Sentencing of Young People with particular reference to the Issue of Mental Health
In this article, I will look at some of the sentencing principles and guidance when sentencing young people and in particular for serious offences and when they are suffering from mental illness.
The starting point is the Sentencing Council Definitive Guideline ‘Sentencing Children and Young People: Overarching Principles and Offence Specific Guidelines for Sexual Offences and Robbery’ (‘the Guideline’) applies to all children or young people who are sentenced on or after 1 June 2017.
In terms of the ‘General approach’, the Guideline notes that the Court must have regard to the aim of the youth justice system, to prevent offending by young people; and the welfare of the young person (at para.1.1).
However, the ‘General approach’ is not of application when making certain orders under the Mental Health Act 1983.
The seriousness of the offence will be the starting point, however the approach to sentencing should be individualistic and focused on the young person, as opposed to offence focused, with a focus on rehabilitation where possible. A custodial sentence should always be a measure of last resort for young people (paras.1.2 to 1.3).
The Court should bear in mind factors which may diminish the culpability of a young person (para.1.5). Any restriction on liberty must be commensurate with the seriousness of the offence. The Court must consider the young person’s culpability in committing the offence and any harm, which the offence caused, was intended to cause, or might foreseeably have caused (para.1.9).
In having regard to the welfare of the young person, a court should ensure that it is alert to, inter alia, any mental health problems or learning difficulties / disabilities (para.1.12). The role of counsel and solicitors communicating with other family members where available may be critical.
Deterrence remains a factor in sentencing young people, although normally it should be restricted to serious offences, and often will be outweighed by considerations of the young person’s welfare.
The Guideline provides that the key elements to consider when determining the sentence are: [para 4.1]
(i) The principal aim of the youth justice system (to prevent re-offending by children and young people);
(ii) The welfare of the young person;
(iii) The age of the young person (chronological, developmental and emotional);
(iv) The seriousness of the offence;
(v) The likelihood of further offences being committed; and
(vi) The extent of harm likely to result from those further offences.
The seriousness of the offence is the starting point for determining the appropriate sentence (para.4.2).
In assessing culpability, the court will wish to consider the usual factors when looking at offending but also whether there are any mental health problems/learning difficulties or behaviours (para.4.5).
The Court should consider any aggravating or mitigating factors which may increase or reduce the overall seriousness of the offence (para.4.7). Specific reference to the unstable upbringing is a factor that invariable applies to many young offenders and in my opinion should not be downplayed.
The Guideline notes the benefits of an early guilty plea and it is worth a reminder that the fact that the case may be described as overwhelming does not affect a reduction in credit. And so the cliché that he had little option given the weight of the evidence has no bearing on the actual disposal.
The available relevant custodial sentences for young people before the Crown Court are:
(i) Detention and Training Order (which must be for specific periods, up to 24 months);
(ii) Long term detention, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000;
(iii) Extended sentence of detention or detention for life, if dangerousness criteria are met. [at para.6.41]
At paras.6.42 to 6.45 the Guideline sets out the relevant considerations in terms of imposing a custodial sentence on a young person.
Only where the Court is satisfied that the offence crosses the custody threshold, and no other sentence is appropriate, the court may, as a preliminary consideration, consult the equivalent adult guideline in order to decide the appropriate length of sentence (para.6.45).
In terms of the application of adult sentencing guidelines, the Guideline notes:
‘When considering the relevant adult guideline, the court may feel it is appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17…This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the …young person is of at least equal importance as their chronological age.’
A sentence under the dangerous offender provisions can only (in so far as is relevant) be imposed if:
(i) The young person is found guilty of a specified violent offence; and
(ii) The court is of the opinion that there is a significant risk to the public of serious harm caused by the young person committing further specified offences; and
(iii) A custodial term of at least four years would be imposed for the offence.
A ‘significant risk’ is more than a mere possibility of occurrence. The assessment of dangerousness should take into account all the available information relating to the circumstances of the offence and may also take into account any information regarding previous patterns of behaviour relating to this offence, and any other relevant information relating to the young person. [para.2.5]
If a young person is found to be a dangerous offender, they can be sentenced to extended detention, or detention for life. [para.6.57]
A sentence of extended detention may be imposed only where the appropriate custodial term would be 4 years or more. The extension period must not exceed 5 years in the case of a specified violent offence. The term of the extended sentence of detention must not exceed the maximum term of imprisonment for an adult offender convicted of that offence. [para.6.58]
A sentence of detention for life should be used as a last resort when an extended sentence is not able to provide the level of public protection that is necessary. [para.6.59]
The Sentencing Council has published a definitive guideline in respect of totality, ‘Offences Taken Into Consideration and Totality’ (‘the totality Guideline’).
