In a recent article entitled ‘Minimal Prison Sentence Secured | Attempted Murder’ the operation of the new Sentencing Guidelines ‘Sentencing Offenders with Mental Disorders, Development Disorders or Neurological Impairments’ (the Guidelines’) was outlined in the context of a particular case which had been successfully concluded for a client.
Helen Holder of Kangs Solicitors now considers the new Sentencing Guidelines in more detail.
Kangs Solicitors is highly recognised and regarded for defending clients facing prosecutions of every kind including those clients who suffer from mental issues requiring experienced sensitive support.
For initial no obligation discussion, please call our Team at our offices detailed below:
The Guidelines | Kangs Sentencing Guidelines Solicitors
Those who are affected.
The Guidelines apply to any ‘adult’ who at either the time of:
- the offence, and/or
suffers disorders or impairments such as:
- mental disorders – schizophrenia, depression or post traumatic stress,
- developmental disorders – autism or learning disabilities,
- neurological impairments – acquired brain injury or dementia.
Due to the fact that each individual is different, and the level of impairment caused by the impairment or disorder will be different, the Guideline stipulate that:
‘the court should take an individualistic approach and focus on the issues in the case.’
There cannot be a broad-brush approach and the Courts must be provided with all relevant information to ensure the rights and needs of the defendant are balanced against protecting the public and the right of victims and families to feel safe.
The Three Step Approach
The Guidelines require courts to follow a three-step approach:
A general approach.
- whilst a court should always consider an offender’s impairment or disorder, it should not necessarily have an impact on sentencing,
- any facts specific to the offender,
- potential fluctuation in the level of a mental disorder,
- the need not to draw assumptions,
- that no inference is to be drawn if the offender does not accept they have an impairment or if it has previously been undiagnosed,
- that a formal diagnosis is not always required but where one is, a report by a suitable qualified expert will be necessary.
- relevant cultural, ethnicity and gender considerations within a mental health context,
- the mental state of the offender at the date of sentencing,
- the ability of the offender to understand and participate in court proceedings.
- Culpability may be reduced if an offender was at the time of the offence suffering from an impairment or disorder as listed in Annex A of the Guidelines, but which is not an exhaustive list.
- The Sentencing Tribunal should make an initial assessment of culpability according to the relevant offence guideline. Culpability will only be reduced ‘if there is sufficient connection between the offender’s impairment or disorder and the offending behaviour.’
- Only following a careful analysis of the case and all relevant materials including any relevant expert evidence can a court decide whether the impairment / disorder can reduce culpability.
- The Sentencing Council has listed a number of Questions which the tribunal may wish to consider relating to the offender’s ability to exercise appropriate judgement, make rational choices and to understand the nature and consequences of their actions.
Determining The Sentence.
- All the sentencing options are set out including custodial sentences, community orders, mental health treatment requirements, fines and discharge.
- Impairments or disorders may be relevant to the decision about the type of sentence imposed and to the assessment of dangerousness.
- When a court is considering imposing a custodial sentence it may decide, based upon of all relevant information, such a sentence is disproportionate and that the purpose of sentencing can be achieved by an alternative rehabilitative approach.
How Can We Help? | Kangs National Criminal Defence Solicitors
Understanding the Guidelines is imperative when assisting a client who suffers from a mental disorder or impairment.
The team at Kangs Solicitors assists and defends clients, including those suffering mental health issues, facing investigations and prosecution in respect of every conceivable crime.
If you wish to discuss any aspect in relation to any allegations of criminal conduct, please contact our Team through any of the following: