‘Out of the Penal System and into the Hospital Regime?’ Judicial Challenges in Sentencing Mentally Disordered Offenders and the Likely Impact of the 2020 Sentencing Council Guideline

Abstract

Mentally disordered offenders may be vulnerable yet also pose particular risk to the public. Achieving appropriate sentencing poses complex challenges for judges in properly determining culpability and punishment, protecting the public, and meeting any identified treatment needs of the defendant. With respect to all three elements there is likely to be necessary reliance upon psychiatric expertise. Despite much previous statutory guidance, there has not – until very recently – been available specific sentencing guidelines from the Sentencing Council (SC) to assist the judiciary in what is a profoundly difficult exercise. This review describes and considers the guidance available to the judiciary in the Crown Courts of England and Wales regarding the various disposal options – including that which ‘hybridises’ penal and treatment disposal – in addition to facilitating and properly limiting the role of expert evidence. A specific focus is on contextualising, and commenting upon, the SC's recently published Guidance, Sentencing Offenders with Mental Disorders, Developmental Disorders or Neurological Impairments, which seeks to consolidate information, improve knowledge, reduce confusion, and assist the courts towards properly and consistently addressing the relevance of mental disorder to sentencing. In doing so, in the authors’ view, it privileges punishment over public safety, leaving judges to address public safety largely without the benefit of the explicit ‘routes to sentencing’ approach of the Guidance.