The Guideline provides that when sentencing for more than a single offence, the Court:
‘should pass a total sentence which reflects all of the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single offence.’
The totality Guideline provides for the approach to extended sentences where there are multiple offences:
‘In the case of extended sentences imposed under the Criminal Justice Act 2003, providing there is at least one specified offence, the threshold requirement under s.227(2B) Criminal Justice Act 2003 is reached if the total determinate sentence for all offences (specified or not) would be four years or more. The extended sentence should be passed either for one specified offence or concurrently on a number of them. Ordinarily either a concurrent determinate sentence or no separate penalty will be appropriate to the remaining offences.
The extension period is such as the court considers necessary for the purpose of protecting members of the public from serious harm caused by the offender committing further specified offences. The extension period must not exceed five years…The whole aggregate term must not exceed the statutory maximum.
The custodial period must be adjusted for totality in the same way as determinate sentences would be. The extension period is measured by the need for protection and therefore does not require adjustment.’ (at p.10)
In relation to extended sentences, in Pinnell  EWCA Crim 2848 the Court held that where the condition that the custodial term be at least four years applies (as with a young defendant), and a person has been convicted of a specified offence and one or more associated non-specified offences none of which alone would justify a four year custodial term, the seriousness of the aggregate offending must be considered. If a four-year custodial term results from aggregating the shortest terms commensurate with the seriousness of each offence, then that four-year term can be imposed in relation to the specified offence.
In D  EWCA Crim 2340, the Court of Appeal held that an extended sentence could be passed only for one specified offence, or concurrently on two or more of them. Associated non-specified offences should attract concurrent determinate sentences, or no separate penalty. The Court also said that, when imposing an extended sentence in a multiple offence case, the judge should always identify the specified offence which has triggered the extended sentence, and clearly link that to the relevant custodial term and extension period.
These principles were applied in Smith  EWCA Crim 1627, where a mix of concurrent and consecutive extended sentences, which the Court of Appeal said was unlawful, was varied on appeal to a single extended sentence of 12 years, with a custodial term of eight years and a four-year extension period, concurrent determinate sentences being imposed on other counts.
In Pinnell  the Court of appeal held that there was no objection in principle to imposing consecutive extended sentences, or to imposing an extended sentence consecutive to a determinate sentence, although this should be done only where there was a particular reason for doing so. The extension periods in the case of consecutive extended sentences will themselves be consecutive, and the total extended licence may properly exceed the maximum licence period for a single offence.
The legal framework for ‘dangerousness’ is found at Section 226B of the 2003 Act makes provision for extended sentences for those under the age of 18 at the time of conviction (and see Blackstones 2020 ed. at E413).
The Offender must pass the ‘dangerousness test’, as provided for by section 229 of the 2003 Act. Section 229 applies where (a) a person has been convicted of a specified offence; and (b) it falls to a court to assess whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences. In making that assessment, the court:
(a) must take into account all such information as is available to it about the nature and circumstances of the offence;
(aa) may take into account all such information as is available to it about the nature and circumstances of any other offences which the offender had been convicted by a court anywhere in the word;
(b) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (aa) forms part, and
(c) may take into account any information about the offender which is before it.
The requirement that a risk be ‘significant’ means more than a possibility – it must be ‘note-worthy, of considerable amount or importance’ (Lang  EWCA Crim 2864).
A wide variety of information will need to be considered before such an assessment is made by the court. In Mayers  EWCA Crim 1552 the Court noted that a psychiatric report would be appropriate in some circumstances, but should be clearly directed to the issue of dangerousness. Such reports, and other pre-sentence reports, are not binding on the sentence, but if the judge was minded to depart from the conclusion set out in a report, counsel should be warned in advance (Pluck  EWCA Crim 1394).
There is no pre-requisite to a finding of dangerousness that the offender has any previous convictions, and there is nothing wrong in principle with the judge finding that dangerousness was established on the basis of a single incident (Bourke  EWCA Crim 2150).
In Chowdhury  EWCA Crim 1341 the Court of Appeal noted that sentencers should be careful when reaching a finding of dangerousness in relation to young people, especially where there is no pattern of offending. Young people are more likely to act impulsively, more likely to be responsive to any sentence imposed, and more likely to change.
