6. Memorandum submitted by Professor
Sylvia Walby
SYLVIA WALBY
Professor Sylvia Walby is author (with Jonathan
Allen) of Domestic Violence, Sexual Assault and Stalking: Findings
from the British Crime Survey (Home Office Research Study
276), http://www.homeoffice.gov.uk/rds/pdfs04/hors276.pdf, which
produced nationally representative statistics on the extent and
nature of domestic violence. She is the author of the report The
Cost of Domestic Violence (Department of Trade and Industry,
Women and Equality Unit), http://www.womenandequalityunit.gov.uk/research/cost_of_dv_Report_sept04.pdf,
which estimated the cost of domestic violence to the public purse,
business and individual victims. She is a Professor in the Department
of Sociology at Lancaster University.
THE IMPLICATIONS
OF REPEAT
OFFENCES FOR
SENTENCING
1. These comments concern one aspect of
sentencing, that of the implications of the nature of domestic
violence as a repeat offence. Domestic violence is often a repeat
offence and there is a recognised need to address this in sentencing.
2. The British Crime Survey found that women
suffering from domestic violence experienced on average 20 incidents
in the last year.
3. The British Crime Survey found that the
police came to know about domestic violence only in a minority
of what were usually the most serious cases. The police learnt
about domestic violence in only 13% of cases where there was one
incident in a woman's adult life, rising to 34% where she had
experienced four or more incidents. The police learnt about domestic
violence among women in only 7% of cases where there was no injury,
20% of cases where there was a minor injury, 33% with a moderate
injury and only 45% even where there was a serious injury (Walby
and Allen 2004: Table 6.6).
4. The guidelines note that in determining
the seriousness of an offence the Court should take note of the
"cumulative effect of a series of violent incidents or threats
over a prolonged period, where such conduct has been proved or
accepted . . . Where an offender has previously been convicted
of an offence involving domestic violence either against the same
or a different partner, this is likely to be a statutory aggravating
factor." In this way the guidelines would appear to implement
the need to address the way that domestic violence is often a
repeat offence, producing negative effects beyond the particular
incident that is the focus of the court case.
5. However, there may be a difficulty in
the extent to which repeat offences are taken into account in
practice. This is because many repeat offences are not reported
to and recorded by the police, and, even if they are recorded,
may not each be subject to arrest, detection, prosecution and
conviction. While repeat offences that are subject to conviction
will be taken into account in sentencing, the guideline is ambiguous
as to the way in which other incidents might be so addressed.
What is the meaning of the phrase "proved or accepted"?
What standard of proof is required before other incidents can
be taken into account in sentencing?
6. Where only one incident is sufficiently
proven to provide the basis for a court sentence, this may well
underestimate the seriousness of the offence.
7. The Sentencing Advisory Panel had drawn
attention to this difficulty in their advice to the Sentencing
Guidelines Council. "Sentencers are sometimes faced with
difficult decisions to make in domestic violence cases where there
is a discrepancy between what is known generally about the nature
of these cases and the facts of the specific incident as presented
in court." It goes on to note that "the sentencer cannot
pass sentence on the basis that violence has occurred frequently
where the other incidents were not reported or charged, or have
not been proved or admitted."
8. There are at least two ways that this
difficulty, of how to address the repeat nature of the offence
in sentencing, might be addressed. One is that the court might
be allowed to take into account evidence of repeat offences different
from and possibly at a lower standard of proof than that of a
police record or a criminal conviction. The other is to make recommendations
to the police as to the importance of recording, charging, and
prosecuting multiple incidents within the course of conduct that
constitutes domestic violence.
9. There are many forms of evidence of repeat
incidents of domestic violence. For example, there may be a documented
medical history or of seeking refuge or of contacting domestic
violence support services. The development of a systematic way
in which such evidence of multiple previous incidents might be
submitted to the courts in a manner routinely acceptable to the
CJS may help to address this issue.
10. There is a tension in policy as to whether
domestic violence should be considered as a single course of conduct
made up of a series of events, which is the usual approach in
services supporting the victim, or whether each separate incident
should be separately addressed, as is the requirement of the criminal
justice system if the seriousness of domestic violence is to be
adequately taken into account during sentencing. If sentencing
is to reflect the seriousness of the repeat offences, then some
way needs to be found within the criminal justice system to address
this issue. If a lower standard of proof for repeat offences is
regarded as unacceptable to the courts, then it is necessary for
the recording, charging, and prosecuting of multiple incidents
to become routine practice among the police and prosecution services.
11. One recommendation here is that the
police and related agencies in the criminal justice system be
encouraged or required to separately document and process each
incident of domestic violence in order that its seriousness can
be addressed in sentencing, while recognising the nature of domestic
violence as a course of conduct.
12. In order that the effects of policy
reforms, including but not only this reform of sentencing, can
be assessed, it is necessary to be able to track, in a publicly
accountable way, cases of domestic violence as they are processed
by the criminal justice system. At the moment this is impossible.
There is no specific offence of domestic violence and so crimes
of domestic violence are dispersed across a range of offences,
including various forms of violence against the person as well
as others such as criminal damage. Official statistics on recorded
crime, by the police, and criminal statistics on convictions and
sentencing, by the courts, are not differentiated by whether they
are domestic. Yet, in practice, the police do keep such records
privately, in order to respond to demands for performance indicators
on arrest rates for domestic violence incidents. It is time that
the statistics on domestic violence in the criminal justice system
were made systematic and public, so that the public scrutiny that
is a prerequisite of policy improvement can operate effectively.
13. I recommend that relevant recorded crime
and criminal statistics are differentiated by whether or not they
are domestic, and that the information be routinely reported within
official statistics on recorded crimes and criminal statistics.
14. Sentencing in cases of domestic violence
will underestimate the seriousness of the offence unless improved
ways are found to take previous incidents into account. This could
be addressed by accepting a wider range of proof that such incidents
have occurred, and by encouraging or requiring the police to record
and process multiple incidents more systematically.
May 2006
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