A more accurate estimate of impact on the prison population is
needed as soon as possible after new sentencing guidelines take
effect, says the Justice Committee in a report published today:
without this there is a risk arising from an increase in
custodial sentences without a Government commitment to meet the
additional demand for places in the prison estate.
The report considers the draft guideline for breach
offences published for consultation by the Sentencing
Council on 25 October 2016 [link]. At present, guidelines
are only available for certain breach offences and these vary in
their format and scope. The Council has now decided to issue a
single definitive guideline document covering the majority of
breach offences, including those listed below.
Breach of a Community Order
The guideline should remind sentencers to consider the offender’s
individual circumstances, including the reasons for the breach
taking place and any shortfall in the quality of supervision by
probation services which may have contributed to the likelihood
of a breach. Mitigating factors when sentencing should include
any mental health condition or learning disability that is linked
to committing the offence. (para 28)
Breach of a Suspended Sentence Order
The
guideline should explain how the ‘unjust in all the
circumstances’ test for avoiding custody should be applied to
offenders whose original offence clearly fell short of the
custody threshold. (para 34)
Breach of a Post Sentence Supervision (see Background
Notes): Taking into account concerns about the quality
and delivery of ‘Through the Gate’ services, as well as concerns
about responses to breaches and recalls to custody, sentencers
should take into account any serious failings in the quality or
delivery of Through the Gate services to the offender.
Breach of a Protective Order
These orders are often used in cases of domestic violence and
stalking – and a breach is a criminal offence punishable with up
to five years’ imprisonment. The Committee recognises that the
circumstances surrounding such orders may not always be
straightforward. The report recommends that sentencers be alerted
to the need for a full examination of the circumstances of the
breach; and that the guideline should expressly require
consideration of whether the offender has subjected the victim to
threats or coercive control, including online abuse, unless a
separate prosecution is intended for this abuse. (para 45)
Background
The Sentencing Council for England and Wales is an independent
non-departmental body of the Ministry of Justice, set up to
promote greater transparency and consistency in sentencing,
whilst maintaining the independence of the judiciary. Its primary
role is to issue guidelines on sentencing which the courts must
follow unless it is in the interests of justice not to do so. The
Council also assesses the impact of guidelines on sentencing
practice and promotes public awareness of sentencing practice in
the magistrates’ courts and the Crown Court.
Under section 120 of the Coroners and Justice Act 2009, the
Council is required to publish sentencing guidelines in draft
before they are finalised. S120 (6) of the 2009 Act lists the
Justice Committee as a statutory consultee on draft
guidelines.
The Council has decided to issue a single definitive guideline
document covering the following breach offences:
Breach of a Community Order
Breach of a Suspended Sentence Order
Breach of Post Sentence Supervision
Failing to Surrender to Bail
Breach of a Protective Order (restraining and non molestation
orders)
Breach of a Criminal Behaviour Order and ASBO
Breach of a Sexual Harm Prevention Order and Sexual Offence
Prevention Order
Failing to Comply with Notification Requirement
Breach of disqualification from acting as a director
Breach of disqualification from keeping an animal
In 2014, Post Sentence Supervision was extended to all offenders
who receive a custodial sentence of more than one day but less
than two years. Although it operates in a similar way to COs,
which have a punitive element, PSS is designed to be purely
rehabilitative, with all offenders receiving ‘Through the Gate’
resettlement services. A breach of PSS requirements can lead to
recall to custody for up to 14 days.
The Committee considered the Joint Inspectorates’ report on
‘Through the Gate’ resettlement services for short sentence
prisoners, which found levels of recall which were ‘concerning’.
It also identified a number of shortcomings in service provision
including insufficient preparation for release (e.g. assistance
with debt, accommodation and employment), and almost no evidence
of responsible officers considering the best approaches to short
sentence prisoners, either to encourage them to keep to the terms
of their licences or to help them reduce levels of
reoffending.
The Committee concluded that assessing the seriousness of a PSS
breach by reference only to the level of compliance creates a
real risk of unfairness and disproportionality in individual
cases, as well as undermining the policy’s rehabilitative
purposes and increasing pressures on the prison population.
