From Judge Wayne Gorman:

In Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders, Consultation, April 9, 2019, the Sentencing Council for England and Wales has published a “draft guideline for courts to use when sentencing offenders with mental health conditions, neurological impairments or development disorders”.

The Sentencing Council notes that “[a]vailable evidence suggests that people in the criminal justice system are more likely to suffer from mental health problems than the general population, for example, when a survey screened prisoners on arrival at prison, 23 per cent reported that they had some prior contact with mental health services. 17 per cent of the prison population is thought to have a learning disability compared with 2 per cent of the population, and while the exact number of people with autism in prison is unknown, the proportion is thought to be double that within the general population. A recent study showed that Hospitalised Head Injury (HHI) was found in 24.7 per cent of prisoners and was significantly more prevalent than found in the matched general population sample”.

Under the heading, “Assessing Culpability”, the Sentencing Council listed the following factors for consideration (at page 9):

Did the offender’s condition mean it impaired their ability to exercise appropriate judgement?

Did the offender’s condition impair their ability to make rational choices, or to think clearly?

Did the offender’s condition impair their ability to understand the nature and consequences of their actions?

Did the offender’s condition have the effect of making them disinhibited?

Were there any elements of premeditation or pre-planning in the offence, which might indicate a higher degree of culpability?

Were there attempts to minimise their wrongdoing or to conceal their actions, which might indicate a higher degree of culpability?

Did the offender have any insight into their illness, or did they lack insight?

Did the offender seek help, and fail to receive appropriate treatment or care?

If there was a lack of compliance in taking medication or following medical advice, was this influenced by the condition or not?

If the offender exacerbated their condition by drinking/taking drugs, were they aware of the potential effects of doing so?