No Mitigation Without Nexus: Fresh Psychiatric Evidence on CCRC Reference must Demonstrably Link to the Offending (R v Brogan [2025] EWCA Crim 1208)

No Mitigation Without Nexus: Fresh Psychiatric Evidence on CCRC Reference must Demonstrably Link to the Offending (R v Brogan [2025] EWCA Crim 1208)

Introduction

In R v Brogan [2025] EWCA Crim 1208, the England and Wales Court of Appeal (Criminal Division) dismissed a sentence appeal referred by the Criminal Cases Review Commission (CCRC). The case concerns seven counts of cruelty to a person under 16, under section 1(1) of the Children and Young Persons Act 1933, in respect of seven of the appellant’s eight children. The facts revealed extreme and prolonged neglect in a home shared with 35 dogs (and the body of a dead dog), resulting in grave harm to the children’s physical, dental, educational, and emotional well-being.

The appeal turned on whether new post-sentence psychiatric and psychological evidence, procured after the single judge refused leave to appeal, should lead to a reduction of sentence on the basis that mental disorder reduced culpability. The Court accepted that the evidence was fresh and capable of belief, but held it had no material impact because it did not establish a sufficiently cogent connection between any disorder and the offending. The Court also reiterated important principles about the limits of CCRC references and the high threshold for interfering with a sentence as “manifestly excessive.”

Reporting restrictions under section 45 of the Youth Justice and Criminal Evidence Act 1999 were reaffirmed on appeal: the identification of under-18 victims is prohibited. These restrictions do not extend to the appellant or her co-defendant.

Summary of the Judgment

  • The appellant pleaded guilty in the Crown Court at Lewes to seven counts of child cruelty relating to seven of her children, with offending spanning September 2019 to June 2021. Her co-defendant, Christopher Bennett, was the father of the youngest four and step-father of the others.
  • The sentencing judge categorized the offending as harm level 1 (most serious) and culpability A (highest), i.e., category 1A under the relevant Sentencing Council guideline. The single-offence starting point was six years’ custody (range four to eight years). The judge moved to the top of the range (eight years) to reflect seven offences and then applied 25% plea credit, yielding concurrent six-year terms on each count.
  • Leave to appeal against sentence was refused by the single judge. The appellant later applied to the CCRC, which referred the case on the basis of fresh psychiatric evidence obtained post-sentence.
  • The Court of Appeal accepted the fresh evidence met the section 23 Criminal Appeal Act 1968 criteria (capable of belief; admissible; good reason for not being adduced earlier) but held it did not provide a sufficient link between any mental disorder and the offending to reduce culpability or render the sentence manifestly excessive.
  • The Court reaffirmed that CCRC references are not vehicles to re-run arguments previously rejected, and emphasized the necessity for a demonstrated nexus between mental disorder and offending conduct when inviting mitigation under the Sentencing Council’s mental disorders guideline.
  • Appeal dismissed; six-year sentence upheld.

Analysis

Precedents and Instruments Cited

  • Children and Young Persons Act 1933, s.1(1): Defines the offence of cruelty to a person under 16. The appellant’s seven counts each concerned a separate child under the statutory age threshold.
  • Youth Justice and Criminal Evidence Act 1999, s.45: Reporting restrictions protecting under-18 victims were in force and reaffirmed by the Court on appeal.
  • Criminal Appeal Act 1995, s.13: Governs the CCRC’s power to refer a case to the Court of Appeal. A reference requires a “real possibility” that the conviction or sentence would not be upheld, ordinarily based on new evidence or argument not previously raised, absent exceptional circumstances.
  • Criminal Appeal Act 1968, s.23(2): Sets the criteria for the Court of Appeal to receive new evidence on appeal, including capability of belief, potential to afford a ground of appeal, admissibility, and reasonable explanation for prior non-adduction.
  • Sentencing Act 2020, s.59(1): Requires courts to follow relevant Sentencing Council guidelines unless contrary to the interests of justice.
  • Sentencing Council Guideline: Child Cruelty (s.1 Children and Young Persons Act 1933): The judge applied category 1A (highest harm and highest culpability), with a single-offence starting point of six years’ custody and a range of four to eight years.
  • Sentencing Council Guideline: Offenders with mental disorders, developmental disorders, or neurological impairments: Culpability may be reduced where there is a sufficient connection between the impairment/disorder and the offending. The Court relied on this framework to assess the fresh psychiatric material.

Legal Reasoning

1. The proper scope of a CCRC reference

The Court emphasized that the CCRC cannot be used to re-litigate arguments already run at sentence or on initial appeal. A reference must be grounded in genuinely new information or law (Criminal Appeal Act 1995, s.13), not a repackaging of past submissions. Here, the CCRC itself recognized that the vast majority of the appellant’s points simply repeated earlier contentions; the reference was therefore rightly constrained to the new psychiatric material.

2. Admissibility and reception of fresh evidence

Applying section 23(2) of the 1968 Act, the Court accepted the fresh medical reports were capable of belief, would have been admissible, might afford a ground of appeal in principle, and were not reasonably available at the original sentencing. On this footing, the evidence was received.

3. The “sufficient connection” test under the mental disorder guideline

The critical question was whether the fresh evidence established that any disorder substantially reduced culpability through a sufficient connection to the offending. The experts’ conclusions were mixed:

  • One psychiatrist (Dr Simon) referenced Autism, ADHD, PTSD, and bereavement as “main problems.” Another (Dr Lawrence) noted neurodiversity and ADHD, alongside minimization and externalization.
  • The Court placed particular weight on the clinical and forensic neuropsychological assessment by Dr Halsey, who:
    • Rejected diagnoses of ASD, ADHD, and PTSD;
    • Diagnosed hypochondriasis (ICD-11 code 6B23.0) and mild-to-moderate personality disorder (ICD-11 code 6D10);
    • Accepted that anxiety and personality features could have made the offending more likely, but framed any link in cautious, non-robust terms.

