Scottish Sentencing Council publishes report on the challenges of sentencing offenders with mental health issues

To coincide with Mental Health Awareness Week 2022, the Scottish Sentencing Council has today published a new research report reviewing the challenges of and approaches to sentencing offenders with mental health issues.

The literature review, carried out by a group of expert academics from universities across the UK and the Sentencing Academy, explores the sentencing landscape around mental health.

The review finds that many offenders live with some degree of mental health issues, ranging from schizophrenia, to ADHD, to traumatic brain injuries. These conditions can mean that the impact of a given sentence may be different for those living with mental health issues compared to the general population. For example, prison may have a greater impact on some offenders with mental health issues, while other conditions may make it harder for offenders to engage with community payback orders.

The review also considers how different jurisdictions have taken differing approaches to offering guidance to sentencers when sentencing offenders with mental health issues. For example, the Sentencing Council for England and Wales has published a specific guideline for sentencers to follow when this issue arises, whereas in the Australian State of Victoria the primary source of guidance comes from Court of Appeal judgments.

Irrespective of the nature of the guidance, the literature review makes clear that sentencing offenders with mental health issues remains a complicated issue. Some mental health issues are so severe that offenders are not legally responsible for the crime committed, but for others, the existence of a mental health issue can make finding the appropriate sentence challenging.

The review also finds it is often difficult to establish a causal connection between mental health issues and offending. Mental health is one factor amongst many that may contribute to offending, and the interaction between mental health issues and other factors such as social deprivation, unemployment, homelessness and substance misuse is complex. The presence of a mental health issue does not necessarily mean that a person is dangerous. Nor does it mean that a person’s mental health caused them to offend.

The Council is grateful to the authors of this comprehensive research, which will be of great assistance in supporting its commitment in its 2021-24 business plan to undertake work on mental health and sentencing, along with the Council’s further consideration of a future guideline on this topic.

A short blog by Professor Julian Roberts and Dr Jonathan Bild of the Sentencing Academy can be found here.