On 9 April 2019, the Sentencing Council published a new draft guideline on ‘Sentencing Offenders with Mental Health Conditions or Disorders’. Should the draft come into effect its stated aim is not to change sentencing practice, but instead to promote a more consistent approach throughout all sentencing courts.
All criminal practitioners have experienced something akin to a ‘mental health lottery’ in our courts. We know what a difference it can make when in front of a recorder with experience in mental health law, or when one of our lay magistrates demonstrates a professional knowledge, quite apart from their experiences in our courts, of working in mental health. All too often, mitigation in relation to a defendant’s mental health or developmental disorder is either completely ignored or only paid lip service. Even this draft guideline has been ridiculed in some parts of the press with the wilful misrepresentation that defendants will now avoid prison because they are dyslexic. We have seen the impact that this dismissive attitude can have.
The National Audit Office states that between 2012 and 2016 incidents of self-harm in the prison population increased by 73% (a total of 40,161 incidents of self-harm in prison in 2016). In 2016, the Prisons and Probation Ombudsman found that 70% of prisoners who had committed suicide in the previous two years had mental health needs. Evidence Compiled by the Prison Reform Trust shows that up to 7% of prisoners have an IQ of under 70 and a further 25% have an IQ of under 80. Strikingly, 25% of child offenders have an IQ of less than 70. This new draft guideline is welcome, but long overdue.
The draft contains four main sections:
- General approach
- Determining the sentence, and
- Sentencing disposals
Section one addresses how to use the guideline, and other general matters of procedure. Of note it is made clear that it does not replace specific offence guidelines – instead, it should inform the court’s approach when assessing culpability and sentencing disposal. Attention is drawn to similar provisions within the Equal Treatment Bench Book, which contains guidance to judges dealing with vulnerable people and those from minorities. The draft contains a specific direction that, when a custodial sentence is passed, the court should forward psychiatric, medical and pre-sentence reports to the prison to ensure they are fully informed.
Sections two and three outline a consistent approach toward culpability and, thereafter, determining an appropriate sentence. It does not give defence practitioners carte blanche to chuck everything at the court and hope that something sticks. Instead, the draft makes it clear that in some cases a particular condition or disorder may have no relevance at all: assessment is still, after all, a matter for the discretion of a sentencing judge or bench. Section four contains limited guidance on some of the various mental health disposals and orders available to Magistrates’ and Crown Courts.
If the guide comes into force, and it is used sensitively, it could become a powerful new tool in the hands of defence advocates. It is right, and just, that such illnesses and disorders are properly taken into account in our courts. It is right, and just, that all tribunals (most of whom do so already) are forced to confront the reality that a disproportionate number of the defendants who appear before them are fighting and losing battles none of us can see. After proper consideration, if such defendants are diverted from the prison population toward sentencing disposals that take better account of their circumstances then this can surely only be a good thing.
Ben Rowe is a barrister at Charter Chambers who specialises in criminal law. He will be joining a seminar at Charter Chambers on 20th June 2019 led by David Taylor. David is a senior criminal barrister at Charter, and a specialist Mental Health Judge. They will be addressing the new draft guidelines, the current approach to mental health sentencing in our jurisdiction, and how the courts’ approach might change should the guidelines come into force.