Draft Sentencing Council guideline on child cruelty offences: Committee calls for change

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, Bob Neill 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.