Resource constraints affect sentencing of offenders with mental health and related issues, Council research finds
The complex challenges in sentencing people with mental health and related issues are outlined in two new reports, published today by the Scottish Sentencing Council.
An issues paper, Judicial perspectives of mental health and sentencing presents the findings of research undertaken by the Council in late 2023 and early 2024 with members of the judiciary, while Mental health, neurodivergence, and learning disability in sentencing summarises discussions at a stakeholder conference the Council held in August 2024.
A key theme in both reports is the impact on sentencing of significant resource constraints across the criminal justice and mental health systems.
Commenting on the judicial research, Lady Dorrian, Lord Justice Clerk and Chair of the Council, said: “Sentencing is rarely straightforward but it can be significantly more complex and challenging when the person being sentenced has mental health or related issues.
“To gain a better understanding of the issues involved, we carried out research with judicial office holders across Scotland, something the Council is uniquely placed to do. Those who took part were clear that resource limitations affect the ability of courts to sentence individuals with mental health and related issues in the most efficient and effective way.”
Delays in obtaining specialist reports about mental health and related issues were said to be particularly challenging. A lack of availability of experts, particularly psychiatrists, to undertake the necessary assessments, and a shortage of beds in psychiatric facilities were also cited as issues that could lead to difficulties and delays.
Other issues raised include:
- The complexity of the statutory framework around people accused of a criminal act who may have a significant mental health issue, which it was felt could be difficult to navigate and implement. It was also reported that practitioners, on occasion, lack familiarity with its requirements.
- The challenge of determining the precise nature, degree, and effect of mental health and related issues, especially in relation to establishing any causal link between the issue and the offence and in determining the level of risk of reoffending.
Many of the issues raised by sentencers fall outside the remit of the Council and cannot be addressed in a sentencing guideline, but the paper highlights several key points the Council intends to consider further.
“As a first step in addressing some of the issues sentencers raised with us, we felt that we needed to learn more about the nature, prevalence, and effect of mental illnesses, learning disabilities, and neurological and neurodivergent conditions among the offending population and their relevance in sentencing,” said Lady Dorrian.
“Without a greater understanding of these, it would be premature to explore some of the more systemic challenges highlighted around sentencing in this area and begin considering possible solutions. For that reason, we decided to hold a stakeholder conference to hear directly from mental health experts and others who work in or have an interest in this area. The discussions were thought-provoking and informed our decision to commit to developing a guideline on sentencing people with mental health and related issues."
The Council hopes that the findings from both exercises will assist in improving effectiveness and understanding of sentencing in this area, as well as improvements for offenders with mental health and related issues, victims, the judiciary and the public.
Both reports are intended to assist policy makers and service providers in future policy development and improved service provision and delivery. In particular, the Council hopes that they will be of use in relation to the wider policy context around mental health and related issues in the criminal justice system by encouraging dialogue across multiple sectors and ensuring the judicial perspective is available to bring about more effective sentencing outcomes.
The Mental Welfare Commission for Scotland has welcomed the publication of the reports.
"The issues paper, in particular, provides an insight into the experiences of the judiciary and the challenges they perceive around sentencing individuals with mental health and related issues,” said Claire Lamza, executive director (nursing).
“This expands our understanding of where there are areas for improvement. The Commission looks forward to continued engagement with the Scottish Sentencing Council and others in the important area of mental health."
Read the Judicial perspectives of mental health and sentencing issues paper.
Read the report about the Mental health, neurodivergence, and learning disability in sentencing conference.
Read about the Council’s decision to develop a guideline on the sentencing of people with mental health and related issues.