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Alexandra Scott reviews the case of R v PS, Abdi Dahir, CF  EWCA Crim 2286, and considers its implications for the sentencing of defendants with mental health conditions or disorders.
Last year, from 9th April until 9th July, the Sentencing Council held a consultation on proposed guidelines – “Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders”. As was observed by Siobhan Grey KC at the lecture we gave (alongside Andy Bell, Deputy Director of The Centre for Mental Health, Aika Stephenson from Just For Kids Law, and Dr Galappathie) in Chambers at the end of November 2019, it is long overdue.
Until such time as the guidelines come into effect, R v PS, Abdi Dahir, CF  EWCA Crim 2286 provides a helpful precis of the existing position and encourages a positively humane approach to its application.
R v PS does not provide a ‘get out clause’ for those who raise mental health issues – after all, statistics from the Prison Reform Trust indicate that 26% of women and 16% of men in prison had received treatment for a mental health problem during the year before custody, and 25% of female and 15% male prisoners reported symptoms indicative of psychosis.
What the case does provide, however, is a clear foundation drawn from a number of existing guidelines and legislation to give a wide-ranging discretion for the sentencing Judge to reflect far more accurately the vulnerabilities of the defendant when passing sentence, and an ability to move outside the guidelines. This is of particular relevance to the large number of defendants who are fit to plead but remain exceedingly vulnerable.
The three appeals in R v PS – two involving youths – were heard alongside each other. The offences covered murder, serious violence, and sexual assaults against (younger) children. The principles elucidated by the Lord Chief Justice, Lord Burnett have application across the entire spectrum of offending. It is worth noting in passing that the case only touches on the relevance of mental health to any assessment of dangerousness, and in ensuring that any sentence passed or ancillary orders made are capable of being understood by the defendant. These are of course important considerations, but not the focus of this case.
Firstly, the Court set out at paragraph 8 that section 143(1) of the Criminal Justice Act 2003 specifies that “In considering the seriousness of any offence, the court must consider the offender’s culpability…”, and that where a defendant suffers from a mental health condition, this can have a bearing on culpability. Examples are given: impairing ability to exercise appropriate judgement, to make rational choices, to understand the consequences of his actions, or causing the defendant to behave in a disinhibited way. This aspect focuses on the state of the defendant’s mental health at the time of the commission of the offence and allows the sentencing Judge to consider the extent to which it was either self-induced or aggravated by the conduct of the defendant. This makes sense; psychosis induced by a drug habit will attract less judicial sympathy than Post-Traumatic Stress Disorder or severe autism.
Significantly, mental health can be taken into account again at the stage of considering the type of sentence to be imposed, and – if custody is unavoidable – the duration of any period of imprisonment. The focus at this stage ceases to be the mental health at the time of the commission of the offence, but instead at the point of sentence. Depending on the particular circumstances of the defendant, his or her mental health may be relevant in two ways at this stage: personal mitigation, and the additional impact of custody on the defendant.
At paragraph 15, both these aspects are further developed with reference to the ‘expanded explanations’ which have formed part of the offence-specific guidelines since October 2019, when the General Guidelines came into force. For offence-specific guidelines, these can be found as hyperlinks at stage 2 of the online guidelines and are the same across the different offences. For those practitioners who prefer to work with PDFs, it is worth spending time either on the Sentencing Council’s website or reading the expanded explanations in Blackstones or Archbold.
Importantly, although the expanded explanation specifies that “Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence”, both the guidelines themselves and R v PS make clear that it is not ‘double counting’ to take mental health or learning difficulties into account in more than one way, where appropriate. The expanded explanation sets out:
“A mental disorder or learning disability can affect both:
1. the offender’s responsibility for the offence and
2. the impact of the sentence on the offender.
The court will be assisted by a PSR and, where appropriate, medical reports (including from court mental health teams) in assessing:
1. the degree to which a mental disorder or learning disability has reduced the offender’s responsibility for the offence. This may be because the condition had an impact on the offender’s ability to understand the consequences of their actions, to limit impulsivity and/or to exercise self-control….[and]
2. any effect of the mental disorder or learning disability on the impact of the sentence on the offender; a mental disorder or learning disability may make it more difficult for the offender to cope with custody or comply with a community order.”
Of course, R v PS acknowledges that there will be cases where the learning difficulty or mental health of the defendant may have little or no bearing on either or both stages. A defendant suffering from a drug-induced psychosis at the time of an assault will not see his culpability reduced where voluntary abuse of drugs is at the root of the offence, nor would custody have a substantially greater impact on him than his peers; “It follows that in some cases, the fact that the offender suffers from a mental health condition or disorder may have little or no impact on the sentencing outcome”.
But, for those cases where culpability is significantly reduced by a mental health condition or disorder, or the impact of a custodial sentence would be substantially greater, these factors can have a substantial impact on the sentence imposed, and the sentencing Judge is able to move down within the appropriate category guideline range or into a lower category.
A recent example of the successful application of R v PS from my own practice allowed a woman with a low IQ and severe PTSD to avoid a sentence of immediate custody for her role in a substantial class A drugs conspiracy.
The aim, as ever, is to reach a just and proportionate sentence. R v PS encourages Judges to give proper weight to mental health factors to ensure that this can be achieved.
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