Draft Sentencing Council guidelines on intimidatory offences and domestic abuse Contents

Conclusions and recommendations

Domestic abuse overarching guideline

1.We welcome the Council’s approach to devising guidance to sentencers on domestic abuse through a standalone guideline on overarching principles. The guideline’s shift of emphasis towards treating domestic abuse offences as “particularly serious” rather than being on a par with offences committed in other contexts is significant, because it is an important signal of the violation of trust and damaging effect that characterises them. Nevertheless, there appears to be some difference of opinion as to whether this should be interpreted to mean that such offences should be treated more seriously by the courts than hitherto, and by implication sentenced more severely. We recommend that the Council should clarify this ambiguity in the definitive guideline. (Paragraph 10)

2.We recognise that recorded offences related to domestic abuse are largely, but not exclusively, perpetrated by men and boys against women and girls. In giving a message to sentencers and (via them) to perpetrators, victims, and wider society that offences related to domestic abuse warrant a more serious response than similar offences conducted in other circumstances, the overall effect of the guideline is to condemn such behaviour in the strongest terms. But while we acknowledge the gendered nature of this issue, the gender of the victim should not, in itself, affect the sentencing outcome, because the severity of the likely impact on victims is already taken into account within the process of determining the appropriate sentence. Understanding the various contexts in which domestic abuse may occur and the forms that it may take, some of which may be insidious and hidden, is very important for sentencers. Accordingly, we recommend that comprehensive training on domestic abuse and intimidatory offences should be provided to magistrates and the judiciary to coincide with the launch of the guideline. (Paragraph 14)

Political context

3.The Government’s proposed legislation on domestic abuse is likely to have some impact on the guidelines’ contents. The Council’s preferred approach is to publish the definitive guidelines and make any changes necessitated by the legislation when the relevant provisions come into force. Given that no guidance currently exists for some offences covered we support this approach. (Paragraph 15)

Resource implications

4.While the Council does not intend that the guideline will shift sentencing patterns, we consider that seeking to ensure that domestic abuse and intimidatory offences are treated particularly seriously is likely to have an inflationary influence on sentencing. We have considered whether signalling the gravity of such offences warrants a potential increase in resources for imprisonment and we believe it does. As our predecessor Committee has noted in response to consultations on previous guidelines, resources for the delivery of community and custodial sentences are finite and already stretched. The Ministry of Justice must make provision for additional prison and probation resources were the guidelines to have this result. (Paragraph 20)

5.The digitalisation of courts as part of the court reform programme provides a long-awaited opportunity to strengthen the robustness of data on sentencing in order to facilitate reliable predictions about the impact of draft guidelines or any changes in sentencing practice stemming from definitive guidelines. We recommend that HMCTS should be required to identify criminal cases which are flagged by the police and Crown Prosecution Service as linked to domestic abuse. This would illuminate the extent of the issue and enable the Sentencing Council and others to monitor the use of the overarching principles, and to understand as fully as possible the resource impact of the widespread desire to see such offences treated more seriously by the courts. (Paragraph 21)

The impact of domestic abuse and intimidatory offences

6.We recommend that the Sentencing Council reconsiders the inclusion of the vulnerability of the victim as an aggravating factor in the overarching guideline on domestic abuse. The particular vulnerability of the victim is already considered in most guidelines during the assessment of harm or culpability. As part of the process of cross-referencing the overarching guideline to those for related offences, the Sentencing Council should review the point at which the court is directed to assess the vulnerability of the victim and consider the feasibility of adopting a consistent approach. The overarching guideline itself should emphasise that regardless of how they present to the court all victims of domestic abuse are potentially vulnerable, by virtue of the abuse of power characteristic of such offences. (Paragraph 27)

7.While we support the proposition of an overarching guideline for domestic abuse, we note that there are important inconsistencies both within this guideline and across related guidelines. We also note the importance of the stage at which key factors in relation to the assessment and treatment of harm are taken account. The list of aggravating factors does not include reference to coercive, abusive or controlling behaviour or patterns of behaviour forming repeated or continuous abuse. These anomalies risk creating unnecessary complexities for sentencers which may result in double-counting and unwarranted variations in sentencing. We recommend that the Sentencing Council seeks to provide more clarity about 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, or otherwise highlighting the potential discrepancies to sentencers to reduce the risk of inconsistencies. 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. (Paragraph 30)

