The Sentencing Council have published guidelines on sentencing offenders with mental disorders, developmental disorders or neurological impairments. It sets out a general approach to sentencing offenders with mental health issues, as well as specific guidance on how these issues may affect both culpability and sentencing decisions. The guidelines will become effective from 1 October 2020.
The Sentencing Council guidelines apply to offenders who at the time of the offence and/or the time of sentencing have a mental disorder, neurological impairment or developmental disorder including autism, learning difficulties, schizophrenia, depression and post-traumatic stress. The general approach is that whilst an impairment should always be considered by the court, it will not necessarily have an impact on sentencing. A case-by-case approach must be adopted due to the range of disorders and the differing levels of impairment.
The guidelines stress the complexity of mental disorders and urges sentencers to avoid making assumptions. For example, sentencers should understand that some mental disorders can fluctuate, that offenders may suffer from multiple disorders and that drugs and alcohol can be a factor. Sentencers should be aware of relevant cultural, ethnicity and gender considerations of offenders within a mental health context. Formal diagnosis will not always be required.
Culpability may be reduced if: (i) the offender was at the time of the offence suffering from an impairment; and (ii) there is sufficient connection between the impairment and the offending behaviour. The courts must assess this by a careful analysis of all the circumstances of the case. Factors which should be considered include whether the offender was failing to take prescribed medication or whether they were self-medicating with drugs or alcohol. Where expert evidence is put forward, it must be considered but it is not binding.
On determining the sentence, a disorder may be relevant whether or not it is linked to the offence. The disorder may lead to the decision that a custodial sentence is disproportionate. For less serious offences, judges can give criminal fines, community sentences, mental health treatment requirements or drug and alcohol programmes. Where a custodial sentence is unavoidable, the impact of the disorder on the offender may be relevant to the length of sentence or the decision to suspend.
Where an offender appears to have a disorder, the court must obtain a medical report before passing a custodial sentence unless it is of the opinion that a report is unnecessary. Where a custodial sentence is passed, the court should put forward psychological or medical reports to the prison. The court must also remain aware of the impairment and the offenders ability to understand and participate in proceedings.
As the first formal guidance on how to sentence offenders with mental illnesses, the guidelines should provide clarity to judges and a more consistent approach. The guidelines also acknowledge the complexities of mental health issues which might affect an individual’s behaviour. It is significant that they apply to developmental and neurological impairments and that the court is recognising the importance of wider cultural, ethnicity and gender considerations on mental health.