Commentary

After summarising the case law, the court in this case stated that there is a high threshold to be reached in order for ill health or physical disability to impinge upon the court's approach to assessing the appropriate method of sentencing an offender. This is not to say that ill health or disability will never be taken into consideration as is indicated by these terms: ‘not generally’, ‘not automatically’, ‘can take account’, ‘may enable’, ‘not in itself’, ‘it may be permissible’, ‘in appropriate cases’, ‘permissible to have regard’ and ‘purely on the basis’.

Learning points

In a case where ill health or disability is to be considered when sentencing an offender, an expert report should:

• State whether the offender has a serious medical condition or physical disability.

• State whether a medical condition may at some unidentified future date affect life expectancy.

• State whether a medical condition may affect the prison authorities' ability to treat a prisoner satisfactorily.

• State whether the offender’s condition will be difficult to treat in prison.

• Consider whether imprisonment will have a greater effect on the offender than on an offender without such a serious medical condition or disability or result in an unusual degree of hardship in prison.

• State whether the offender has a terminal prognosis.

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