Punishing Illness? A Socio-legal Analysis of the Imposition of Custodial Sentences on Mentally Disordered Offenders in English Law and Practice.

A distressing mismatch exists in our criminal justice system - that of mental disorder and prison (Edgar and Rickford, 2009). It is widely recognised that imprisonment can exacerbate mental disorders, heighten vulnerability and increase the risk of self-harm and suicide (Bradley, 2009). Yet, this mismatch is a contemporary reality. Between 10% and 90% of prisoners in England and Wales who are thought to have a mental disorder (Committee of Public Accounts, 2017).

At the heart of this mismatch is a conflict between two sentencing purposes: the punishment of offenders, and the reform and rehabilitation of offenders (s. 57(2) Sentencing Act 2020 ("SA"). Given the prevalence of mental disorders in prison, it is possible that the courts are prioritising the retributive punishment of mentally disordered offenders (MDOs) at the expense of their reform and rehabilitation (O'Loughlin, 2021).

This is problematic for two reasons. Firstly, the culpability of some MDOs may have been reduced or eliminated by their mental disorder at the time of the offence(s) (Mullan, 2019). These MDOs may therefore not deserve the punishment of imprisonment (Ashworth, 2015). Secondly, imprisonment frequently prevents MDOs from receiving the quality of treatment they could have received in the community (Peay, 2014).

Judges and magistrates need clear guidance on how to take account of mental disorders in their custodial decision-making. Some guidance is provided in s. 232(3) SA (formerly s. 157(3) of the Criminal Justice Act 2003). Section 232(3) SA obliges sentencers to consider the following when deciding whether to impose a custodial sentence on a MDO: the offender's mental disorder; and, the impact of a custodial sentence on that disorder and on any possible treatment for it.

However, there is no comprehensive data on how mental disorders affect sentencing practice (Sentencing Council, 2020). Therefore, we do not know if (or how) the courts are fulfilling their obligation under s. 232(3) SA. The high rate of MDOs in prison suggests that s. 232(3) SA has been overlooked by sentencers - as does the limited reference to s. 157(3) in appellate court judgments. But, following the publication of Sentencing offenders with mental disorders, developmental disorders, neurological impairments (Sentencing Council, 2020) - the new guideline for sentencing MDOs - it is possible that sentencers will now always fulfil their obligation under s. 232(3) SA.

This socio-legal research project will employ qualitative methods (i.e. doctrinal analysis and empirical study) to explore the extent to which:

- sentencing law provides an appropriate framework for sentencing mentally disordered offenders to prison; and
- judges and magistrates take account of mental disorders when considering the imposition of a custodial sentence.

As a part of this exploration, this project will test the following hypotheses:

- 'Judges and magistrates pay little attention to the obligation in s. 232(3) SA.'
- 'The new guideline helps to ensure that judges and magistrates fulfil their obligation under s. 232(3) SA.'