Overarching Principles: Sentencing offenders with Mental Health Conditions or Disorders Consultation

Overview

What is the Sentencing Council?

The Sentencing Council is the independent body responsible for developing sentencing guidelines which courts in England and Wales must follow when passing a sentence. The Council consults on proposed guidelines before they come into force and makes changes to the guidelines as a result of consultations.

What is this consultation about?

The Council has developed a draft guideline for courts to use when sentencing offenders with mental health conditions, neurological impairments or development disorders. The aim of the guideline is to consolidate and explain information which will assist courts to pass appropriate sentences when dealing with offenders who have either a mental health condition or disorder, neurological impairment or developmental disorder, and to promote consistency of approach in sentencing.

There are a wide range of mental health conditions, neurological impairments and developmental disorders, the list of conditions or disorders covered by the draft guideline are listed at Annex A in the guideline. For ease, this document does not list all the conditions covered by the guideline each time during the discussion, but refers to ‘mental health conditions or disorders’, but this should be taken to include all the conditions listed within Annex A.

It is important to clarify that the Council is consulting on a general approach to sentencing offenders with mental health conditions or disorders, and not on the legislation, such as the Mental Health Act (MHA)1983, for example. Legislation is a matter for Parliament and is, therefore, outside the scope of this exercise.

Available evidence suggests that people in the criminal justice system are more likely to suffer from mental health problems than the general population. The prevalence of offenders with these conditions coming before the courts has led to calls for a guideline for sentencing these offenders. There is no mental health sentencing guideline currently, and little other guidance for courts to use when sentencing offenders with any of these conditions, which can be a difficult sentencing exercise. A lack of guidance could lead to inconsistencies in the way these offenders are sentenced, and there is an increasing public and media focus on mental health and associated issues generally.

The Council therefore decided to develop a draft guideline for sentencing offenders with any of the conditions or disorders listed within Annex A, and to seek views on its proposals. The Council has endeavoured to produce guidance that provides all the necessary information to consider, without being over lengthy.

In developing the guideline the Council has considered relevant caselaw in the area, and has noted recent developments, such as the final report by the Independent Review into the Mental Health Act. It is the Council’s understanding that the Government are considering the review’s recommendations and have committed to responding to the review in due course, and that the intention remains to bring forward new mental health legislation when parliamentary time allows. The Council intends to monitor closely developments post consultation, and will update the guideline before the definitive guideline is published as necessary. Going forward, the majority of the detailed information on legislation is contained within annexes B and C in the guideline. Annexes A-C do not form part of the guideline, and within each it states: ‘This information provided below is correct as of 09/04/2019. It does not form part of the guideline’. After the consultation the date would then change to the date the definitive guideline is published. This approach is similar to that taken with the appendices within to the Guilty Plea guideline, the flowcharts contained there provide an illustration of the operation of the guideline when it was published in 2017, they do not form part of the actual guideline.

During the 13- week consultation period, views on the draft guideline will be explored with sentencers, and consultation events will be held with interested parties. Following the consultation, all the responses will be considered, and a definitive guideline published. This will then be used when sentencing adult offenders.

Sentencing of convicted offenders only

The proposed guideline will only apply to the sentencing of convicted offenders, it will not address issues of fitness to plead or disposals for those found unfit to plead. This is because sentencing guidelines only deal with issues post conviction.