A Step in the Right Direction? The new guideline for sentencing offenders with mental disorders, developmental disorders, or neurological impairments

Following on from a consultation launched last year, on 21 July 2020 the Sentencing Council published the new guideline for sentencing offenders with mental disorders, developmental disorders, or neurological impairments. Due to come into effect from 1 October 2020, the guideline is long overdue.

The guideline makes reference throughout to the Equal Treatment Bench Book, which is not considered or cited often enough in sentencing. The judicial oath includes the following promise: “…I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”. As the Equal Treatment Bench Book states, fair treatment is a fundamental principle embedded in the judicial oath and is, therefore, a vital judicial responsibility. No judge would be able to fulfil this promise without a level of understanding of the nature and impact of mental disorders, developmental disorders and neurological impairments.

The law has a long way to go before it is able to properly deal with the myriad of situations in which the workings of an individual’s mind intersect with the criminal law. Notably, the initial consultation on the new guideline set out to consider the sentencing of offenders with mental health conditions or disorders; as its title suggests this has been expanded to include developmental disorders or neurological impairments. This acknowledges the broader spectrum of conditions that affect an individual’s behaviour and understanding, and which may necessitate expert treatment and intervention.

Sentencing does not take place in a vacuum; the guideline rightly stresses the importance of cultural, ethnicity and gender considerations and also focuses on an understanding of the issues impacting access to and provision of services.

Sentencing guidelines generally follow a similar structure: when deciding on sentence, the first steps should be to look at the harm caused by the offending and the culpability of the offender.

There are increasing numbers of sentencing guidelines dealing with specific offences. The guideline for sentencing offenders with mental disorders, developmental disorders, or neurological is relevant to those people who have been convicted rather than those who has been found unfit to plead and subsequently found to have done the act (for more on this topic see Fitness to Plead and Caught in the Act: defining actus reus where a defendant is unfit to plead). It should be used alongside offence specific guidelines and relevant caselaw, and is generally relevant to the question of culpability. It also helpfully addresses the information needed before sentence can be passed and the different types of sentences available with elements specific to those people with mental disorders, development disorders and neurological impairments.

What the guideline says: a deeper understanding

The guideline makes it clear that the fact that a person has an impairment or disorder should always be considered by the court but will not necessarily have an impact on sentencing: “Sentencers should note the following:

• 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.”

This general guidance acknowledges how misunderstood mental ill health and impairments are. There is a risk that relying on a mental disorder, developmental impairment or neurological impairment at the sentencing stage when there has been no previous diagnoses, could result in a manipulation of the situation. Yet, for so many people, it is not until they enter the criminal justice system that an examination of their mental state is carried, that they are formally diagnosed or that they receive any expert support.

There are many reasons for this. One is access to services; as we are all too aware, the NHS is under enormous pressure. My firm have dealt with numerous cases where people have reported waiting years for an appointment with a specialist even once they have been referred. When an individual is represented under Legal Aid, this will allow their representatives to bypass the NHS and instruct an expert, funded through the Legal Aid scheme. In some cases, this can shortcut the wait from years to a few weeks.

The new guideline raises other factors impacting on access to support and services:  “It is important that courts are aware of relevant cultural, ethnicity and gender considerations of offenders within a mental health context. This is because a range of evidence suggests that people from BAME communities may be more likely to experience stigma attached to being labelled as having a mental health concern, may be more likely to have experienced difficulty in accessing mental health services and in acknowledging a disorder and seeking help, may be more likely to enter the mental health services via the courts or the police rather than primary care and are more likely to be treated under a section of the MHA. In addition, female offenders are more likely to have underlying mental health needs and the impact therefore on females from BAME communities in particular is likely to be higher, given the intersection between gender and race. Moreover, refugees and asylum seekers may be more likely to experience mental health problems than the general population.”

It is important that those passing sentence do not do so in a vacuum. Looking at the bigger picture provides insights into how an individual has reached the point where they are before the Court and the likely impact and success of a specific sentence.

