New sentencing guidelines for public order offences come in to force for adults sentenced on or after 1 January 2020.
In August 2008, the Sentencing Guidelines Council published Magistrates’ Court Sentencing Guidelines (MCSG). The guidelines covered a number of public order offences; the offence of affray and summary offences relating to threatening and disorderly behaviour provided for by section 4, section 4A and section 5 of the Public Order Act 1986. There was also a brief reference to violent disorder offences which may be sentenced in magistrates’ courts. This guidance did not include guidelines for sentencing these offences in the Crown Court. Nor did it include guidance on sentencing the public order offences of riot, or offences relating to stirring up racial or religious hatred and hatred based on sexual orientation.
The offences covered by the public order guideline are relatively high in volume. There were 18,600 offenders sentenced for the public order offences covered by the guideline in 2018. The volume of some offences is however relatively low. In relation to the offence of riot only 30 offenders have been sentenced between 2008 and 2018. Around 300 each year are sentenced for violent disorder, and 2400 for affray. The rest being sentenced for the lesser offences.
Will the new guideline affect sentence length?
For threatening behaviour and disorderly behaviour with intent, there have been some reductions to sentencing ranges and starting points for the different levels of offence seriousness, compared to the MCSG. It is possible that the decrease to sentence levels in the guideline could lead to a decrease in sentencing severity for these offences, whereby some individuals who currently receive a custodial sentence may now receive a community order. However, it is also possible that much of the decrease in sentencing severity could come from offenders currently receiving suspended sentence orders now receiving community orders. Therefore there is an upper estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and a lower estimate that the guideline could lead to a reduction in the requirement for up to 30 prison places per year and a small increase in the use of community orders.
Racially aggravated offences
For racially or religiously aggravated threatening behaviour and racially or religiously aggravated disorderly behaviour with intent, sentencers are first asked to sentence the basic offence. Once that is done, they should increase the sentence considering the level of racial or religious aggravation involved. This ‘uplift’ approach reflects Court of Appeal guidance on how aggravated offences should be sentenced. It also aligns with current practice in relation to assessing the level of aggravation present in offences. This is the same process as used in the Council’s Arson and Criminal Damage guideline. That consultation stage research found that there was a risk that the guideline could result in slightly higher sentences. It is therefore possible that the guideline could cause an increase to sentencing severity.
However, some of the starting points and sentence ranges for the basic offence are lower than under the current guideline. This could offset these potential increases. Therefore there is a lower estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and an upper estimate that the guideline could lead to a requirement for up to 40 additional prison places per year and a small decrease in the use of community orders.
For the offences of disorderly behaviour and racially or religiously aggravated disorderly behaviour, the maximum sentence is a fine. Therefore the guideline will not have an impact on prison and probation resources. For the offence of disorderly behaviour, the guideline introduces a new higher category of offending. This has a higher level of fine than in the existing MCSG guidance (a Band C fine). The guideline may therefore increase fine values for this offence. Also, because a fine is included for all levels of offending for racially or religiously aggravated disorderly behaviour – whereas data suggests that around 12 per cent of offenders sentenced for this offence received an absolute or conditional discharge in 2018 (after any reduction for guilty plea) – it is also possible that the guideline could increase the number of offenders sentenced to a fine for this offence.
As ever, our advocates will be vigilant to ensure full adherence to the guideline and act to prevent any ‘sentence creep’ which is something that we have observed with other guidelines.
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The Sentencing Council has published a new set of guidelines. They cover arson and criminal damage of all kinds, as well as threats to destroy property. There were existing guidelines, but they were thought to be very limited and only covered the Magistrates Court. There were no guidelines for the Crown Court, which deals with the more serious offences.
What are sentencing guidelines for?
Sentencing guidelines are designed to ensure that the court passes an appropriate sentence and does so consistently across all of these extremely varied cases.
A judge must follow sentencing guidelines unless it is not in the interests of justice to do so.
The new guidelines will replace those that existed in the Magistrates Court and extend to the Crown Court. They cover all offenders aged over eighteen.
What factors will the Court consider?
The Sentencing Council has said that the guidelines will make sure courts consider:
- The full impact of arson or criminal damage such as vandalism on national heritage assets. This also includes listed buildings, historic objects or unique parts of national heritage and history.
- The economic or social impact of damaging public amenities and services. For example, a fire at a school or community centre, or criminal damage at a train station. This can adversely affect local communities or cause economic hardship to neighbouring houses or businesses.
- The effect on communities when an area’s emergency services or resources are diverted to deal with criminal activity.
The guidelines provide starting points, and category ranges for offences of arson, arson and criminal damage (intending that, or being reckless as to whether life is endangered), criminal damage over £5,000, criminal damage under £5,000, racially or religiously aggravated criminal damage of both values, and threats to destroy or damage property.
The guidelines require the sentencing judge or magistrates to determine the ‘culpability’. This takes into account things like planning, intended amount of damage, and motive, and ‘harm’. It also takes into account physical or psychological harm caused, the value of the damage, and any subsequent loss caused.
Racially and religiously aggravated offences are given an ‘uplift’ for the level of aggravation. This makes for more severe punishment and possibly lifts an offence above the custody threshold.
To take an example, criminal damage under £5,000 with elements of significant planning and causing a high amount of damage and distress would lead to a starting point of a high-level community order with a range from a medium-level community order to three months custody. If that were a racially aggravated offence, where the racial motive was a significant part of the offence, that would likely increase the starting point to a custodial sentence.
Comments by the Magistrates Association
Commenting on the new guidelines, John Bache JP, National Chair of the Magistrates Association, said:
‘We are very pleased that the new guidelines for Arson and Criminal Damage have been published, and will be available for magistrates from 1st October. These new guidelines will be very helpful to magistrates dealing with these important cases and clearly set out the relevant factors in determining harm, beyond a focus on physical damage. It is, however, right that if an offender has mental health conditions or learning disabilities then courts must obtain assessments to fully understand whether this impacts on their culpability, and this guideline will help to ensure that this happens.’
How we can assist
If you have been arrested, asked to attend an interview under caution or are appearing in Court, you will need specialist advice. Please get in touch with John Howey on 02073881658 or firstname.lastname@example.org and let us help.Read More