R v WHD

On a sentence appeal, fresh expert evidence may be admitted only after considering whether it is capable of belief, may support the appeal, would have been admissible at the original hearing, and whether failure to adduce it earlier is reasonably explained. A mental disorder reduces culpability only where there is a sufficient connection with the offending. Diagnosis alone is insufficient. Temporal separation, the offender’s own account, and evidence of a different motivation may show that no connection exists. Further investigation should not be ordered where its potential value is wholly speculative. Where offending spans the commencement of a victim-surcharge regime, the less punitive regime applies.

The appellant pleaded guilty at the Crown Court at Newport to prolonged sexual offending against his daughters and their cousin. He received a sentence of 13 years and six months’ imprisonment. On appeal by leave of the single judge, he sought to rely on fresh expert evidence concerning post-traumatic stress disorder and its possible effect on culpability. The prosecution disputed both the diagnosis and any causal connection with the offending. The appeal also concerned the legality of a victim surcharge because the offending spanned the commencement of the surcharge provisions. The central issues were whether the fresh evidence should be admitted, whether PTSD reduced culpability or provided mitigation, and whether the surcharge was lawful.

1. Fresh evidence. Under section 23(2) of the Criminal Appeal Act 1968, the court had to consider whether the evidence was capable of belief, might afford a ground for allowing the appeal, would have been admissible in the original proceedings, and whether there was a reasonable explanation for its earlier absence. The court accepted that the appellant had symptoms of trauma, flashbacks and avoidance, and that PTSD could previously have been diagnosed. It nevertheless refused formally to admit the evidence because it could not afford a ground for allowing the appeal.
2. Culpability and mitigation. Culpability is reduced by an impairment or disorder only where there is a sufficient connection between the condition and the offending. The court identified three relevant matters: the temporal separation between the condition and the offending, the appellant’s own account and ability to identify any connection, and the evidence of the offending’s actual motivation. Here, the offending began after a significant period following military service, the appellant did not link PTSD symptoms or a need for intimacy to the offending, and the evidence established sexual motivation and interest in young girls. The court was sure that PTSD had no causal link to the offending. Even accepting that PTSD existed at the relevant time, it provided no basis for substantial mitigation in this serious sexual offending.
3. An adjournment to obtain further material from a prison psychologist was refused. Its potential assistance on causation was wholly speculative.
4. Victim surcharge. The Criminal Justice Act 2003 (Surcharge) Order 2012 applied only where all the offending before the court was committed on or after 1 October 2012. Since the offending straddled that date, the least punitive provisions applied. The surcharge order was unlawful and was quashed. In all other respects, the appeal against sentence was dismissed.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 99, the victim surcharge was quashed and the appeal against sentence was otherwise dismissed.
• Crown Court at Newport: The appellant pleaded guilty and was sentenced on 7 September 2018 to 13 years and six months’ imprisonment.