The Royal College of Psychiatrists has published a report on mentally disordered offenders in the criminal justice system. They provided a position statement on customising community sentencing for offenders with mental disorder/s.
The report states that there are thousands of people in prison because there were no safer alternatives available, such as a mental health treatment requirement (MHTR), when they were sentenced.
The Royal College is seeking £12 million in funding from the government so that such requirements are available for those who need them.
The lead author of the report, Professor Pamela Taylor, said
“Too many people with mental disorders who get involved with criminal justice are being failed by a system that overlooks the use of Mental Health Treatment Requirements. Sending them to prison for quite minor offences may be dangerous for the offender-patients and may harm the wider community too. Re-offending rates are high when people are locked away for a short period while their problems remain unsolved or increase.”
Relationship between mental disorders and offending behaviour
There is evidence of a relationship between some mental disorders and offending behaviour and a disproportionate number of people in prison with mental disorders relative to the rest of the population.
It was estimated in the report that 1,600 people serving a prison sentence of less than 12 months would have been eligible for an MHTR. If a requirement had been imposed, there would likely have been a better outcome for the offender. A further 6,400 prisoners serving longer than 12 months may also have been eligible.
A community order with a requirement is more likely to be considered an alternative to a short prison sentence. Research has shown that two-thirds of those subject to short sentences re-offend within 12 months. This is compared to a third of men and 15% of women given a community order with an MHTR.
There is a cost-saving to consider as keeping a person in prison is more expensive than releasing that person on a community sentence.
Less research is available on mentally disordered offenders under supervision, but the figure is thought to be high with needs not being met.
MHTRs as a sentencing option
MHTRs have been available as a sentencing option for quite some time in England and Wales. Such requirements can only be imposed on a person who has the capacity to understand the court proceedings, the sentence proposed and agrees to the requirements before they are imposed. The requirement should not be confused with a community treatment order under mental health legislation which is compulsory inpatient care.
An MTHR can provide a framework for access to therapy, probation and social services support and can be imposed as part of a community order for a maximum of three years. Any community sentence is to be customised to meet the offender’s needs and the community and minimise the risk of re-offending.
An MHTR usually requires attendance, and it would be unusual for particular treatments to be specified. The clinician would meet with the offender and complete a full assessment of mental health and associated social needs and treat the disorder.
Back in 2009, the case of Khan recognised that there was a low recognition of the availability and value of MHTRs, and efforts have been made to improve uptake. Part of this drive included the CSTR programme in pilot areas, now to be expanded in a second wave. The programme allows for primary care practitioners and clinical psychologists to provide individualised psychological interventions within a treatment plan. The programme aims to improve underlying health and social problems by developing paths to improve screening, assessment and treatment delivery and to enhance local partnerships and communication between health and criminal justice services.
The CTSR programme aims to reduce re-offending by providing alternatives to short custodial sentences. The suggestion from the preliminary evaluation of the programme is that there has been a rise in MHTRs. The protocol provided a clearer pathway for their use and introduced dedicated staff to court to help to identify and assess those eligible. The conclusion was that the pathway had filled a gap in service provision for those offenders with mental health issues and identified a gap in services for those with more serious mental health issues.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org. Let us help.[Image credit: “Self portrait trauma scars, Emotional abuse, Mental, sexual, Physical, verbal Domestic Violence Spousal marital rape Trauma PTSD, Self Portrait, Runjanefox, #janefox this is me. #domesticviolence #stopdv #spousalrape #dv #hearmystory” by Run Jane Fox is licensed under CC BY-ND 2.0] Read More
Ten years for a double killing may not sound a lot, but look behind the headlines and you will find a ‘hybrid-order’.
In a truly tragic case, Samantha Ford drowned her 23-month-old twins in the bath.
Appearing at the Old Bailey for sentence, the Judge, Mr Justice Edis, handed down a 10-year sentence, causing widespread outrage. Longer sentences are routinely handed down for drug dealing and other crimes.
To understand more about this case, we need to look beyond the headlines and examine the facts more carefully.