Impact on sentencing decisions

An understanding of the impact of a custodial sentence has never been more pressing given the conditions those detained in the prison are living in as a result of the current health crisis. In the case of Manning, [2020] EWCA Crim 592 the Court of Appeal in April this year stated: “In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19.”

The new guideline states: “[w]here an offender is on the cusp of custody or detention, the court may consider that the impairment or disorder may make a custodial sentence disproportionate to achieving the aims of sentencing and that the public are better protected and crime reduced by a rehabilitative approach. Where custody or detention is unavoidable, consideration of the impact on the offender of the impairment or disorder may be relevant to the length of sentence and to the issue of whether any sentence may be suspended.”

The conditions created in prisons by the current health crisis unquestionably weigh even heavier on those with mental disorders, developmental disorders or neurological impairments.

It is equally important to consider the impact of other types of sentence given the specific circumstances of each individual. For example, the guideline does not address curfews at all, even though they are a restriction on liberty and may be entirely unsuitable for certain people. They may be unsuitable, for example, for those for whom leaving their accommodation is a coping mechanism.

Ensuring that the Court is furnished with the information necessary to understand the true impact of any sentence on someone with a mental disorder, developmental disorder or neurological impairment is vital.

Practical considerations

The guideline makes reference to section 157 of the Criminal Justice Act 2003, which states that in any case where the offender is or appears to be mentally disordered, the court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law, unless the court is of the opinion that it is unnecessary to obtain such a report. This again is far too rarely cited; I cannot remember the last time I heard it referred to by the Magistrates Court.

It may be unnecessary to obtain such a report if the court is furnished with information from other sources including legal representatives and the probation service. Liaison and diversion teams based at many Magistrates and Crown Courts will also be a useful source of information with the ability to communicate directly with other healthcare professionals without going through the data protection procedures imposed on legal representatives.

As referred to above, while the guideline focuses on the impact of a custodial sentence, it is essential that consideration be given to the impact of any sort of sentence.

The guideline states that courts should refer to the ‘directions for commissioning of a psychiatric or medical report’ form. While practitioners – myself included – may groan at the prospect of completing this, it does include some helpful questions to assist in identifying what the report should address and the key to an expert report is asking the expert the right questions. The guideline outlines some additional questions that may need to be considered:

• How the condition relates to the offences committed;
• The level of impairment due to the condition at the time of the offence and currently;
• If there has been a failure of compliance (e.g. not attending appointments, failing to take prescribed medication) what is thought to be driving that behaviour;
• If a particular disposal is recommended, the expected length of time that might be required for treatment, and details of the regime on release/post release supervision; and
• Any communication difficulties and/or requirement for an intermediary.

It is important for practitioners to remember that medical professionals and medical reports are not the only source of information able to assist with sentencing. Social services records, Education and Healthcare Plans (ECHP) and school records are all useful in giving insight into the history of support (or lack thereof) given to an individual and the impact that their disorder or impairment has had on them.

The guideline highlights another important practical point: “in all cases where the court is considering a mental health disposal, the court must be satisfied that treatment is available and will continue to be available and funded for the duration of the order”.

Leading the way for a better approach

The new guideline stresses the important of understanding the impact of the mental disorder, developmental disorder or neurological impairment on the ability of the offender to understand proceedings and the nature of the sentence. This will have an impact on their ability to comply with whatever sentence is handed down. This comprehensive approach is much needed in sentencing generally.

Sentencing will always be a balancing act but achieving the right balance will be more complex and difficult when the case involves someone who has a mental disorder, developmental disorder or neurological impairment. A deeper understanding of the nature and impact of these factors would serve the criminal justice system more broadly, not just in relation to sentencing. So while we may have a long way to go, this guideline is a step in the right direction.

We know that representing individuals with mental disorders, developmental disorders and neurological impairments requires expert knowledge and compassion. If you require assistance, contact our expert Criminal Defence team today on 0808 271 9413 or get in touch online.