In this article, Trinity Criminal barrister, John Crawford explores the arguments that Defence teams can advance at sentencing when dealing with vulnerable Defendants.
Sentencing and Mental Health
Many Defendants who come before the Courts suffer from a range of different mental health difficulties. There is now a growing body of guidance both from the sentencing council, and from the Court of Appeal, which can allow Defence practitioners to put forward powerful arguments to ensure these difficulties are properly accounted for at sentencing.
There are two parts which sentencing Defendants with mental health difficulties can be split into. There are those sentences which are governed by the Mental Health Act 1983, which are specialist sentences available to the Court if certain pre-conditions are met and there are those Defendants who while suffering from mental health difficulties do not require such sentences. This note will focus on the latter looking at the standard sentencing regime where a specialist disposal is not appropriate.
The most useful assistance is offered by the Sentencing Council who, in October 2020, published guidance on “Sentencing Offenders with mental disorders, developmental disorders, or neurological impairments” (‘The guidelines’). Within the guidelines there is provided a non-exhaustive list of mental disorders which they apply to, but they are applicable in all cases where; either at the time of sentence, or at the time of the commission of the offence, the Defendant was suffering from any mental disorder or neurological impairment. The guidelines deal with three main areas; approach to sentence, culpability and the type of sentence imposed.
Approach to Sentence
The guidelines make clear that even if the disorder does not ultimately have an impact on sentencing the Court should still have regard to it. Within paragraph 4 of the guidance there are various helpful points raised from a Defence perspective:
- There should not be an adverse inference if the disorder has not been previously diagnosed or disclosed
- How the Defendant presents at sentence may be very different from at the time of the offence
- Drug/alcohol dependence may mask underlying factors
- A formal diagnosis is not always required (albeit if it is an expert report is needed)
Further, at paragraph 5 the potentially greater chance of underlying mental health issues for offenders from BAME communities and women is highlighted.
Crucially at paragraph 6 the report creates a presumption that where a Defendant is suffering from a mental disorder at sentencing a medical report must be obtained before a custodial sentence (other than once fixed by law) is passed, unless it is unnecessary in the circumstances (per s232 of the Sentencing Code).
Culpability
After assessing culpability within the relevant guideline for the offence the Court should then consider if culpability should be reduced if there is “sufficient connection” between the Defendant’s mental health disorder and the offending. It is mandatory for the sentencer to state their assessment of whether the culpability was reduced. Although, they do not need to reference the new guidelines directly - per paragraph 29 of Honeyman [2021] EWCA Crim 1324. But if there is expert evidence put forward, which the Judge does not follow, they must state their reasons for not doing so, see paragraphs 13-14 of the guidelines and Baldwin [2021] EWCA Crim 417.
The advice offered by the guidelines as to how to assess the connection between the mental disorder and the offending is put in a way which can often allow for a positive argument in this respect. If the disorder impaired the Defendant’s ability to do any of the following then the Court could find a causal link:
- Exercise appropriate judgment
- Make rational choices
- Understand the nature and consequences of their actions
- Behave in a disinhibited way
While the guidelines do require the Court to consider the impact of failing to take medication and or the impact of unhelpful self medication, it does caution against giving a Defendant greater insight into their disorder than is appropriate. If a connection can be established then there can be ground for a significant reduction in culpability, in a more meaningful way than some offence specific sentencing guidelines currently allow.
Type of Sentence
While it is a common submission that a Defendant’s mental health difficulties should justify a community order with a mental health treatment requirement or a suspended sentence instead of a short immediate sentence, the Guidelines provide readily available support for such a submission to help add weight to it.
However, there is also comment upon the greater impact which custody can have on those with mental health difficulties which could justify shorter custodial sentences even when the Court has no other alternative.
‘Where custody or detention is unavoidable, consideration of the impact on the offender of the impairment or disorder may be relevant to the length of sentence and to the issue of whether any sentence may be suspended. This is because an offender’s impairment or disorder may mean that a custodial sentence weighs more heavily on them and/or because custody can exacerbate the effects of impairments or disorders’
The Defendant’s mental health can properly impact on the type of sentence imposed even if there was no connection between the disorder and the Defendant’s offending. This was made clear in the Court of Appeal’s judgment in Attorney General’s Reference no 1/2021 [2021] EWCA Crim 294 at paragraph 35 where the Court stated:
‘there may be offending of which mental illness was a significant cause and otherwise where the mental illness was incidental to the offence in question. Sometimes, the mental impairment or disorder will substantially reduce culpability, sometimes not. If it does, there will be an impact of the sentence and often a significant one; but even if it does not, mental illness may be relevant, not least because of the impact of a custodial sentence on an offender’
However, the case generally is critical of the overly broad approach the Judge had taken in reducing the sentence on the basis of the Defendant’s mental health when there was not a causative link to some of the offending. The Judge below had not been referred to the 2020 guidelines and therefore fell into error.
Application
It is likely to be of significant assistance to Defendants who have mental health difficulties if any reports prepared for sentence focus on the issues within the Sentencing Council guidelines both in terms of causative impact on the offence and the subsequent impact of custody. By focusing specifically on the questions within the guidance the best evidence will be available to argue for a sentence which reflects the difficulties the Defendant faces. The need for such evidence is reflected in Hellyer [2021] EWCA Crim 550 at paragraph 35 where the Court of Appeal, when considering the impact of custody on a Defendant’s mental health, remarked that;
‘Paragraph 20 of the Guideline dealing with mental disorders raises the issue whether imprisonment would bear more heavily on an offender or exacerbate the effects of the condition. In our judgment, the psychiatric evidence in this case contains no such suggestion. There is a brief assertion to the contrary in a report by Ms Bostwick, but it is refuted by the subsequent prison report to which we have referred and which has not been challenged. Imprisonment in this case has had the salutary effects described in the report. There is no suggestion of the appellant having declined in prison as regards his mental health because of PTSD’
While the new guidelines can offer significant benefits to Defendants, it is crucial that focused supporting evidence is provided which directly address the questions the sentencing Court will now have to grapple with.
John practices in all areas of criminal law and related proceedings. He has experience acting for a range of different bodies in criminal cases ranging from local authorities, government bodies, and also private prosecutors. In addition to Trinity’s Crime team, John is also a member of Trinity’s Regulatory and Private Prosecution practice groups.