Mrs Ford carried out the killing to avenge her husband calling time on their marriage. Ford was suffering from a significant psychiatric illness which the defence team explored in detail. The medical evidence ultimately led to a plea being accepted to manslaughter due to diminished responsibility.
A conviction for murder will attract a life-sentence but sentencing for manslaughter will typically attract lower sentences.
There is also a massive clue in the defence deployed in this case, ‘diminished responsibility’.
It is clear that in large part, this crime was due to Ford’s unbalanced mind at the time of the killing.
While the Judge did pass a 10-year custodial sentence, that is not the full picture when it comes to sentencing in this case. The complete sentence passed is referred to as a Hybrid-Order.
Hybrid-orders and the Mental Health Act
A Hybrid-Order comprises mental health treatment, followed by a custodial term to reflect some degree of liability.
Ford was sentenced to a hospital order with a limitation direction, which means that she will be detained in a secure medical facility until such time it is safe to release her from that part of the sentence.
It could be a great many years before this happens.
When Ford is released from medical care, she will then have to serve the unexpired part, if any, of the 10-year sentence (with release half-way through as for any other prisoner) and remain on licence in the usual way.
Cases such as this one illustrate the fragility of the human mind. What drives an otherwise loving mother to kill her two young children is beyond the comprehension of most people.
Samantha Ford is not a danger to the broader public; she was and is a very poorly lady who will be haunted for the rest of her life with the tragic events that unfolded. First and foremost, she requires and will receive urgent medical help.
As specialists in criminal law, we are trained to recognise medical defences and ensure that the full picture is presented to the court. You can read more about mental health and the criminal law here.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, please get in touch. Call John Howey on 020 7388 1658 or email email@example.com and let us help. We can advise on all aspects of your case.Read More
Mental Health is a complicated business. Conditions are not easy to diagnose, doctors can disagree on which disorder a person is suffering from, or even if they have a mental health condition at all.
Those with mental disorders might have specific needs in court on top of those of the typical defendant. That’s if they’re mentally well enough to stand trial at all, or if the CPS deems it is in the public interest to charge them.
Our initial approach is to seek diversion away from the court process wherever possible. A proactive approach with the police and Crown Prosecution Service can often avoid prosecution and more speedily access any necessary medical help that an accused person needs.
How do Courts approach Defendants with Mental Health Problems?
Sentencing defendants who appear to have mental health problems is a very difficult exercise. As a result, The Sentencing Council recently published a new draft guideline. This sets out a general approach to sentencing defendants who have mental health problems.
This guideline is now open for consultation. The idea is that it will make sentencing easier and more consistent amongst those who suffer from mental illness.
It will apply only to some mental health conditions, including schizophrenia, bipolar disorder, PTSD, learning difficulties, autistic spectrum disorders, and dementia.
Although the guideline is still at consultation stage there is much that we can already utilise to assist those we defend.
What Sentences are Available?
Assuming a person is not well enough to stand trial, “unfit to plead”, a hearing goes ahead to determine whether they did the act; but this is not an ordinary trial with a “guilty” or “not guilty” outcome.
If they have done the act, or are found guilty in the usual way, there are several mental health-specific sentencing options available to the Judge under the Mental Health Act 1983.
A Judge must be satisfied, on the evidence of two doctors, that this is the appropriate order, and that treatment is available.
The order is initially for six months but can be renewed for a further six and then annually. The treating doctor, hospital manager, or First-Tier Tribunal (Mental Health) decides when a person can be discharged from hospital.
This is a type of order that attaches to a Hospital Order. At least one doctor must give live evidence. It can only be made if it is necessary to protect the public.
They restrict how a person can be discharged for a certain period, and they can be made indefinitely.
Only the Secretary of State, in most cases, can discharge someone under a Restriction Order. There is still a limited right of review in the First-Tier Tribunal (Mental Health).
Hospital and Limitation Directions
Otherwise known as “Hybrid Orders” these are a conventional prison sentence, with a direction that the time should be served in hospital rather than prison. These can only be made where a person is over 21.
