BCL Associate Daniel Jackson's article titled 'Clearer sentencing guidelines offer more support for vulnerable adults' has been published by Mental Health Practice.

Here's an extract from the article:

New guidelines for sentencing adult offenders with mental health disorders and learning disabilities came into force in England and Wales at the start of October.

They state impairments or disorders should always be considered by the courts in terms of the offender's ability to understand and participate in proceedings. They also detail factors judges and magistrates should consider when deciding whether culpability is reduced.

The guidelines have been welcomed for providing much-needed clarity in this area. While some of the 130+ existing offence-specific sentencing guidelines mentioned mental health and learning disabilities as factors to consider, there was nothing setting out in detail how the individual needs of these groups should be considered.

40% of people detained by police in England and Wales have a mental health condition (Source: National Institute for Health and Care Excellence) An estimated 30% of the prison population has a learning disability

The guidelines were produced by the Sentencing Council, an independent body that promotes transparency and consistency in sentencing. It says it was prompted to do so by the increasing numbers of people with mental health conditions and learning disabilities coming before the courts.

Figures suggest 40% of people detained in custody have a mental health condition, though because there is no routine monitoring it is impossible to be sure of the scale of the issue. Data on learning disabilities is even harder to identify, although the charity the Prison Reform Trust believes about 30% of the prison population has a learning disability.

'It will be important to check over time where people go – prison or hospital – and if that was right for them'

Independent learning disability consultant nurse, Debra Moore, who has a background in clinical forensic services, says the guidelines are much needed. 'People have been lobbying hard for this for some time. It is a human rights issue. Finding yourself in the courts system is scary for anyone, but if you have a mental health condition or cognitive impairment there is no way you can present yourself in the best way, so it is great that we now have this guidance.'

'Too many people with mental health conditions are going to prison when they are clearly unwell'

But she says it raises some important questions. 'Will it increase demand on the NHS, and will they have the resources to provide the response required? 'Might there be an increased risk of people just being diverted to hospitals, where they can end up spending a long time, much longer than any sentence?

'Hospitals will be appropriate for some, but it will be important to check over time where people go – prison or hospital – and if that was right for them.'

Making reasonable adjustments in prisons: the role of the learning disability nurse RCN justice and forensic health forum vice-chair Paul Hanna says: 'We have needed more consistency for some time. You see too many people with mental health conditions going to prison when they are clearly unwell.

'Often the crimes are a cry for help, but they are not getting sentences that reflect the need for treatment.' 

Mr Hanna adds that it may well take 'another 12 months at least' for the ramifications of the guidelines to have an impact, but he hopes to see more sentences that recognise the need for mental health treatment alongside custodial terms, as well as paving the way for continued treatment when the person is released.

Courts need to make more use of community sentence treatment orders

Prison Reform Trust head of policy, Mark Day says he hopes that, where appropriate, courts will also make greater use of community sentence treatment orders, which compel people with mental health conditions to take part in therapy to avoid a custodial sentence for less serious offences. Prison nursing: opportunities, autonomy and known risks He adds that the problems facing people with learning disabilities are somewhat different and are more related to the way reasonable adjustments are made and their needs catered for throughout the process. 'For example, you may be asked to report to a probation officer at certain times, but someone with a learning disability may have difficulty with that. We want to see the courts take these factors into account.'

Who is covered by the sentencing guidelines?

The Sentencing Council guidelines set out principles on sentencing offenders in England and Wales with mental disorders, development disorders or neurological impairments and apply to adults who at the time of the offence and/or sentencing have one of the following:

  • Mental disorders such as schizophrenia, depression or post-traumatic stress disorder
  • Developmental disorders such as autism or a learning disability
  • Neurological impairments, including dementia

The guidelines are the latest attempt to strengthen rights and improve support given to people with vulnerabilities who find themselves in the criminal justice system. There is already a well-established system of using medical reports, which looks at whether individuals are well enough to plead guilty or not guilty, decide on any help they may need and to see if their health played a part in the offence. Pre-sentence reports can be requested if an individual is found guilty or has pleaded guilty. These are usually produced by the probation service, but can involve input from health professionals. The guidelines will help inform both of these and ensure greater consistency is applied.

This article was originally published by Mental Health Practice. You can read the full article on their website.

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