Sentencing Council publishes new guideline for sentencing offenders with mental disorders.
The Sentencing Council has published a new guideline for sentencing offenders with mental disorders, developmental disorders or neurological impairments.
For the first time, judges and magistrates will have guidelines to assist them in sentencing in this difficult and complex area. The ‘Overarching principles: Sentencing offenders with mental disorders, developmental disorders, or neurological impairments’ guideline aims to provide clarity and transparency around the sentencing process for this group of offenders.
The guideline, which will come into force on 1 October 2020, applies to adults who at the time of the offence and/or at the time of sentencing have disorders or impairments such as:
- Mental disorders – conditions like schizophrenia, depression or Post Traumatic Stress Disorder (PTSD)
- Developmental disorders – autism or learning disability
- Neurological impairments – acquired brain injury (ABI) or dementia
[Full press release here]
R. v A  EWCA Crim 948
Lord Justice Fulford (VP CACD), Mrs Justice McGowan and Mr Justice Garnham
In R. v A the Court of Appeal (Criminal Division) considered the appropriate approach where the Court, on an appeal against sentence, was faced with circumstances in which a judge at the Crown Court had omitted to impose a mandatory sentence (under section 236A of the Criminal Justice Act 2003), instead, imposing an unlawful determinate sentence. The Court considered the impact of section 11(3) of the Criminal Appeal Act 1968 (“CAA 1968”), which limited the powers of the Court of Appeal (Criminal Division) such that it could not impose on an appeal against sentence a sentence that was more severe than that which was imposed at the Crown Court.
A had received a total sentence of 10 years’ imprisonment, determinate. As two of the counts in respect of which he was convicted attracted the mandatory s.236A offender of particular concern sentence, that sentence was unlawful. On other grounds, the appellant applied for leave to appeal against sentence. Those grounds were refused but leave was given in respect of the unlawful sentence; the court invited submissions as to what the court’s powers were on an appeal against sentence in those circumstances.
Section 236A Criminal Justice Act 2003 (“CJA 2003”) created a special custodial sentence for certain offenders of particular concern. The section applies to someone convicted of an offence listed in Schedule 18A to the Act …counts 2 and 4 [are] included in schedule 18A…The court must impose a special custodial sentence under this section when the criteria are satisfied… The sentence in these circumstances comprises the “appropriate custodial term” together with an additional period of 12 months’ licence (section 236A(2)). The appropriate custodial term is “…the term that, in the opinion of the court, ensures that the sentence is appropriate” … The prisoner is eligible for release after serving half of the appropriate custodial term and entitled to release at the expiry of the appropriate custodial term (see section 244A(3) and (5) CJA 2003). Release prior to the expiry of the appropriate custodial term is at the direction of the Parole Board which may not make such a direction unless it is “… satisfied that it is not necessary for the protection of the public that [the prisoner] should be confined” (see section 244A(3)(b) and (4)(b) CJA 2003). 
Section 11(3) CAA 1968 provides:
“On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—
(a) quash any sentence or order which is the subject of the appeal; and
(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;
but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.” 
In determining whether a sentence contravenes s.11(3) the court relied on the approach taken in R v KPR  EWCA Crim 2537, where the conclusion that the sentence on appeal was less severe than the original sentence involved the court placing substantial emphasis not on the entitlement to release but on the eligibility for release. 
The court viewed the necessary approach in these circumstances to be two-fold:
- First the court needs to determine the appropriate sentence without regard to the provisions for early release and licence in accordance with the general principle that a sentencing court will not consider the actual period the offender is likely to spend in custody.
- Secondly, the court need to compare the effect of the proposed new sentence with the sentence originally imposed to ensure that it does not contravene the requirements of section 11(3). .
The sentences on counts 2 and 4 were quashed and it was held that the sentence ought to have been a special custodial sentence for offenders of particular concern, pursuant to section 236A, comprising a reduced term of 8 years’ imprisonment and an extended licence of one year. The sentence was substituted accordingly. The effect was that the appellant was subjected to a custodial term that is two years’ shorter than that originally imposed and will be eligible for release (provided that the Parole Board consider that it is safe to do so) after four years, but can be detained (if still not considered safe) for a further four years.
Following the original sentence imposed at the first sentencing hearing, the appellant was entitled to automatic release after 5 years. The substituted sentence was considered by the court to be no ‘more severe’ than the sentence originally imposed, despite the possibility the appellant may remain in custody for a further three years. The court decided that this approach complied with the mandatory statutory provisions, meets the overall justice of the case and was consistent with the approach adopted in R v S (Julian)  EWCA Crim 1607 and KPR.
The judgment is available here.