As statutory consultees of the Sentencing Council we have examined the draft guidelines on intimidatory offences and the draft overarching guideline on domestic abuse on which the Council was recently consulting. These guidelines are particularly challenging and complex due both to the nature of the offences concerned and their relationship to numerous other offences. We focus on particular themes that largely span all of the guidelines and appear to us to merit further consideration before the definitive guidelines are finalised. We note that the Government intends to publish a draft Bill on domestic abuse this Session which may impact on aspects of the overarching guideline but consider it important that this does not delay publication of these guidelines.
We broadly welcome the Council’s approach to the guidelines, including its proposition for the overarching guideline to be cross-referenced digitally to guidelines on those offences most likely to be associated with domestic abuse. The court digitalisation programme will also provide a welcome opportunity for more robust data on such offences to be collated by Her Majesty’s Courts and Tribunals Service. The existing absence of these data, and the relative novelty of some of the intimidatory offences makes it difficult for the Sentencing Council to assess with confidence the likely impact on resources once the guidelines are implemented. While the Council does not anticipate an increase in resources, we consider that in seeking—rightly in our view—to ensure that the court treats domestic abuse related offences ‘particularly seriously’, there is likely to be an inflationary impact on sentencing. Indeed some respondents to the consultation interpreted this to mean that such offences should be sentenced more severely. The resources for this must be provided by the Ministry within a system that we acknowledge is already stretched.
Our examination of the interplay between the overarching guideline for domestic abuse and those for related offences—including the intimidatory offences included in this consultation, and also notably those for assault and sexual offences—underlines the complexity in both offences of this nature and of the Council’s approach. The broad definition of domestic abuse adopted by the Government, and co-opted by the Council, includes forms of abuse which are psychological, physical, sexual, financial, or emotional as well as violent, and which are frequently part of an enduring pattern of behaviour. We highlight some examples of significant variations between the approach adopted across the guidelines included within this consultation and in those for offences most likely to be related to domestic abuse. These include the extent to which the aggravating factors identified are reflective of the broad characteristics of domestic abuse encompassed in the definition used by the Council as well as differences in the points at which various factors characteristic of domestic abuse and intimidatory offences are considered in the sentencing process. These include the vulnerability of the victim and the practical and psychological impact of the offence both on the victim and others. Whether these factors should be considered in relation to the offenders’ culpability, the harm caused to the direct victim and others, or to aggravating and mitigating factors is a crucial consideration as this will determine the seriousness of the sentence. Our analysis leads us to conclude that a more consistent approach should be taken to ensure the guidelines do not lead to unwarranted variations in sentencing. We recommend that the Council clarifies the nature of harm which may be present in each of these offences and the stage of sentencing at which this should be considered, where possible rationalising the approach across the guidelines. This should include ensuring that physical violence and threats of physical violence are not assumed to be more serious in terms of harm and culpability than emotional and psychological manifestations of abuse and control.
We note the impact of the Council of Europe’s Istanbul Convention on preventing and combating violence against women and domestic violence, which the Government is expected to make progress in ratifying following a recent Act of Parliament. We recommend that the Council should ensure that the guidelines reflect obligations under this Convention, including by adding two aggravating factors to the overarching guideline: offence committed repeatedly, and/or offence committed by two or more people acting together.
The mitigating factors of good character, provocation and self-referral for treatment elicited particularly strong views from respondents to the consultation, including those who wished to see them removed. We note the complexities involved in considering such factors and examined the means by which the Council has sought to qualify their use. While on balance we believe they should be retained we make some recommendations for strengthening these qualifications, for example, we could like to see the statement in relation to good character in the intimidatory offences guideline mirror more closely that included in the guidelines for sexual offences.
The Council has taken steps to address some of the barriers to conviction of offences related to domestic abuse and intimidatory offences. This includes emphasising in the overarching guideline that the sentence imposed should be determined by the seriousness of the offence, not by the expressed wishes of the victim. We found support for this approach and recommend that sentencers should be encouraged to ask for victim impact statements if they are absent to inform their assessment of the harm caused. We also advocate more systematic use of restraining orders in all offences covered by the guidelines.
23 October 2017