Psychological harm: impact on sentencing

The issue of psychological harm to victims of crime has a much higher profile than in once had, and it is only right this type of harm is recognised by the law. The new definition of domestic violence, for example, includes psychological as well as emotional abuse; and government is recognising the need to take action against crime to protect people from the risk of psychological harm.

This summer, for instance, plans were announced giving the magistrates’ and youth courts the power to impose knife crime prevention orders where the courts are satisfied a suspect has carried a knife on at least two occasions and it is "necessary to make the order to protect … particular persons from risk of physical or psychological harm".

Any moves to protect people’s psychological as well as physical wellbeing and to punish those guilty of offences causing psychological harm ought to be welcomed, though applying the law may not always be straightforward. Even on conviction of a criminal offence which has caused psychological harm to the victim – the sentencing process can then prove challenging. In such cases where psychological harm has been caused, the courts must have regard to the relevant sentencing guidelines.

Sentencing approach

In the recent case of R v Chall and others [2019] EWCA Crim 865, the Court of Appeal gave important guidance on the approach the court should take on sentencing when assessing whether a victim of crime has suffered severe psychological harm. Here, the appeal judges heard five unconnected appeals together in which this was the common issue.

Various definitive guidelines published by the Sentencing Council require the sentencing court to consider whether the victim has suffered severe psychological harm - across a range of offences including harassment, domestic burglary, sexual offences, offences of causing GBH with intent and threats to kill. However, the point at which the question must be considered differs.

The questions specifically raised on appeal - and which, as Holroyde J points out, often arise in other cases - were:

  • Must the court obtain expert evidence before making a finding of severe psychological harm?
  • If not, on what evidence can it act?
  • In particular, can the court make such a finding on the basis only of the contents of a Victim Personal Statement (VPS)?

What did the court say?

The correct starting point is section 143(1) of the Criminal Justice Act 2003 which provides: "In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause, or might foreseeably have caused."

Sentencers must assess culpability and harm by reference to specified factors, placing an offence into a category for which the guideline identifies a sentencing starting point and a sentencing range. The court gives examples, for instance, in the sentencing guideline for offences of rape, step 1 requires a sentencer to determine into which of three categories of harm the case falls. One of the factors indicating category 2 harm is "severe psychological or physical harm".

But what evidence is necessary? It was argued for the defendants that without expert evidence a court has “no benchmark against which to assess whether psychological harm is severe”. However, Holroyde J said that while the judge must act on evidence they will usually be able to make a proper assessment of the extent of psychological harm on the factual evidence of the actual effect of the crime on the victim.

He concluded that expert evidence is not an essential precondition to finding that a victim has suffered severe psychological harm. The harm suffered could be assessed on the basis of the victim’s evidence given during the course of the trial, including that contained in their VPS. It may even come exclusively from the VPS. Conversely, where there is no VPS, the sentencing judge must not assume that this indicates an absence of harm.

The sentencing judge can also rely on their observation of the victim and their demeanour whilst giving evidence.

However, Holroyde J also remarked that whether a VPS provides sufficient evidence for a finding of severe psychological harm depends on the circumstances of the case and the contents of the VPS. For example, a mature adult giving evidence of the effects of historic sexual abuse during their childhood may provide very clear evidence of the long-term and severe psychological harm suffered. On the other hand, a VPS written just a few weeks after an offence is likely to be insufficient for a sentencing judge to make any safe finding as to the severity and likely duration of any psychological harm.

It was also submitted that the sentencing guidelines should provide a checklist of sorts to enable a court to assess the degree of a victim’s psychological harm. The appeal court rejected this proposition, unpersuaded that it was necessary, appropriate, or even workable.

A matter of procedure

Holroyde J commented on a few procedural points, two of particular note. First, he made clear that a VPS must comply with the Criminal Practice Direction and be served on the defence with enough time to enable it to consider its contents and decide how to address them.

Second, he emphasised that under paragraph F.2 of the Practice Direction, further VPSs can be served - in proper witness statement form - at any time before disposal of the case.

On a final point, it will be rare that a victim can be cross-examined on the VPS for obvious reasons, including the risk that it may actually increase the psychological harm they have already suffered.

It is reassuring for victims of crime that the court must take into account the psychological effects of what they have suffered when sentencing the perpetrator. It is also sends a clear message that violent criminals will be punished for the psychological harm caused to their victims. Defence lawyers take note.



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