being a wheeled vehicle has the main purpose of providing living accommodation for an individual) could not be considered to be a “place” at all. On that basis, the important and defining factor was the location of this vehicle.
Inspector Michael Brown usefully enlarged upon this:
“If you were found sitting in your own car and all other criteria were met, the police could use s136. If you were the passenger in another vehicle that was stopped by the police and the other criteria satisfied, they could use s136. I don't see how being in a vehicle alters this consideration massively - you get few legal protections in a car or truck from police activity and those are usually connected to things like powers to search it.”
I would argue that a car is simply a means of moving from one place to another, as is a bicycle, a motor cycle or a pogo stick. Would someone on a bicycle on a public highway be regarded as not being in a place to which the public have access? I think not. The mere fact that a car, or an ambulance, or a bus, has doors which can be closed from inside does not make it a “place” immune from the police exercising their powers under Sec.136.
The discussion moved to considering whether a tent was “a place to which the public have access.” Again, several people regarded the interior of a tent as being a private space.
An anonymous commentator on my blog has said: “I was put on a Section 136 whilst I was asleep in a tent at a festival last summer. I woke up as the police grabbed my ankles to drag me out.”
The writer was understandably annoyed at this rude awakening, but I have to conclude that merely being surrounded by canvas does not make one immune from Sec.136. If that was the case, then your clothing could constitute such a “place”.
Again, it all comes down to location: if the tent is pitched in “a place to which the public have access”, then it is fair game. If, however, it is pitched in your back garden, or someone else’s back garden with permission, then you are not in “a place to which the public have access” and you will be safe from the attentions of the police -- unless they have a warrant under Sec.135.
Now there is some case law about what constitutes a “road”. Alun Griffith (Contractors) Ltd v Driver and Vehicle Licensing Agency [2009] EWHC 3132 (Admin), [2010] RTR 7) established that a grass verge on the edge of a road constitutes part of a public highway, and even if it is behind a crash barrier, it could still be regarded as “a place to which the public have access". So you can’t pitch your tent on the grass of a roundabout with impunity.
There are indeed places that would be universally regarded as “a place to which the public have access”, such as a street, a park, common land, a public house, an A&E department of a hospital, and there are places that would be regarded as private places, such as a private home, a private garden, a hospital ward, an office, etc.
There are also places which are more difficult to categorise, such as a communal area in a block of flats, or a residential barge or houseboat. But the overarching rule in this case is “location, location, location”.
I am confident that the police can happily continue to detain people under Sec.136 found in a tent, a bivouac, a car, a van, an ambulance, or a canoe, providing that object is in “a place to which the public have access”.
And the only thing stopping them would be a complaint to the courts resulting in case law that defines once and for all what actually constitutes “a place to which the public have access”.


  1. Could the same ambulance also be a 'place of safety'?

    1. No, for the same reason, as it is not a "place".

  2. There has been a rise in the paramedics getting the police to remove people from their homes with possible mental health issues by claiming lack of capacity. Recently a patient with a history of minor self harm while intoxicated was handcuffed and after a scuffle was dragged from the house and brought to the Emergency Department in the back of a police van with 3 officers and a paramedic. A response that with hindsight was completely out of proportion to the situation. It would be great to read your thoughts on when it is appropriate to use the capacity act in this way to circumvent the need for a section 135 assessment.

    1. Is is never appropriate because it is illegal.

  3. Surely a car is a place to which the public do not have access. We have had a situation where a person has been placed under a Section 136 whilst sitting in the back of a police car. I'd like to see someone climb into a police car and then persuade them that they have a public right of access to be there! Similarly surely with an ambulance. I disagree with the person above. Surely a vehicle is a place or am I getting too philosophical?

    Also I think a place can change it's status depending on different factors: two examples:

    We had a scenario where we assessed someone in a daycentre that was open to the attendees from 12.00pm to 4.00pm. We completed the assessment at 11.00am (they had been asked to attend early to see us) At this time of day we decided it was not a place to which the public had access so I obtained a S135(1) warrant to give the police powers to act if necessary.

    On another occasion we were assessing a street homeless woman sleeping in an area cordened off for building work. They had stopped the building work because of her presence. I ensured the day before the assessment that they had removed the corden. This in my opinion changed the location back to a 'place to which the public had access' thus enabling the police to use the powers under S136 if necessary and avoiding the need for a S135(1) warrant.

  4. Whilst I agree with you Masked AMHP in your 'feeling' abut motor vehicles including ambulances I would have thought the law is unclear unless there is some case law that clarifies the uncertainty.