In applying section 229 the Court will rely upon the facts of the offence; the offender’s previous record; normally the contents of a pre-sentence report, and the contents of any other relevant report, such as a psychiatric report. Other material may be taken into account, as in Hillman  EWCA Crim 690, where the judge properly had regard to a synopsis of material prepared by the prosecution containing details of earlier alleged misconduct by the offender which had resulted in the making of an anti-social behaviour order against him. The Court of Appeal said that although the incidents referred to the synopsis had not been tested in adversarial judicial proceedings, they could be regarded as ‘hard information’ and could be relied upon.
In Considine  EWCA Crim 1166 the Court of Appeal confirmed that the word ‘information’ in section 229 was not restricted in its meaning to ‘evidence’, and that relevant information bearing on the offender’s dangerousness in a particular case might include material adverse to the offender but which had not been proved by criminal conviction.
An extended sentence of detention can only be passed in the case of an offender under the age of 18 where the appropriate custodial term is at least four years. To the custodial term there must always be added the appropriate extension period, the maximum being five years for a specified violent offence.
The length of the extension period is a matter for judicial assessment in each case, and is that which the court considers necessary to reduce the future danger posed by the offender.
In ARD  the Court of Appeal held that the length of the extension period is not to be determined by the age of the defendant or his lack of previous convictions save in so far as they were indicators as to the degree of harm the defendant posed into the future and for how long he would pose that harm.
The total term of an extended sentence of detention must not exceed the maximum penalty for the offence. A person sentenced to be detained under s.226B is liable to be detained in such place as may be determined by the Secretary of State s235
Sentencing Offenders Suffering from mental health issues
I do not intend to look at the provisions of fitness to plead but I will concentrate on the sentencing of offenders who are suffering from ill-health at the time of sentence.
The test for imposing a determinate sentence is one of proportionality as to the seriousness of the offence (sections 143 and 152 of the Criminal Justice Act 2003 (‘the 2003 Act’). The terms of length, the sentence is to be imposed for the shortest term commensurate with the seriousness of the offence (s.153 of the 2003 Act).
Release from determinate sentences is automatic, subject to a licence period until the expiry of the sentence, at the half way point of sentence (s.244 of the 2003 Act).
A prisoner subject to a determinate sentence may be transferred to a hospital for treatment. Such an order is may be made by the Secretary of State under section 47 of the Mental Health Act 1983 (‘the 1983 Act’). Prisoners not so transferred may also be treated in prison, dependent upon available resources.
Section 37 of the Mental Health Act 1983 (‘the 1983 Act’) provides for the powers of courts to order hospital admission or guardianship. In so far as is relevant, section 37(1) provides:
‘Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law…and the conditions mentioned in subsection (2) below are satisfied, the court my by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.’
The necessary criteria are therefore:
The defendant is convicted before the Crown Court;
The offence is punishable with imprisonment but is not one for which the sentence is fixed by law, i.e. murder; and
The conditions in subsection (2) are satisfied.
Section 37(2) of the 1983 Act provides for the test for Hospital and Guardianship Orders, and requires that the court is: satisfied, on the written or oral evidence of two registered medical practitioners that:
(i) the offender is suffering from a mental disorder (s.37(2)(a));
(ii) the mental disorder is of a nature or degree which makes it appropriate for him/her to be detained in a hospital for medical treatment and appropriate medical treatment is available (s.37(2)(a)(i)); or
(iii) the mental disorder is of a nature or degree which warrants his reception into guardianship under the Act;
is of the opinion that the most suitable method of disposing of the case is to impose a hospital order, having regard to all the circumstances including:
(i) the nature of the offence (s.37(2)(b));
(ii) the character and antecedents of the offender (s.37(2)(b)); and
(iii) the other available methods of dealing with him (s.37(2)(b)).
The elements under paragraph (a) above will therefore necessarily be the subject of medical evidence, but it is for the court to determine the issue.
Pursuant to section 37(4) of the 1983 Act, a hospital order may not be made unless the court is satisfied that arrangements are in place to receive the individual into hospital within 28 days. A guardianship order may not be made unless the court is satisfied that the authority or other person is willing to receive the offender into guardianship.
Section 47 of the Crime (Sentences) Act 1997 provides the court with a power to specify a hospital unit, as opposed to a hospital, as the place where the person subject to the order will be liable to be detained.
The making of a hospital order limits the court’s other sentencing powers, prohibiting the imposition of a fine, a community order, a sentence of imprisonment (to include detention), a referral order, a youth rehabilitation order or an order binding over a parent or guardian (s.37(8) of the 1983 Act).
