Chall & Others [2019] EWCA Crim 865

In R v Chall & Others [2019] EWCA Crim 865, the Court of Appeal heard five unconnected appeals raising a common question about whether a judge sentencing under a definitive guideline must obtain expert evidence before finding that a victim has suffered “severe psychological harm” for the purpose of placing an offence into a higher category or aggravating sentence at step two. The Court gave guidance.

Lord Justice Holroyde, Mr Justice Popplewell and Her Honour Judge Rees (sitting as a Judge of the Court of Appeal Criminal Division) presided. Four of the five appellants had been convicted of sexual offences against children or adults; the fifth had been convicted of wounding with intent under section 18 of the Offences Against the Person Act 1861. In each case the trial judge had relied in whole or in part on victim personal statements to find severe psychological harm. All four applicants and the one appellant argued that in the absence of expert evidence the judge had been wrong to categorise harm as severe, or to increase sentence for severe psychological harm as an aggravating factor.

The Court rejected the submission that expert evidence is always essential. A judge making a finding of severe psychological harm is not making a medical diagnosis but rather a judicial assessment of the factual impact of the offence on the victim. That is an assessment which judges are accustomed to making, analogous to assessing whether an offender is dangerous by reference to a risk of future serious psychological injury. The judge may be assisted by expert evidence but is not obliged to obtain it and will usually be able to make the assessment without it. The Court cited three recent decisions – R v Dalton (2016), R v Egboujor (2018) and R v Boyle (2018) – in which findings of severe psychological harm based on the contents of victim personal statements, sometimes coupled with the judge’s observation of the victim giving evidence, had been upheld.

The Court also rejected the revised submission that the sentencing guidelines should contain a checklist of signs and symptoms enabling a judge to make the assessment in the absence of clinical evidence. The Court emphasised that whether a victim personal statement provides a sufficient basis for a finding of severe psychological harm will depend on the circumstances of the particular case and the contents of the statement. It is not necessary that the judge make a formal medical diagnosis such as post-traumatic stress disorder. If, however, a judge feels that a diagnosis is necessary in a given case, he or she must raise the matter with counsel and obtain expert evidence.

The Court reviewed the operation of the victim personal statement scheme under Part VII F of the Criminal Practice Directions. A victim personal statement must be in proper form, served in good time upon the defence, and the maker may be cross-examined. The Court emphasised that “in good time” means in good time for the sentencing hearing, so that the defence have a reasonable opportunity to consider the statement, to be advised whether any steps are needed to challenge it, and to decide how to address its contents. The Court acknowledged that late service was not infrequent and urged better compliance. It noted that a victim personal statement may be served at any time prior to disposal and that it is often desirable for a statement made at an early stage to be revisited and updated, particularly where the issue is one of the extent to which psychological harm has endured.

The Court also observed that a judge must keep in mind that the sentence levels in guidelines already take into account the psychological harm inherent in the nature of the offence. A finding of severe psychological harm must reflect harm significantly greater than that baseline. The judge must make a dispassionate assessment even where the victim has understandably used emotional terms. Where the judge is minded not to accept a submission as to harm categorisation, the defence advocate should be given an opportunity to address the point. Where there is no victim personal statement, the judge must not assume an absence of harm.

The Court summarised its conclusions: expert evidence is not an essential precondition of a finding of severe psychological harm; a judge may assess such harm on the basis of evidence from the victim, including evidence in a victim personal statement, and may rely on his or her observation of the victim giving evidence; whether a victim personal statement provides sufficient evidence depends on the circumstances and its contents; and any statement must comply with the Criminal Practice Directions and be served in sufficient time to enable the defence to consider and address it.

The Court then applied those principles to the individual cases. In the case of Mr Chall, who had been convicted of three offences of indecent assault upon two young girls some three decades earlier and sentenced to a total of five years’ imprisonment, the victims’ victim personal statements described decades of suffering, feelings of worthlessness, constant fear, sleepless nights, inability to trust others, and life-altering decisions about whether to have children. The judge had been entitled and correct to find severe psychological harm. The application for leave to appeal was refused.

In the case of Mr Allen, who had been convicted of 24 offences involving sexual abuse of a girl aged 11 to 13 over a three year period and sentenced to a special custodial sentence totalling thirteen years, the victim’s victim personal statement described depression, severe anxiety, panic attacks, night terrors, flashbacks and suicidal thoughts. The judge had had the advantage of observing her give evidence. The late service of the victim personal statement was regrettable but had resulted in no unfairness; counsel had had time to read it and could have sought an adjournment if needed. The offending fell within category 2 on the basis of the victim’s vulnerability and the finding of severe psychological harm was in any event fully justified. The application for leave to appeal was refused.

In the case of Mr Welsby, who had been convicted after a trial of wounding with intent and sentenced to an extended sentence of thirteen years (eight years’ detention plus five years’ licence), the victim’s victim personal statement described nightmares, flashbacks, trauma beyond normal consequences, difficulty trusting people, and anxiety about the appellant’s eventual release. The judge had also observed her giving evidence. The judge was entitled to find severe psychological harm and therefore to place the case within category 1. The sentence was not manifestly excessive. The appeal against sentence was dismissed.

In the case of Mr Wilkinson, who had been convicted of nine sexual offences involving drugging and sexual assault of six adult male victims between 2014 and 2015 and sentenced to an extended sentence of twenty and a half years (sixteen and a half years’ custody plus four years’ licence), the four victim personal statements described lifelong distress, feelings of worthlessness, nightmares, counselling, breakdown of marriage and other serious psychological impacts. The judge had observed at least one victim giving evidence. The judge was entitled to find severe psychological harm and to treat the drugging and incapacitation overnight as prolonged detention. The sentence, including the notional consecutive structure which produced the total custodial term, reflected the totality of the offending and was not manifestly excessive. The application for leave to appeal was refused.

In the case of Mr Deiss-Dias, who had been convicted of rape of a child aged 7 and related offences and sentenced to an extended sentence of eighteen years (thirteen years’ custody plus five years’ licence), the victim’s mother had stated in her victim personal statement that her son had been diagnosed with post-traumatic stress disorder and suffered profound psychological harm. The judge was entitled to rely on the mother’s account to support the finding of severe psychological harm. Although the judge had been wrong to categorise the 7-year-old as particularly vulnerable due to extreme youth (when the guideline already takes the victim’s age into account), the offence was correctly categorised by reference to severe psychological harm. The finding of dangerousness and the total sentence were justified by reference to the totality of the offending and the pre-sentence report. The renewed application for leave to appeal was refused.

In short, a judge may find severe psychological harm without expert evidence, on the basis of evidence in a victim personal statement properly served in good time, but must always consider the content, circumstances and sufficiency of that statement in the particular case.

D [2016] EWCA Crim 2060
Egboujor [2018] EWCA Crim 159
Boyle [2018] EWCA Crim 2567
Forbes and Others [2016] EWCA Crim 1388; [2016] 2 Cr App R (S) 44, [2017] 1 WLR 53
Perkins, Bennett and Hall [2013] EWCA Crim 323, [2013] 2 Cr App R (S) 72

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