Supplementary evidence from Lord Justice
Leveson, Chairman, Sentencing Council, following the evidence
session on 14 December 2010
SENTENCING COUNCIL:
DRAFT ASSAULT
GUIDELINE
1. In relation to the less serious assault offences
why is there no reference to (a) the custody threshold or (b)
the appropriateness, or otherwise, of suspended sentences
Custody threshold
I should perhaps start by saying that the custody
threshold is an articulation of the principle that the court must
not pass a custodial sentence unless it is of the opinion that
the offence (or the combination of the offence and any offences
associated with it) is so serious that neither a fine alone nor
a community sentence can be justified for the offence. Within
the draft guideline, where a category encompasses a range of sentences
including both custodial and non-custodial options, courts are
directed to consider whether the custody threshold has been passed
within that range. Where the custody threshold has been passed,
the sentencer is also directed to consider whether it is possible
to suspend that term of imprisonment. This means that the custody
threshold and the appropriateness of suspended sentences are referred
to in the guideline for all of the offences apart from causing
grievous bodily harm with intent/wounding with intent (section
18) and assault with intent to resist arrest where no such ranges
exist.
Thus, there is no reference to the custody threshold
in the section 18 guideline because due to the nature of the offence
and the harm caused, the custody threshold has been passed in
all categories.
Further, there is no reference to the custody threshold
in the guideline for assault with intent to resist arrest because
each of the categories (replicated below) is confined to only
one type of sentence and the custody threshold is only considered
to have been passed in the most serious of offences - those which
fall into category 1.
| Offence Category
| Starting Point
(Applicable to all offenders)
| Category Range
(Applicable to all offenders)
|
| Category 1 | 6 months' custody
| 3-12 months' custody |
| Category 2 | Community order
| Community order |
| Category 3 | Fine | Fine
|
Suspended sentences
A sentence of imprisonment can only be suspended where the term
of imprisonment to be imposed is for a minimum of 14 days but
for less than 52 weeks in the Crown Court or less than 26 weeks
in the Magistrates Court.[17]
Detailed guidance about the imposition of suspended sentences
is contained in the Sentencing Guidelines Council guideline New
Sentences: Criminal Justice Act 2003. That guidance, which
includes the text of the relevant statutory sections, runs to
seven pages and was therefore deemed not to be suitable for replication
within offence specific guidelines.
There is no mention of suspended sentence orders in the section
18 guideline as the lowest starting point is 4 years' custody
with a range of 3 - 5 years' custody so they are outside the longest
periods permissible for a suspended sentence.
In all other guidelines, where the court is directed to consider
whether the custody threshold has been passed, the sentencer is
also directed to consider whether the sentence can be suspended.
2. Why is there no reference to compensation orders and appropriate
levels of compensation that may be awarded to victims?
The making of compensation orders is governed by section 130 Powers
of Criminal Courts (Sentencing) Act 2000. A compensation order
can either be a sentence in its own right or an ancillary order.
General guidance on compensation orders and appropriate levels
of compensation to be awarded for particular types of injury is
currently contained in the Magistrates' Court Sentencing Guidelines.
79% of adults sentenced for the assault offences covered in the
draft guideline are dealt with in the magistrates' court.
When drafting the assault guideline, the Council felt that sentencers
did not need guidance within the offence specific guidelines on
these issues because sentencers are familiar with these orders
and they are not central to the decision making process for determining
the level of sentence.
However, consultation responses, particularly from magistrates,
have indicated that guidance on these areas is helpful. The Council
will consider including guidance within offence specific guidelines,
as well as other issues raised in responses received, upon conclusion
of the consultation exercise.
3. How do sentencers balance public confidence and considerations
about the likely impact of a particular sentence on the circumstances
of the offender? Has the Council discussed whether this should
become an explicit consideration in the guideline, for example,
by introducing personal obligations to others as a potential mitigating
factor?
The Council carefully balances all of the matters which it must
have regard to when developing guidelines.[18]
As you know, these matters include the need to promote public
confidence in the criminal justice system and the costs of different
sentences and their relative effectiveness in preventing re-offending.
Research demonstrates that whilst the public is generally punitive
when it has limited information about sentencing, when more information
is provided and case studies are used those attitudes soften and
rehabilitation is often one of the issues they are most concerned
with.[19]
Personal obligations, such as caring responsibilities, are not
currently included as a factor in the assault draft guideline.
The Council has debated this issue as it recognises that there
are occasions when the offender has significant caring responsibilities
for others which potentially should result in a lower sentence
and in appropriate circumstances, avoid a custodial sentence.
That has to be balanced against the fact that a person with those
responsibilities has committed an offence.
The Council is consulting on whether there are other factors which
should be included as mitigating factors and will revisit this
at the conclusion of the consultation period. Views from the Committee
on this point would be very much welcomed.
4. How is the Council intending to implement the new guideline?
The Council will work closely with the Judicial Studies Board
to ensure that the new guideline is included in relevant training
and communication activities. It will also undertake wide communication
and awareness raising activities to ensure that the judiciary
and practitioners are made aware of the new guideline. In line
with the approach taken by its predecessor body, the Council would
expect that the date from which the guideline would apply to those
being sentenced would be approximately a month later than the
publication date which will allow sufficient time for communication
before the guideline applies.
5. How is the Council likely to be affected by spending cuts?
What impact do you envisage any cuts may have on the Council's
ability to perform its administrative functions?
The Council is about to enter discussions with the Ministry of
Justice on the impact of the spending cuts on the Council's budget.
The Council is aware that the Ministry of Justice has committed
within the Comprehensive Spending Review to reduce its back office
and administrative costs by 33% and would be concerned about cuts
of this level being imposed on the Council.
The Council understands that its establishment in April 2010,
and the allocation of its budget for the financial year 2010-11
of £1.77 million, was done with recognition of the fiscal
pressures that were already occurring. Therefore, the Council
believes that it is already operating with an efficient and streamlined
office structure and a small budget for research and communications.
The implementation of cuts could require staff reductions and
the scaling back of work on resource assessments, new guidelines
and promoting awareness of sentencing. This could also impact
on the Council's ability to monitor sentencing, to respond to
requests for new guidelines (or revisions to existing guidelines)
from the Lord Chancellor, Government Departments, and from the
courts. Similarly, they could lead to delays in assessments of
the likely impact of policy and legislative proposals on the resources
needed for the National Offender Management Service and the Youth
Justice Board.
6. The sentencing and rehabilitation green paper was not accompanied
by a complete resource assessment. Has the Council been asked
by the Secretary of State to produce a report on the green paper
under section 132 of the Coroners and Justice Act 2009?
The Sentencing Council has not, at the time of writing, been asked
to produce a report under section 132 of the Coroners and Justice
Act 2009. The Council would welcome a request to produce a report
at a time at which the Lord Chancellor believes the policy proposals
relating to sentencing are sufficiently robust that a report from
the Council would inform the debate.
December 2010
17
Section 189 Criminal Justice Act 2003. Back
18
Section 120(11) Coroners and Justice Act 2009. Back
19
Four out of five respondents provided a high importance rating
or rehabilitation when asked in the context of offenders convicted
of serious crimes of violence. […] There was qualified but
high support for rehabilitation as a purpose of sentencing. Public
Attitudes to the Principles of Sentencing, SAP, 2009. Back
| 
