Jo’s Blog: Unfinished Business

In July 2019 (what a long time ago that feels now!) I wrote a post on the Sentencing Council’s draft guidance on sentencing offenders with mental disorders. Well, they’ve published it in its final approved version and it will come into effect from October this year. You can see it here

The guidance covers people who have:

  • Mental disorders – conditions like schizophrenia, depression or Post Traumatic Stress Disorder (PTSD)
  • Developmental disorders – autism or learning disability.
  • Neurological impairments – acquired brain injury or dementia

The guidance sensibly requires judges and magistrates to look at each case individually – because of course mental illness (and the other conditions covered) are experienced differently by every individual and there are too many variables for hard and fast rules.

There is also good advice about what sort of sentence is likely to be most effective including reminders for judges of the range of options available including Mental Health Treatment Requirements, drug and alcohol treatment orders, and so on.

You might well wonder how judges, who for the most part are not expert in mental health matters, got by in the past without such guidance! But let’s not quibble: this is a step forward and there is less likelihood now that a judge will ignore mental illness or even treat it as an aggravating factor.

But there is unfinished business here…

In the guidance there is also advice on assessing culpability, in other words how much blame should attach to somebody who was not fully in control of their actions when they committed an offence. The guidance on this is reasonable as far as it goes but it can only go so far because the Sentencing Council doesn’t make the law – it just advises on how to put existing law into effect consistently and fairly.

The problem is that the law on culpability in the UK is primitive and cruel, demanding that people with very serious mental illnesses are blamed and punished severely.

Since I last covered this matter I have published Jo’s Law which addresses this injustice. I said –

It is barbaric that people who are very seriously ill are treated as criminals. Other civilised countries understand that we should distinguish clearly between crimes committed purposefully and harm caused unwittingly by people whose illness has overwhelmed their judgement.

And I called for a fundamental review of mental health and the criminal law which would end the injustice of holding people who are seriously ill responsible or partially responsible for harm they do when they are psychotic.

But here’s the thing…

There is no need to increase risk – if we introduced safety-oriented mental health legislation (as set out in Jo’s Law) compulsion could be used where necessary to keep people safe.



Keep watching this space! The UK Government has said that the White Paper on reforming the Act will be out soon – and I’m standing by to report on that and to let you know what we can do in response!

Meanwhile, if you or those you care for face difficulty during the current crisis, don’t hesitate to press your local services for help. Hafal’s specific advice for those with a mental illness can be found here.


Jo Roberts is a mental health campaigner who was on the receiving end of the Mental Health Act for over 30 years. In the past she has received compulsory treatment; some of that treatment was deeply unpleasant and even terrifying. Jo is campaigning for a progressive Mental Health Act fit for the 21st Century – an Act that gives patients and carers in Wales and beyond a fairer deal. Read more…