R v WHD

Background

On 6th August 2018, in the Crown Court at Newport, the appellant (the name of the appellant and victims are not mentioned to preserve the anonymity of the victims) pleaded guilty to a number of sexual offences committed against his daughters and their cousin. On 7^th September 2018, His Honour Judge Tim Mousley KC sentenced him to 13 years and six months’ imprisonment, and a victim surcharge of £170 was ordered.

The appellant appealed against his sentence. The appellant sought to rely on fresh expert evidence, which raised the issue of whether the appellant’s responsibility for his offending was induced by post-traumatic stress disorder (“PTSD”), which has occurred since he left the armed forces in 1996. The fresh expert evidence sought to rely on evidence from Dr Marc Desautels, a Chartered Clinical Psychologist, in the form of a report dated 7th June 2022.  However, the prosecution resisted this appeal and sought to rely on the evidence of Dr Nigel Blackwood, a Professor of Forensic Psychiatry and a Consultant Forensic Psychiatrist. Disputing the link between the PTSD and the offences. Essentially, they do not accept the fact that the diagnosis of PTSD was directly linked to the appellant’s offending.

Facts of the case

As of the date of the the appeal, the appellant was 54. The offending against the cousin took place for the first time between 2005 and 2007 when she was 10, and the offending against his two daughters took place between 2012 and 2017, when they were between 11 and 15, and took place at their home address. There were nineteen counts of offending against the appellant.

In January 2017, the first daughter (then aged 15) told her teacher that her father had been sexually abusing her. As a result, both she and her sister were interviewed, and they both disclosed that their father had committed a number of sexual assaults against them. The cousin was also spoken to, and it was revealed that the appellant had touched her sexually when she was about ten years of age.

Proceedings

In the first hearing, the issue of post-traumatic stress disorder or its effect was not raised. The appellant had served in the armed forces from the age of 16 when he joined junior leaders. He had served for nine years and had seen service in the first Gulf War. The suggestion was that the appellant might have post-traumatic stress disorder, which was raised by a prison psychologist, Dr White.

Dr Desautels said that his assessment strongly indicated that the appellant had PTSD, which seemed to have occurred after he left the armed forces. He seemed to have been suffering from it ever since, including at the time that the offences were committed. At the time that Dr Desautels had seen him, the condition remained untreated, but by the hearing, Dr White had successfully treated some symptoms of PTSD. Dr Desautels said that he did not believe that the post-traumatic stress disorder could be deemed to be the cause of the offending behaviour but that it can be considered as a significant contributing factor. Stating that: “Abusing his daughters and niece seems to have been a grossly inappropriate attempt to find some kind of solace, intimacy and connection, and to alleviate his distress while remaining in complete control of the situation.”

However, Dr Blackwood had also produced a report. His report noted that Dr Desautels’ diagnosis was based on the appellant’s self-report. Dr Blackwood concluded that even if the appellant’s experience was truthful, he did not document evidence of a current threat, for example, hyperarousal and increased startled response. Dr Blackwood considered that the appellant did not meet the categorical cut-off for PTSD in the ICD-11.

He stated that the defence of PTSD was not a clear motivation/cause; rather, it would be more accurate to say that the appellant was motivated by paraphilic motivation (a persistent and recurrent sexual interest and behaviours of marked intensity).

Judgement

New evidence may be considered under section 23(2) of the Criminal Appeal Act 1968. The court must evaluate (a) the believability of the evidence, (b) whether the evidence could potentially support the appeal, (c) if the evidence would have been allowed in the original proceedings on a relevant issue of the appeal; and (d) if there is a reasonable justification for not presenting the evidence earlier.

The Sentencing Council’s Guideline on Sentencing Offenders with Mental Disorders, Developmental Disorders, or Neurological Impairments provides current instructions. It was agreed that these guidelines were not in effect at the sentencing time but reflect applicable principles already in place.

The guidelines advise that sentencers should not necessarily view it negatively if an offender has not been formally diagnosed or chosen to reveal a disorder or impairment previously.

In a recent judgment, the court was tasked with evaluating the admissibility of expert evidence pertaining to the appellant’s psychological state, specifically concerning allegations of post-traumatic stress disorder (PTSD). The decision hinged on several pivotal assessments: the reliability of symptoms presented, the relevance of PTSD to the appellant’s criminal behaviour, and whether the evidence could fundamentally influence the appeal’s outcome.

