Criminal Justice Bill

Written evidence submitted by by Make Space, Self Injury Support, National Survivor User Network, and Battle Scars to the Criminal Justice Bill Public Bill Committee (CJB12)

(Joint Submission)

1 Executive Summary

1.1 This is a joint submission sent by Make Space, Self Injury Support, National Survivor User Network, and Battle Scars. Between us, we have decades of experience supporting people who self-harm and those in mental health crisis. This submission addresses Sections 11 and 12; the proposed offence of encouraging or assisting serious self-harm. We provide evidence regarding the dangers of an overly broad offence, and makes recommendations for narrowing the defence to ensure that vulnerable people are not put at risk of unnecessary criminalisation.

1.2 Self-harm is a complex and highly stigmatised issue, for which cessation is not always the most appropriate or safest option. We are concerned that the new offence in the Criminal Justice Bill has insufficient safeguards to protect against the criminalisation of vulnerable people, informal peer support, or efforts toward harm reduction. Far from protecting those who self-harm, the bill could put them at more risk.

1.3 We recommend that in order to achieve the recommendations of the Law Commission, the offence must be worded narrowly to only capture malicious attempts to encourage a person to self-harm. To achieve this, the bill must either explicitly require malicious intent, or include defences; both of which were discussed in the consultation on the Law Commission’s recommendations, as well as within the development of the Online Safety Bill.

2 Introduction

2.1 Make Space is a national not-for-profit led by and for people with experience of self-harm. We conduct our work through peer support, research, and training. This evidence has been prepared by our Research Lead, Dr Veronica Heney, Assistant Professor at Durham University and an expert in research on experiences of self-harm.

2.2 Self Injury Support is an experience-led UK-wide self-harm support charity which has been providing care, support, training and policy input around self-harm from a user perspective for over 35 years.

2.3 National Survivor User Network is a user-led charity and membership organisation of grassroots, community mental health groups and people who have lived experience of mental ill-health, distress, or trauma.

2.4 Battle Scars is a 100% s urvivor-led and run national charity providing peer support to people of all ages and genders who are affected by self-harm, training from a lived experience perspective as well as consultation on local and regional strategy.

2.5 Self-harm is a significant and rising issue across the UK [1] , with widespread evidence that it is associated within mental illness and mental distress [2] . It is more important than ever that those with experience of self-harm are able to access the care they need. Any intervention must be situated within the broader experiences of what it is like to self-harm, and the context of mental healthcare across the UK.

2.6 A broadly defined offence of ‘encouraging or assisting’ self-harm risks criminalising the very people it seeks to protect, further entrenching shame and stigma around self-harm, and jeopardising life-saving harm reduction and peer support interventions.

2.7 This offence extends further than the Law Commission’s recommendations, with no protections to ensure those it seeks to protect are not criminalised. We argued similarly in relation to the Online Safety Act, along with a coalition of over 130 organisations and individuals working across self-harm and mental health more broadly [3] .

3 The proposed offence

3.1 Safeguards beyond those proposed are required to ensure that the offence works in practice as the Law Commission intended [4] . A broadly defined offence was rejected by the Law Commission following widespread concerns from consultees [5] that it would criminalise vulnerable people. Detractors of a broadly defined offence included the Samaritans, The Association of Police and Crime Commissioners, The Magistrates Association, The Criminal Bar Association, and the Crown Prosecution Service.

3.2 Numerous consultees suggested that ‘malicious intent’ be required in any offence of encouraging or assisting self-harm. The Law Commission failed to work this into their recommendation; meaning that to respond appropriately to the expertise of consultees, parliament must not only enact the Law Commission’s recommendations but go further in narrowing its scope.

3.3 We raised these issues as part of the development of the Online Safety Bill, in an open letter co-signed by over 130 individuals and organisations working across the mental health sector. Our work received widespread support across the House of Lords, including an amendment to add defences to the bill [6] .

3.4 In response to the opposition amendment, the Government offered the assurance that the bill was not intended to criminalise vulnerable people or harm reduction resources [7] . The Government also committed to revising the offence and meeting with members of the coalition; neither of these things happened. It is not clear that a single self-harm specific organisation was consulted on the Online Safety Act, nor will be in relation to the Criminal Justice Bill.

