The impact of ADHD on offending and sentence

By Admin in Latest News on

This week at Liverpool Crown Court we successfully represented one of our clients who had previously pleaded guilty to several offences, including causing or inciting a child to engage in sexual activity involving penile penetration of the mouth, and possession of extreme pornography. The maximum sentence for the offence of inciting a child to engage in sexual activity which includes penetration is life imprisonment. Our client received a three year custodial sentence of which he will serve half. PCD Solicitors prepare for sentencing of our client's meticulously to ensure the most lenient sentences are given at court. Here we share some details of our case before the court this week.

Preparation for sentence

It is extremely important to correctly prepare and present mitigation to the court at the sentencing hearing. It is the responsibility of the defendant to put forward mitigation to the court. If you don’t do it, no-one will!

Your mitigation will be considered at the sentencing hearing. There are several factors to consider when preparing and presenting mitigation:

  1. Preparation by your solicitors.
  2. Evidence against you.
  3. Sentencing Guidelines.
  4. Case Law.
  5. Personal circumstances, medical and psychological issues.
  6. Specialist barrister.
  7. Expert Report.
  8. Counselling.
  9. External Agencies.
  10. Probation Service.
  11. Availability of courses in prison.

The correct preparation by your solicitor should encompass all of the above points. (Please also see our separate video in which Marcus Johnstone reviews all the above factors.) For the purpose of this particular article we only concentrating on Attention Deficit Hyperactivity Disorder (ADHD) because this was a major factor affecting our client. The more severe the ADHD, the more relevant it can become in mitigation. In this case our client had a history of deep personal struggles with the disorder.

What is ADHD?

ADHD is a neurological disorder, which manifests itself from birth or a very young age and is more often seen in males than females. The disorder is characterised by three behavioural traits; 

  1. Inattention
  2. Hyperactivity
  3. Impulsivity. 

In many cases that we deal with it is the impulsivity trait of ADHD which leads to offending behaviour. In other words, the more impulsive a person is the more likely it is that they will act first and think later, increasing the likelihood of acting on sexual thoughts, the action being unlawful. 

Offences such as sexual communications with a child, for example, will often be committed impulsively. Many defendants describe their actions as ‘in the spur of the moment’ with no planning or preparation involved and something that when faced with the opportunity to commit a contact offence they would not do it. 

For someone with ADHD, these spur of the moment opportunities present a real problem because such impulsive behaviour can result in criminal offences being committed very easily and quickly, with direct evidence (internet history and data) leading back to the defendant. At PCD Solicitors we understand that this type of behaviour can be attributable to a client suffering from ADHD. 

Similarly, the memory loss associated with the inattention trait of this condition can have a significant effect on a defendant’s engagement with the police and court process. For example, during the preparation of a Pre-Sentence Report, the Probation officer will want the defendant to discuss his offending in some detail, and show genuine remorse for his actions. For someone suffering from ADHD, they may have no recollection of the offending (which may have been several years previously), and therefore may appear disinterested and lacking in remorse. In turn, this could directly lead to a judge imposing a harsher sentence than would have otherwise been the case. The physical symptoms of ADHD could also lead to a defendant being mis-understood by the probation service or court. 

In the present case our client suffered from acute memory loss and impulsivity due to his ADHD condition. At PCD Solicitors we are familiar with this condition and we know how to obtain evidence to assist with mitigation. We also have contacts (from earlier cases) with expert doctors, psychologists and psychiatrists who we can instruct to produce a medical report specifically addressing the effect of ADHD and the impact those effects have on the commission of this type of offence. 

The medical report we obtained attributed much of our client’s behaviour to ADHD traits which were beyond his control. We ensured the probation service had a copy of this report before they prepared their report, so that the probation service could understand from a medical view the issues our client had. This resulted in a more favourable report from the probation officer, and in turn assisted the court in reducing our client's sentence accordingly, this resulted in a much lesser sentence being imposed than ordinarily would have for an inciting offence involving penetration. 

Sentencing Guidelines - Causing or inciting a child to engage in sexual activity

  A B
Category 1 Starting point
13 years’ custody
Starting point
11 years’ custody
Category range  
11 – 17 years’ custody
Category range
10 – 15 years’ custody
Category 2 Starting point
8 years’ custody
Starting point
6 years’ custody
Category range
5 – 10 years’ custody
Category range  
3 – 9 years’ custody
Category 3 Starting point
5 years’ custody
Starting point
2 years’ custody
Category range
3 – 8 years’ custody
Category range  
1 – 4 years’ custody

Despite penetration being a feature in our clients case, our client was sentenced in the category of 3B with a starting point of 5 years and a range of 3-8 years. The carefully prepared mitigation brought our client down from a more serious sentencing bracket and two years below the highest sentence he could have received.

Our client was always aware that a custodial sentence was likely, it is important that client expectations are managed. At PCD Solicitors we will always be honest with you and realistic about any sentence that is likely to be imposed as result of a guilty plea or, conviction after trial. However, we work thoroughly with you and our expert barristers to ensure the most lenient sentence is received. 

For a free initial confidential chat regarding sentencing and how your personal circumstances may prevent a lengthy term of imprisonment or even result in a non custodial sentence, please contact one of our specialist lawyers on 0151 705 8488.