The Justice Committee makes a number
of observations regarding the Sentencing Council’s draft
guideline on child cruelty offences, including that changes
should be made to the section on failure to protect.
The Committee responds to the consultation in a letter between
the Chair of the Justice Committee, MP, and the Chair of the
Sentencing Council, Lord Justice Treacy. It is published in
today’s report.
The letter focuses on particular themes on which the Committee
felt it could contribute most usefully to the discussion around
the guideline.
Key observations include:
-
Failure to protect: The Committee calls
for change to the draft to make a distinction in sentencing
between failing to protect a child from cruelty and inflicting
it. The Council provides various mitigating factors which
partly account for the lower culpability of an individual
failing to protect a child from cruelty. However, the Committee
argues that the moral distinction between these two offences
should also be captured and a lower starting point should be
set for offenders who have failed to protect a child from
cruelty rather than inflicting it, even if the mitigating
factors are not present.
-
Definition of serious harm: The Council
has defined serious harm as “serious psychological and/or
developmental harm”. The Committee notes several respondents of
the consultation called for further explanation or guidance,
but feels this assessment should be left to sentencers, as it
depends so closely on the facts of the case. Sentencers should
be encouraged to seek expert advice.
-
Aggravating factors: The Committee agrees
with respondents who felt that where an offender is a person in
authority, for example a teacher or priest, this should be an
aggravating factor.
-
Mitigating factors: The Committee agrees
that if remorse is taken into consideration as a mitigating
factor, it is essential that it must be genuine. The Committee
notes that good character is a mitigating factor, but does not
believe it is always relevant in such cases because a person of
apparent good character can make use of it to inflict harm
without being detected.
-
Causing or allowing a child to die or suffer serious
physical harm: In the case of this offence, which
is often but not exclusively used when it is not known who
caused the harm to a child and there is more than one
defendant, the Committee argues that causing and allowing
serious physical harm should in principle be treated
differently. The distinction should be reflected in a lower
starting point in sentencing for offenders who have allowed
harm, but the Committee acknowledges that this will only be
relevant in cases where it is known to the court which offender
caused the harm.
-
Sentence ranges and starting points for the offence of
failing to protect a girl from the risk of
FGM: The Committee supports the Sentencing
Council’s approach. It believes that a custodial starting point
is appropriate for sentencing for all but the least serious
cases.
-
Inconsistency between sentencing
decisions: The varied responses to the
consultation do little to help assess the clarity and
consistency of the guideline. The Council should, in its final
definitive guideline, acknowledge the broad range of
circumstances that may arise in offences of these kinds.
-
Equality impact: The Committee considers
that, in relation to all guidelines, the Commission should keep
equality issues under review, especially around race in
relation to FGM offences.