4 Experiences of self-harm

4.1 There is no clear evidence in favour of the ‘social contagion’ hypothesis upon which the offence is based [8] , nor research suggesting that the deliberate encouragement of self-harm is a widespread issue. Limited research suggests that while accessing self-harm content online can impact people’s experience of self-harm, people have mixed reactions to this content [9] . The same research suggests that in some instances there may be some positive impacts to viewing self-harm related content [10] . Any research into the encouragement of self-harm focusses almost exclusively on young people in the online context; this offence applies equally irrespective of a person’s age, or the means through which encouragement occurs.

4.2 Self-harm does not play a straightforward role in a persons’ life. For some it may be linked to thoughts of suicide, whereas for others there is strong evidence to suggest that self-harm can act to protect people from suicide impulses and/or acts [11] . Because of this, dissuading or forcing a person to stop self-harming may put them in more danger [12] . Our own expertise, as well as research into the experiences of self-harm shows that what people want is not support to stop self-harming, but instead supportive and non-judgemental spaces to discuss their experiences, to reduce shame, and access harm reduction resources [13] . This offence would limit access to each of those things.

4.3 It is well documented that self-harm has very low rates of help-seeking [14] ; the offence in its proposed wording may exacerbate this issue by increasing stigma around self-harm, and dissuading people from seeking support on the basis that they, or those who have been supporting them, may be criminalised. This sits atop longstanding and worsening experiences of criminalisation and police involvement in mental health crisis [15] ; something that is of concern not only among service-users but also within the NHS and police themselves. Those with experience of self-harm already struggle with shame and difficulty reaching out because of stigma [16] ; failing to limit the offence to malicious acts will exacerbate this issue.

5 Harm reduction

5.1 Given the complexity of self-harm for many people, harm reduction approaches are essential for ensuring that people have sufficient information and resources to self-harm in safer ways that are less likely to result in unintentional grievous or life-threatening harm. This might include the provision of information describing safer places or methods of self-harm, or it might include the provision of safer material with which to self-harm, such as a clean blade instead of a dirty one that might lead to infection. It is not clear whether the government intends to criminalise harm reduction efforts, and exactly how they would be excluded from the scope of the offence.

5.2 Evidence shows that there are benefits to harm reduction for self-harm [17] ; as it recognises the agency of someone self-harming [18] and is an expression of unconditional care [19] for someone in distress. These elements are imperative in taking a person-centred approach to healing in both clinical and non-clinical settings [20] .

5.3 Informal and third sector support for self-harm is a vital lifeline for those with experience of self-harm. This support may not straightforwardly discourage self-harm, and may take harm reduction approaches which could, under the offence, be interpreted as ‘encouraging or assisting’. Removing this support will put people with experience of self-harm in extreme danger; particularly given well-documented punitive and poor self-harm care within A&E and inpatient units for self-harm [21] , exclusion criteria that prohibit those who self-harm from accessing statutory care [22] , or waiting lists of well-over a year. Given the paucity of care for those self-harming, it is vital we encourage rather than dissuade numerous forms of support.

6 Conclusion

6.1 During the development of the Online Safety Bill, the government failed to identify exactly how GBH-level harm would apply in relation to self-harm. Similarly, it was noted that intent to encourage or assist was also vague. Finally, necessity was cited as a potential defence; but this is an extremely high bar which can only be pleaded in extreme circumstances (R v Kitson [1955] 39 Cr App R 66; Cichon v DPP [1994] Crim LR 918)).

6.2 During the development of the Online Safety Bill, opposition Lords tabled an amendment [23] to better ensure that the offence was in line with the Law Commission’s recommendations. This would exclude from the offence acts that were necessary for;

6.2.1 (a) "A genuine medical, scientific or educational purpose

(b) The purposes of peer support or harm reduction, or

(c) Preventing serious harm, or further serious harm, to D or another person"

6.3 As experts in supporting people with experience of self-harm, we recommend that the inclusion of these defences is vital to keeping those of self-harm safe. Firstly, by protecting informal peer support and harm reduction approaches. Secondly, ensuring those of self-harm are not dissuaded, by fear of criminalisation, from seeking support. Thirdly, by protecting vulnerable people from facing criminal sanctions for their distress.

6.4 Additionally or alternatively to defences, a similar protection may be achieved by explicitly requiring malicious intent for an offence to have occurred (as was suggested by numerous consultees for in the Law Commission’s consultation on the offence).


