New ‘Domestic Abuse’ Sentencing Guidelines published today
A new domestic abuse sentencing guideline has been published today (22 February), giving courts up to date guidance that emphasises the seriousness of this offending.
What is domestic abuse?
There is no specific crime of domestic abuse – it can be a feature of many offences, such as assault, sexual offences or harassment. The guideline aims to ensure that the seriousness of these offences is properly taken into account when such offences are being sentenced and that sufficient thought is also given to the need to address the offender’s behaviour and prevent reoffending.
Are there existing guidelines?
The new guideline replaces a domestic violence guideline which was published in 2006. A great deal has changed since then in terms of societal attitudes, expert thinking and terminology. Guidance for courts was therefore in need of revision to bring it up to date. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’, to reflect that offences can involve psychological, sexual, financial or emotional abuse as well as physical violence.
When is the new guideline in force?
The guideline will apply to all offenders aged 16 and older sentenced on or after 24 May 2018.
How does this guideline change things?
The guideline identifies the principles relevant to the sentencing of cases involving domestic abuse, outlines how the seriousness of offences should be assessed and highlights other factors that should be taken into account.
It brings a distinct change in emphasis in relation to seriousness.
The previous guideline stated that offences committed in a domestic context should be seen as no less serious than those in a non-domestic context, whereas the new guideline emphasises that the fact an offence took place in a domestic context makes it more serious.
This is because domestic abuse is rarely a one-off incident, it is likely to become increasingly frequent and more serious the longer it continues and may result in death. It can also lead to lasting trauma for victims and their children.
For the first time, the guideline also includes a reference to abuse which is perpetrated through use of technology, such as email/text, social networking sites or tracking devices fitted to a victim’s car, since these are increasingly common methods by which domestic abuse can occur.
The guidelines recognise that these offences can affect people of all backgrounds and the guideline is also clear that abuse can occur between family members as well as between intimate partners.
Will anything else change?
Yes. In particular, there is now additional guidance on restraining orders, along with new guidance on Victim Personal Statements.
In relation to restraining orders, the guideline now includes additional guidance to assist the court with a renewed focus on keeping the victim safe, particularly for those who continue or resume their relationship with the offender.
The guideline further reminds courts to take any Victim Personal Statement (VPS) into account, but that where there is no VPS, this is not an indication of any lack of harm to the victim.
Sentencing Council member Jill Gramann said:
“Domestic abuse comes in many forms such as harassment, assault and sex offences. The increasing use of technology in offending has meant that it has also evolved in its scope and impact. The new guideline will ensure that courts have the information they need to deal with the great range of offending and help prevent further abuse occurring.”
What factors will a court take into account?
The following list of non-exhaustive aggravating and mitigating factors are of particular relevance to offences committed in a domestic context and should be considered alongside offence specific factors.
Aggravating Factors
- Abuse of trust and abuse of power
- Victim is particularly vulnerable (all victims of domestic abuse are potentially vulnerable due to the nature of the abuse, but some victims of domestic abuse may be more vulnerable than others, and not all vulnerabilities are immediately apparent)
- Steps taken to prevent the victim reporting an incident
- Steps taken to prevent the victim obtaining assistance
- Victim forced to leave home, or steps have to be taken to exclude the offender from the home to ensure the victim’s safety
- Impact on children (children can be adversely impacted by both direct and indirect exposure to domestic abuse)
- Using contact arrangements with a child to instigate an offence
- A proven history of violence or threats by the offender in a domestic context
- A history of disobedience to court orders (such as, but not limited to, Domestic Violence Protection Orders, non-molestation orders, restraining orders)
Mitigating Factors
- Positive good character – as a general principle of sentencing, a court will take account of an offender’s positive good character. However, it is recognised that one of the factors that can allow domestic abuse to continue unnoticed for lengthy periods is the ability of the perpetrator to have a public and a private face. In respect of offences committed within a domestic context, an offender’s good character in relation to conduct outside these offences should generally be of no relevance where there is a proven pattern of behaviour
- Evidence of genuine recognition of the need for change, and evidence of obtaining help or treatment to effect that change
Will I get a longer sentence?
A spokesperson for the Sentencing Council commented:
‘Overall, it is likely that there will be an increase in sentence severity as a result of the introduction of the guideline, however, the guideline emphasises the need to consider the most appropriate sentence to prevent further reoffending and protect victims, which may be a community order.’
