By Dr Ailbhe O'Loughlin
• This paper addresses sentencing practices and policies in respect of convicted offenders with mental disorders, disabilities or impairments.
• It considers the alternatives to custody available at sentencing that allow sentencing courts to divert convicted offenders away from punishment in prison and, where appropriate, towards treatment in the mental health system or in the community. It also considers hybrid disposals, which have both punitive and therapeutic elements.
• There is a lack of up-to-date and robust data available on rates of mental disorder amongst defendants and sentenced populations. Studies show high rates amongst prisoners when compared to the general population. However, it is difficult to establish a causal connection between mental disorder and offending and empirical evidence suggests that the relationship is complex.
• There is a long-standing policy of diverting mentally disordered individuals in contact with the criminal justice system away from punishment in prison and towards treatment in psychiatric hospitals and in the community. This can happen at any stage of the criminal justice system, from arrest to sentencing and even after a sentence has begun.
• Courts have five main options for sentencing offenders with mental disorder: guardianship orders, community orders with or without a mental health treatment requirement attached, hospital orders with or without restrictions, hospital and limitation directions (‘hybrid orders’) coupled with a prison sentence, and a prison sentence alone.
• Despite efforts to reduce barriers to the uptake of alternatives to custody, court usage of orders under the Mental Health Act (MHA) 1983 and mental health treatment requirements remains low.
• Between 1984 and 2016, the use of hospital orders with or without restrictions declined by 49%. During the same period, transfers from prison to hospital increased by 710%. This suggests that powers to divert convicted offenders from imprisonment are being under-utilised.
• Good quality research is available on the barriers to courts passing community orders and mental health treatment requirements. However, equivalent research on the barriers to making orders under the MHA 1983 is lacking.
• Current sentencing guidance states that mental disorders, disabilities and impairments can affect culpability at sentencing or warrant mitigation of penalties where a sentence may be expected to have a disproportionate impact upon the individual.
• Case law emphasises the need to ensure that the sentence adequately reflects culpability and the need for punishment. Recently, however, the Court of Appeal has adopted a more flexible approach that allows sentencing courts to give greater weight to the offender’s therapeutic interests and the protection of the public.
• There is a lack of robust research on differences in outcome between community sentences, orders under the MHA 1983, and prison sentences. More research is needed to inform sentencing decisions and policy.
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