[1] McManus, S., Gunnell, D., Cooper, C., Bebbington, P.E., Howard, L.M., Brugha, T., Jenkins, R., Hassiotis, A., Weich, S. and Appleby, L., 2019. Prevalence of non-suicidal self-harm and service contact in England, 2000–14: repeated cross-sectional surveys of the general population.  The Lancet Psychiatry ,  6 (7), pp.573-581.

[2] Hawton, K., Saunders, K., Topiwala, A. and Haw, C., 2013. Psychiatric disorders in patients presenting to hospital following self-harm: a systematic review.  Journal of affective disorders ,  151 (3), pp.821-830.

[3] Make Space, National Survivor User Network, and Self-Injury Support. 2023 . Open letter on self-harm and the Online Safety Bill: A call for caution, nuance, and care. Available: https://www.nsun.org.uk/news/open-letter-on-self-harm-and-the-online-safety-bill-make-space-and-self-injury-support/

[4] Law Commission, 2021. Modernising Communications Offences, A final report. Available here https://assets.publishing.service.gov.uk/media/61ba022ad3bf7f05539de6f5/Modernising-Communications-Offences-2021-Law-Com-No-399.pdf

[5] Law Commission, 2020. Harmful Online Communications: The Criminal Offences. A consultation paper. Available here https://s3-eu-west-2.amazonaws.com/cloud-platform-e218f50a4812967ba1215eaecede923f/uploads/sites/30/2020/09/Online-Communications-Consultation-Paper-FINAL-with-cover.pdf

[6] Hansard. Online Safety Bill: Volume 831: Debated on Thursday 6 th July 2023. See Lord Allan at Column 1327. Available here https://hansard.parliament.uk/lords/2023-07-06/debates/7722BAA6-C15A-4413-8758-2AF0927061BF/OnlineSafetyBill

[7] Hansard. Online Safety Bill: Volume 831: Debated on Thursday 6 th July 2023 . See Lord Parkinson at Column 1341. Available here https://hansard.parliament.uk/lords/2023-07-06/debates/7722BAA6-C15A-4413-8758-2AF0927061BF/OnlineSafetyBill .

[8] Chaney, S., 2017.  Psyche on the Skin: A History of Self-harm . Reaktion Books.

[8] Susi, K., Glover‐Ford, F., Stewart, A., Knowles Bevis, R. and Hawton, K., 2023. Research Review: Viewing self‐harm images on the internet and social media platforms: systematic review of the impact and associated psychological mechanisms. Journal of child psychology and psychiatry.

[9] Samaritans (2022) How social media users experience self-harm and suicide content, available here https://media.samaritans.org/documents/Samaritans_How_social_media_users_experience_self-harm_and_suicide_content_WEB_v3.pdf

[10] Marchant, A., Hawton, K., Burns, L., Stewart, A. and John, A., 2021. Impact of web-based sharing and viewing of self-harm–related videos and photographs on young people: Systematic review.  Journal of medical Internet research ,  23 (3), p.e18048.

[11] Simopoulou, Z. and Chandler, A., 2020. Self-harm as an attempt at self-care.  European Journal for Qualitative Research in Psychotherapy ,  10 , pp.110-120.

[12] Make Space (2023) Self-harm community consultation: Exploring experiences of support and care for people who self-harm in Torbay, available here https://static1.squarespace.com/static/5fa28350d56dca07ddad836a/t/649c208503c5c44abaaca62d/1687953542881/%5BFull+report%5D+Torbay+Self-Harm+Community+Consultation_+Make+Space%2C+June+2023..docx.pdf ;

[12] Make Space (2021) Support and Solidarity: Supporting LGBTQ+ People with Experience of Self-Harm , available here Support and Solidarity — Make Space — July 2021.pdf - Google Drive ;

[12] Faulkner, F and Rowan Olive, R. (2022) Not a naughty child: people’s experiences of service responses to self-injury , available here https://www.nsun.org.uk/not-a-naughty-child-peoples-experiences-of-service-responses-to-self-injury/

[13] Make Space (2023) Self-harm community consultation: Exploring experiences of support and care for people who self-harm in Torbay, available here https://static1.squarespace.com/static/5fa28350d56dca07ddad836a/t/649c208503c5c44abaaca62d/1687953542881/%5BFull+report%5D+Torbay+Self-Harm+Community+Consultation_+Make+Space%2C+June+2023..docx.pdf

[14] Michelmore, L. and Hindley, P., 2012. Help‐seeking for suicidal thoughts and self‐harm in young people: A systematic review.  Suicide and Life‐Threatening Behavior ,  42 (5), pp.507-524.

