Unlawful detention of patients

article 120(1) of The Mental Health (Northern Ireland) Order 1986

• In force
• Requires proof of a state of mind
• Either way
• Miscellaneous

The instrument creating this offence has not been revoked so far as the data shows.

What the provision says

1 Any person who knowingly receives and detains otherwise than in accordance with this Order

a person suffering from mental disorder shall be guilty of an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds

a person

Conduct

breaching the provision

Fault element

Requires proof of a state of mind

Burden of proof

No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (knowingly).

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: mens rea word in the offence-creating words: knowingly.

What would breach article 120(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

1. On these words an offence is committed where a person knowingly receives and detains otherwise than in accordance with this Order a person suffering from mental disorder.
2. Doing what the provision prohibits, or failing to do what it requires under the Mental Health (Northern Ireland) Order 1986.

Penalty

Mode of trial

Either way — magistrates’ court or Crown Court

Maximum fine

£5,000

Maximum prison (summary)

6 months

Maximum prison (on indictment)

2 years

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

• Imposition of community and custodial sentences: definitive guideline All courts in England and Wales

  When a community order or custody is justified at all, and the presumption against short custodial sentences.

• Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017

  The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.

• General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019

  The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.

• Totality: definitive guideline All courts in England and Wales

  How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status

In force

Made

26 March 1986

In force from

Not determined

Extent

N.I.

How this was established: read from the revised (currently in force) text.

Other offences in the same instrument

• Functions of Visitorsarticle 105(9)
• Forgery, false statements, etcarticle 119(1)
• Forgery, false statements, etcarticle 119(2)
• Forgery, false statements, etcarticle 119(4)
• Unlawful detention of patientsarticle 120(2)
• Ill-treatment of patientsarticle 121(1)
• Ill-treatment of patientsarticle 121(2)
• Assisting patients to absent themselves without leavearticle 124(1)
• Assisting patients to absent themselves without leavearticle 124(2)
• Obstructionarticle 125(1)
• Obstructionarticle 125(2)
• Remand to hospital for report on accused's mental conditionarticle 42(2)

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis

the provision says a person is “guilty of an offence”

Confidence

0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source

• This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
• The Mental Health (Northern Ireland) Order 1986 Every offence this instrument creates, and its explanatory note
• MiscellaneousOther offences on the same subject
• Offences created in 1986