A new guideline for sentencing offenders with mental disorders, developmental disorders and neurological impairments has been published by the Sentencing Council

The guideline comes into force on 1 October 2020 and applies to adults who at the time of the offence, and/or at the time of sentencing, have any mental disorder, neurological impairment or developmental disorder. The non-exhaustive range of conditions covered by the guideline is notably wide-ranging, and includes:

• Mental disorders – conditions like schizophrenia, depression or Post Traumatic Stress Disorder;
• Developmental disorders – autism or learning disability
• Neurological impairments – acquired brain injury or dementia. 

The new guideline is to be welcomed by practitioners. The prevalence of mental disorders amongst offenders, and the previous lack of formal guidance for sentencers beyond disparate authorities had left a lacuna in the sentencing process. The guideline will focus the minds of practitioners and sentencers alike when approaching a notoriously complex area; mental disorders, developmental disorders and neurological impairments now cannot simply be ignored or dismissed off-hand by sentencers. In that sense, the guideline reflects the broader efforts across society over recent years to understand and de-stigmatise these conditions, and the associated attitudinal shift amongst the public.

Section 1: General approach

Section 1 of the guideline provides an overview of the important principles of sentencing in this complex area. The guideline stipulates that “the fact that an offender has an impairment or disorder should always be considered by the court but will not always have an effect on sentencing”.

Each case will be fact specific. The guideline emphasises an individualistic approach to sentencing, “focused on the issues in the case” as a result of the “wide range of mental disorders, neurological impairments and developmental disorders” and the fact that “the level of any impairment will vary between individuals”. Accordingly in assessing whether the impairment or disorder has any impact on sentencing, “the approach to sentencing should be individualistic and focused on the issues in the case.”

At the outset, sentencers are urged, in a decidedly sensible, non-judgmental tone, to be mindful of common issues faced when considering mental disorders:

• some mental disorders can fluctuate and an offender’s state during proceedings may not be representative of their condition at the time the offence was committed,
• care should be taken to avoid making assumptions. Many mental disorders, neurological impairments or developmental disorders are not easily recognisable,
• no adverse inference should necessarily be drawn if an offender had not previously either been formally diagnosed or willing to disclose an impairment or disorder,
• offenders may be unaware or unwilling to accept they have an impairment or disorder and may fear stigmatisation if they disclose it,
• it is not uncommon for people to have a number of different impairments and disorders. This is known as ‘co-morbidity’,
• drug and/or alcohol dependence can be a factor, and may mask an underlying disorder,
• difficulties of definition and classification in this field are common. There may be differences of expert opinion and diagnosis in relation to the offender or it may be that no specific disorder can be identified,
• a formal diagnosis is not always required, and
• where a formal diagnosis is required, a report by a suitably qualified expert will be necessary.

The progressive tone continues at paragraph 5, which highlights the importance of “courts [being] aware of relevant cultural, ethnicity and gender considerations of offenders within a mental health context”.

The guideline further reminds sentencers of the importance of ensuring that that offenders themselves are able to understand their sentence, and the consequences of reoffending or breaching the terms of their licence or supervision.  The sentencing court must “ensure that any ancillary orders, such as restraining orders, are capable of being understood and fulfilled by the offender. Courts should therefore put the key points in a clear and straightforward way”.

Section 2: Assessing culpability

 Section 2 of the guideline provides the sentencer with a framework to carry out such an assessment of culpability.  First, culpability should be assessed with reference to any relevant offence-specific guideline. Second, the sentencer should consider whether culpability was reduced by reason of the impairment or disorder. When sentencing, the court must state clearly its assessment of whether the offender’s culpability was reduced and, if it was, the reasons for and extent of that reduction.

Crucially, culpability “will only be reduced if there is sufficient connection between the offender’s impairment or disorder and the offending behaviour.” Accordingly, it seems likely that the question of “sufficient connection” will be well litigated in the future.

The practical effect is that “in some cases, the impairment or disorder may mean that culpability is significantly reduced. In other cases, the impairment or disorder may have no relevance to culpability. A careful analysis of all the circumstances of the case and all relevant materials is therefore required”.

All relevant materials will often include expert reports. However, the sentencer is not bound by the recommendations made in such reports:

“The sentencer, who will be in possession of all relevant information, is in the best position to make the assessment of culpability. Where relevant expert evidence is put forward, it must always be considered and will often be very valuable. However, it is the duty of the sentencer to make their own decision, and the court is not bound to follow expert opinion if there are compelling reasons to set it aside”.

In this regard, the guideline reflects the approach of Court of Appeal in R v Vowles [2015] EWCA Crim 45, in which the (then) Lord Chief Justice made clear that sentencers should not feel circumscribed by psychiatric opinion.