How we can help
Many people feel that sentencing is increasingly a mechanistic process, with a danger that guidelines will be rigidly stuck to, and the individual considerations of defendants either ignored or played down. However, case law over the last few years emphasises that courts should be cautious to ensure that this does not happen. All of our advocates are experienced in presenting the best mitigation possible to courts, ensuring the best possible outcome.
To discuss your case contact John Howey, on 020 7388 1658 or jhowey@jfhlaw.co.uk
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Police Roll Out Portable Identity Checking
The government this week announced that West Yorkshire Police has signed up to a new identity checking service, allowing fingerprints to be taken via an App.
The new service, already being used in a select number of force areas, with a further 20 going live before the end of this year, will remove the need for suspects to be taken to a police station to check their identity.
It is anticipated that this will reap benefits for frontline officers and suspects alike, freeing up police to continue with other duties and reducing needless detentions.
Police leaders have commented:
“Early examples of the new system in action include a firearms unit, who detained a driver after a short pursuit and were able to identify him as a disqualified driver, despite him giving false details. He was issued with a summons for three offences and his vehicle seized. The armed response unit returned to patrol within ten minutes, and without the mobile fingerprint scanner this could have resulted in the unit being out of action for four hours taking the individual to a custody suite.”
The new service works by connecting a small fingerprint scanner to a mobile phone App. Within seconds of taking a print the suspect’s identity can be checked across the two main police databases, allowing police to then deal with the suspect in the appropriate way.
While this technology has been available for a few years, reduced pricing has now made it affordable enough for a national rollout. Scanners that previously cost around £3,000 can now be purchased for under £300.
Liberty, the leading human rights organisation has been less enthusiastic, commenting that:
“This scheme is part of a pattern of the police using radical privacy-invading technology without proper public consultation or meaningful parliamentary oversight. Much like the facial recognition technology that is increasingly being deployed by police forces, it is being presented to us after the event and with little fanfare and is being made available to more and more officers across the country. In this case, we learned about it via a sneaky gov.uk post early on a Saturday morning.”
Although there are clearly benefits to everyone involved, there remain concerns. Little is known about what will happen to the data after it has been checked; for example, if you are not already on either data base but are stopped and checked, what happens to your data? Will the technology only be used when there is doubt about a person’s identity or will it be used indiscriminately? As with any system there remains the potential for human error, not least when data is being added to the databases.
There are important protections for suspects that are to be found in the Police and Criminal Evidence Act 1984. However, ensuring that these protections are adhered to can be difficult in away from the police station. If you have any concerns about the use of these powers, please contact us to discuss further. Where fingerprint identification is being used evidentially by the prosecution, we always take particular care to ensure that the law has been complied with.
How We Can Help
If you are someone facing criminal proceedings, contact us as soon as possible; jhowey@jfhlaw.co.uk or 020 7388 1658. Our solicitors are well versed in this aspect of the law and will ensure your best defence.
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Irish Supreme Court refuses extradition because of Brexit
On 29 March 2017, the European Council received notification from the United Kingdom (UK) of its intention to withdraw from the European Union (EU). This allows for the opening of negotiations, with the overall objective to preserve the interests of the EU’s citizens and Member States. The process creates significant uncertainties around the UK’s access to the European Arrest Warrant (EAW) system after the UK leaves the EU.
In a recent Supreme Court judgment, the Court in Dublin considered the case of Thomas Joseph O’Connor, a construction company director from Ireland, who had been convicted of tax fraud in London but absconded on bail and left for Ireland before sentence was passed. The EAW was issued by the UK authorities resulting in Mr O’Connor being arrested by the state police force of Ireland.
The issue was whether an EU Member State is required to refuse to surrender an EU citizen to the UK if that citizen will remain imprisoned there after the UK leaves the EU in March 2019.
The Supreme Court declined to extradite Mr O’Connor at this stage, and instead ruled that the case should be referred to the European Court of Justice in Luxembourg to resolve the issue.
The Court noted that the precise consequences for Mr O’Connor were very unclear. If returned to the UK, by the time Mr O’Connor finishes his prison sentence the UK will have withdrawn from the EU, and the legal regime which would apply to him in those circumstances is not clear at this stage, and is unlikely to become clear for some period of time (para 5.6):
(…) “if surrendered, Mr. O’Connor will continue to be imprisoned in the United Kingdom beyond the 29th March, 2019, when the United Kingdom will withdraw from the European Union. It is also probable that he will be tried on the absconding charge and it is possible that those proceedings may have legal consequences, whether relating to the issues involved or any possible sentence if convicted, which extend beyond the 29th March, 2019.” (para 5.8).
