Sentencing of people with mental health issues ‘hit by lack of resources’

A lack of resources is affecting the “complex and challenging” task of sentencing people with mental health and related issues, a sentencing body has said.

Two new reports published by the Scottish Sentencing Council (SCS) highlighted the impact on sentencing of resource constraints across the criminal justice and mental health systems.

The reports said delays obtaining specialist reports, a lack of experts – particularly psychiatrists – to undertake assessments, and a shortage of beds in psychiatric facilities can all cause difficulties and delays in passing sentences.

Sentencing is rarely straightforward but it can be significantly more complex and challenging when the person being sentenced has mental health or related issues

The reports also highlighted the difficulty of determining the precise nature, degree and effect of any mental health and related issues, and whether there is a causal link with an offence and any risk of reoffending.

The reports also said it can be difficult for “sentencers” to navigate and implement the complex legal framework around people accused of criminal acts who may have a significant mental health issue.

Lady Dorrian, Lord Justice Clerk and chairwoman of the SCS, said: “Sentencing is rarely straightforward but it can be significantly more complex and challenging when the person being sentenced has mental health or related issues.

“To gain a better understanding of the issues involved, we carried out research with judicial office holders across Scotland, something the council is uniquely placed to do.

“Those who took part were clear that resource limitations affect the ability of courts to sentence individuals with mental health and related issues in the most efficient and effective way.”

One of the reports is an “issues paper” presenting the findings of research done with members of the judiciary in late 2023 and early 2024.

The other is a summary of discussions at a stakeholder conference held in August, which included mental health experts and others with an interest in the area.

Lady Dorrian said: “As a first step in addressing some of the issues sentencers raised with us, we felt that we needed to learn more about the nature, prevalence and effect of mental illnesses, learning disabilities, and neurological and neurodivergent conditions among the offending population and their relevance in sentencing.

“Without a greater understanding of these, it would be premature to explore some of the more systemic challenges highlighted around sentencing in this area and begin considering possible solutions.

“For that reason, we decided to hold a stakeholder conference to hear directly from mental health experts and others who work in or have an interest in this area.

The issues paper in particular provides an insight into the experiences of the judiciary and the challenges they perceive around sentencing individuals with mental health and related issues

“The discussions were thought-provoking and informed our decision to commit to developing a guideline on sentencing people with mental health and related issues.”

The publication of the two reports was welcomed by the Mental Welfare Commission for Scotland.

Claire Lamza, executive director (nursing), said: “The issues paper in particular provides an insight into the experiences of the judiciary and the challenges they perceive around sentencing individuals with mental health and related issues.

“This expands our understanding of where there are areas for improvement. The commission looks forward to continued engagement with the Scottish Sentencing Council and others in the important area of mental health.”

The SCS said it hopes its findings will improve the effectiveness and understanding of sentencing, and lead to improvements for offenders with mental health and related conditions, victims, the judiciary and the public.