In three otherwise unconnected appeals against sentence, the Court of Appeal identified the various ways in which mental health conditions and disorders may be relevant to sentencing. The Court also addressed particular considerations when sentencing a child for a sexual offence.
The Court reduced the sentences for all three appellants, two of whom were children at the time of sentencing, in part on the basis that the individuals’ mental health conditions were either unknown at sentence, or not properly reflected in the sentences passed. The Lord Chief Justice, delivering judgment, considered some of the ways an offender’s ill-health may be relevant to the sentence exercise before turning to the individual cases.
First, mental health conditions and disorders may reduce the offender’s culpability at the time of committing the offence, for instance by impairing the offender’s ability to make rational choices or by leading them to act in a disinhibited way.1 Second, the mental health of the offender at the time of sentence may be relevant when considering the impact of the sentence on the individual.2 It may also be relevant to an assessment of dangerousness and the terms of community or ancillary orders, but these aspects did not arise in the instant appeals.3
When dealing with children, practitioners should be sensitive to the potential for undiagnosed or masked mental health issues. PS, a child, was sentenced to detention at Her Majesty’s Pleasure with a minimum term of 14 years for offences of murder, wounding with intent and attempted wounding with intent. On appeal, the Court admitted new evidence diagnosing PS with Autism Spectrum Disorder and ADHD. PS’s minimum term was reduced to 10 years, in part to reflect that his culpability was lower than previously assessed. With respect to the fact that the disorders were previously undiagnosed, the Court observed:
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 [in order to identify any issues]’ (paragraph 20).
The third case considered by the Court demonstrated the potentially complex relationship between a child’s mental health, chronological age and maturity. CF was convicted of sexual offences when he was 15 – 16 and the victims were between six and 13 years old. He was autistic and particularly vulnerable; in a report before the Court of Appeal CF’s case manager concluded that ‘it is fair to say that [CF] is probably the most vulnerable [young person] on a wing with 48 vulnerable [young persons] on it’.4
In reducing the length of CF’s custodial sentence the Court of Appeal held CF’s mental disorder was relevant to both his culpability and the impact of a custodial sentence.5 Furthermore, the adult sentencing guidelines for offences that could only be committed on children under 13 (and of which CF had been convicted) inherently expected a substantial difference in the chronological age and maturity of the offender and the victim. The Court held, ‘it is inappropriate simply to take a fraction of the sentence that would be imposed on an adult, without also reflecting on the fact that the latter’s sentence takes account of an important feature which is absent from the young offender’s case’.6 A child’s culpability for such an offence is likely to be different in nature to that of an adult. The judge had halved the term he would have imposed on an adult, but in this case doing so had failed to sufficiently focus on the young offender as opposed to the offence.7
The significance of the judgment for children sentenced in the criminal courts is two-fold. First it reminds practitioners to be vigilant in looking-out for mental health issues and identifies the relevance of mental ill-health to the sentencing process.
But it also reiterates the purpose of every sentencing exercise concerning a child. When considering CF’s case, the Court observed how, ‘there is no doubt that CF’s case gave rise to a difficult sentencing process. He has committed serious offences which have caused serious harm,’ yet nevertheless, ‘the court must have regard to the principal aim of the youth justice system (namely to prevent reoffending in children and young people) and to the welfare of the child’8 It went on to state what should be apparent, but is often obscured: courts must be careful ‘not to treat the young offender as if he or she were simply a reduced-size version of an adult offender committing similar offences’ 9 To do so undermines the system’s principal aim.