The Court held that such a tentative link was insufficient. To mitigate culpability, the guideline requires a meaningful, evidence-based nexus between the impairment and the criminal conduct. On the facts, the offending was egregious, prolonged (over 20 months), and involved elements of planning/manipulation (e.g., ensuring dogs were absent during social services visits), which sat uneasily with the notion of significantly impaired rational judgment.

4. Sentencing structure and proportionality

The Court reaffirmed that category 1A was correct: harm was at the highest level and culpability was A. The sentencing judge:

  • Took the single-offence starting point of six years (range four to eight years);
  • Moved to the top of the range (eight years) to reflect multiple victims and counts;
  • Applied a 25% guilty plea reduction to reach six years’ imprisonment, imposed concurrently on all counts.

The Court observed that moving only to the top of the range to account for seven offences could be regarded as “somewhat restrained,” underscoring the gravity of the offending. The Court rejected arguments that the fresh evidence rendered the ultimate six-year term manifestly excessive.

5. The high threshold on sentence appeals

The test for appellate interference is whether the sentence was “manifestly excessive.” Given the severity, duration, and deliberative aspects of the neglect, and the limited probative value of the psychiatric nexus, the Court found no basis to say the sentence over-topped the permissible range. Concurrency and plea credit were properly applied.

Impact

  • CCRC practice: The judgment underscores that CCRC references on sentence require genuinely fresh material that creates a real prospect of a different outcome. It is not a forum for repeating earlier grounds. Applicants and representatives should tightly focus on new, probative evidence.
  • Fresh psychiatric evidence on appeal: Where post-sentence diagnoses are advanced to mitigate culpability, the expert analysis must squarely address the guideline’s causal nexus. Generalized references to anxiety, personality traits, or stressors (e.g., pandemic conditions) will rarely suffice without a clear explanation of how the disorder materially impaired decision-making or judgment in the commission of the offence.
  • Child cruelty sentencing: For multiple victims and sustained neglect at the most serious harm level, the Court signalled that moving to the top of the single-offence range is at least justified, and may be viewed as restrained. Practitioners should not assume that multiplicity is fully catered for by concurrency alone; upward movement within the guideline range is appropriate.
  • Mental disorder guideline application: The case refines practice by emphasizing that mere diagnosis (particularly mild-to-moderate personality disorder) does not automatically engage reduced culpability. The connection must be specific, credible, and persuasive.
  • Procedural strategy: Defendants refused leave by the single judge should consider timely renewal to the Full Court. While the Court found no prejudice here, it highlighted the alternative pathway to renewal, distinct from a CCRC application.
  • Open justice and child protection: Reaffirmation of section 45 YJCEA reporting restrictions on appeal ensures continuity of child anonymity protections across appellate stages.

Complex Concepts Simplified

  • Section 45 YJCEA reporting restrictions: A court order preventing the publication of any details likely to identify child victims. It lasts until each victim turns 18 and was reaffirmed on appeal.
  • Newton hearing: A mini-hearing to resolve factual disputes following a guilty plea where the defence’s basis of plea is not accepted by the prosecution. No Newton hearing occurred here because extreme harm (level 1) was conceded and the defence did not press for one.
  • CCRC reference (Criminal Appeal Act 1995, s.13): The CCRC can refer a case back to the Court of Appeal only if there is a real possibility the conviction or sentence would not be upheld, typically based on new evidence or argument not raised earlier.
  • Fresh evidence (Criminal Appeal Act 1968, s.23(2)): The Court considers whether the evidence is believable, admissible, potentially game-changing, and whether there is a reasonable explanation for not presenting it earlier.
  • Sentencing Council guidelines and s.59 Sentencing Act 2020: Judges must follow applicable guidelines unless contrary to the interests of justice. For child cruelty, harm and culpability are combined to set a starting point and range.
  • Category 1A (Child Cruelty guideline): Highest harm and highest culpability. In this case, the single-offence starting point was six years, with a range of four to eight years.
  • Mental disorder mitigation: Culpability may be reduced where there is a sufficient connection between the disorder and the offending—i.e., where the disorder materially impaired rational judgment, self-control, or understanding in a way that contributed to the crime.
  • Guilty plea credit: Reduction in sentence for a timely guilty plea; here, 25% was applied after moving to the top of the range to reflect multiplicity.
  • Manifestly excessive: The appellate threshold for revising a sentence; the question is not whether the Court would have passed a different sentence, but whether the sentence plainly exceeds the reasonable range for the offence and offender.

Conclusion

R v Brogan clarifies the parameters for relying on fresh psychiatric evidence in sentence appeals brought via CCRC reference. The Court accepted new expert reports but held firm to the Sentencing Council’s requirement of a “sufficient connection” between mental disorder and offending before culpability is reduced. On these facts—sustained, extreme neglect of seven children, involving manipulation and prolonged avoidance of detection—the evidence did not establish the necessary nexus. The Court therefore upheld the six-year sentence, observing that the sentencing judge’s movement to the top of the guideline range was, if anything, restrained given the multiplicity and gravity of the offending.

The decision reinforces three practice points. First, CCRC references are confined to genuinely fresh, material evidence or legal argument with a real prospect of success. Second, mental disorder mitigation must be underpinned by a clear, expert-articulated causal link to the offending behaviour. Third, in child cruelty cases of profound and protracted harm, category 1A sentences at or near the top of the range will be hard to disturb on grounds of excess. As such, Brogan stands as a significant reminder that “no mitigation without nexus” is the operative principle when deploying psychiatric evidence to reduce culpability on appeal.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

Comments