Sentencing Children affected by Mental Health Conditions

R v PS, CF, Abdi Hadir [2019] EWCA Crim 2286

The judgment of the Court of Appeal in this tripartite, unrelated appeal case, clarifies the situation when children, (in the cases of PS and CF) who are affected by mental health conditions, fall to be sentenced within the criminal justice system.

Facts

The 3 appeals raised issues about the proper approach to sentencing offenders who suffer from autism or other mental health conditions or disorders.

PS was convicted of offences of murder, wounding with intent and attempted wounding with intent. Those offences were committed when PS was aged 14 years 4 months. He was 15 when he was sentenced for the offence of murder to be detained at Her Majesty’s pleasure, with a minimum term of 14 years. PS sought leave to appeal against sentence on the basis of medical evidence obtained after his conviction and sentence, which showed him to suffer from Autism Spectrum Disorder.

CF pleaded guilty to sexual offences which he had committed between March and October 2018, when he was aged 15 to 16. His three victims were boys aged 6 and 13, and a girl aged 8. He was sentenced to a total of 5 years’ detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. CF appealed on the basis that his sentence was manifestly excessive in length on a number of grounds, including a failure by the judge to take into account the effects of CF’s autism.

Abdi Dahir, an adult, was convicted of an offence of causing grievous bodily harm with intent. He was sentenced to 14 years’ imprisonment. His appeal was on the basis that the sentence was manifestly excessive in length, having regard to the psychiatric evidence which was before the sentencing judge.

Judgment

The court made general observations about when and how mental health conditions can affect sentencing.

• Firstly, they may be relevant to culpability affecting an accused’s ability to make rational choices or understand their consequences by reference to section 143(1) of the Criminal Justice Act 2003.
• Secondly, mental health conditions may be relevant to the type of sentence that is imposed, in particular a disposal under powers contained in the Mental Health Act 1983. Where a custodial sentence is deemed necessary, relevant mental health considerations may impact on the length of the sentence and whether or not it can be properly suspended.
• Thirdly, mental health conditions and disorders may be relevant to an assessment of whether the offender is dangerous.
• Fourthly, such factors may need to be taken into account in ensuring that the effect of the court’s sentence is clearly understood by the offender and in ensuring that the requirements of a community order or an ancillary order are capable of being fulfilled by the offender.

Those third and fourth aspects did not arise for consideration in the present cases. The CA focussed on issues relating to culpability and to the length of the custodial sentence. Difficulties can arise because there is nothing in particular which prompts consideration of whether a mental health condition or disorder may be relevant to sentence.

The CA stated that …”So far as children and young persons are concerned, in accordance with the applicable guideline, where a serious offence has been committed by a young offender, both the court and those representing him must be alert to the possibility that mental health may be a relevant feature of the case. The younger the offender, and the more serious the offence, the more likely it is that the court will need the assistance of expert reports.”

PS

There was no reference made to PS’ mental health at the time of the trial and it was not identified as relevant to the sentencing process.

A clinical psychologist report was obtained much later which diagnosed PS with Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD), the combination of which was said to result in poor consequential thinking skills. It also assessed PS as being a vulnerable person who was at risk of depression and self-harm with as well as suicide in prison.

The reports obtained post-conviction revealed features of PS’s mental health which were relevant, but which conflicted with the case which the offender had advanced at trial. In such situations, in accordance with established principles, the CA said that whilst the jury’s verdict must be respected, within those confines, it was possible to form a view as to the proper basis for sentence.

The CA said that the minimum term imposed for PS should be significantly shorter than his co-accused because, in addition to the material distinction between their roles, and the distinction between them in terms of their respective intentions, it was now clear that PS’s mental disorder should have been a significant factor in sentencing in his case.

The CA found that these conditions significantly reduced PS’s culpability in playing the role he did in the joint enterprise. The minimum term of 14 years was therefore quashed and replaced with one of 10 years.

CF

A pre-sentence report referred to the fact that CF had an IQ which indicated a low level of functioning. A psychological report diagnosed CF with autism and found that his verbal comprehension was particularly low; functioning at the level of an average seven-year-old.

CF committed serious offences which caused serious harm. The CA reminded itself of paragraph 1.1 of the overarching principles guideline:

“Sentencing children and young people” makes clear that when sentencing offenders aged under 18, the court must have regard to the principal aim of the youth justice system (namely, to prevent offending by children and young people) and to the welfare of the young offender. At paragraph 1.2, the guideline explains that whilst the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the young offender, as opposed to offence-focused. The sentence should focus on rehabilitation where possible and the court should consider the likely effect of the sentence on the young offender and any underlying factors contributing to the offending.

In addition, the guideline, “Sexual offences: Sentencing children and young people” emphasises at the outset that the sentencing of young offenders for sexual offences involves a number of different considerations from adults:

“The primary difference is the age and level of maturity. Children and young people are less emotionally developed than adults; offending can arise through inappropriate sexual experimentation; gang or peer group pressure to engage in sexual activity; or a lack of understanding regarding consent, exploitation, coercion and appropriate sexual behaviour.”

The guideline continues with a non-exhaustive list of background factors which may have played a part in leading a young person to commit sexual offences. One is “communication or learning disabilities or mental health concerns”.

In addition to the material available at trial, the CA had sight of a report by CF’s Case Manager at his Young Offender Institution. This showed that CF was anxious, nervous and vulnerable on arrival. CF was advised to adopt a cover story involving a different type of crime and in spite of saying he understood why, he immediately told fellow inmates about his offending and had to be moved to a different part of the institution for his own safety. He was accommodated in a unit catering specifically for young offenders who struggle to cope in a normal custodial setting. CF had continued to appear vulnerable and introverted, needing help with simple tasks such as menu sheets and systems for making ‘phone calls to his mother. He required 100% support on the unit.

In CF’s case, the nature of the offending was clearly suggestive of inappropriate sexual experimentation by an immature and vulnerable offender. The CA agreed with the judge at first instance that the seriousness of the offending was such that a custodial sentence, although always a last resort for a young offender, was necessary. The CA did though accept that insufficient weight was given to CF’s mental disorder and intellectual problems in determining the length of that sentence; the Appellant’s problems were relevant both to his culpability and to the impact upon him of a custodial sentence, making it necessary to apply less weight to the sentencing guideline applicable to adults and more weight to the circumstances of the case. The five-year sentence was quashed, and one of two and a half years was imposed in its place.

Comment

Early detection of mental health considerations is crucial and reinforcing the relevance of them to culpability and sentencing, especially among child offenders is vital. Even if there is a long break between the original sentencing and a subsequent investigation into, and finding of, mental health issues, action can and should be taken to appeal the original sentence on that basis.