Analysis

Clearer sentencing guidelines offer more support for vulnerable adult offenders

Sentencing Council aims to strengthen legal rights of people with mental health disorders and learning disabilities

Sentencing Council aims to strengthen legal rights of people with mental health disorders and learning disabilities

  • Crimes by people with mental health conditions are often a cry for help, but sentences may not reflect their need for treatment
  • New sentencing rules say mental health disorders and learning disabilities should be considered when judging culpability for offences
  • The guidelines should mean there is more consistency over medical and pre-sentencing reports requested by courts

Picture: iStock

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

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Sentencing Council aims to strengthen legal rights of people with mental health disorders and learning disabilities

  • Crimes by people with mental health conditions are often a cry for help, but sentences may not reflect their need for treatment
  • New sentencing rules say mental health disorders and learning disabilities should be considered when judging culpability for offences
  • The guidelines should mean there is more consistency over medical and pre-sentencing reports requested by courts

Two men in discussion. Clearer sentencing guidelines now offer more support for vulnerable adult offenders

Picture: iStock

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’

Debra Moore, independent learning disability consultant nurse

Nurse consultant Debra Moore
Debra Moore Picture: Neil O’Connor

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.’

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.

RCN justice and forensic health forum vice-chair Paul Hanna
Paul Hanna Picture: John Houlihan

‘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.

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, developmental 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.

Screening, assessment and support for people with mental health problems and learning disabilities

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.

‘There is much greater awareness now about the support that is needed’

Ann Norman, RCN professional lead for learning disabilities and justice and forensic nursing

RCN professional lead for learning disabilities and justice and forensic nursing Ann Norman says the roll-out of liaison and diversion teams is also key.

RCN professional lead for learning disabilities and justice and forensic nursing Ann Norman
Ann Norman

The services are being championed by NHS England to provide screening, assessment and support for people with mental health problems and learning disabilities in the criminal justice system.

The teams involve psychiatrists, social workers and mental health nurses – with learning disability nurses either employed directly or providing input from community teams.

Learning disability nurses have a valuable role to play in the criminal justice and prison systems

Ms Norman says the liaison and diversion teams are now not far off full implementation across England and, together with the sentencing guidelines, feel like a positive step.

She says learning disability nurses are increasingly being recruited to work in the criminal justice and prison systems, as well as being involved in writing medical reports and pre-sentencing reports.

‘There is much greater awareness now about the support that is needed.’

Maze of pre-trial processes, procedures and complicated language seen as particular barriers

Even so, weaknesses in the system remain. The Equalities and Human Rights Commission published a report in June that looked at the pre-trial stages from arrest and custody through to appearing in court.

It found that people with learning disabilities and mental health problems were disadvantaged by the system.

The report highlighted the ‘maze of processes and procedures’ and ‘complicated language’ as particular barriers, while the increased use of video hearings was creating problems in communication for offenders with vulnerabilities and the identification of those vulnerabilities.

30%

of the prison population in England and Wales has a learning disability

(Source: Prison Reform Trust)

To improve identification of mental health disorders and learning disabilities it recommended the introduction of universal screening of detainees, citing the example of Kent and Medway NHS and Social Care Partnership Trust’s criminal justice liaison and diversion service, which started piloting this approach in September.

Screening looks for signs of learning disabilities, drug and alcohol addiction or other issues

The service was concerned the police approach was overly focused on whether a detainee’s health was immediately at risk, such as from self-harm, so it set up a team to assess everyone entering police custody.

Non-clinical staff screened people in custody, guided by tablet-based software that looks for signs of learning disabilities, including whether someone is on the autism spectrum or has mental health conditions, drug and alcohol addiction or other issues such as debt and homelessness.

Substance misuse can often mask the presence of mental health conditions

Where necessary, detainees are then referred to specialists who carry out more detailed assessments.

All information gathered is fed directly into a detainee’s NHS medical records and support is arranged if needed. If they are charged, such data is routinely sent to their defence team and the courts.

The courts also receive advice on any recommended adjustments for a hearing.

The outside of a magistrates' court building

Picture: Alamy

The Equalities and Human Rights Commission report said the early indications were that the screening was identifying more people who needed support.

It said substance misuse could often mask the presence of mental health conditions, and that those with mild to moderate learning disabilities may not have a formal diagnosis.

47%

of male prisoners in the UK have a traumatic brain injury

(Source: Disabilities Trust Foundation)

Lancashire and South Cumbria NHS Foundation Trust consultant learning disability nurse approved clinician Christine Hutchinson, who provides support to her local liaison and diversion service, agrees that identification is a problem.

If vulnerabilities are not picked up in the first place, people may not receive the support they need

‘People with learning disabilities can develop coping strategies and techniques that mean it is “not so easy to spot,”’ says Ms Hutchinson.

An alternative to universal screening is training for staff in the criminal justice system, she says.

Whatever the solution, though, she says the bottom line is simple. If vulnerabilities are not picked up in the first place, the potential benefits from liaison and diversion or the new sentencing guidelines will simply be lost. ‘People won’t receive the support they need or the reasonable adjustments that should happen.’

Distinct and practical guidance will help strengthen the way pre-sentence reports are drawn up

BCL Solicitors LLP associate Daniel Jackson says there has been a lack of consistency in sentencing – and the new guidelines will strengthen in particular the way pre-sentence reports are drawn up.

‘Authors of pre-sentence reports will need to make reference to these guidelines, as they include distinct and practical guidance.

‘If better-quality information is available to courts and available at an early stage, then it should facilitate the move towards more consistent decision-making.’

Sentencing Council guidelines: key points

  • 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
  • No adverse inference should necessarily be drawn if an offender had not previously either been formally diagnosed or willing to disclose an impairment or disorder
A gavel
Picture: iStock
  • A formal diagnosis is not necessarily required, but if it is deemed to be needed a report by a qualified expert should be drawn up
  • For serious offences the court must also consider protection of the public
  • Culpability may be reduced if an offender was impaired at the time of the offence, but only if there is sufficient connection between the impairment and offending behaviour. The impairment may mean that culpability is significantly reduced
  • A range of sentences are available including fines, community orders, mental health treatment requirements, drug and alcohol treatment orders and custody
  • Even when the custody threshold is passed a community order with a mental health treatment requirement may be a proper alternative to short- or medium-term imprisonment
  • Courts should ensure offenders understand their sentence and what will happen if they re-offend and/or breach the terms of their licence or supervision
  • Clarity of explanation is important so victims can understand the sentence imposed.


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