Treating the vulnerable in England and Wales: the impact of law reform and changing policy

This article considers the role of treatment in the provision of mental health care in England and Wales. The current legislative position with regard to the making of treatment choices following compulsory commitment will be examined. Consideration will also be given to the position of the informal hospitalised patient, as in the case of R v. Bournewood Community and Mental Health NHS Trust, ex parte L and finally, the role of the common law in establishing (in)capacity in relation to the non-consensual provision of treatment for physical conditions. Attention will then be given to the reform process, which is currently ongoing in England and Wales, and its likely impact on treatment provision. The Mental Capacity Act 2005 received Royal Assent on the 7th April 2005, while the draft Mental Health Bill 2004 underwent detailed examination by the Joint Scrutiny Committee, a report of which was published on the 23rd March 2005. On the 13th July 2005 the British Government outlined its response following the publication of the Scrutiny Committee's recommendations and despite it accepting many of the recommendations put forward, some significant areas of concern remain making the draft Mental Health Bill 2004 "a long way from acceptable legislation".     

Rule of law v. rule of man: The search for the golden zigzag between conflicting fundamental values

Although most theorists from Aristotle to K. Culp Davis have recognized the need for law and discretion in any government, there has been very little analysis of the values protected by rule of law or the values preserved by rule of man (discretion). Nor has there been a systematic analysis of the relationship between these values. This article suggests that the law/discretion conflict is an essential and potentially productive conflict because both law and discretion protect fundamental, but limited, values which are essential for achievement of justice. Therefore, it is of the essence to understand the values underlying both law and discretion.     

Pretrial procedure in England and Wales

A.B., Harvard College 1980; J.D., Yale Law School 1984.     

Reforming the Role of Magistrates: Implications for Summary Justice in England and Wales

The role of lay magistrates in England and Wales has been progressively undermined by protracted processes of reform over the last two decades. Current government proposals aim to reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities such as oversight of out of court disposals and greater involvement with local justice initiatives. This article argues that while these proposals embody necessary and important areas for reform, taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they are enacted alongside other measures which aim to reaffirm the status of lay justices, and which seek to reverse the trend which has prioritised administrative efficiency at the expense of lay justice. Rapidly declining magistrate numbers together with continuous (and continuing) programs of court closures are irreconcilable with the future viability of a lay magistracy.     

Reconceptualising the Custody Threshold in England and Wales

The custody threshold provision in England and Wales was intended to operate as a limit on the use of custodial sentences, preserving what is the system’s most severe sanction for the most serious offences. However over the past few decades it has become apparent that the custody threshold is failing. Academics have discussed the reasons for this failure, which has seen the prison population double in space of a quarter of a century. This piece explores the custody threshold in the context of the use of custody in other Western European jurisdictions. It examines the courts’ response to the provision and various judicial attempts to amplify Parliament’s language. The authors then consider the academic critiques of the custody threshold provision, analysing the extent to which said criticism can be seen as a solution to the problem, before offering a new critique of their own. Finally, in a move towards more a more principled approach to the custody threshold, the piece offers a solution which would, it is argued, make the provision more effective and more theoretically sound.     

Psychopathy among prisoners in England and Wales

Most research into psychopathy among prisoners is based on selected samples. It remains unclear whether prevalences are lower among European populations. This study aimed to measure the prevalence of psychopathy, and the distribution and correlates of psychopathic traits in a representative national sample of prisoners. Psychopathy was measured using the revised Psychopathy Checklist (PCL-R) in a second stage, cross-sectional survey of prisoners in England and Wales in 1997 (n = 496). Poisson regression analysis was carried out to examine independent associations between correlates and PCL-R total and factor scores. The prevalence of categorically diagnosed psychopathy at a cut off of 30 was 7.7% (95%CI 5.2–10.9) in men and 1.9% (95%CI 0.2–6.9) in women. Psychopathic traits were less prevalent among women. They were correlated with younger age, repeated imprisonment, detention in higher security, disciplinary infractions, antisocial, narcissistic, histrionic, and schizoid personality disorders, and substance misuse, but not neurotic disorders or schizophrenia. The study concluded that psychopathy and psychopathic traits are prevalent among male prisoners in England and Wales but lower than in most previous studies using selected samples. However, most correlates with psychopathic traits were similar to other studies. Psychopathy identifies the extreme of a spectrum of social and behavioral problems among prisoners.     

Male Sex Work: Exploring Regulation in England and Wales

Whilst sex-work policy in England and Wales claims gender-neutrality, local and national prostitution strategies primarily focus on female street-based sex workers. Men who sell sex are generally absent or inadequately considered in such policies, and measures to regulate commercial sex markets are rarely considered in terms of their impact on male working practice. Drawing on the Coordinated Prostitution Strategy for England and Wales, this paper has two aims: first, to offer a gender-based critique of the current policy framework for England and Wales by arguing that sex-work policy is infused by a gendered understanding of sex work in which male identities are neglected or assumed deviant; and second to explore the notion that understanding sex work as it is performed locally is valuable when generating local and national policy. Informed by gendered readings of policy, social understandings of masculinity, and the (in)visibility of male sexual commerce this paper explores male sex work in the context of Manchester, England.     

The Commissioner cometh: The challenge for democratic policing in England and Wales

Public policing in England and Wales is currently undergoing and will undergo substantial changes to the way it delivers its services in the future. Consideration of the different proposals for change when viewed in isolation appears to produce uncertainty in terms of organisational structure. However, when considered as interdependent they provide a more clear and problematic issue that could undermine the current democratic model of policing utilised in this country. This article considers the ideas of the function of the public police within a democratic policing model and how changes such as the introduction of Police and Crime Commissioners, an apparent lack of engagement by the public with the democratic process, as well as the possibility of privatisation and outsourcing currently in vogue, may have a detrimental effect upon the policing philosophy that has underpinned policing in England and Wales for nearly 200 years.