Justice select committee: Sentencing Guidelines: intimidatory offences and domestic abuse

The Justice Committee broadly welcomes the Sentencing Council’s approach to devising guidance to sentencers on domestic abuse through a guideline on overarching principles, while recommending some clarifications.

The Committee Chair Bob Neill MP said “These important guidelines are particularly complex due both to the nature of the offences concerned and their relationship to numerous other offences. Having looked at these interrelationships we make some recommendations for ensuring a more consistent approach is taken so that the guidelines do not lead to unwarranted variations in sentencing.”

Key recommendations:

Draft Bill: The Government intends to publish a draft Bill on domestic abuse within the next 18 months, and this is likely to have some impact on the contents of the guidelines.  Given that no guidance currently exists for some of the offences covered, the Committee supports the Council’s approach of publishing guidelines, then making any required changes once the relevant provisions come into force.  

Data: court digitalisation provides a long-awaited opportunity to strengthen data on sentencing: the existing absence of data makes it difficult for the Council to assess the likely impact on resources. The Committee recommends that the MoJ should require HMCTS to identify criminal cases which are flagged by the police and CPS as linked to domestic abuse, both to illuminate the extent of the issue and to enable the Council and others to monitor the impact of the widespread desire to see such offences treated more seriously.

Resources: the Committee supports the guideline’s shift of emphasis towards treating domestic abuse offences as ‘particularly serious’; this gives an important signal of the violation of trust and damaging effect that characterises them. However, there is likely to be some inflationary impact on sentencing, and the report recommends that the resources for this must be provided within an already overstretched system.

Further recommendations include:

Consistency: there is a lack of consistency across the guidelines in the consultation and those for other offences related to domestic abuse (notably assault and sexual offences) in the stage at which certain factors are taken into account under the consideration of culpability, harm, and aggravating or mitigating factors, risking inconsistency in sentencing.  The Sentencing Council should clarify the nature of harm which may be present in each of these offences, and the stage of sentencing at which this should be considered, rationalising the approach where possible or highlighting potential disparities.

Istanbul Convention: the Council should ensure that the guidelines reflect obligations under the 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. This should include adding two aggravating factors to the overarching guideline: offence committed repeatedly and/or offence committed by two or more people acting together.

Good character: the Council should qualify more strongly the relevance of good character as a mitigating factor in relation to domestic abuse and intimidatory offences, along the lines of the statement included in the guideline for sexual offences. 

Provocation as a mitigating factor is especially complex in domestic abuse where victim-blaming can form part of the pattern of behaviour. However, a small proportion of offences are linked to a history of domestic abuse having been suffered by an offender – i.e. in the hands of their victim. On balance, the Committee considers that including provocation as a mitigating factor is necessary to enable a proportionate response to sentencing in such cases.

Self-referral: The Committee questions whether including in the overarching guideline a mitigating factor on self-referral for help, treatment or counselling is necessary if it duplicates what is already in other offence specific guidelines. If it is to be included, there should be an emphasis on ensuring that the motivation is genuine, and it should additionally refer to an assessment of whether engagement in the resulting treatment is meaningful.

Victim impact statements: the Council has taken steps to address some of the barriers to conviction for domestic abuse offences. This includes setting out clearly that the victim’s views have no direct bearing on the sentence. There should also be a statement clarifying 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 in their assessment of the harm caused. 

Stalking and psychiatric assessment: the guideline should establish a presumption that the court will obtain a psychiatric report in all cases of stalking and harassment, which may be set aside if the facts of the case indicate that this would be futile or otherwise unnecessary. 

Restraining orders: the Committee supports the direction in each of the guidelines for sentencers to consider a restraining order. Where this not granted the reasons should be included in sentencing remarks as a matter of course in both domestic abuse and intimidatory offences cases.