Paul Canfield discusses the impact of PS, Abdi Dahir, CF v R  EWCA Crim 2286
Wed 15th Jan 2020
It is widely recognised that mental health disorders may be relevant to sentencing. However, there is currently no definitive guideline that can be used in relation to the sentencing of offenders with mental health conditions and disorders. Although the Sentencing Council is currently working towards a definitive guideline that will set out overarching principles, draft guidelines should not be used by a sentencer (see, eg, Boakye  1 Cr App R (S) 2 and Connelly  1 Cr App R (S) 19). So where does that leave an offender facing sentencing who lives with a mental disorder or learning difficulty where it may have a substantial impact?
The Court of Appeal considered this recently in PS, Abdi Dahir, CF v R  EWCA Crim 2286. The three cases, otherwise unconnected, raised issues about the proper approach to sentencing offenders who have mental health conditions or learning disorders.
In all of the three cases, the sentences were reduced significantly because the original sentence had not properly considered the effect and implication of each of the defendant’s mental health or learning difficulties.
What these cases highlight is that not all disorders and disabilities are fully understood or obvious either at the time of the offence or at the time of sentence, and in the absence of overarching guidelines there may be some concern whether the sentence will be just and proportionate especially when the sentencing exercise becomes more complex. However, the Court of Appeal provided the following observations which should assist in the sentencing of offenders who have mental health disorders or learning difficulties until the release of definitive guidelines.
Firstly, mental health conditions and disorders may be relevant to the offender’s culpability in committing the crime in question. Culpability and harm is reflected in the stepped approach to sentencing as set out in the offence-specific definitive sentencing guidelines. Therefore, the sentencer must consider whether an offender was able to exercise appropriate judgment, make rational choices, understand the consequences of his actions or whether the offender acted in a disinhibited way at the time of the offence due to their mental health.
Secondly, such conditions or disorders may be relevant when considering the type of sentence to be imposed and the impact of that sentence on the offender. At this stage, it is the offender’s mental health at the time of sentencing, rather than at the time of the crime, which must be considered.
Thirdly, an offender’s mental health may be relevant to an assessment of dangerousness. Fourthly, they may need to be taken into account by the court to ensure the offender understands the intended effect of any sentence imposed and to ensure that any community or ancillary order requirements are capable of being fulfilled by the offender.
Only the first two aspects were considered in these cases in the absence of an overarching principles guideline. It was highlighted that the mental health of the offender is set out as a consideration in the offence-specific guidelines when either assessing culpability at Step 1 or Step 2, personal mitigation. In the absence of a definitive guideline specific to the offence, the “General guideline: overarching principles” also provides guidance on the approach the court should take where there is no definitive guideline and that mental health or learning disabilities is a factor that may reduce seriousness or reflects person mitigation. This is again made clear in the overarching guidelines for “Sentencing children and young people”.
The cases also highlighted the importance of fully identifying an offender’s mental health or learning difficulties at an early stage and ensuring that the court is made fully aware of what impact they may have had when assessing culpability, during mitigation or the effect of any sentence.
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