Judges given first formal guidance on how to sentence criminals with mental illness

Sentencing Council says courts are ‘seeing increasing numbers of offenders with mental disorders’

Judges previously used case law and campaigners warned of 'inconsistency' (PA)

Judges are to be given formal guidance on how to sentence people with mental health issues for the first time in England and Wales.

The Sentencing Council said courts were “seeing increasing numbers of offenders with mental disorders” and had so far relied on interpreting previous cases.

The new guideline will be used by judges and magistrates from 1 October for adults with conditions including autism, depression, schizophrenia and dementia.

It says that courts should not “make assumptions” about offenders’ mental state, and that a formal diagnosis will not always be required.

“The fact that an offender has an impairment or disorder should always be considered by the court but will not necessarily have an impact on sentencing,” the document states.

“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.”

Culpability, which is a key factor in deciding how to punish offenders, will not automatically be reduced because a person’s mental health may have “no relevance” to the crime committed, the Sentencing Council said, adding: “For serious offences, the court must also bear in mind the protection of the public.”

Judges will consider factors including whether offenders were failing to take prescribed medication, or were “self-medicating” with alcohol or illicit drugs.

For less serious offences, they can give criminals fines, community sentences, mental health treatment requirements and drug and alcohol programmes.

The guideline says that in cases where a prison sentence is an option, judges “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”.

For severe crimes where custody must be used, courts will be able to cut or suspend sentences where prison could worsen a person’s mental health.

But a trial of the new guideline carried out by 13 crown court judges, three district judges and 13 magistrates found “no discernible effects on sentencing behaviour”.

Judge Rosa Dean, a member of the Sentencing Council, said: “At a time when courts are seeing increasing numbers of offenders with mental disorders, this guideline will be of real assistance in sentencing in this area where no formal guidance existed previously.

“The guideline will make sure that courts have the relevant information when sentencing offenders with mental disorders to make sure their rights and needs are balanced with protecting the public, and the right of victims and families to feel safe.”

The Sentencing Council said evidence suggests offenders are more likely to suffer from mental health problems than the general population, and 23 per cent of those arriving in prison reported prior contact with mental health services.

It warned that people from black and ethnic minority communities are less likely to have received professional treatment, and that women, refugees and asylum seekers may be more likely to experience mental health problems.

The guideline requires courts to be aware of disorders affecting how defendants understand and participate in court proceedings, and calls for them to ensure that sentences and orders are fully understood.

The Lord Chief Justice, Lord Burnett of Maldon, called it an “ important and welcome step forward in helping judges and magistrates take an informed and consistent approach to sentencing in this difficult and complex area”.

He added: “Cases involving these issues are increasingly common and it is important that the criminal courts are alive to the implications of mental disorders and neurological impairments when sentencing.”

The conditions covered include developmental disorders, such as autism, learning difficulties and personality disorders, illnesses like schizophrenia, depression, anxiety, phobias and post-traumatic stress disorder.

The guideline also includes epilepsy, brain injuries and strokes.

The Rethink Mental Illness charity said the law had not been applied consistently in the past and that clarity was “much-needed”.

Senior policy officer Will Johnstone added: “We welcome the introduction of these guidelines, as they reflect how far the justice system has progressed in its understanding of mental illness.”

Justice minister Chris Philp said: “It is vital the courts have clear and consistent guidance in these often complex cases, so that an offender’s mental health is addressed and the public kept safe.

“These guidelines will help us to continue improving the way the criminal justice system deals with offenders experiencing mental health issues.”