Culpability, Responsibility, and Personality Disorder

Abstract

Abstract This chapter examines how sentencing judges in England and Wales determine whether individual offenders belong in the criminal justice or mental health system, or should be managed by a combination of both. It draws out the principles that courts apply when choosing between a sentence with a punitive element and a wholly therapeutic hospital order under the Mental Health Act (MHA) 1983. Leading cases from the Court of Appeal (Criminal Division) tend to prioritize punishing offenders who retain some culpability despite their mental disorder and to take a precautionary approach to public protection that favours indeterminate prison sentences for ‘dangerous’ offenders. Drawing on insights from the history of the criminal law and Cyrus Tata’s concept of ‘case-cleansing’, this chapter shows that judges borrow doctrines from the trial stage to determine culpability at sentencing stage. This may be understood as an effort to resist the challenge psychiatric evidence presents to the criminal law’s authority to punish responsible offenders. Furthermore, judges have borrowed and reshaped the ‘treatability’ criterion from the original MHA 1983 to prevent patients from being discharged from hospital while they still pose a risk to the public. These sentencing policies fail to take into account the very real risks imprisonment poses to vulnerable offenders. In human rights terms, courts should seek to protect offenders from real risks of death or serious harm in prison and make use of the full range of alternatives to imprisonment.