Sentencing Offenders with Mental Health Issues: Proposed New Guidelines
A consultation was launched by the Sentencing Council on 9th April 2019 which is due to conclude on 9th July 2019.
The Council is an independent body with responsibility for establishing guidelines for criminal courts to apply when sentencing convicted defendants. It has developed draft guidelines to assist courts in applying a consistent approach in dealing with offenders with mental health conditions, neurological impairments or developmental disorders.
The consultation arises amid increasing public concern and media focus as to available support for those with mental health issues. In particular, it is recognised that their prevalence and related vulnerability within the criminal justice system needs to be addressed. Evidence suggests that those entrenched within the Criminal Justice System are more likely to encounter mental health problems than the general public.
What Are the New Guidelines?
It is important to note that the proposals only apply to offenders who have pleaded guilty to or have been convicted of their crimes. This should be distinguished from the occasional example of an offender whose mental health difficulties are so extreme as to prevent them from understanding criminal proceedings. In such a case, he/she would be deemed “unfit to plead” which, in turn, would require the court to consider all available evidence in assessing what happened on the relevant offence date.
Under the proposals, judges and magistrates will be asked to assess the extent to which a defendant’s personal issues have impacted on his/her judgement in committing the offence.
What Does it Mean?
The commentary above is a little technical and would benefit from some practical input. In this respect, I speak from 30 years’ experience as a criminal defence solicitor dealing routinely with Youth and Magistrates Court work.
I have seen the proposals summarised elsewhere as “likely to lead to more lenient sentences“ for those with mental health issues. This is, in my view, too simplistic. When dealing with a client who awaits sentence, the representations put forward (known as “mitigation”) will generally fall into two categories, namely:
The former concentrates on the precise circumstances of the crime. The latter will focus on the individual offender’s personal circumstances and is, therefore, of particular relevance to this discussion. The courts are increasingly directed to pre-existing guidelines in deciding an appropriate sentence.
In my experience, these are sometimes applied too rigidly without sufficient regard to a defendant’s specific difficulties. Whilst such issues cannot excuse the actions of a convicted criminal, they may justify a diversion from the usual guidelines. A sentence which incorporates a heightened degree of rehabilitation and input from mental health services may, for example, be more appropriate.
Under the existing sentencing regime and in practice, I present every case with necessary specific emphasis to my client’s personal mitigation. This should always, in my view, be considered and applied to an individual sentencing decision. I am reassured that, in my local court, there is already more proactive input from the Probation Service and the Mental Health team.
It may well be that the proposed new guidelines can only help in the sentencing of defendants with mental health conditions and in establishing clear sentencing principles.
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