If a person is discharged before the end of the prison term, they are transferred back to prison.
If they complete the “sentence”, they remain in hospital on the terms of a regular Hospital Order.
Several other factors weigh into whether any of these orders can or should be made.
A recent example of the use of a hybrid order can be found in the case of Samantha Ford. You can read more about that case here.
Can Someone Still be Sent to Prison?
Yes. The Judge is not obliged to make any of these orders just because a defendant suffers from mental health problems. Therefore, he/she can pass an ordinary prison or another sentence.
In the case of insanity or unfitness to plead, the Judge must use a mental health sentence or give an absolute discharge.
How we can assist
If you need specialist advice, then please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. At all stages we can access specialist medical advice to ensure the appropriate outcome.Read More
Since May 2017 the prison population has grown beyond projected figures to 86,413 despite fewer offences being brought to court. An official capacity of 87,209 in the UK’s prisons is fast being approached. With conditions in prisons already at breaking point and provisions for prisoners worse than ever, the simple fact is that our country needs to overhaul the way in which we they are treated, especially those with mental health problems.
It is a damning indictment that the pride we place, or at least once did, on the provision of an NHS for all does not extend to those in custody. The Guardian recently reported that medical provision was so bad in some prisons that if it were a privately run service outside, it would be shut down. It should be noted that those in custody include defendants awaiting trial as well as those serving sentences, not that the distinction should matter, as health care ought to be a basic expectation.
The purpose of any sentence is not just to punish but to rehabilitate; we cannot as a society do that, or claim to do that, if the most vulnerable are left to suffer. Mental health services are in decline following years of cut-backs. As a result more defendants with mental illnesses are coming into the prison system – it is unsurprising that during the most recent HMI visit to HMP Pentonville 25% of the population declared that they were suffering depression or suicidal tendencies on arrival, with 84% declaring problems of some kind more generally.
One of our own clients has reported that in response to his request for assistance with his serious mental health issues he was given a colouring in book. It is a sad reflection of our times that the care provision has reached such a sorry state of affairs that medical professionals actively avoid practising in some establishments.
UK prisons; profit over care?
Prisons too have suffered cut-backs; successive Conservative governments have sold off prison estate and the running of prisons to private investors. The emphasis has moved to profit over care. The direct result of those cut backs are that prisoners face more time in their cells because the ratio of staff to population is 1 to 50. Imagine being responsible for 50 young men or women, all with their own unique challenges and demands. Shockingly our zoos have a better ratio of staff to population. Couple this with the lack of appropriate mental health care and one can see why there is a rising trend of prison riots and disturbances.
Internet and mobile phones for prisoners?
Although a recent suggestion by MP Vicky Ford that inmates at HMP Chelmsford be given access to mobile phones and other technology was met with ridicule on social media, the idea is sound. With almost one in three adult offenders re-offending there has to be better support for prisoners post-release. Allowing better and more regular contact with families and friends would surely instil a sense of trust in prisoners which in turn is likely to improve self-esteem and confidence.
Our society has changed, we are now connected in far more ways than before in a digital era. Withdrawing that freedom of contact from prisoners is punishment, earning it back demonstrates that we trust them to use it properly. Incentivising learning and development with a trust based reward system has to be better than the current attitude of excessive lockdown.
If the prison population continues to grow and funding continues to decrease, we will soon be at tipping point with a prison system that does nothing to educate and rehabilitate offenders nor maintain their physical or mental health and wellbeing whilst inside. Of course, there has to be an aspect of punishment, and prison should be a deterrent, but that does not mean that we should treat our criminals with no dignity, deny them basic rights and an opportunity to rehabilitate themselves.
As we often remind the court the purpose of any sentence is punishment and rehabilitation, let’s not lose sight of the latter.
If you are facing a criminal proceedings which could carry a custodial sentence contact our team at JFH Crime on 020 7388 1658 or email@example.com.
John Howey, Senior SolicitorRead More