This article discusses Lachlan’s recent successful appeal before the Court of Appeal, R v Gilligan, and provides a guide to the key aspects of the Sentencing Council Guidelines for Offenders with Mental Disorder, Developmental Disorders, or Neurological Impairments.

The case: R v Gilligan [2024] EWCA Crim 618

The case of R v Gilligan concerned the robbery of a 16-year-old boy of his phone whilst he was on his way home from his GCSE examinations. The robbery was carried out by the Appellant as part of a group, who was armed with a knuckle duster and wearing a balaclava. At first instance, the Appellant was sentenced to 18 months immediate detention. The Appellant was himself aged 19 at the time of offence and had significant mental health difficulties, including ADHD and autism.

The Judge concluded the only appropriate sentence to impose was one of immediate custody. On appeal, it was argued that insufficient weight had been placed on the Appellant’s mental health issues, with reliance being placed upon the mental health sentencing guidelines.  It was further argued that inadequate consideration had been given to the effect of the Appellant’s mental disabilities on his culpability, and the deleterious impact that custody would have on his emotional wellbeing.

The Court of Appeal allowed the appeal, substituting 18 months immediate detention with 18 months suspended for 2 years, with 15 rehabilitation activity requirement days. The CoA was persuaded that insufficient weight had been placed on the Appellant’s significant mental issues. In concluding, Macur LJ stated the following at [16]: “However, the exceptional circumstances we identify call for a bespoke approach to facilitate this appellant’s rehabilitation and reform, as the Overarching Guidelines on Sentencing Offenders with Mental Developmental Disorders make clear.”

This article now turns to consider this guideline.

The ‘Guideline’: Sentencing offenders with Mental disorders, Developmental Disorders, or Neurological Impairments

In summary, the Guideline is a useful and important tool to assist the court when sentencing offenders with mental disorders.

The Guideline applies when sentencing any offender who, at the time of the offence or sentencing, has any mental disorder, neurological impairment or developmental disorder. These are listed in Annex A to the Guideline. Importantly, if an offender has an impairment or disorder, the court must consider this when sentencing. Annex A includes conditions that one would normally associate with the Guideline, such as schizophrenia. It should be noted, however, that there are conditions falling within the Guideline that practitioners may not initially consider applicable, such as attentional deficit hyperactivity disorder (ADHD), autism, PTSD, and obsessive-compulsive disorder (OCD).

It is common to obtain a report on an offender’s mental state, but judicial resistance can occasionally be encountered. It is worth drawing the court’s attention to the Guideline, which stipulates that, in any case where the offender is or appears to be suffering from a mental disorder at the date of sentencing, the court must obtain and consider a medical report before passing a custodial sentence unless the court considers it unnecessary.

Moreover, counsel has an ethical duty to satisfy themselves that their client has capacity to provide instructions; see Re P [2008] EWCA Civ 462, at paragraph 47:

“…once either counsel or [the solicitor] had formed the view that … [the client] might not be able to give them proper instructions, and might be a person under a disability, it was their professional duty to have the question resolved as quickly as possible”.

The Guideline is a vital tool in seeking to persuade a court to impose a community order with a Mental Health Treatment Requirement (MHTR). At paragraphs 19-20, it highlights that a MHTR may result in better reductions to re-offending compared to short custodial sentences. This general proposition, that short custodial sentences are not that effective at preventing re-offending is something that is well researched[1] and known by those who work in the criminal justice system but its importance cannot be overstated. Accordingly, the public interest may be better served by imposing a MHTR rather than a ‘short or moderate custodial sentence’. However, it must be remembered that a court should order an MHTR only if it concludes the offender is likely to comply with the requirement. Sadly, for some offenders, this will not be a realistic prospect.

On a similar note, paragraph 22 of the Guideline states:

Where an offender is on the cusp of custody or detention, the court may consider that the impairment or disorder may make a custodial sentence disproportionate to achieving the aims of sentencing and that the public are better protected and crime reduced by a rehabilitative approach,’

The Guideline further highlights the court shoulder consider level of impact that the impairment or disorder has on the offender. This impact, the Guideline notes, may be relevant to the length of sentence or to the possibility of a suspended sentence, for a custodial sentence may weigh more heavily on an offender with an impairment or disorder. Moreover, the effects of such conditions may be exacerbated while in custody (paragraph 22).

We are all familiar with those difficult cases wherein a judge must decide whether immediate custody is the court’s only option. A judge will examine this question against the factors contained within the ‘imposition of community and custodial sentence’ guidance. At this juncture in the sentencing exercise, if applicable, the court should also be taken to the mental disorder guideline. It almost creates an extra test for whether the court should suspend a sentence of imprisonment and may help with cases that do not fit neatly into the imposition of community and custodial sentence guidance.

Finally, submissions are often made regarding how a mental disorder affects an offender’s culpability. The Guideline provides useful questions to help focus these submissions: did the offender’s disorder impact their judgment? Impair their ability to make rational choices? Or lead to them behaving in a disinhibited way? Considering these questions in turn will ensure that submissions are tailored to the specific facts of the case.

To conclude, when representing offenders with mental disorders in sentencing matters, the Guidance is a critical recourse that should not be overlooked.

Footnote:

[1] UK Parliament Post Brief ‘The use of short prison sentences in England and Wales’ (27 July 2023)

Ministry of Justice Analytical Series,‘The impact of short custodial sentences, community orders and suspended sentence orders on reoffending’ (2019)

This is not legal advice and should not be taken as such.