8.We support the inclusion of the impact on children as an aggravating factor in the guidelines but see no reason for references to the impact on others being included solely in the intimidatory offences guidelines. We recommend that the Sentencing Council find a means to reflect the wider impact on others more consistently within both the domestic abuse and intimidatory offences guidelines. (Paragraph 32)

Other aggravating factors

9.We recommend that the Sentencing Council should give consideration to the inclusion of additional aggravating factors in the definitive guideline on domestic abuse and rationalising them across the guidelines to be cross-referenced. The wide range of additional factors raised by respondents illustrates the importance of considerable emphasis being placed on the fact that the list is non-exhaustive. We further recommend that the Council should ensure that the guidelines reflect obligations under the Istanbul Convention, which the UK is committed to ratify. (Paragraph 35)

10.We agree with the Sentencing Council that the limited amount of sentencing data makes it difficult to set out ways of determining the level of racial and religious aggravation for stalking and harassment offences. We recommend that the approach set out in these guidelines be reconsidered with the benefit of more sentencing data, in about 3 years’ time, to see if a framework setting percentage increases in sentences for particular aggravating factors is workable by then. In the meantime consideration should be given to the Law Society’s views on structuring the guidance on aggravating factors to assist consistency in balancing the relative importance of each of the factors identified. (Paragraph 38)

Mitigating factors

11.We agree with respondents who question the relevance of good character as a mitigating factor in relation to sentencing of domestic abuse and intimidatory offences. In relation to intimidatory offences we recommend that the Council should qualify the use of good character as a mitigating factor along the lines of the statement included in the guidelines for sexual offences. (Paragraph 40)

12.The use of provocation as a mitigating factor is especially complex in the case of domestic abuse related offences where victim-blaming can form part of the pattern of abusive behaviour. On balance we consider that the qualified inclusion of provocation as a mitigating factor is necessary only to enable a proportionate response to sentencing in the small proportion of offences which are linked directly to a history of domestic abuse having been suffered by an offender. (Paragraph 43)

13.The inclusion in the overarching guideline on domestic abuse of a mitigating factor on self-referral for help, treatment or counselling has similarities to mitigating factors in key related offences on steps being taken to address offending behaviour. We question whether it is necessary to include this if it duplicates what is already in other sentencing guidelines. If it is to be included we believe there should be an emphasis on the need to ensure that the motivation for self-referral is genuine and we propose that the factor should additionally refer to an assessment of whether engagement in the resulting treatment is meaningful. (Paragraph 45)

Other matters to take into consideration

14.We support the Council’s approach to setting out clearly in the guidelines that the victim’s views have no direct bearing on the sentence. We consider that there is merit in accompanying this with a statement clarifying the use of victim impact statements in these cases. This might encourage them to be taken more frequently when an offence is reported to the police so that they can be available for use by sentencers should they wish to use them as part of their assessment of the harm caused. (Paragraph 48)

15.We recommend that the two stalking and harassment guidelines should establish a presumption that the court will obtain a psychiatric report in all cases, which may be set aside if the facts of the case indicate that getting a report would be futile or otherwise unnecessary, including, for example, if the perpetrator is already known to psychiatric services. (Paragraph 50)

16.We support the Sentencing Council’s direction in each of the guidelines for sentencers to consider a restraining order and recommend that this be considered in all cases. Where such an order is not granted the reasons for not doing so should be included in sentencing remarks as a matter of course in both domestic abuse and intimidatory offences cases. (Paragraph 51)

Sentencing ranges

17.We note that as with other guidelines the upper category range does not extend to the statutory maximum penalty to facilitate judicial discretion. In this case it is two years short. We recommend that this should approximate more closely to the maximum of ten years. (Paragraph 52)

23 October 2017