Sentencing Guideline on Mental Health- Welcome Clarity or Missed Opportunity?

Two months ago, the Lord Chief Justice was asked in a Justice Committee hearing whether the current crisis provides any opportunity to reduce the prison population through greater use of alternative sentences for vulnerable groups, including people with mental health problems. Lord Burnett responded by telling MPs that a lot of work had been going on in connection with the sentencing of the mentally ill with the Sentencing Council’s development of a guideline on sentencing defendants with “mental problems” a project “close to my heart since the day I became Lord Chief Justice”.  

The Council’s guideline on Sentencing offenders with mental disorders, developmental disorders, or neurological impairments was published this week, coming into force in October. It has been widely welcomed as providing greater clarity and transparency for courts - but what difference is it likely to make to the extent to which people with mental health problems go to prison and if they do to the length of the terms they serve?

The guideline itself says that the fact that an offender has an impairment or disorder should always be considered by the court -but will not necessarily have an impact on sentencing. Disappointingly, the resource assessment drawn up alongside the guidelines suggests that the Council does not expect that there will be any impact on sentencing severity; on the use of lower culpability factors and mitigating factors relating to mental health; or the imposition of community sentence requirements. When, during the development of the guideline, sentencers were given scenarios to sentence under current practice and then under the draft guideline, researchers found no clear evidence of any changes in sentencing practice.

This is a huge missed opportunity to encourage greater use of alternatives to prison for this group of offenders.  The guideline states that courts may consider a Mental Health Treatment Requirement (MHTR) attached to a Community Order as an alternative to a short or moderate custodial sentence, and that they may also wish to consider a drug rehabilitation requirement (DRR) and/or an alcohol treatment requirement (ATR) in appropriate cases.  Given their duty to take account of the relative effectiveness of different sentences in preventing re-offending, the Council should have gone a lot further than that in directing sentencers towards such measures.   

Had the guideline given a greater impetus to these community- based requirements, the Council would have been duty bound to make a proper assessment of the resources required to implement them. As things stand the Council says the guideline is not expected to change the numbers of MHTRs, DRRs or ATRs.  Why not? Because the use of these requirements is constrained by their availability in the community. It’s a Catch 22 from which the Council could have helped to engineer an escape.

That it did not do so is characteristic of the narrow and cautious approach they have brought to almost all of the guidelines they have produced. Their intention, they say “is not directly to cause changes to sentencing practice".  It should be.  The Council says it may be that the guideline is part of a wider focus on offenders’ mental health, which may gradually change the way that mental health is treated in the criminal justice system. But don’t hold your breath.