‘Finely Balanced’ and ‘Competing Considerations’1: Mental Disorder as a Factor in Sentencing Children and Young People
| Author | Nigel Stone |
| Date | 01 April 2021 |
| DOI | 10.1177/1473225420983934 |
| Published date | 01 April 2021 |
| Subject Matter | Legal Commentary |
983934YJJ0010.1177/1473225420983934Youth JusticeStone
research-article2021
Legal Commentary
Youth Justice
2021, Vol. 21(1) 127 –138
‘Finely Balanced’ and ‘Competing
© The Author(s) 2021
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Considerations’1: Mental Disorder
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as a Factor in Sentencing Children
and Young People
Nigel Stone
Any criminal justice system grounded in perpetrators’ rational choice in and personal
responsibility for their criminal behaviour has to determine what accommodation to reach
with any mental disorders that may be regarded as counter to that a priori foundation. As
regards guilt and the assumption of mens rea, the law of England and Wales affords a
rarely pursued and tightly boundaried insanity defence, where the perpetrator is deemed
to lack any capacity, and in respect of allegations of murder the scope to seek a finding of
guilt of manslaughter by reason of diminished responsibility where the defendant can
establish that he or she was ‘suffering from an abnormality of mental functioning’ at the
time of crime which: (1) caused, or was a significant contributory factor in causing the
defendant to carry out that conduct; (2) ‘arose from a recognised medical condition’; and
(3) ‘substantially impaired’ their ability to do one or more of (a) understanding the nature
of their conduct; (b) forming a rational judgement and (c) exercising self-control.2 More
prevalently yet more imprecisely, allowance is made for mental disorder at point of sen-
tence, either in weighing culpability, or in tempering or shaping the severity/nature of
penalty/disposal, or in factoring in the risk posed by the disordered defendant.
Under Part 12 of the Criminal Justice Act (CJA) 2003, what until recently has come
closest to a statutory sentencing code in this jurisdiction,3 the following modest provisions
are made for ‘mentally disordered offenders’:4
•• Where the offender is or appears to be mentally disordered, the court must obtain
and consider a medical report before passing a custodial sentence (unless it deter-
mines this to be ‘unnecessary’) (s.157(1)-(2));
•• Before imposing a custodial sentence (other than one fixed by law) on an offender
who is or appears to be mentally disordered, a court must consider (a) ‘any informa-
tion before it which relates to his mental condition (whether given in a medical
report, a pre-sentence report or otherwise)’, and (b) ‘the likely effect of such a
Corresponding author:
Nigel Stone, School of Psychology, University of East Anglia, Norwich NR4 7TJ, UK.
Email: n.stone@uea.ac.uk
128
Youth Justice 21(1)
sentence on that condition and on any treatment which may be available for it’
(s.157(3));
•• Nothing in the generic provisions within Part 12 pertaining to imposition of custo-
dial and community sentences shall be taken as ‘requiring a court to pass a custodial
sentence, or any particular custodial sentence, on a mentally disordered offender’ or
as restricting any power (whether under the Mental Health Act 1983 or otherwise)
which enables a court to deal with such an offender in the manner it considers to be
most appropriate in all the circumstances (s.166(5)).
Although no Definitive Guideline on sentencing mentally disordered offenders had
been issued until very recently, the guidance on Overarching Principles: Seriousness
(Sentencing Guidelines Council (SGC), 2004) had baldly mentioned ‘mental illness or
disability’ among ‘factors indicating significantly lower culpability’, this being super-
seded by General Guideline: Overarching Principles (SC, 2019) which lightly referred
to the same consideration as ‘a factor reducing seriousness or reflecting personal miti-
gation’. Various offence-specific guidelines (e.g. Robbery: Sentencing Council (SC),
2016) have made reference to this factor, either as a consideration in respect of lower
culpability within ‘Step One’ (‘determining offence category’) ‘where linked to the
commission of the offence’ or ‘Step Two’ (‘starting point and category range’) where
not so linked.
