R v Patrick McDonagh

Where a mental disorder has lowered an offender’s culpability, it must be given effect as mitigation under Sentencing Act 2020, Schedule 21, paragraph 10c. ADHD may be such a disorder where the evidence shows that it contributed to impulsive behaviour and reduced the offender’s ability to think. A sentencing judge’s failure to reflect that mitigation may render a minimum term manifestly excessive, despite serious aggravating features and the offender’s adult age.

On a contested appeal, fresh expert evidence is governed by the statutory criteria for receiving evidence. Evidence may be admitted yet provide no substantive basis to alter the sentence.

The appellant was convicted at Leicester Crown Court of murder and possession of an offensive weapon after fatally slashing the victim’s neck with a knife. He received life imprisonment with a 26-year minimum term, less time spent on remand, and a concurrent sentence for the weapon offence.

He appealed against the minimum term. He challenged findings of premeditation and the absence of any relevant self-defence. He also sought to adduce fresh psychiatric evidence and contended that insufficient weight had been given to his youth, immaturity and ADHD.

The central issues were whether the factual findings could be disturbed, whether the psychiatric reports should be admitted, and whether the sentencing judge had properly accounted for mental disorder as mitigation.

1. Appeal allowed. The minimum term of 26 years was manifestly excessive. It was substituted with a minimum term of 24 years, less time spent on remand. The concurrent sentence for possession of an offensive weapon remained unchanged.

2. The court would not interfere with the sentencing judge’s findings on premeditation or self-defence. The judge had heard four weeks of evidence, including the defendants’ evidence and extensive CCTV. The findings that the appellant had provoked, pursued and attacked an unarmed victim were open to the judge and were neither inconsistent nor contrary to uncontroverted evidence.

3. The fresh psychiatric evidence was admitted under section 23(2) of the Criminal Evidence Act. It was capable of belief, potentially relevant to sentence, admissible below, and there was a reasonable explanation for its earlier absence. However, it did not reveal an undiagnosed condition existing at the time of the offence that could further mitigate sentence. The depression was reactive, any PTSD arose from the killing, and the functional psychosis had not emerged at the time of the offence.

4. The judge correctly adopted the 25-year starting point under Schedule 21 of the Sentencing Act 2020, because the appellant had taken a knife to the scene. The aggravating factors were substantial, including previous violence, premeditation, involving the co-defendant, and concealment of evidence. Age, immaturity and an intention to cause serious harm rather than death were mitigating, but the court identified a further material factor.

5. ADHD was a recognised mental disorder. The evidence showed that it could cause impulsivity and diminish the ability to think, and that those features were apparent in the appellant’s conduct. The sentencing judge should therefore have reflected its culpability-reducing effect under paragraph 10c of Schedule 21. Properly balancing all aggravating and mitigating factors required a 24-year minimum term.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1083, the court allowed the sentence appeal and reduced the minimum term from 26 years to 24 years, in each case less time spent on remand.
• Crown Court at Leicester: On 18 May 2021, R v Patrick McDonagh resulted in convictions for murder and possession of an offensive weapon. The appellant received life imprisonment with a 26-year minimum term and a concurrent 15-month sentence for the weapon offence.