The Criminal Justice system in England and Wales is not an Ass! The Criminal Justice system is a well practiced and humane system whose reason for existing is the maintenance of order in society; protecting the weak from the strong, the honest from the dishonest, the good from the bad etc, without it we would have anarchy.
The legal system in Scotland and Northern Ireland is similar but has substantial differences and is not part of this blog. The Criminal Justice system then comes in two parts or codes; the Common Law and Statute Law.
Common Law stems from the Magna Carter in 1215 – 790+ years ago! The unwritten law of England and Wales is based upon decisions made previously and is often referred to as the law of precedent because judgements are made based upon earlier examples where the cases are compared and contrasted.
Statute Law is legislation that has passed through Parliament and differs from Common Law because it is written down in statute. In the making of statute law a bill is placed before Parliament for approval, or otherwise, once all parties are agreed this goes to the (independent) House of Lords who double check for errors of law etc and if necessary send it back to the commons for re-consideration, and it is passed to and fro until general agreement is achieved. Once all parties are agreed the new legislation goes to the Queen who signs it onto the Statute book whence it becomes and Act of Parliament and Statute Law. In short if the title has the word Act in it, it is Statute Law.
In both codes of the Law cases pass to the Police for investigation, they prepare a file which is sent to the Crown Prosecution Service and is dealt with through the Magistrates Court and onto the Crown Court where an indictable offence has been committed.
The significance, then, for us dealing with Conflict Resolution is that practitioners must observe a hierarchy of the Law in order to decide where they stand. In respect of the use of Physical Intervention we know that we may use such force as is reasonable and that to be reasonable it has to be necessary plus proportionate (to the amount of damage that may result if action is not taken). Criminal Law Act 1967.
Consider, please, a pyramid, at it’s base we may write in Policy and Practice as the lowest strata – all organisations have Policies and Practices and staff are required to follow them so as to keep out of trouble. Above that in the next stratum we can place The Criminal Justice system/Common Law and Statute Law – we know that the Law must be obeyed, we have no choice. Above that, the next stratum is the Health and Safety Act 1974 – which implies duties of care upon employer and employee alike to look after ones Health Safety and Welfare – ones duty of care requires us to adopt safe working practices, safe systems of work etc and the employers duty of care includes NOT putting you in danger as part of your duties. The next stratum above that then is the Human Rights Act of 1998 – Article 2 enshrines the Right to Life of all parties amongst other issues like the Right to a Free and Fair Trial etc. Finally, the ultimate stratum is the pinnacle – the European Convention on Human Rights.
So, if a patient is so violent because of his/her condition and is trying to jump from a window many stories from the ground with the result of killing themselves, should we intervene? Policy and Practice may say that the organisation has a no-contact policy therefore can we act or not? The Criminal Justice Act 1967 says we may use such force as is reasonable to save life – so long as it is necessary + proportionate = reasonable. On top of that the Human Rights Act 1974 says that all persons have the right to life, the European Convention on Human Rights enforces this to the extent that Capitol Punishment is outlawed amongst signatory Nations for example. So the Law outranks Policy and Practice and that places us in a dilemma; can we act to save the child’s life? Even if we may be causing ‘an act of assault’ against the child. Answer, emphatically, YES! Because the child has a right to life –NOT to death! And in his/her disorientated state we do have a responsibility to save them from themselves. Consider what might happen if we didn’t intervene and the child jumped? A greater harm would happen and it is that factor that makes our decision proportionate and thereby reasonable.
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