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Court of Appeal judgment on sentencing children affected by mental health conditions

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

 This Court of Appeal judgment clarified how and when mental health conditions can affect sentencing children.

 Details

 The Court of Appeal handed down a judgment concerning three unrelated appeals, all of which dealt with the proper approach to sentencing offenders who suffer from Autism Spectrum Disorder (ASD) or other mental health conditions. Two of these, PS and CF, involved child defendants.

The Court made general observations about when and how mental health conditions can affect sentencing. Firstly, they may be relevant to the court’s assessment of the offender’s culpability, for instance, because it may affect their ability to make rational choices or understand their consequences. This involves a focus on the defendant’s mental state at the time of committing the offence. Secondly, mental health conditions may be relevant to the type of sentence that is imposed. Where a custodial sentence is necessary, it may have an impact on the length of the sentence and whether or not it can be properly suspended. The court must have regard to any additional impact that a custodial sentence would have on a defendant because of his mental health. Here, the focus is on the mental state of the defendant at the time of sentencing.

PS was convicted of murder, wounding with intent and attempted wounding with intent, on the basis of his participation in a joint enterprise. He was 14 when the crimes were committed. He had one previous conviction for  robbery, which was committed when he was 13. A pre-sentence report found that PS had displayed behavioural difficulties and had been referred to the Child and Adolescent Mental Health Service (CAMHS) for a short time. The trial judge imposed a minimum term of 14 years for murder, with no separate penalty for the other two offences. By comparison, PS’s companion who had inflicted the fatal stabbing, was sentenced to a minimum term of 16 years. There was no reference made to PS’ mental health; it was not identified as relevant to the sentencing process.

A clinical psychologist’s report was obtained when new counsel was instructed. The report 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 is at risk of depression and self-harm with as well as suicide in prison.

Leave to appeal against this sentence and leave to rely on the report as fresh evidence were both granted by the Court of Appeal. The diagnosis was relevant to the assessment of PS’s culpability. These conditions significantly reduced his 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 pleaded guilty to seven sexual offences, which were all committed when he was 15 and 16. A pre-sentence report referred to testing which found that CF had an IQ which indicated a low level of functioning. A psychological report diagnosed CF with autism, and also found that his verbal comprehension was particularly low. It suggested he was functioning at the level of an average seven-year-old. The trial judge accepted that CF was a very vulnerable individual but was satisfied that he knew what he was doing and knew that what he was doing was wrong. The total sentence imposed was one of 5 years’ detention.

The Court accepted the argument that insufficient weigh was given to CF’s mental disorder and intellectual problems when determining the length of the sentence. His mental state was relevant both to his culpability and to the impact which a custodial sentence would have on him. Even if a custodial sentence was unavoidable, the evidence of CF’s problems made it necessary to give less weight to the sentencing guideline applicable to adults and more weight to the circumstances of the case. The five-year sentence was therefore quashed, and one of two and a half years was imposed instead.

Commentary

This case emphasises the importance a child’s mental health for the purposes of sentencing. Because it is a relevant consideration at multiple stages, early recognition of any mental health conditions is very important. This judgment is also another good example of the individualistic approach that should be taken to sentencing children and young people generally.