A new guideline for sentencing offenders with mental disorders, developmental disorders and neurological impairments has been published by the Sentencing Council today following consultation.

For the first time, judges and magistrates will have guidelines to assist them in sentencing in this difficult and complex area. The new ‘Overarching principles: Sentencing offenders with mental disorders, developmental disorders, or neurological impairments’ guideline provides clarity and transparency around the sentencing process for this group of offenders.

The guideline, which will come into force on 1 October 2020, applies to adults who at the time of the offence, and/or at the time of sentencing, have disorders or impairments such as:

• Mental disorders – conditions like schizophrenia, depression or Post Traumatic Stress Disorder (PTSD).
• Developmental disorders – autism or learning disability.
• Neurological impairments – acquired brain injury (ABI) or dementia.

The guideline stipulates that, when assessing whether an offender’s impairment or disorder will have any impact on sentencing, the court should take an individualistic approach and focus on the issues in the case. Levels of impairment caused by any condition will vary significantly between individuals.

The fact that an offender has an impairment or disorder should always be considered by the court, but it will not necessarily have an impact on sentencing. For serious offences, the court must also bear in mind the protection of the public.

Sentencing Council member Her Honour Judge Rosa Dean said:

“At a time when courts are seeing increasing numbers of offenders with mental disorders, this guideline will be of real assistance in sentencing in this area where no formal guidance existed previously.

“The guideline will make sure that courts have the relevant information when sentencing offenders with mental disorders to make sure their rights and needs are balanced with protecting the public, and the right of victims and families to feel safe.”

The Lord Chief Justice of England and Wales, and President of the Sentencing Council, said:

“I welcome this new guideline from the Sentencing Council. It is an important and welcome step forward in helping judges and magistrates take an informed and consistent approach to sentencing in this difficult and complex area.

“Cases involving these issues are increasingly common and it is important that the criminal courts are alive to the implications of mental disorders and neurological impairments when sentencing.”

Will Johnstone, Policy Manager at Rethink Mental Illness said:

“These guidelines will provide much-needed additional clarity in the sentencing process when mental illness may be a factor. The complexity of many of these cases has meant that it hasn’t always been easy to apply the law in a consistent way in the past.

“We welcome the introduction of these guidelines, as they reflect how far the justice system has progressed in its understanding of mental illness.”

Factors the courts should consider include:

• Culpability may be reduced if an offender was at the time of the offence suffering from an impairment (or disorder or combination of impairments or disorders), but only if there is sufficient connection between the offender’s impairment or disorder and the offending behaviour.
• In some cases, the impairment or disorder may mean that culpability is significantly reduced. In other cases, the impairment or disorder may have no relevance to culpability. A careful analysis of all the circumstances of the case and all relevant materials is therefore required.
• Courts should ensure that offenders understand their sentence and what will happen if they reoffend and/or breach the terms of their licence or supervision.
• Clarity of explanation is also important so that victims too can understand the sentence imposed.

The guideline sets out a range of sentences available including fines/discharge, community orders, Mental Health Treatment Requirements, drug and alcohol treatment orders and custody.

When considering which type of sentence to impose, courts should consider:

• The nature of the offence for which the offender is being sentenced; and
• Whether the impairment or disorder experienced by the offender may be relevant to the disposal, in particular disposals under powers contained in the Mental Health Act.

 Notes to editors

1. This guideline applies only to offenders aged 18 and older, who are sentenced on or after 1 October 2020, regardless of the date of the offence.
2. It applies only to the sentencing of convicted offenders and it does not address issues of fitness to plead or disposals for those found unfit to plead.
3. Available evidence suggests that people in the criminal justice system are more likely to suffer from mental health problems than the general population: for example, when a survey screened prisoners on arrival at prison, 23 per cent reported that they had some prior contact with mental health services.
4. Sentencing guidelines must be followed, unless the court is satisfied that it would be contrary to the interest of justice to do so. If a judge or magistrate believes that a guideline prevents the correct sentence from being given in an exceptional case, he or she can sentence outside of the guideline.
5. Guidelines set sentencing ranges within the maximum for the offence as set out in current legislation. The guidelines are intended to reflect current sentencing practice for these offences.
6. The Sentencing Council was established by Parliament to be an independent body, but accountable to Parliament for its work which is scrutinised by the Justice Select Committee. Justice Ministers are accountable to Parliament for the Sentencing Council’s effectiveness and efficiency, for its use of public funds and for protecting its independence. Judicial Council members are appointed by the Lord Chief Justice with the agreement of the Lord Chancellor. Non-judicial council members are appointed by the Lord Chancellor with the agreement of the Lord Chief Justice.
7. For more information, please contact Kathryn Montague, Sentencing Council Press Office, on 020 7071 5792 / 5788 / 07912301657 Email