Chall & Ors, R. v

A finding that a victim has suffered severe psychological harm for sentencing purposes is a judicial assessment of the factual impact of the offence, not a medical diagnosis. Expert evidence is therefore not an essential precondition. The assessment may rest on factual evidence, including a properly made and served Victim Personal Statement, and on the judge’s observation of the victim giving evidence.

The sentencer must not assume harm unsupported by evidence. Whether a Victim Personal Statement establishes severe harm depends on its contents and timing. In sexual cases, the guideline sentence already reflects harm inherent in the offence; a higher harm category requires harm significantly beyond that baseline. The statement must comply with the Criminal Practice Direction and be served in sufficient time for the defence to address it.

Five otherwise unconnected sentencing challenges were heard together because they raised a common issue concerning the assessment of severe psychological harm under definitive sentencing guidelines.

Four applicants had been convicted of sexual offences. One appellant had pleaded guilty to wounding with intent. Each challenged, in whole or in part, the use of Victim Personal Statements to support a higher harm category or an aggravating feature. The individual challenges also raised late service, totality, categorisation, prolonged detention and dangerousness issues.

The central question was whether expert evidence was required before a sentencing judge could find severe psychological harm and, if not, when evidence in a Victim Personal Statement could safely support that finding.

1. Disposition. The appeal of Welsby was dismissed. The applications for leave to appeal against sentence by Chall, Allen, Wilkinson and Deiss-Dias were refused.

2. A sentencing guideline’s reference to severe psychological harm calls for a judicial and factual assessment of the offence’s effect on the particular victim. It does not call for a medical judgment or a clinical diagnosis. Expert psychological or psychiatric evidence may assist in an appropriate case, but is not an essential precondition. The judge remains responsible for the assessment even where expert evidence is available.

3. The judge must act on evidence and must give reasons. Except where the nature and circumstances of the offence permit an obvious inference, the judge must not assume its effect on the victim. Evidence may come from trial testimony, the victim’s demeanour while giving evidence, or a Victim Personal Statement. A statement may be the only evidence available. Its sufficiency depends on its contents and the circumstances, including whether it demonstrates enduring rather than merely immediate consequences. Without expert evidence, the judge should not purport to diagnose a condition such as PTSD. If a formal diagnosis is necessary for sentencing, expert evidence must be obtained.

4. In sexual cases, the guideline ranges already reflect psychological harm inherent in the offence. Severe harm, or harm used as a separate aggravating factor, requires a significantly greater impact so that harm is not double counted. Vulnerability may also increase harm, subject to the particular guideline’s structure.

5. A Victim Personal Statement must comply with Part VII F of the Criminal Practice Direction and be served in good time for the sentencing hearing. The court should make a dispassionate assessment of a statement’s intensely personal content. A further statement may be served before disposal, and late service that creates a genuine defence difficulty may justify an adjournment.

6. Applying those principles, the statements and other evidence adequately supported the challenged findings of psychological harm. In Wilkinson’s case, drug-induced incapacitation overnight could amount to prolonged detention for categorising rape. Treating that detention as harm for the rape guideline and as culpability for the drugging offence did not involve double counting.

• Court of Appeal (Criminal Division): In this joint judgment, [2019] EWCA Crim 865, the court dismissed Welsby’s sentence appeal and refused the four applications for leave to appeal against sentence.

• Crown Courts: Chall was convicted at Wolverhampton; Allen at Leeds; Welsby was sentenced at Oxford after a guilty plea; Wilkinson was convicted at Bristol; and Deiss-Dias was convicted at Croydon. Each received the sentence challenged in this court.