Sentencing mentally disordered offenders: conflicting objectives, perilous decisions and cognitive insights

This paper examines the sentencing of mentally disordered offenders using an analysis of s.45A orders under the Mental Health Act 1983. The paper reviews the legislative context of the orders and the relevant tranche of Court of Appeal decisions, and looks at their use since 1998. It then touches on the literature on the role of heuristics and cognitive errors in decision-making as a vehicle for demonstrating why the courts may find sentencing in these cases peculiarly problematic. The paper concludes that partial culpability may be being used as a mechanism for justifying the imposition of these orders which facilitate the application of more risk-averse thresholds of release and recall; but that partial culpability is such a fluid concept as to introduce elements of incoherence into the disposal of mentally disordered offenders.