The Sentencing Council for England and Wales has released new guidelines which apply to adults who with neurological, mental and developmental disorders.
An arms-length body of the Ministry of Justice, the Sentencing Council was established to promote greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary.
Published following a submission by the Government’s Criminal Justice Acquired Brain Injury Interest Group, Chaired by Lord Ramsbotham, the new guidelines were released in July 2020 and will be valid from 1 October 2020.
The guidelines will apply to offenders living with:
- – Mental disorders – conditions like schizophrenia, depression or Post Traumatic Stress Disorder (PTSD)
- – Developmental disorders – autism or learning disability
- – Neurological impairments – acquired brain injury (ABI) or dementia
The general approach
Judges and magistrates will no longer be asked to interpret previous cases when looking at sentencing for offenders with mental and neurological disorders, but instead will be asked to refer to these guidelines.
As part of the general approach, the guidelines ask the Courts to be aware of the impact of an impairment or disorder on an offender’s ability to understand and participate in proceedings.
Courts should ensure that offenders understand their sentence and what will happen if they reoffend and/ or breach the terms of their licence or supervision. Courts should therefore put the key points in a clear and straightforward way.
The guidance also states that a formal diagnosis is not always required, andwhere a formal diagnosis is required, a report by a suitably qualified expert will be necessary.
The guidelines state that care should be taken to avoid making assumptions and consider that people may have a number of different impairments and disorders – or ‘co-morbidities’.
Culpability
When it comes to assessing blame, the guidelines state that culpability may be reduced if an offender was at the time of the offence suffering from an impairment (or disorder or combination of impairments or disorders), but only if there is sufficient connection between the offender’s impairment or disorder and the offending behaviour.
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.
The guidance asks the court to assess whether 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?
Sentencing
Judges should consider 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. The guidelines set out a range of sentences available including fines/discharge, community orders, Mental Health Treatment Requirements, drug and alcohol treatment orders and custody.
Courts should ensure that offenders understand their sentence and what will happen if they re offend and/or breach the terms of their licence or supervision.
The Courts are reminded that offenders must understand what is being discussed in terms of sentencing, which is also important so that victims too can understand the sentence imposed.
When considering which type of sentence to impose, courts should consider:
- – The nature of the offence for which the offender is being sentenced; and
- – Whether the impairment or disorder experienced by the offender may be relevant to the disposal, in particular disposals under powers contained in the Mental Health Act.
To read the full sentencing guidelines, visit The Sentencing Council for England and Wales.
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