Mental Health Advocates and Legal Privilege

I do not frequent the criminal courts very often and I frequent the criminal law even less often, but I was struck by a legal oddity when the police arrested Ms Jackie Powell, a mental health advocate on suspicion of preventing the burial of a body without lawful excuse. Ms Powell is the mental health advocate for a notorious serial killer of children, Ian Brady, but her role is not a role does not attract legal privilege, so anything that her “client” tells her is not protected, or so it is thought by the state of the law at present.

However, it seems that Brady gave Ms Powell documents, which may indicate the whereabouts of the body of a child Brady killed and buried in 1964, the whereabouts of which are kept secret by Brady as part of his psychopathic delight.

My first instinct was that the position of a mental health advocate should attract privilege, because of the nature of the position. A Mental Health Advocate’s job is to help patients understand and exercise their legal rights, express their thoughts and to support them at interviews.  It is hard to see how such a role does not attract privilege. The Advocate must in effect speak for the patient and in order to speak for the patient at a hearing he or she must listen to the patient. The patient should be free to tell the advocate whatever the patient wants to say, just as a client should be free to talk freely to a lawyer who represents the client in court, without eavesdropping by the authorities at the time or later. Things that the patient tells the advocate must be said in confidence for the purpose of taking legal advice. The highest courts have said that “legal advice” must be construed very broadly, so it is hard to see how it can be said that a Mental Health Advocate has no duty of confidentiality in regards to what he or she is told by the patient.

My second instinct was that the charge was wrong. The old common law offence is not just of preventing the burial of a body but “preventing the lawful and decent burial of a body without lawful excuse”. The body had already been buried by Brady to conceal it from the authorities and no doubt to bring the distress in which he delights to others. I did not understand how the suspicion could be justified in the case of Ms Powell because it simply did not seem to fit any of the facts that the police had at the time – they knew that according to an interview Brady had given Ms Powell sealed documents including a letter addressed to the murdered boy’s mother to be opened after Brady’s death.

So it seemed that the police had probably acted outside the law, and used the alleged suspicion as a means of searching Ms Powell’s home for documents after they arrested her. There is a great deal of legal fudge as to what the old common law offence means – what does “decent” mean in this context – does it mean religious, solemn, or hygienic? It is hard to say and the cases do not shed much light. I think that the police, acting out of a sense of justice towards the mother of the dead child, who herself was dying of cancer at the time, seized the offence as a handle to try and discover the document.

Thinking more about this case I believe that the police missed an easy opportunity to get the documents. I do not think that legal privilege, which might attach to the position of the advocate, can ever attach to a document given to an advocate which indicates that it is only to be opened after the death of the patient or client. Such a document is not created by a mental patient or a client confidentially for the purpose of legal advice, however broadly you construe “legal advice” because a dead person is not able to use legal advice, but it may be evidence of concealing a crime, and that should have been the grounds for the arrest of Ms Powell, although first of course she should have been invited to hand over the letters without being arrested, having it been explained to her that she would be otherwise concealing a crime. Such an approach would have been quiet, created less publicity and might well have been quicker.

In the end the police got the letters although by roundabout and probably illegal means. They could have achieved the same result legally, and the police should always act legally. I am concerned by the bullying devices that the police frequently use – the threats, the unlawful acts and the rest of it. Ultimately we get the police force we deserve and we deserve one better led, not mindful of headlines, which quietly and relentlessly pursue justice, free from political or publicity biases. I cannot be too critical of the police; the case of of crime is littered with cases where judges have interpreted the law wrongly in an attempt to do justice or as a result of fear of lack of order, as many of the sentences from last year’s riots in London showed.

Unfortunately the documents do not appear to have shed any light on where the dead boy was buried and were unable to bring any comfort to the dead boy’s mother who died shortly afterwards, her plight and the evilness of Brady naked for the world to see.