In this context, Mr O’Connor’s defence argued that Ireland was being asked to surrender an EU citizen in circumstances where the legal framework within which that citizen may come to be governed in the UK is at least at significant risk of being no longer subject to EU law, but will instead depend on the law of the UK. In other words, any rights which might accrue to Mr O’Connor under the EU Charter of Fundamental Rights might no longer be capable of enforcement (para 5.9), and his rights under the EAW regime as a matter of European law would not necessarily be guaranteed after the departure of the UK (para 5.20).
Implications
Hypothetical questions about what may or may not happen, in the context of Brexit remain unanswered at this stage and will not be clear until appropriate negotiations have reached a conclusion.
The judgment offers a great deal of assertion that the departure of the UK changes everything about the European Arrest Warrant scheme. There is, however, very little clarity about what precise measures of European law are engaged, so that the Court of Justice could hold that as a matter of European law, an EAW could no longer be deployed in respect of requests from the UK, either generally or in the circumstances of this case (para 5.1).
The point is novel and not the subject of any jurisprudence of the Court of Justice, which is hardly surprising as there has never been a case before of a country leaving the EU. About 20 others are now fighting extradition from Ireland to the UK on the grounds that the UK is leaving the EU. The general principles arising in the Court of Justice’s judgment will may well have implications for all present High Court cases. However, this specific case is only likely to affect extradition to the UK. Those extradited from the UK to other EU countries will of course continue to receive the protection of existing European law.
If you would like to discuss an extradition case, please contact John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk.
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Is the Julian Assange saga coming to an end?
After a relatively short time out of the news, Julian Assange was back making headlines again last week. His lawyers have asked Westminster Magistrates Court to withdraw the domestic arrest warrant that was issued for him when he failed to surrender himself to be extradited in 2012.
Since then he has taken refuge in the Ecuadorian Embassy, costing his friends and supporters the £200,000 they had put forward as a bail security.
Assange’s argument
At the hearing, Mark Summers QC, representing Assange, told the Chief Magistrate that the arrest warrant had ‘lost its purpose and function’ now that the European Arrest Warrant had been dropped. In Extradition proceedings, Requested Persons are granted bail in exactly the same way as they are in a criminal case, so that if they breach their conditions they can be arrested for the breach and the issue of bail looked at again, or if they fail to appear at court or surrender themselves to be extradited, they commit an offence under the bail act.
It is difficult to see the basis for Assange’s argument. As the Judicial Authority pointed out, the failure to answer bail is a separate issue to the extradition proceedings, and to withdraw it now would be tantamount to rewarding Assange for staying in the Ecuadorian Embassy for so long. In criminal proceedings, a warrant does not disappear simply because the substantive proceedings have come to an end; within the last fortnight a criminal client of ours was arrested for failing to appear at court some 6 months after he was found not guilty in his absence. Although the Judge took a pragmatic view and took no action against him, as a matter of law he was quite rightly arrested and produced at Court.
The application may simply be an attempt to persuade the Chief Magistrate to bring this whole sorry saga to an end; she could simply withdraw the arrest warrant if she was inclined to do so. However, that might set a dangerous precedent and simply encourage others to go to great lengths to avoid being found. The application may also have been brought about by the indication that Ecuador’s patience is running thin with Assange.
Either way, it seems that there might just be an end in sight.
If you require advice on an Extradition case, please contact John Howey, on 020 7388 1658, or jhowey@jfhlaw.co.uk.
John Howey, Senior Solicitor
UPDATE;
On 6th February the Chief Magistrate, Emma Arbuthnot, ruled that the arrest warrant should not be withdrawn. In her judgment, she said;
‘It is not uncommon for Bail Act offences to be pursued when the substantive proceedings are no longer in existence’
which reflects our own experience in recent weeks. She went on to say;
‘Many authorities underline the importance of a defendant attending court when bailed to do so and they describe the way that the administration of justice can be undermined by defendants who fail to attend’
As we expected, the Chief Magistrate has refused to allow Mr Assange to reap the rewards of his extended stay in the Ecuadorean Embassy.
You can read the full judgment here
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