Despite acknowledging the presence of PTSD symptoms—trauma, flashbacks, and avoidance behaviours—the court remained unconvinced of their mitigating effect on the appellant’s criminal culpability. The temporal gap between the onset of PTSD and the commencement of the offending behaviour, along with the appellant’s failure to link his psychological state to his actions, weakened the argument for PTSD’s direct influence on his criminality. The court also highlighted testimony from Dr Blackwood, which firmly detached the appellant’s sexual offences from his PTSD, emphasising a primary motive of sexual gratification targeted towards young girls.

The court also considered Dr. Desautels’s evolving stance on the appellant’s condition, moving from viewing PTSD as a possibility to deeming it more probable. However, the consensus favoured Dr Blackwood’s analysis, which saw no causal relationship between the appellant’s psychological condition and his offences, leading to a decision not to admit the new evidence for the appeal.

Further deliberations involved the potential for adjourning to procure additional insights from prison psychologist Dr. White. Nevertheless, the court deemed such an action speculative, with little promise of shedding light on the causation of the appellant’s behaviour.

The discussion extended to a “fallback submission” by Mr Stevens, proposing that unrecognised PTSD at the time of sentencing might offer mitigation. While acknowledging the disorder’s existence during the period identified by Drs. White and Desautels, the court found insufficient clarity on its impact at the time of the offences. Given the grave nature of the sexual crimes committed, any mitigating influence of PTSD was seen as negligible.

The court also addressed an irregularity with the imposed Victim Surcharge Order, identifying it as unlawful based on the offences’ timings and the surcharge provisions’ enforcement. Adopting a less punitive approach, the court nullified the surcharge, aligning with principles of fairness and legality.

Ultimately, aside from rectifying the surcharge order, the court dismissed the appeal against the sentence, reinforcing that, while important, psychological conditions must be directly and demonstrably relevant to the offences to warrant consideration in sentencing or appeals. This case underscores the judiciary’s cautious approach to integrating expert psychological evidence into legal proceedings, emphasising the need for a clear nexus between mental health issues and criminal behaviour.

Commentary

In R v WHD, the court faced the complex task of navigating the interplay between mental health, specifically post-traumatic stress disorder (PTSD), and criminal responsibility. This appeal highlights the evolving legal and psychological understanding of how mental health conditions affect behaviour, particularly in the context of serious criminal offences. The appellant’s attempt to introduce fresh expert evidence to connect his diagnosed PTSD with his criminal actions underscores a broader legal and societal challenge: acknowledging the profound impact of mental health on behaviour while upholding the principles of justice and accountability. The contrasting expert opinions from Dr Marc Desautels and Dr Nigel Blackwood illustrate the nuanced debate within the psychiatric community regarding the causal links between PTSD and specific behaviours, particularly those involving sexual offences.

Dr Desautels’s suggestion that PTSD played a significant role in the appellant’s actions, proposing it as a search for “solace, intimacy and connection,” attempts to contextualise the appellant’s motivations within his psychological trauma. In contrast, Dr Blackwood’s analysis, focusing on the lack of direct evidence tying PTSD symptoms to criminal behaviour, reflects a critical perspective on the limits of mental health as a defence in cases of severe criminality. The court’s decision to dismiss the appeal, except for the adjustment of the Victim Surcharge Order, is emblematic of the judiciary’s cautious stance on the admissibility and weight of psychological evidence in criminal sentencing. This cautious approach is grounded in the necessity to balance compassion and understanding of mental health struggles with the imperative to hold individuals accountable for their actions, especially in cases involving the safety and well-being of vulnerable individuals.

This case also illuminates the Sentencing Council’s guidelines on sentencing offenders with mental disorders, developmental disorders, or neurological impairments. While these guidelines aim to integrate a more nuanced understanding of mental health into legal proceedings, the court’s ruling demonstrates the high threshold for evidence that links mental health conditions directly to criminal acts.

R v WHD serves as a poignant reminder of the legal system’s ongoing challenge to integrate psychological insights into judicial processes effectively. It underscores the importance of clear, compelling evidence to demonstrate the extent to which mental health conditions can mitigate criminal responsibility. Furthermore, it highlights the judiciary’s role in balancing the interests of justice, the protection of society, and the recognition of the complex effects of mental health on behaviour.

Written by Sharon Uche