At a point where a draft Guideline was in circulation for consultation, the Court of
Appeal, Lord Burnett CJ presiding, opted to deal with three otherwise unrelated cases as
an opportunity to clarify the ‘proper approach to sentencing offenders who suffer from
autism or other mental health conditions or disorders’, in R v PS and Others [2020] 2 Cr.
App. R. (S.) 9 ([2019] EWCA Crim 2286), two concerning juvenile offenders. It should
be borne in mind that the Definitive Guideline on Sentencing Children and Young People
(SC, 2017) (see Stone, 2017b) had drawn attention to mental disorder in three respects:
•• Statutory obligation to have regard to the young defendant’s welfare (CYPA 1933
s.44: ‘be alert to’ ‘any mental health problems or learning difficulties/disabilities’)
(para. 1.12).
•• Culpability: consider any mental health problems and/or learning disabilities they
may have, as well as their emotional and developmental age (para. 4.5).
•• Factors reducing seriousness or reflecting personal mitigation: to include ‘commu-
nication or learning disabilities or mental health concerns’ (para. 4.7).
Embarking with some general observations, Lord Burnett commented (hereafter in
paraphrase), without being strongly exercised whether mental disorder as a consideration
comes to the fore at Step One or Step Two, that
•• Sentencing an offender who suffers from a mental disorder or learning disability
requires ‘a close focus’ on their mental health:
(a) At the time of the offence, to gauge any impact of their condition on their ‘abil-
ity to understand the consequences of their actions, to limit impulsivity and/or
to exercise self-control’, thus reducing their responsibility for the offence.
Stone
129
• In this respect, care should be taken to determine whether the actions of the
offender ‘exacerbated’ their mental disorder or learning disability, for
example by their voluntary abuse of drugs or alcohol or by voluntarily fail-
ing to follow medical advice (though their condition may have affected
their ability to manage their substance misuse or to engage with medical
services).
• Although the defendant is found to have had a mental health condition or
disability at the relevant time, this does not necessarily reduce culpability.
(b) At the time of sentence, to determine any effect of their condition on their abil-
ity to cope with custody or comply with a community order.
• In some instances the defendant ‘may be as capable as most other offenders
of coping with the type of sentence which the court finds appropriate’.
•• Sentencers will be assisted by a PSR (pre-sentence report) and, where appropriate,
psychiatric or psychological reports (including from court-based mental health
teams). When specialist reports are commissioned, it is important that the issues to
which they are relevant should be clearly and quickly identified.
•• Where a serious offence has been committed by a young offender, the court and the
defence ‘must be alert to the possibility’ that mental health may be a relevant fea-
ture of the case. ‘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’.
The Individual Cases: The Two Juveniles5
PS: fatal knife crime At age 14, PS participated with three other youths in a revenge initia-
tive arising from rival street gang conflict, travelling by taxi to seek out their targets. He
remained by the cab, acting as look-out and back-up, and ensuring the taxi remained avail-
able for convenient getaway. Three victims were attacked by his associates, armed with
knives, one sustaining a fatal stab wound. A subsequent police search of the bedroom PS
shared with his older brother, a more experienced gang member, located four knives, none
linked forensically with the crime. He was convicted of murder, wounding with intent and
attempted wounding with intent, following contested trial, along with a boy called M., also
aged 14, responsible for inflicting the fatal wound, in PS’s case on the basis of ‘joint enter-
prise’. He had one previous conviction, for a robbery at age 13. His crime attracted a manda-
tory indeterminate sentence of ‘detention at Her Majesty’s pleasure’ (HMP) (Powers of
Criminal Courts (Sentencing) Act (PCC(S)A) 2000 s.90; now SA 2020 s.259).
A PSR recorded that though PS had experienced a ‘troubled upbringing’ and had been
excluded from school because of behavioural problems that had also prompted referral to
Child and Adolescent Mental Health Services (CAMHS) (no further details were pro-
vided), he had made ‘impressive progress’ at a Pupil Referral Unit...
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