BCL’s Daniel Jackson reviews the recently published sentencing guideline for offenders with mental disorders, developmental disorders or neurological impairments, which is effective from 1 October 2020.

Introduction

The coronavirus pandemic has impacted on us all to differing degrees and presented extra challenges. One aspect, experienced by many, is the affect that the enforced changes to our daily lives have had on our mental health. Courts have often struggled to effectively deal with those who fall into this group of offenders, so the new guideline from the Sentencing Council is a welcome addition, particularly as awareness of mental health continues to increase.

The guideline applies to adults who, at the time of the offence and/or at the time of sentence, have mental disorders and/or impairments, such as depression, PTSD, autism, a learning disability or dementia (the aforementioned and others can be found listed within Annex A of the guideline).

It is important to note that the guideline specifies that the fact that an offender has an impairment or disorder should always be considered by the court, but that it will not necessarily have an impact on sentencing. It stipulates that court should take an ‘individualistic approach’ and focus on the issues in the case.

The content of the guideline is broken down into three sections, followed by three annexes. When you first come to look at the guideline, it comes across as quite text heavy, as annex A and C are fairly lengthy. The sections are void of any tables, which we are used to seeing with the guidelines for specific offences.

Section one: General approach

Those passing sentence are advised that care should be taken to avoid making assumptions, which is obviously very key when it comes to mental health issues. Also, sentencers are reminded that difficulties in terms of definition and classification are common, and it may be that no specific mental disorder or impairment can be identified. Further, and some professionals might think significant, a formal diagnosis is not always required.

Rightly, importance is placed on the awareness of relevant cultural, ethnicity and gender considerations of defendants within the context of mental health.

Section two: Assessing culpability

As we know from other offence-specific guidelines, if a defendant was at the time of the offence suffering from an impairment and/or disorder, then his/her culpability may be reduced. However, it will only be reduced if there is ‘sufficient connection’ between the impairment and/or disorder and the offending behaviour.

The valuable nature of expert evidence is highlighted, which must always be considered where it is placed before the court. However, the guideline indicates that those passing sentence are in the best position to assess the culpability of an offender, because they will be in possession of all the relevant information.

At the end of section two, there are a list of questions, which is said not to be exhaustive, but potentially a useful starting point for the court.

Section three: Determining the sentence

Some general principles are initially set out; this section of the guideline then goes on to consider the possible sentences from fines or discharge to the relevant orders under the Mental Health Act 1983.

The guideline suggests that ‘many’ offences committed by a defendant with an impairment and/or disorder may not require therapeutic intervention or the offence may be so minor that only a fine or discharge is appropriate.

In terms of community orders, there is mention that even when the custody threshold is passed, a community order with a Mental Health Treatment Requirement (MHTR) may be a proper alternative to a short or medium term of imprisonment.

The guideline also includes a reminder for practitioners that as with all community orders, at least one requirement must be attached to an order for the purpose of punishment and/or a fine, unless there are exceptional circumstances that would make it unjust in all the circumstances.

When addressing custodial sentences, the guideline refers to a rehabilitative approach being more appropriate when an offender with an impairment and/or disorder is on the cusp of custody or detention, but that where the aforementioned is unavoidable, consideration ought to be given to the relevant length of the term of imprisonment and whether any sentence may be suspended.

Helpfully, the guideline clearly sets out the range of mental health disposals and highlights that decisions in respect of such sentences are ‘fact specific’ and, in some cases, not appropriate. A list of factors is provided within this section to assist the court in the decision-making process.

Annexes

Annex A is really useful as it details the main classes of mental disorders and presenting features. A practitioner may often spend time researching a brief description of a particular disorder, so this guideline allows all parties to have a common point of reference when referring to a mental disorder. A glossary of most commonly prescribed drugs also features in the annex.

Annex B considers what might be required in a medical report and those additional requirements needed in the case of a mentally disordered offender.

Annex C is more in table form and usefully sets out the sentencing disposals – criteria and release provisions. For example: who such an order may be made by; in respect of a convicted offender; only if the court is of a particular opinion and satisfied of certain criteria being met.

Effective 1 October 2020

Time will tell, but in the absence of any such previous formal guidance, I believe that this new guideline will prove to be an excellent sentencing tool for the courts, practitioners and ultimately the defendants, when it becomes effective in England and Wales in as little as a few months’ time.

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