The Sentencing Council has announced a consultation on the revision of sentencing guidelines for domestic, non-domestic and aggravated burglary offences.
The existing burglary definitive guideline was the second to be developed by the Sentencing Council and came into force under criminal law in 2012. The proposed guidelines have been developed following an evaluation of the existing ones.
The evaluation suggested that the severity of sentencing had increased for domestic burglary and aggravated burglary since introducing the guideline. There was also an increase in sentencing severity for non-domestic burglary, but it was not clear whether this was a result of the guideline or not. As a result of further evaluation, it was found the guideline had contributed to unanticipated increases in sentencing. The Sentencing Council intended to review the existing guidelines due to the evaluations but has been unable to do so until now.
Why is it being reviewed?
The Sentencing Council says that their methods for estimating the resource impact of a guideline are now more well developed. It was previously limited in its ability to assess how the offences would be categorised and sentenced under the guideline.
In developing the guideline, the Council considered data from the Crown Court Sentencing Survey, transcripts of judges’ sentencing remarks, and evidence of the reasons for the increases in sentencing severity.
The Council concluded that although the aggregate impact of the impact on sentencing outcomes had not been predicted, the sentencing practice was proportionate to the seriousness of the offence. The higher sentences are therefore expected to be maintained for the more serious offences under the proposed guidelines.
In particular, the changes proposed are to introduce middle categories for both culpability and harm. The Council says that the introduction of middle categories will provide greater flexibility for judges and magistrates in deciding the appropriate sentence.
The new medium culpability category is “some degree of planning or organisation”. It will also include other cases that fall within categories A and C because factors of A and C are present but balance each other out, or the offender’s culpability falls between the factors described in A and C.
In the categories of harm, the new version in category two is “theft of/damage to property causing some degree of loss to the victim (economic, commercial or personal value), and “greater emotional impact on the victim than would normally be expected”.
The Council decided that targeting is a very common feature of these offences, so including this factor in the high category could capture too many cases in the highest level of culpability. The factor is proposed to be changed to “targeting a vulnerable victim”.
The rest of the proposed changes to both culpability and harm factors are as per the non-domestic guideline.
Considerable thought was given to the “weapon present on entry” factor in the existing guideline, noting the recent case of Sage. The point from Sage was that the presence of a weapon on entry was an essential element of the section 9(1)(a) offence, and there could be a risk of double counting. It is proposed to remove the factor from high culpability and for it to become an aggravating factor. In doing so, it would avoid the problem of double-counting and enable the court to deal more severely with an offender who used or threatened with a weapon brought to the premises and captures offences, where a burglar finds premises empty and so cannot use or threaten violence. A drop-down box will provide additional guidance on the use of the “weapon carried on premises” factor.
The harm factors are worded differently from the other two offences as the factors need to be more specific about actual physical and psychological injury.
In considering the sentence ranges, the Council was said to be mindful of the potential for an increase in sentencing severity. The concern needed to be balanced against the fact this was a serious offence carrying life imprisonment. As such, there was no mention of community orders with treatment requirements as an alternative to custody. Instead, it was decided that a link to the imposition guideline should be included.
Additionally, it is proposed to add wording around consideration of a community order with an alcohol treatment requirement for the domestic and non-domestic guidelines.
The sentencing ranges for all the burglary offences have been formulated using statistical data from the Ministry of Justice’s Court Proceedings database.
The consultation opens on 9th June and runs until 1st September 2021.
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If you need specialist advice in relation to burglary offences or 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: “CCTV appeal: Burglary” by West Midlands Police is licensed under CC BY-SA 2.0 ] Read More
The law of self-defence is again in the spotlight following the case of 78-year-old Richard Osborn-Brooks who was briefly investigated after the fatal stabbing of a burglar who entered his property.
Mr Osborn-Brooks woke in the early hours to find two men in his house and stabbed one of the intruders in the upper body, resulting in death.
So, what are your rights when dealing with an intruder?
Can I Defend Myself or my Family From Attack?
