Annex 1
Letter from Rt Hon Sir Alan Beith,
Chair, Justice Committee to Rt Hon Lord Justice Treacy, Chairman,
Sentencing Council for England and Wales, 24 February 2015
Robbery Sentencing Guideline: Consultation
The draft Guideline is split into separate guidelines
for three different robbery offences: (i) Street robbery, (ii)
Commercial robbery, and (iii) Robbery in a dwelling. In scrutinising
the draft guidelines we have focused on a few specific issues,
which appears to us to be the most appropriate and effective way
the Committee can materially assist the Council's consultation
process.
As you know, the Committee held a seminar on 10 February
2015, at which we had a very helpful discussion with invited representatives
from organisations and institutions with an interest in this area.
We are grateful to HH Judge Julian Goose QC for representing
the Sentencing Council at the seminar, and to our other invitees
for their contributions to the discussion and for sharing with
us copies of the written submissions they made to your consultation.
We will not be repeating arguments contained in those submissions
here, unless they were discussed in depth in the seminar, as they
will already have been considered by the Council.
We thank the Sentencing Council for all the help
it has given us in fulfilling our role as a statutory consultee
through scrutiny of these draft sentencing guidelines. We are
grateful, as ever, that the Council has agreed to accept the Committee's
contribution after the closing date for the Robbery Guidelines
consultation.
Guideline approach to harm in street robbery
The draft guideline, in common with other sentencing
guidelines, requires the harm caused by the offence to be established
early in the sentencing process. The Sentencing Council consultation
document set out two approaches to harm for an offence of street
robbery: harm characterised as physical/psychological harm and
the value of the goods stolen treated as an aggravating factor,
or harm defined as the value of the items stolen together with
the physical or psychological harm caused to the victim.
It seems to us that the harm to victims that arises
from street robbery is caused by the violence used to commit the
theft rather than the value of the goods taken. It is appropriate
therefore that the assessment of harm in the street robbery guideline
focuses on the physical and psychological harm caused to the individual.
The value of the stolen items, which must always include their
personal value to the victim, would be best addressed as an aggravating
factor later in the sentencing process.
Weapons and culpability
The use of a weapon to inflict violence rightly attracts
the highest culpability for all three offences. The guidelines
distinguish, however, between production and a threat to use a
firearm or a bladed article, which attracts the highest culpability,
and production and a threat to use any other weapon. We agree
that a threat to use a gun should be treated with the utmost seriousness;
the lethal nature of firearms is equalled by no other weapon.
It is for this reason we do not think that bladed articles should
be singled out from all other weapons to attract the highest culpability;
it is easy to imagine that, with a shop counter between the cashier
and the attacker, a 6' 4'' robber wielding a crowbar may in fact
be more frightening than a shorter person holding a small kitchen
knife. We suggest the Sentencing Council reconsider its approach
to the impact on culpability of the production and threat to use
a weapon other than a firearm.
Robbery of taxi drivers and other mobile businesses
Currently, robbery of taxi drivers, bus drivers and
others whose place of work is mobile is classed as street robbery,
apparently because such vehicles are classed as a 'public place'.
We are not convinced this is the correct approach. Taxi, bus,
lorry or other vehicle drivers are particularly vulnerable to
robbery because they usually have cash or goods on board, they
are often alone and they work at unsocial hours. Robbery of people
who are at work and who are targeted because of their work seems
to us to fall into the category of commercial rather than street
robbery, and the fact their place of work is mobile is, if anything,
an aggravating factor given the vulnerability of a vehicle in
comparison to bricks and mortar. We suggest such offences are
recategorised as commercial robbery or, alternatively, that an
additional aggravating factor is developed for street robbery
for offences where the victim's vehicle could be defined as their
place of work.
Commercial robbery: an additional aggravating
factor
A significant number of people who run small businesses
live over their shops, with or without their families. Pubs, too,
often have resident members of staff. For the people who live
and work in the same place a commercial robbery is particularly
frightening; when children or other family members are asleep
and vulnerable upstairs it must be terrifying. We believe where
the premises robbed are also someone's home that should be treated
as an aggravating factor. We do not believe this aggravating factor
should apply when a flat over a shop is rented out wholly separately
from the commercial premises as the occupants of the flat are
likely to be relatively unaffected by the crime.
It may be that sentencers would benefit from some
brief guidance on distinguishing between a commercial robbery
and robbery of a dwelling where the primary target is a commercial
operation but staff or others live on the premises involved.
Sentence inflation
We are concerned that guidelines can contribute to
'sentence inflation.' Because some offences have aggravating features
that need to be recognised by additional time in custody, and
given that there are rarely any recommended reductions in sentencing
guidelines, the overall effect of the guideline revision may be
to increase the total amount of custody resulting from the process.
This is a commitment of significant public resources which could
otherwise be used, for example, for crime prevention.
Robbery is a serious offence which often has aggravating
features, but at the lower end of the scale we would not wish
the guidelines to lead to a failure to consider community-based
punishments with drug or alcohol treatment orders in cases where
this would be more likely to reduce re-offending and be more cost-effective.
Restorative Justice
We understand concerns from some stakeholders that
Restorative Justice can be seen as a 'soft option' but wish to
strongly emphasise that this is based on a misconception of both
what happens during Restorative Justice and the potential impact
on the offender. Restorative Justice can only be undertaken when
the victim of the offence agrees to take part. It is a process
that allows the victim to tell an offender exactly what harm the
offender has caused and also how that harm might be repaired.
It can also force offenders to face up to the human cost of what
they have done and accept responsibility for the impact of their
crimes on the person who suffered as a result of their offending.
Restorative Justice can be used prior to sentence, after sentence
or while a sentence is being served. While we appreciate the serious
nature of robbery offences may make using Restorative Justice
in the sentencing process difficult, we would like to see it considered
in appropriate cases. We found support for this amongst those
representing the views of victims.
We wish the Sentencing Council well in its deliberations
on the Guideline and look forward to seeing the results of those
deliberations on publication of the definitive Guideline.
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