Terror cases show necessity of mental health guidance for judges

The question of how much mental illness affects a person’s responsibility for their actions is wrought with difficulty in any arena.

But in the courts, it can be the difference between freedom and imprisonment, a life sentence or a community order.

For the most serious offences, a jury must first decide whether the accused is guilty, frequently having to listen to opposing evidence called by the prosecution and defence over their mental capacity.

But the punishment is decided by judges or magistrates, who balance medical reports alongside statements from victims and families (often seeking a sentence far more severe than is in their power to pass).

These competing interests have given rise to dramatic inconsistency across the UK, with the treatment of mental health and learning difficulties varying from court to court and judge to judge.

The difference in terror cases has been particularly stark, with mental health and learning difficulties being cited as a factor in several defendants’ radicalisation.

Last year, an autistic teenage boy was jailed for life for planning a terror attack that he was not equipped to carry out.

Lloyd Gunton, who was 17 when he was sentenced, planned a vehicle attack but had no car or driving licence.

His trial heard he had been radicalised online in just a year, consuming Isis propaganda in his bedroom.

Almost exactly a year later, another autistic Isis supporter who planned a vehicle attack was jailed at a different court – this time only for 15 years.

Unlike Gunton, Lewis Ludlow was 27 and had been active for several years with the banned Islamist group al-Muhajiroun.

The Sentencing Council is hoping to address the issue with the first-ever centralised guidance for England and Wales, which aims to “help judges and magistrates assess how much responsibility offenders retain for their crime”.

Although officials stressed the guidance was not intended to change sentencing practice, it could see some judges reduce prison terms or use community orders instead.

But amid a crisis in probation, magistrates warned of a “lack of appropriate options” outside of imprisonment.

The privatised companies charged with implementing community sentences and rehabilitation work for lower-risk offenders are being overhauled, after a watchdog found they were failing to properly monitor criminals or help them change their behaviour.

With community rehabilitation companies divided by region, there will be inconsistency in the quality and range of services they offer even if judges start passing the same sentences.

John Bache, chair of the Magistrates Association, said the guidelines “will not, in isolation, be effective in ensuring consistency”.

“The biggest issue causing inconsistency is a lack of appropriate community options offering treatment or support for vulnerabilities linked to offending behaviour,” he added.

“It is also likely that without adequate assessments being done to identify relevant vulnerabilities, sentencers will not have sufficient information to take account of any guideline.”