New Sentencing Guidelines on Domestic Abuse

On 22nd February the Sentencing Council published new sentencing guidelines for cases of domestic abuse. The courts will use these guidelines when determining sentences in cases for other offences that involve domestic abuse, such as harassment or assault.

The updated sentencing guidelines are the latest example of a series of government initiatives directed at tackling domestic abuse. The official cross-government definition of domestic abuse was amended in 2013 to include incidents of controlling or coercive behaviour; in 2015 the Serious Crime Act made such behaviour a new criminal offence; and the government committed to bring forward a new Domestic Violence and Abuse Act in the 2017 Queen’s Speech.

What is changing?

The new guidelines take effect for sentences passed on or after 24th May 2018. They represent a significant departure from the last edition of the guidelines issued 12 years ago. It would be hard to argue that the guidelines from 2006 were not in need of an update. Not only has society progressed in how we view domestic abuse; we live in a different world for both victims and perpetrators due to a number of broader changes in law and practice. Methods of policing and the criminal law itself have both been updated, so it seems only natural that principles of sentencing ought to be next.

The guidance has substantially changed in a number of areas.

• There is now a wider definition of domestic violence that better encompasses domestic abuse. This seeks to recognise that abuse can be psychological, sexual, financial or emotional in addition to violent. This change is in line with the new criminal offence of coercive and controlling behaviour, which sought to give greater powers to the police and CPS when dealing with behaviour that is abusive but not necessarily violent.
• The new guidance underlines that offences in a domestic context should be considered more serious and sentenced accordingly. The 2006 guidelines stated that offences in a domestic context should be seen as “no less serious” than others, whereas the new guidelines state that a domestic context “makes the offending more serious”. The guidelines point out that such offending is a violation of the trust and security of a family relationship and that, unchecked, it often becomes increasingly serious and can even result in death. The guidelines also explicitly direct that offences involving serious violence or severe emotional or psychological harm will warrant a custodial sentence in the majority of cases.
• The new guidance recognises the increasing role of technology in most people’s day-to-day lives. It notes that abusers can utilise technology available such as the use of GPS tracking devices in the course of their offending.
• The new guidance removes mitigating factors historically frequently raised in cases with a domestic context. It makes clear that provocation is no longer mitigation, except in rare circumstances. The only two factors still recognised are evidence of good character and evidence of a genuine recognition of the need for change, coupled with demonstrable evidence of obtaining help or treatment to effect such change. Even good character is now strongly caveated with the warning that allowing for this mitigation can permit domestic abuse to continue when a person has a public persona and a different private face. As a result the guidelines now direct that general good character (unrelated to the offence) should be of no relevance where there is a proven pattern of abuse.
• The new guidance stresses that a lack of victim participation in the prosecution should not impact the seriousness with which the court views the offence. This broad-brush approach is in part justified by the belief that a victim would be in more continuing danger if the offender believed the victim could have impacted the sentence in their favour and chose not to assist the offender.
• The guidance also warns the courts against considering a less severe sentence when urged to do so by a victim or offender due to the effect on children. The court is directed to weigh the alleged impact against the impact of further incidents of abuse and is told to take “great care” with such requests – suggesting courts will only rarely consider this a valid submission to reduce sentence length.

What will the impact of the changes be?

The government has trumpeted these changes as ensuring that tougher custodial sentences will be doled out to offenders. The government further contends that this will reduce domestic abuse and send a clear message that society will not tolerate such abuse in any form.

Sentencing Council member Jill Gramann said on release of the new guidance that it will “ensure that courts have the information they need to deal with the great range of offending and help prevent further abuse occurring“.

Undoubtedly, these new guidelines will lead to an increased number of sentences and longer sentences for those convicted in cases deemed to involve domestic abuse. What is less clear is whether harsher sentences will have the government’s desired effect of ultimately reducing cases of domestic abuse.

It would not be controversial to suggest that greater practical help is still needed for victims, or that more sophisticated intervention may yet be needed to successfully alter offenders’ behaviour and break cycles of domestic abuse.