Mental health

Generic considerations: Culpability and other mitigation

Dealing with three unrelated appeals together to enable the Court of Appeal to give general guidance on the proper approach to sentencing offenders who suffer from autism or other mental health conditions or disorders, at a point when a specific Sentencing Council (SC) Guideline was still awaited*, Lord Burnett CJ identified the relevance of this issue as follows:

Assessing culpability

 It follows that in some cases, the fact that the offender suffers from a mental health condition or disorder may have little or no effect on the sentencing outcome. In other cases, it may have a substantial impact. Difficulties may arise because there is nothing particular which prompts consideration of whether a mental health condition or disorder may be relevant to sentence; practitioners and judges should be alive to that possibility.

As regards the individual cases:

PS Aged 14 when he played a secondary role in murder in the course of a gang-related knife attack, PS incurred mandatory detention at Her Majesty’s pleasure, his minimum term being set at 14 years. No mention was made of his mental health at time of sentence, but a clinical psychologist subsequently identified that for many years he had been manifesting mild autism spectrum disorder and attention deficit hyperactivity disorder. The Appeal Court accepted that those conditions had significantly reduced PS’s culpability in playing the role he did in the joint enterprise and substituted a minimum term of 10 years.

Dahir Having warned his friend H. that he was ‘on his list’, D. attacked H with a broken bottle to the face, incurring conviction of wounding with intent. Now aged 30, he had lived in Somalia until age 10 where he had experienced the horrors and casualties of civil war, including the death of both parents, and had been repeatedly raped over a period of two years. In the United Kingdom, he had developed a long-standing alcohol problem and had lived a chaotic mode of life. He had sustained a brain injury in 2014 as victim of assault, causing cognitive deficits, and he experienced further trauma in 2017 when he witnessed deaths in the Grenfell Tower fire. He had incurred numerous convictions for violence, disorder, damage, and dishonesty, mostly committed in drink and he had binged on alcohol for 10 hours prior to the section 18 attack. A psychiatric report for the Crown Court had diagnosed ‘complex post-traumatic stress disorder (PTSD), the effects of which included emotional lability and dyscontrol and which was the driver of his substance abuse (which appeared to be mainly for the purpose of “self-medication”) and offending behaviours’, plus various secondary disorders. The psychiatrist was critical of the services D. had received/not received previously and expressed dismay that his PTSD had remained undiagnosed until now. Noting that D. had generally been able to establish and maintain positive working relationships with clinicians and had a cooperative and hopeful attitude towards treatment, the psychiatrist did not consider him to be ‘dangerous’ for the purposes of public protection.

On appeal against a determinate term of 14 years, the Court accepted that the judge had failed to give sufficient weight to the expert’s report in relation to an assessment of D.’s culpability. Further, D. should have been given more credit for personal mitigation, as he had ‘undoubtedly made genuine attempts, both before and after the offence, to seek appropriate medical help, including seeking to be admitted to hospital immediately before the offence’. A term of 10 years was substituted.

CF At age 15–16, CF had sexually assaulted and/or incited younger children to engage in sexual activity. He had no real friends of his own age, giving the impression of being much younger, and all the victims were friends and neighbours who either spent time at his home or received visits from him at their homes. A psychological report available to the Crown Court diagnosed autism and identified a full-scale IQ score of 75, his verbal comprehension and working memory scores being particularly low, suggesting that he was functioning at the level of an average seven-year-old.

On CF’s appeal against a term of five years’ detention, the Court accepted that the clinical conclusions were germane both to his culpability and to the likely impact on him of a custodial sentence. While accepting that the seriousness of his offending made a custodial sentence necessary, insufficient weight had been given to his mental disorder and intellectual problems and the term imposed had been manifestly excessive. Having regard also to the Definitive Guideline on Sentencing Children and Young People (SC, 2017), a term of 30 months’ detention was substituted.

R v PS and Others, [2020] 2 Cr App R(S) 9.

*The SC has since published a Definitive Guideline Sentencing offenders with mental disorders, developmental disorders, or neurological impairments (July 2020), effective from 01 October 2020.

Depressed and emotionally unstable burglar

Nine days after he had been released following nearly six months on custodial remand for an alleged offence that was ultimately not prosecuted, W. committed a commercial burglary (a phone shop at night, stealing £4600 and phones worth £5000, being caught at the scene). Now aged in his early 30s, he had an ‘appalling record for offences of burglary, in particular commercial burglary’, and had received several ‘significant sentences’ in the past. As the Court of Appeal later put it, it was ‘plain that on his release he was in a poor state emotionally and suffering from moderate depression’, made worse by news while on remand that a cousin to whom he was close had been killed in a road traffic accident. His partner was imminently anticipating the birth of their first child. Faced with difficulty coping and feeling suicidal, he had sought help from his GP who had tried unsuccessfully to link him with a Crisis Centre. When W. later made contact with the Centre himself, he was placed on a waiting list for grief counselling. Following a row with his partner, he resorted to the new offence. He later explained that his intention had been to steal to buy drugs to take to commit suicide.

On his guilty plea, the Crown Court considered a psychiatric report which documented his traumatic childhood, his early introduction to crime by his uncles who were burglars, his depressive disorder and emotionally unstable personality disorder which had developed in particular over the last three to four years, and his resort to illicit substances and self-harming. On W.’s appeal against 30 months’ imprisonment, the Appeal Court considered that insufficient recognition had been given to his reduced culpability and was concerned that the judge had not been referred to the judgment in PS and Others (see above). A term of 24 months was substituted.

R v WOODS, [2020] 2 Cr App R(S) 14.