[15] Stop Sim Coalition, (2021), Concerns Regarding The Human Rights And Equalities Implications Of The High Intensity Network (HIN) And Serenity Integrated Mentoring (SIM) , available here https://stopsim.co.uk/2021/05/05/concerns-regarding-the-human-rights-and-equalities-implications-of-the-high-intensity-network-hin-and-serenity-integrated-mentoring-sim/

[16] Klineberg, E., Kelly, M.J., Stansfeld, S.A. and Bhui, K.S., 2013. How do adolescents talk about self-harm: A qualitative study of disclosure in an ethnically diverse urban population in England.  BMC public health ,  13 (1), pp.1-10.

[16] Owens, C., Hansford, L., Sharkey, S. and Ford, T., 2016. Needs and fears of young people presenting at accident and emergency department following an act of self-harm: secondary analysis of qualitative data.  The British Journal of Psychiatry ,  208 (3), pp.286-291.

[17] Davies, J., Pitman, A., Bamber, V., Billings, J. and Rowe, S., 2022. Young peoples’ perspectives on the role of harm reduction techniques in the management of their self-harm: a qualitative study.  Archives of suicide research ,  26 (2), pp.692-706.

[18] Sullivan, P.J., 2018. Allowing harm because we care: Self-injury and harm minimisation.  Clinical Ethics ,  13 (2), pp.88-97 ;

[18] Preston, E.G. and West, A.E., 2022. Straight to the source: E-communities for nonsuicidal self-injury and the emerging case for harm reduction in the treatment of nonsuicidal self-injury.  Clinical Psychological Science ,  10 (4), pp.801-813.

[19] Inckle, K., 2011. The first cut is the deepest: A harm-reduction approach to self-injury.  Social Work in Mental Health ,  9 (5), pp.364-378.

[20] Sullivan, Patrick. "Epistemic injustice and self-injury: a concept with clinical implications." Philosophy, Psychiatry, & Psychology 26, no. 4 (2019): 349-362.

[21] Quinlivan, L., Gorman, L., Monaghan, E., Asmal, S., Webb, R.T. and Kapur, N., 2023. Accessing psychological therapies following self-harm: qualitative survey of patient experiences and views on improving practice.  BJPsych open ,  9 (3), p.e62.

[21] Make Space (2023) Self-harm community consultation: Exploring experiences of support and care for people who self-harm in Torbay, available here https://static1.squarespace.com/static/5fa28350d56dca07ddad836a/t/649c208503c5c44abaaca62d/1687953542881/%5BFull+report%5D+Torbay+Self-Harm+Community+Consultation_+Make+Space%2C+June+2023..docx.pdf ;

[21] Faulkner, F and Rowan Olive, R. (2022) Not a naughty child: people’s experiences of service responses to self-injury, available here https://www.nsun.org.uk/not-a-naughty-child-peoples-experiences-of-service-responses-to-self-injury/

[22] Quinlivan, L., Gorman, L., Monaghan, E., Asmal, S., Webb, R.T. and Kapur, N., 2023. Accessing psychological therapies following self-harm: qualitative survey of patient experiences and views on improving practice. BJPsych open, 9(3), p.e62.

[22] Make Space (2023) Self-harm community consultation: Exploring experiences of support and care for people who self-harm in Torbay, available here https://static1.squarespace.com/static/5fa28350d56dca07ddad836a/t/649c208503c5c44abaaca62d/1687953542881/%5BFull+report%5D+Torbay+Self-Harm+Community+Consultation_+Make+Space%2C+June+2023..docx.pdf

[23] Hansard. Online Safety Bill: Volume 831: Debated on Thursday 6 th July 2023. See Lord Allan at Column 1327. Available here https://hansard.parliament.uk/lords/2023-07-06/debates/7722BAA6-C15A-4413-8758-2AF0927061BF/OnlineSafetyBill .

[23]

[23] December 2023.

 

Prepared 12th December 2023