Judges given new sentencing guidance for criminals with mental illnesses and learning difficulties

Criminals with mental illnesses and learning difficulties are to be sentenced according to new guidelines aiming to determine their level of responsibility for offences.

Campaigners hailed a “big step” towards consistency in courts across England and Wales, but magistrates warned of a “lack of appropriate options” outside of imprisonment.

The Sentencing Council has launched a consultation on guidance that it said would “help judges and magistrates assess how much responsibility offenders retain for their crime, given their particular condition and how it affects them”.

The independent body said that for the first time, courts would have “a clear structure and process to follow when sentencing people with mental health conditions and disorders, and those with learning disabilities, autism, brain injury, substance misuse disorders and dementia”.

Officials stressed that the guidance is not intended to change sentencing practice, and that consideration for offenders should be balanced with public protection and the right of victims to feel safe.

“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 Sentencing Council said. “The courts should decide how much responsibility the offender retains for the offence.”

Sentencing guidelines must be followed, unless a judge or magistrate considers this is not in the interests of justice.

The proposals say that before a prison sentence other than one fixed by law is imposed on a mentally disordered offender, a medical report should be obtained and considered.

They also stipulate that a court must be satisfied that treatment is available if it is considering a mental health disposal.

But the proposals come amid a crisis in the privatised probation companies charged with implementing community sentences and rehabilitation work.

Community rehabilitation companies, which handle lower-risk offenders, are being overhauled after a watchdog found they were failing to properly monitor criminals.

John Bache, chair of the Magistrates Association, said it was concerned the guidelines “will not, in isolation, be effective in ensuring consistency of sentencing for this cohort”.

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

The Sentencing Council pointed to statistics suggesting criminals are more likely to suffer from mental health problems, with 23 per cent of prison inmates having prior contact with mental health services and 7 per cent having learning difficulties.

The guidelines, for over-18s only, will take judges and magistrates through a series of questions over whether the person’s judgment, rational decision-making or understanding of consequences had been affected.

Draft questions include “did the offender have any insight into their illness?” and “did the offender seek help, and fail to receive appropriate treatment or care?”

The “mere fact” that an offender has such a condition or disorder does not necessarily mean that it will have an impact on sentencing, according to the draft guidance.

It says: “In some cases the condition may mean that culpability is significantly reduced, in others, the condition may have no relevance to culpability.”

Judge Rosa Dean, a member of the Sentencing Council, said defendants’ mental health was “just one element” that courts must consider.

“As a society we are becoming increasingly aware of the prevalence of mental health conditions and disorders, particularly among people in the criminal justice system,” she said. “The council believes that offenders who have a mental health condition or disorder, neurological impairment or developmental disorder should be confident that the court has the information it needs to take a consistent approach to sentencing and pass an appropriate sentence.”

Lucy Schonegevel, of the charity Rethink Mental Illness, said: “This is a big step towards the justice system having a better understanding of mental illness, as it’s the first time there will be specific sentencing guidelines in this area. In practice it will mean that people affected by mental illness who are in contact with the criminal justice system will have their illness properly taken into account, and in a consistent way.”

Welcoming the guidance, a Ministry of Justice spokesperson 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.”