The guideline sets out a (expressly non-exhaustive) series of questions which sentencers may find useful in determining culpability:

• At the time of the offence did the offender’s impairment or disorder impair their ability:
  • to exercise appropriate judgement,
  • to make rational choices,
  • to understand the nature and consequences of their actions?
• At the time of the offence, did the offender’s impairment or disorder cause them to behave in a disinhibited way?
• Are there other factors related to the offender’s impairment or disorder which reduce culpability?
• Medication. Where an offender was failing to take medication prescribed to them at the time of the offence, the court will need to consider the extent to which that failure was wilful or arose as a result of the offender’s lack of insight into their impairment or disorder.
• “Self-medication”. Where an offender made their impairment or disorder worse by “self-medicating” with alcohol or non-prescribed or illicit drugs at the time of the offence, the court will need to consider the extent to which the offender was aware that would be the effect.
• Insight. Courts need to be cautious before concluding that just because an offender has some insight into their impairment or disorder and/or insight into the importance of taking their medication, that insight automatically increases the culpability for the offence. Any insight, and its effect on culpability, is a matter of degree for the court to assess.

Section 3: Determining the sentence

 Section 3 of the guideline sets out three general principles, derived from the case of R v PS [2019] EWCA Crim 2286:

• Impairments or disorders experienced by the offender are factors which sentencers are required to consider at Step 1 (where the impairment or disorder is linked to the offence) or at Step 2 (where it is not linked to the offence) when considering the stepped approach set out in offence-specific guidelines;
• Impairments or disorders may be relevant to the decision about the type of sentence imposed, in particular a disposal under powers contained in the MHA;
• Impairments or disorders may be relevant to an assessment of whether the offender is dangerous as that term is defined for sentencing purposes in Chapter 5 of Part 12 of the CJA 2003.

The guideline further summarises the wide range of disposals for consideration, running from fines / discharges through to hybrid orders. The suitability (or otherwise) of particular disposals, including commonly made community order requirements such as Mental Health Treatment Requirements (MHTR), Rehabilitation Requirement (RAR), Alcohol Treatment Requirement (ATR), and Drug Rehabilitation Requirement (DRR)) is considered. The guideline states that a community order with an MHTR, RAR, ATR or RAR may be “proper alternative[s] to a short or moderate custodial sentence.”

In respect of custodial sentences, a mental disorder or impairment “may be relevant to the length of sentence and to the issue of whether any sentence may be suspended… because an offender’s impairment or disorder may mean that a custodial sentence weighs more heavily on them and/or because custody can exacerbate the effects of impairments or disorders” albeit as with cases of physical ill-health, “impairments or disorders can only be taken into account in a limited way so far as the impact of custody is concerned”.

Disposals under the Mental Health Act 1983 are dealt with in section 3, supplemented by Annex C. A number of (again, non-exhaustive) factors are set out for the court “to weigh up”, including the offender’s behaviour when unwell, their insight into their condition, the level of compliance with any previous treatment and medication, and the speed at which risk factors may escalate and protection of the public.

Protection of the public is considered in some detail. Again, assumptions are to be guarded against: “It should not be assumed that one order is better than another, or that one order offers greater protection to the public than another”. However, the general principle expressed by the guideline is that “the graver the offence, the greater the risk to the public on release of the offender, and the greater the emphasis the court must place upon the protection of the public and the release regime”

Annexes

 The three annexes published alongside the guideline collate the important information that both practitioners and sentencers need to navigate the sentencing process:

• Annex A – ‘Disorders’ – helpfully sets out the “main classes of mental disorders and presenting features”, a crib-sheet which usefully precis’s “some of the more common disorders likely to be relevant in court”. The annex contains a glossary of the most commonly prescribed drugs and medicines used in treatment. The section was drafted by Professor Pamela Taylor, Chair of the Forensic Faculty of the Royal College of Physicians;
• Annex B – ‘Reports’ – provides guidance for the sentencer when seeking expert reports to assist in the sentencing exercise. It further sets out the additional requirements for sentencing mentally disordered offenders pursuant to s.157 Criminal Justice Act 2003;
• Annex C – ‘Sentencing disposals: criteria and release provisions’ – essentially summarises the law in relation to disposals under the Mental Health Act 1983 (e.g. s.37 hospital orders, s.41 restriction orders, s.45A hybrid orders) including, where relevant, the relevant release provisions;

Effects? 

The Sentencing Council carried out research into the possible effect of the guideline on sentencing behaviour. In a two-stage exercise designed to see whether sentencing behaviour might change as a result of using the new guideline a total of 29 sentencers (13 Crown Court judges, 3 district judges and 13 magistrates) took part. In the first stage the sentencers were asked to complete hypothetical sentencing exercises concerning offenders who suffered from mental health difficulties. In the second stage, which took place several weeks later, following publication of the draft guideline, sentencers were asked to re-sentence the same cases during an interview, but this time using the new draft guideline to aid their decision-making. Ultimately, the Sentencing Council concluded that “there were no discernible effects on sentencing behaviour in this simulation”.

Notwithstanding that observation, there can be no doubt that this Definitive Guideline is to be widely welcomed.

For further information please see guideline here.