You do have the right to use reasonable force to defend yourself.
There is a mix of statutory and common law provisions that provide for self-defence.
Section 3 of the Criminal Law Act 1967 provides:
“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”
The government, with much fanfare, enacted section 76 of the Criminal Justice and Immigration Act 2008, to provide for a so-called ‘householder defence’. Also, case law (common law) also defines the scope of this defence.
What does self-defence mean?
In Palmer  AC 814 the court stated:
“In their Lordships’ view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction.”
In Ray  EWCA Crim 1391 the court went on to consider the amendments made by the Criminal Justice and Immigration Act, and the following principles emerge:
- The jury must first establish the facts as to what happened.
- Then the jury must decide whether, in those circumstances, the degree of force used was reasonable.
- In determining the question of whether the degree of force used is reasonable, in a householder case, the effect of s. 76 (5A) [of the CJIA 2008] is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self-defence is not made out.
- If the degree of force was not grossly disproportionate, then the effect of s.76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force. The jury are in such a case, where the defendant is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable.
It can be said therefore that the statutory provisions have slightly refined the common law so far as householder cases are concerned in that a degree of force used that is disproportionate may nevertheless be reasonable. In a non-householder case the position is different; in such a case the degree of force used is not to be regarded as reasonable if it was disproportionate
The Judge should be very careful when summing-up to ensure that a jury is aware of the special feature of householder cases, in Ray, the court stated:
“It nevertheless may not always be easy for a jury readily to appreciate the task that faces them in a householder case. It is therefore important that when summing up in cases where the householder’s defence is raised the judge gives some colour to the issue of self-defence which arises. It may be helpful to explain to the jury in general terms that Parliament has conferred a greater latitude in cases of a householder in his own home, for reasons they will doubtless readily understand. It can be pointed out that what might be an unreasonable degree of force used when confronting an aggressive individual in a club might not be so when used by a householder confronting an intruder in his own home. That is why it is particularly important that the jury assess the defendant’s actions by reference to the circumstances in which he found himself and as he believed them to be – a point that can then be illustrated and expanded in the summing up with the detail appropriate to the case. However, it must of course be made clear to the jury that the use of force that is grossly disproportionate (completely over the top, in ordinary language) can never be reasonable.
It would, in our view, generally be helpful also to explain to the jury in such a case in everyday language the dilemma that would confront any householder when an intruder enters his or her house.
The householder is entitled to some latitude as to the degree of force used; if the jury do not regard the degree of force as being completely over the top they need carefully to examine all the circumstances in determining whether the prosecution have proved that the degree of force used was unreasonable. It is this context that differentiates the householder case.
It would often be helpful, for that purpose, to spell out the kind of circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable. These might, for example, include the shock of coming upon an intruder, the time of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a knife or stick that would lawfully be to hand in the home), the conduct of the intruder at the time (or on any relevant previous occasion if known to the defendant). Each of these might lead to the view that what was done, such as using a knife, which otherwise in a different context might be unreasonable, in the circumstances of a householder coming on an intruder might, in all the circumstances of such a case, be reasonable.
Another useful illustration may be the question of retreat. S. 76(6A) makes clear that there is no duty to retreat; the possibility of retreat is but a factor in determining whether the degree of force used was reasonable. If there is a threat of confrontation in the street, then the option to retreat may be important in determining whether the use of any force was reasonable. In the case of an intruder in the home, however, the option of retreat is unlikely to arise in many cases and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable.”
Is this a straightforward law to understand and apply?
No, not really!
But it essentially boils down to this – if you do what you genuinely believe to be necessary to defend yourself or others from attack, the law will provide a defence. Your response will not be judged to a nicety, and the case law makes very clear that a degree of latitude will be given, due to the particular circumstances that you would face.
The case of Mr Osborn-Brooks is tentative support for the rebalancing of law in this area having worked well.
How we can assist
To discuss any aspect of your case please contact John Howey on 02073881658 or email@example.comRead More