Courts have, up to now, relied on interpreting previous cases when dealing with offenders with mental disorders, states the Sentencing Council.
From 1 October, judges and magistrates in England and Wales will use new guidance for adults with mental health, neurological and developmental disorders, including acquired brain injuries (ABI).
This includes people with tumour, stroke, haemorrhage, encephalitis, carbon monoxide poisoning, hypoxic injury and trauma.
Culpability may be reduced if an offender had an ABI at the time of offending, but only if there’s sufficient evidence of a connection between their injury and their offending behaviour. In some cases, the guidance states, their culpability could be significantly reduced.
Judges may ask, the guidance suggests, if an offender’s brain injury impaired their ability to judge something appropriately, make rational decisions and understand the nature of their actions.
When an offender is close to being sentenced with time in prison, the guidance states, the judge may consider a rehabilitative approach instead. If custody or detention is unavoidable, judges may consider the length of the sentence.
‘This is because an offender’s impairment or disorder may mean that a custodial sentence weighs more heavily on them and/or because custody can exacerbate the effects of impairments or disorders,’ the guidance states.
‘Survivors of more severe brain injury are likely to have long term problems affecting their personality, relationships and ability to live independently,’ the guidance states.
‘Issues can be compounded as the effects of ABI are often hidden and may fluctuate. The cognitive, psychological, emotional and behavioural effects of brain injury can be difficult to detect by those without specialist training.’