The following principles are established by the case law:
There is no requirement for there to be established a causal connection between the disorder and the offences (R. v. McBride  Crim.L.R. 322);
The gravity of the offence, except in so far as the offence is an indication of the need for treatment in special conditions, is not relevant: R. v. Eaton  Crim.L.R. 390. However, more recent authority has suggested that the welfare of the offender was an important consideration, but it had to be considered in light of the seriousness of the offence (R. v. Khelifi  EWCA Crim 770 at para.11);
A hospital order is a discretionary order and a court is not bound to impose such an order in circumstances where the criteria for imposition are met. The decision is one for the judge’s discretion. (R. v. Khelifi  EWCA Crim 770 at para.9);
Where there is no causal connection between the mental illness and the offending, policy considerations caused the courts to focus primarily on the offence itself and the need for effective deterrence; additionally, prisoners could be treated in prison or transferred to hospital (R. v. Nafei  EWCA Crim 3238 at para.14);
For the purpose of deciding what was most suitable, a court could give appropriate weight to the different release regimes (R. v. IA  EWCA Crim 2077).
Section 41 of the 1983 Act makes provision for the ‘power of higher courts to restrict discharge from hospital’ (‘Restriction Orders’). Section 41(1) provides both the power to make the order and the relevant test:
‘Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section; and an order under this section shall be known as ‘a restriction order’.
A restriction order can only be made in conjunction with a hospital order.
The special restrictions applicable to a patient under a restriction order are set out in section 41(3) of the MHA. In particular, a Restriction Order restricts the ability of the responsible clinician to authorise the patient’s leave from hospital, their transfer to another hospital or discharge to community care, without Secretary of State approval. The Judge having decided that the protection of the public is necessary he ensures a slowing down of the clinicians if they are minded to move the treatment forward as above without a supervisory role on the Secretary State. In a case where the clinician will advocate no restriction order be imposed but the sentencing Judge concludes otherwise, de facto the clinician will be able to effect the future rather than the de jure secretary of state the medical profession being best placed to determine the future treatments.
A Restriction Order cannot be made unless there is evidence that it is necessary to protect the public from serious harm. A court is not bound to accept the medical evidence for or against the imposition of a restriction order: it is ultimately a matter for the Court (Birch (1989) 11 Cr.App.R.(S)202). There is no requirement for a causal connection between the disorder and the offence.
Release from a hospital order with a restriction order is governed by the First Tier Tribunal (Mental Health) (see R v Edwards  EWCA Crim 595). Discharge of the patient occurs only when the defendant satisfied the First Tier Tribunal that his mental health poses no unacceptable risk to the public, and upon release the defendant will be supervised by a mental health team led by a psychiatrist. Discharge will inevitably be conditional rather than absolute.
Recall from an undischarged section 41 Restriction Order can only be made on the basis of a relapse in the defendant’s mental health, or a failure to comply with a mental health support package. Recall may be made by the responsible clinician and will be to hospital.
In Drew  UKHL 25 the House of Lords noted that offenders subject to hospital orders (with or without restriction) are entitled to release when their medical condition has been successfully treated, whilst release from a life sentence is a matter for the Parole Board, taking into account all matters of risk, and thereby providing a greater degree of control over the offender.
In making the choice between a hospital order, with or without restrictions, and a custodial sentence, the Court in Vowles  EWCA Crim 45 held that the court must consider all the evidence and not feel bound by medical opinion, and in considering whether a hospital order is the most suitable disposal the court must always have regard to the extent to which the offender requires treatment, the extent to which the offending is attributable to the mental condition, the extent to which punishment is necessary, and the need to protect the public, including the regime for deciding upon release and the nature of supervision after release. [Blackstones at E22.}
The matters to which the sentencing court should have regard include:
- The extent to which the offender requires treatment for the mental disorder from which he or she is suffering;
- The extent to which the offending was attributable to that mental disorder;
- The extent to which punishment was required; and
- The protection of the public, including both the regime for determining release and the regime after release
(ii) The focus on a penal element was necessary because of the purposes of sentencing, as provided for by s.142 of the 2003 Act. Rehabilitation is but one of a number of purposes of sentencing (R v. Edwards  EWCA Crim 595, at para.13);
(iii) The order in which the sentencing court should consider the various disposals is that set out in R v. Edwards  EWCA Crim 595.
In conclusion the importance of reiterating some of the principles set out above when appearing at the sentencing hearing cannot be understated whilst the importance of the presentation of the clients mitigation, with a psychiatrist at court in those cases of such seriousness that the eventual disposal is at large cannot be overstated.
ANDREW HILL © 2020
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.