The existing assault sentencing guidelines came into effect in January 2012; at the same time, the attempt murder guideline was revised.
Following an “extensive and complex project”, new sentencing guidelines have been announced for certain violent offences, including new guidance for assaults on emergency workers.
Sentencing guidelines are referred to by any sentencing tribunal to assist in setting the correct level of sentence.
Each guideline starts with a consideration of culpability or blameworthiness. Specific factors such as a leading or lesser role place the offence in the category of high or low culpability. The level of harm is then assessed and also placed into a category. The combination of culpability and harm sets the sentencing range into which the offence falls; the placement within the sentencing range depends on the aggravating and mitigating factors.
The consultation from the Sentencing Council sought views on seven draft guidelines for common assault, common assault of an emergency worker, assault with intent to resist arrest, assault occasioning actual bodily harm, inflicting grievous bodily harm with and without intent and attempted murder.
In particular, views were sought on the following:
- the principal factors that make any of the offences included within the guidelines more or less serious;
- the additional factors that should influence the sentence;
- the approach taken to structuring the draft guidelines;
- the types and lengths of sentence that should be passed;
- differences between the current guidelines and the new, revised guidelines.
What has changed?
New guidelines take effect from 1 July 2021.
New factors have been added, including;
A high culpability factor of “intention to cause fear of serious harm, including disease transmission”.
An aggravating factor of “deliberate spitting or coughing.”
Offences of common assault are the highest volume offences covered in the violence guidelines.
Assault occasioning actual bodily harm
An aggravating factor of “deliberate spitting or coughing.”
The guideline does not include a life sentence at any starting point, as it would be for murder. The determinate sentences are high though, to reflect that culpability in attempted murder is of the highest level, even higher than required for offences of murder.
The Council decided that the guidelines should be revised to reflect the gravity of the offences properly. There had apparently been concerns that some sentences in the existing guideline were too low. In some cases, much lower than for a murder on the same facts would have been, even though the intent was to cause death (for murder, the intent is to cause grievous bodily harm or death).
Extensive testing of sentences against cases was undertaken in developing the guideline, and the Council says it is satisfied that the descriptions and placement of factors relevant to the seriousness assessment will ensure appropriate sentences.
This is an entirely new guideline coming into effect following consultation. Emergency worker includes police officers, NHS workers, those working for the fire service, prison officers and custody officers.
The elements of this offence are the same as for common assault, but there is a higher maximum sentence of 12 months. A more serious injury should be charged as a more serious assault offence.
In developing the guideline, the Sentencing Council considered whether an uplift to the common assault guideline should just be applied for assaults on emergency workers. This was dismissed due to demands from sentencers for a full guideline for the offence. However, the guideline contains an uplift approach for both aggravated offences of assaults on emergency workers and for racially and religiously aggravated offences.
All guidelines except attempt murder have a new high culpability factor of strangulation, including asphyxiation and suffocation. All guidelines will have a high culpability factor of “victim obviously vulnerable due to age, personal characteristics or circumstances.
The new guidelines contain more offence categories and starting points than previously. The reasoning behind this is to ensure appropriate assessments of culpability and harm so that proportionate sentences are imposed to reflect the seriousness of the offending.
Another substantial change is the addition of a further aggravating factor relating to those providing a public service. It is phrased as an “offence committed against those working in the public sector or providing a service to the public, or against a person coming to the assistance of an emergency worker”.
The Prison Reform Trust commented on the longer periods that individuals would be spending in custody. Their concern was that the government had not committed to further resources, which would lead to a decline in prison standards. The Council quite simply said that the provision of prion places was not a matter which should influence its determination of appropriate sentences.
Some guidelines indicate that higher sentences will be imposed, but this may or may not be the case. When the earlier guidelines were introduced, their impact was evaluated. For GBH, the guideline resulted in sentences increasing in excess of that estimated. For ABH, it was estimated that the guideline would result in less severe sentences, but they did not decrease as expected.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org. Let us help.[Image credit: Arms over the entrance to the Crown Court and County Court in St Aldates’, Oxford. Photograph taken 2006-03-25. Copyright © 2006 Kaihsu Tai. ] Read More
Matt Hancock, Secretary of State for Health and Social Care, has written to NHS staff voicing his concern in relation to the use of violence against emergency workers. Hancock’s approach mirrors that taken last year by police chiefs worried about the rise in violence used towards police officers.
Why is it needed?
Last year’s NHS Staff Survey revealed that 15% of NHS staff and 34% of ambulance trust staff had experienced physical violence. As a consequence, the NHS, police and Crown Prosecution Service have approved a joint agreement on offences against emergency workers.
The purpose of the joint agreement is to provide a framework to set out what victims of this crime can expect and to ensure effective investigation and prosecution. The joint agreement is in relation to assault on all emergency workers and there seems to be a renewed focus on this area.
What differs from the policy towards other victims of violence?
At investigation level, the agreement sets out that the Victims’ Code applies and that victims will be offered the opportunity to complete an impact statement. This is the same for all victims, but there are substantial differences in other respects.
- organisational impact statement – the organisation (hospital, GP surgery, ambulance service) can set out the impact that the crime has had on their service
- community impact statements may be submitted
- guidance on the management of potential exposure to blood-borne viruses should be considered. It advises on the risk of infection through injury of Hepatitis B, C and HIV
The charging decision is made in the same way for all offences using a two-stage test. The first question is whether there is sufficient evidence for a realistic prospect of conviction. If the answer is yes, the second question is whether a prosecution is required in the public interest.
Public interest test
It is acknowledged that assaults on NHS staff are sometimes committed by those in crisis or with neurological conditions. The CPS must take account of the level of culpability of the suspect, whether he or she was affected by any significant mental or physical health or disability. If that is the case, it may mean that a prosecution is not required. On the other hand, prosecutors are told that a prosecution is more likely if the offence is committed against a person who is serving the public at the time.
Can I challenge a decision?
Challenging a decision is the same for NHS staff as for other victims. An issue can be raised with the police if they decide not to proceed with an investigation. Alternatively, the victim’s right to review can be invoked following a CPS decision.
Wherever appropriate we will seek to challenge wrongful charging decisions, particularly where a defendant was suffering from mental or physical disability that could have affected their judgement.
The agreement contains a pledge to emergency workers via a seven-point plan, which can be summarised as:
- assaults and hate crimes will be investigated in the same way as for members of the public
- the Victims’ Code applies to all victims including staff and volunteers
- the affected member of staff should not investigate their own assault
- the right welfare and supervision should be offered to victims
- the supervisor must ensure that the head of department is informed to provide continuity of welfare support
- the victim is to complete a Health and Safety incident report with their supervisor
- to ensure a successful prosecution, the best evidence must be presented
As can be seen, gone are the days when assaults against emergency workers could be seen as being something to be expected or tolerated as being a part of the job.
How can we help?
All our lawyers are trained to ensure prosecution guidance is properly applied and that sentencing guidelines are followed by sentencers.
It is a risk, when issues are given substantial publicity, that courts react in an overly harsh way towards defendants. We will ensure that the best result possible is secured on your behalf.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.Read More
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.
- 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)
- 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 firstname.lastname@example.orgRead More