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Chloe Birch and Vanessa Reid assess the implications of the Sentencing Council’s latest guideline and consider the likely impact on sentencing practice.
On 26th May 2020, Alexandra Scott of Carmelite Chambers reviewed the case of R v PS, Abdi Dahir, CF  EWCA 2286, providing an overview of the then-existing state of the law with respect to sentencing defendants with mental health conditions or disorders. As she noted at the time, formal guidance in this challenging and complex area of law has been long overdue.
On 1st October 2020, the long-awaited sentencing guideline “Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders” (“The Guideline”) came into effect. This new Guideline provides some much-needed clarity and streamlining to sentencing in these cases.
As criminal law practitioners will be well aware, people with mental health conditions and disorders are significantly over-represented in the criminal justice system. For just one example, 23% of prisoners first arriving in prison reported that they had had some prior contact with mental health services. This is nearly five times higher than the NHS’s estimated rate of contact with mental health and learning disability services for the general population in 2018/2019 
As a result, courts are frequently confronted with the problem of justly sentencing defendants who are fit to plead but nonetheless suffer from a mental health condition or disorder which may impact upon their culpability for the offence or the fairness of the potential sentence to be imposed. The Guideline provides a useful framework for the difficult process of sentencing a defendant with a mental health condition or disorder, striking a balance between the need to take an individualistic approach to offenders and the importance of a consistent approach to sentencing across all courts.
The Guideline is divided into three sections with three supporting annexes. Section One outlines the general approach to be taken in such cases, setting out threshold questions and directions to be determined in every case. Section Two deals with assessing culpability, which is, in many respects, the central difficulty in sentencing defendants in this category. Section Three outlines general principles for determining the sentence.
A. Applicability of the Guideline
The new Guideline applies only to offenders aged 18 and older who are sentenced on or after 1st October 2020 regardless of the date of the offence. It applies only to the sentencing of convicted offenders and does not address issues of fitness to plead or disposals for those found unfit to plead. The Guideline applies when sentencing offenders who have, or appear to have, a neurological impairment or development disorder at the time of the offence and/or at the time of sentencing.
B. Section One: General Approach
Impact of Disorder or Impairment on Sentencing
As a threshold matter, 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. 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 specific issues in the case. As the Guideline notes, there are a wide range of mental disorders, neurological impairments and developmental disorders and the level of any impairment will vary between individuals.
At this stage, Annex A will be a helpful reference for both courts and practitioners. Annex A sets out a comprehensive catalogue of the main classes of mental disorders and their presenting features, as well as a glossary of the most commonly prescribed drugs. These include schizophrenia and bipolar disorders, delusional disorder, post-traumatic stress disorder (PTSD), substance use disorders, dementia, and acquired brain injury, among others. The Annex reminds the sentencing tribunal that these disorders (the impact of which can become diminished, given their frequency) are proper and important considerations to be had in any sentencing exercise.
Reports and requests for information
The court must next consider whether to order a medical report or other request for information. The Guideline incorporates the existing requirement that “[i]n any case where the offender is, or appears to be, mentally disordered at the date of sentencing, the court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law, unless, in the circumstances of the case, the court is of the opinion that it is unnecessary” (s.157 CJA 2003). The Guideline notes that a “report may be unnecessary if existing, reliable and up-to-date information is available”. Such information may be available from the Court Mental Health Team, recent Probation reports, or independent medical evidence from medical practitioners who have completed recent assessments. Finally, if considering making a hospital or interim order, the court can request information about a patient from the local health services (s.39 of the MHA).
It is at this stage that courts and practitioners may wish to consult Annex B, which sets out practical considerations which courts may find useful when requesting information or ordering a formal report. These include how the condition relates to the offences committed; the level of impairment due to the condition at the time of the offence and currently; if there has been a failure of compliance, what is thought to be driving that behaviour; if a particular disposal is recommended, the expected length of time that might be required for treatment; and any communication difficulties and/or requirement for an intermediary. Annex B also provides a link to the relevant criminal practice directions for commissioning a medical report (I General Matters 3P Commissioning Medical Reports and VII Medical Reports for Sentencing Purposes R) and sets out the full additional requirements for mentally disordered offenders from section 157 of the Criminal Justice Act 2003.
Clarity of proceedings
Clarity of proceedings is of particular importance to both offenders and victims in these cases. The Guideline notes that “Courts should always be alive to the impact of an impairment or disorder on an offender’s ability to understand and participate in proceedings. 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. Courts should also ensure that any ancillary orders, such as Restraining Orders, are capable of being understood and fulfilled by the offender. As such, “courts should therefore put the key points in a clear and straightforward way”. The Guideline notes that “clarity of explanation is also important for victims in order that they too can understand the sentence.”
Potential pitfalls for sentencers
The Guideline provides guidance on some of the potential pitfalls for sentencers in this area. Although this section does not include any specific requirements for tribunals, it will be useful for advocates and courts alike to be aware of these issues.
