UK Offence Report

Assisting patients to absent themselves without leave etc.

article 10(1) of The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 Any person who in England and Wales or Northern Ireland does anything in relation to

a person whose detention in hospital is authorised by the 2003 Act which, if done in Scotland, would make him guilty of an offence under section 316 of the 2003 Act 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 This is the text as originally made; later amendments are not shown here.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
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

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

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach article 10(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. Doing what the provision prohibits, or failing to do what it requires under the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Unlimited
Standard scale
Level 5
Maximum prison (summary)
3 months
Maximum prison (on indictment)
2 years

level 5 is unlimited in England and Wales for offences committed on or after 12 March 2015 (LASPO 2012 s.85, S.I. 2015/664).

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.

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
Status not determined
Made
21 July 2005
In force from
Not determined
Extent
E+W

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order makes provision consequential on the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”), principally in respect of the law of England and Wales and Northern Ireland to provide for the reception of patients from Scotland and the removal of patients to Scotland. Article 2 provides that where patients are removed from Scotland to England and Wales they will become subject to the measure in England and Wales which most closely corresponds to the measure to which the patient was subject in Scotland. Where the patient is subject to a prison sentence the sentence will be treated as if it were imposed in a court in England and Wales. Article 3 provides for the treatment of a restriction order and conditional discharge where a patient is transferred from Scotland to England and Wales. On transfer the order and conditional discharge will be treated as if they were made under the relevant enactment in force in England and Wales. Articles 4 and 5 make provision equivalent to articles 2 and 3 in respect of patients transferred from Scotland to Northern Ireland. Article 6 empowers the responsible authority in Northern Ireland to authorise the removal of patients detained under the Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”) to Scotland. Article 7 empowers the Secretary of State to transfer patients to Scotland where the patient was subject, in Northern Ireland, to a restriction order and a conditional discharge under the 1986 Order. Article 8 provides that any person who may be taken into custody in Scotland under the 2003 Act or regulations made under the 2003 Act may be taken into custody in any other part of the UK and returned to Scotland. Article 9 provides for the return to Northern Ireland of persons subject to corresponding measures taken into custody under regulations made under the 2003 Act. Article 10 makes it an offence in England and Wales and in Northern Ireland to do anything in relation to a person subject to the 2003 Act that would be an offence under section 316 of the 2003 Act if done in Scotland. Section 316 makes it an offence to induce or assist patients to abscond. Article 11 provides that where patients are being conveyed to any place in England, Wales or Northern Ireland by virtue of the 2003 Act or this Order they will be in legal custody while being conveyed through those territories. Paragraph (2) provides that persons taking patients into custody or conveying or detaining them by virtue of the 2003 Act or this Order will have all the powers and privileges of a constable. Article 12 gives protection to acts done in pursuance of this Order in Scotland, and for England and Wales and Northern Ireland extends the protection afforded by section 139 of the Mental Health Act 1983 to acts done in pursuance of this Order. Article 13 applies section 136 of the 2003 Act, regarding the transfer of prisoners for treatment of mental disorder, to persons detained under immigration legislation. Article 14 makes provision that social services will not be provided to a person subject to section 115 of the Immigration and Asylum Act 1999 by reason only of the fact that the person is destitute. Article 15 and Schedules 1 and 2 make modifications to primary and subordinate legislation and Article 16 and Schedule 3 provide for repeals.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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