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SC consultation on sentencing offenders with mental health conditions or disorders - Law Society response

12 July 2019

We have responded to a Sentencing Council consultation on 'overarching principles: Sentencing offenders with mental health conditions or disorders', which are detailed proposals for a guideline on sentencing offenders with mental health conditions and disorders.

The Proposals

The 'overarching principles: Sentencing offenders with mental health conditions or disorders' guideline will help judges and magistrates assess how much responsibility offenders retain for their crime, given their particular condition and how it affects them. It will be used in conjunction with offence specific guidelines.

The draft guideline sets out proposed general principles for sentencing, including that:

  • the approach taken by the courts should focus on individual circumstances, because the level of impairment caused by any condition will vary significantly between offenders and some mental health conditions are not obvious
  • the rights and needs of offenders should be balanced with the protection of the public, and the recognition of the rights and needs of victims/families to feel safe
  • the courts should decide how much responsibility the offender retains for the offence, given the particular order or condition and the specifics of the case
  • courts should carefully consider all the facts in each case, including what is practically available, before deciding on the sentence

The Sentencing Council asked judges, magistrates and others interested in criminal justice for their views on the proposals in the draft guideline.

Our view

We welcomed the guideline, which is a comprehensive attempt to accommodate the prevalence of people with mental disorders who appear as defendants in the criminal courts. It will promote a consistent and just approach to the sentencing of offenders with a wide range of mental disorders and conditions.

We do not agree that it should be applicable only to adult offenders and feel that excluding under 18-year-olds will create a further anomaly in the sentencing regime applicable to children and youths.

We consider that the proposed General Approach sets out a timely and appropriately individualistic approach to the assessment of capacity and the disordered defendant’s ability to make sensible and accurate decisions. It sets out an approach that assesses the offender’s reasoning capacity in relation to specific events given that capacity, for a significant number of disordered persons, is fluctuates.

We recommend removing the suggested duty for treating medical professionals to report non-compliance with Mental Health Treatment Orders to the court. Rather, we suggest that the issue of breach of orders should be dealt with exclusively by the Probation Service.

We consider how the guideline deals with the question of culpability. The assessment of culpability, in conjunction with the assessment of harm, is the default sentencing methodology deployed by the criminal courts. However, culpability in the context of assessing responsibility in relation to a mentally disordered defendant is clearly a highly complex task. We recommend that the Council consider replacing the assessment of culpability with an assessment based on the 'degree of retained responsibility', a concept used in the Council’s 2018 guideline on 'Manslaughter by Reason of Diminished Responsibility'.

What this means for solicitors

The guideline will assist all criminal solicitors in making sentencing submissions to Magistrates' and Crown Courts in relation to offenders and clients who suffer from a mental health condition or disorder. It will enable criminal practitioners to more accurately predict likely sentences and advise their clients, and will promote consistent and just sentencing decisions from magistrates and judges.

Next steps

The Sentencing Council will consider all responses and publish the final guideline in due course.

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