Information about mental disorders which sentencers “should note”: The Guideline notes that some mental disorders can fluctuate and an offender’s state during proceedings may not be representative of their condition at the time the offence was committed. Sentencers are cautioned to avoid making assumptions, as many mental disorders are not easily recognisable. No adverse inference should necessarily be drawn if an offender had not previously either been diagnosed or willing to disclose an impairment or disorder. It is not uncommon for a person to have multiple impairments and disorders, and drug and/or alcohol dependence are common related issues which may mask an underlying disorder. A formal diagnosis is not always required, but where it is, a report by a suitably qualified expert will be necessary.
Considerations of equal treatment in this arena: it is important that tribunals are aware of “relevant cultural, ethnicity and gender considerations of offenders within a mental health context.” As the Guideline notes, members of BAME communities are significantly more likely to face barriers in gaining access to mental health services and diagnoses. Female offenders, refugees, and asylum seekers are also more likely to experience mental health problems than the general population.
C. Section Two: Assessing Culpability
Assessing the culpability of a mentally disordered offender remains a central challenge for any sentencing tribunal. The new Guideline helps focus and streamline the Court’s consideration of the impact of any mental disorder or impairment on the culpability element of the sentencing exercise.
In any sentencing exercise using this new Guideline, an initial assessment should first be made of the culpability bracket on the offence-specific guideline before considering whether any reduction is appropriate as a result of the impairment or disorder. For culpability to be reduced, the Guideline requires what it terms a “sufficient connection” between the offender’s impairment or disorder and the offending behaviour. It is not sufficient that there are parallel mental health issues present which would instead fall under general mitigation considerations (see ‘Determining the Sentence’ below). Expert evidence – where put forward – must always be considered and will often be very valuable, albeit the Court is not bound to follow an expert’s opinion if there are compelling reasons to set it aside.
This section of the Guideline sets out a list of questions which, while not exhaustive, serve as a useful starting point for considering the extent to which culpability may be reduced. These include:
• the offender’s ability to exercise appropriate judgement;
• the offender’s ability to make rational choices;
• the offender’s ability to understand consequences;
• the impact of medication, or failure to take medication;
• self-medication with illicit substances;
• any other factors that reduce culpability; and
• the offender’s insight into all of the above.
The offender’s insight and its effect on culpability is a matter of degree for the Court to assess, but any insight automatically increases culpability. If an offender’s culpability is reduced, reasons for, and the extent of, that reduction must be given.
D. Section Three: Determining the Sentence
This part of the Guideline addresses how sentencing powers of the Court may need to be adjusted or tailored to those with impairments or disorders. It is important to note that a court may consider an offender’s mental disorder or impairment at this stage even where it is not linked to the offence and must do so if the disorder or impairment has not been considered at the culpability stage.
Community Orders: where Community Orders are to be imposed, conditions of any such Order should be “bespoke to the offender”, taking into account any practical barriers to compliance. Mental Health Treatment Requirements can be made with either Alcohol Treatment Requirements or Drug Rehabilitation Requirements. Mental Health Treatment Requirements are set out at s. 207 of the Criminal Justice Act 2003, and, as the Guideline notes, provide a useful option for offenders who would not otherwise qualify for treatment under the Mental Health Act. The Guideline suggests that where an offender’s culpability is reduced by their mental state and/or the public interest is served by ensuring an offender receives appropriate treatment, a Mental Health Treatment Requirement may be more appropriate than custody. They are, however, not suitable for those offenders who are unlikely to comply with treatment.
Custodial Sentences: The Guideline makes clear that where an offender is on the cusp of custody, the Court may consider that the impairment or disorder makes a custodial sentence disproportionate to achieving the aims of sentencing (particularly considering the importance of rehabilitation). Even where the custody threshold is crossed, a Community Order with a Mental Health Treatment Requirement may be a proper alternative to a short or moderate custodial sentence. The Guideline reinforces that an offender’s impairment or disorder may mean that a custodial sentence weighs more heavily on them and/or that custody can exacerbate the effects of any such impairments or disorders.
If a custodial sentence is passed, the court should forward the psychiatric, psychological, or other medical reports to the prison in accordance with rule 28.9 of the Criminal Procedure Rules, which is particularly important when considering the welfare of any defendant with mental health needs.
With the additional support of Annex C, this section of the Guideline also sets out the mental health disposals available on conviction under Part 3 of the Mental Health Act 1983 and the differing tests for each of these disposals. These include s.37 Hospital Orders, s.41 Restriction Orders and s.45A Imprisonment with Hospital Directions.
It is a lamentable reality that broad swathes of offenders suffering from mental impairments and disorders find themselves more often before the criminal courts than under the care of medical practitioners. For our part, we hope that this new Overarching Guideline will provide a more just and coordinated approach for courts considering the appropriate sentences for those with mental health needs. This will help ensure that tribunals can properly and proportionately take into account the impact of those mental conditions on the culpability and appropriate sentencing of the individual offender in front of them.
Chloe Birch and Vanessa Reid are pupils at Carmelite Chambers. Chloe is vice-chair of Women in Criminal Law and a Middle Temple Scholar. Prior to pupillage, she was a paralegal and police station representative at Sonn Macmillan Walker. Vanessa is a former judicial law clerk to a U.S. federal judge and prior to commencing pupillage worked in the Investigations and Criminal Litigation group at WilmerHale.
 See House of Commons Library Briefing Paper Number 6988, “Mental health statistics for England: prevalence, services and funding” (23 January 2020).
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