R v Malakai Wheeler

Fresh psychiatric evidence may be admitted on a sentence appeal where the statutory conditions are met. An autism spectrum disorder diagnosis does not automatically require a lower sentence: the court must assess the whole evidential picture, including conduct and culpability. A flat or unemotional presentation may reflect neurological difficulty with emotional recognition and expression, rather than cold or calculating maturity. Youth at the time of offending, previous good character, later conduct and delay must be fairly reflected. The diagnosis may also be decisive when assessing dangerousness and the need for an extended sentence.

The applicant was convicted at the Crown Court at Winchester of possessing information useful for terrorism under the Terrorism Act 2000 and disseminating terrorist publications under the Terrorism Act 2006. He was aged 16 when the offences were committed and received six years' detention, an extended licence of one year and notification requirements. He renewed his application for leave to appeal against sentence and sought to adduce psychiatric reports diagnosing autism spectrum disorder under section 23 of the Criminal Appeal Act 1968. The issues were whether the fresh evidence should be admitted, whether it affected the reduction for youth and whether the finding of dangerousness and extended sentence remained justified.

Appeal allowed. The court admitted the fresh psychiatric evidence and granted leave to appeal. The statutory conditions in section 23 of the Criminal Appeal Act 1968 were satisfied because the evidence appeared capable of belief, might afford a ground for allowing the appeal, would have been admissible in the original proceedings and there was a reasonable explanation for its earlier absence.

1. Effect of the diagnosis. Much of the sentencing judge's analysis remained sound. An autism spectrum disorder diagnosis did not inevitably require a different sentence. The judge was entitled to assess the whole evidential picture, including the applicant's conduct, intentions and motivations. The evidence showed that he understood the nature and consequences of the material he possessed and disseminated.
2. Reduction for youth. The sentencing judge had partly relied on the applicant appearing mature, cold and calculating when giving evidence. The new reports explained that a flat or unemotional presentation could result from neurological difficulties in recognising and expressing emotion. It should not therefore have been treated as evidence of cold or calculating maturity. Had the reports been available, a more generous reduction for age would have been required. The eight-year starting point was sound, but proper weight to age, good character, absence of further offending and delay required a sentence of five rather than six years.
3. Dangerousness. The conclusion that the applicant was dangerous was also materially affected by the interpretation of his presentation. Having regard to his age at offending, the short offending period, good character, absence of subsequent offending or interest in terrorist material, and evidence of improved insight, that conclusion would not fairly have been open had the latest reports been available.
4. Order. The six-year sentence was replaced by five years' detention in a young offender institution. The one-year extended licence was rescinded. The notification requirements remained unchanged.

• Court of Appeal (Criminal Division): On 10 April 2025, the court admitted fresh evidence, granted leave to appeal and allowed the appeal. The six-year sentence was replaced by five years' detention and the extended licence was rescinded. The notification requirements remained unchanged. [2025] EWCA Crim 558
• Crown Court at Winchester: The applicant was convicted on 14 September 2023 and sentenced on 3 November 2023 to six years' detention, with a one-year extended licence and 15 years of notification requirements.