BCL associate Daniel Jackson article has been published by Open Access Government, reviewing the recently published sentencing guideline for offenders with mental disorders, developmental disorders or neurological impairments.
Here’s an extract from the article:
The coronavirus pandemic has impacted on us all to differing degrees and presented extra challenges. One aspect, experienced by many, is the effect 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 the 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 annexe 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 is a list of questions, which is said not to be exhaustive, but potentially a useful starting point for the court.
This article was originally published by Open Access Government on 03/08/2020. You can read the full version on their site.