‘Finely Balanced’ and ‘Competing Considerations’1: Mental Disorder as a Factor in Sentencing Children and Young People

Abstract

Any criminal justice system grounded in perpetrators’ rational choice in and personal responsibility for their criminal behaviour has to determine what accommodation to reach with any mental disorders that may be regarded as counter to that a priori foundation. As regards guilt and the assumption of mens rea, the law of England and Wales affords a rarely pursued and tightly boundaried insanity defence, where the perpetrator is deemed to lack any capacity, and in respect of allegations of murder the scope to seek a finding of guilt of manslaughter by reason of diminished responsibility where the defendant can establish that he or she was ‘suffering from an abnormality of mental functioning’ at the time of crime which: (1) caused, or was a significant contributory factor in causing the defendant to carry out that conduct; (2) ‘arose from a recognised medical condition’; and (3) ‘substantially impaired’ their ability to do one or more of (a) understanding the nature of their conduct; (b) forming a rational judgement and (c) exercising self-control.2 More prevalently yet more imprecisely, allowance is made for mental disorder at point of sentence, either in weighing culpability, or in tempering or shaping the severity/nature of penalty/disposal, or in factoring in the risk posed by the disordered defendant. Under Part 12 of the Criminal Justice Act (CJA) 2003, what until recently has come closest to a statutory sentencing code in this jurisdiction,3 the following modest provisions are made for ‘mentally disordered offenders’:4