My Blog is mainly about reform of the Mental Health Act but I mentioned in my last blog postthat the Sentencing Council has published proposed new guidance for sentencing offenders with mental health conditions. I’d like to talk more about this in this blog post because I think there are big problems with the criminal law which the guidance does not – and cannot – address…

When the guidance is published in its final form, judges and magistrates in England and Wales will, for the first time, have a clear structure and process to follow when sentencing people with mental health conditions.

The Sentencing Council has held a consultation on its proposed guidelines and I’ve worked with Hafal on their response which has now been submitted – you can see it here.

Overall like Hafal I welcome the proposed guidelines and believe they will improve practice in sentencing so that there is more consistency in delivering informed decisions.

But at the same time I am concerned that the guidelines will have limited value because there remain basic injustices in the treatment of people with mental health conditions and because there is limited availability of community-based sentences.

The Council’s draft guidance is clear and helpful in describing best practice within the law as it currently stands – and that’s all the Sentencing Council can do because it not tasked with proposing changes to the law.

But the guidance actually exposes the unfairness of current law in managing offenders with mental health conditions.

The law in England and Wales is too harsh in taking such an unsympathetic view of how personal responsibility may be compromised, especially in the case of more serious mental illnesses and those involving psychosis.

Specifically the law doesn’t sufficiently take into account the impact which a long-term, serious mental illness or indeed a major episode of psychosis can have on a person’s ability to take responsibility for their actions.

I believe that the law is now out of touch with the expectation of the public, which is that actions caused by a severe disability should be viewed with greater understanding and compassion.

The public would better respect a process where much less blame was attached to actions by people experiencing psychosis but where a separate process of assessing risk was applied and acted on.

So nobody is arguing for taking unacceptable risks – because detention of the person concerned for reasons of safety could be used in place of a sentence designed to punish them.

I just want some common sense about recognising that there are some conditions where people are too ill to make any discussion about blame meaningful or fair.

This approach would need a reform both of criminal law and of the Mental Health Act, which as I say are not matters for the Sentencing Council – but they are matters for this Blog and for you and me!

I think we need a completely fresh look at how people with a serious mental illness are treated under criminal law – do you agree?

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