In a major announcement, the government has signalled a busy year ahead with legislative changes affecting the criminal law. Following on from the recent announcement about the sentencing of domestic abuse offences, the government has announced further reforms.
There will be a new definition of domestic abuse making clear that it applies to all relationships and victims and encompasses economic abuse and controlling behaviour.
The new statutory definition of domestic abuse (subject to consultation) is:
Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexual orientation. The abuse can encompass, but is not limited to:
Controlling behaviour: Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour: Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.
New Protective Order
The Government proposes to create a new Domestic Abuse Protection Notice (DAPN), which could be made by the police, and a Domestic Abuse Protection Order (DAPO), which could be made by the courts in a wide range of circumstances.
These measures would bring together the strongest elements from existing protective orders used in domestic abuse cases, creating a single, flexible pathway for victims, police and other practitioners.
While the existing domestic violence protection notice and order will be replaced by the new DAPN and DAPO regime, other existing orders, such as restraining orders, non-molestation orders and occupation orders, will continue to exist as these provide protection in situations other than domestic abuse.
The new order could be made by a court following a freestanding application, including by the victim and certain parties on the victim’s behalf (for example a family member or support service), and could also be made by a court during any ongoing proceedings, including on conviction or acquittal in any criminal proceedings.
The police would also have the power to apply for the new order, including after they had made a Domestic Abuse Protection Notice. In practice, this would mean that Domestic Abuse Protection Orders could be made in family, civil and criminal courts.
The new order would also be more flexible in terms of the conditions that could be attached to it, which could include both prohibitions (for example requirements not to contact the victim, including online, not to come within a certain distance of the victim, and not to drink alcohol or take drugs) and positive requirements. These positive requirements could include attendance at perpetrator programmes, alcohol and drug treatment programmes and parenting programmes. Electronic monitoring (for example location or alcohol monitoring) and notification requirements (for example the requirement for certain perpetrators to provide the police with personal information such as their address and details of relationship and family circumstances) could also be used as conditions attached to the new order.
There would be flexibility as to the length of time that the new order could be in place: it could be for a period to be specified by the court or until the court made further order, in contrast to the current maximum duration for the existing domestic violence protection order of 28 days.
It would be a criminal offence to breach a Domestic Abuse Protection Order.
How we can assist
We are experienced in defending all manner of domestic abuse accusations. Very often domestic incidents spiral out of control all too easily, and the first account made to a police officer may not reflect the full and detailed background, nor adequately explore the other side of the story. We take nothing at face value, preferring instead to step back and build our own accurate picture of the real prosecution and defence case.
In our experience, the protective order regime is often not applied correctly, and you can be assured that any orders sought will be no more onerous than properly prescribed by law, and subject to the most intense scrutiny.
To discuss any aspect of your case please contact John Howey on 020 7388 1658 or email@example.comRead More
Knife crime is very much on the political agenda, with a number of stabbings having taken place over the last few weeks, resulting in deaths and injury, and no doubt the loss of liberty in due course for those responsible. Attention is now focussed on using deterrent sentences to discourage knife possession.
The Sentencing Council, which is responsible for setting sentencing guidelines in England and Wales, has today issued a new guideline for knife crime offences.
What offences does it cover?
The guideline applies to offences of:
- Possession of an offensive weapon in a public place
- Possession of an article with a blade/ point in a public place
- Possession of an offensive weapon on school premises
- Possession of an article with a blade/ point on school premises
- Unauthorised possession in prison of a knife or offensive weapon (adult guideline only)
- Threatening with an offensive weapon in a public place
- Threatening with an article with a blade/ point in a public place
- Threatening with an article with a blade/ point on school premises
- Threatening with an offensive weapon on school premises
The guideline does not cover situations where a knife or other weapon is actually used to harm someone. This would come under other offences such as assault or murder/manslaughter. Similarly, it does not include the use or possession of firearms which is covered by different legislation.
Does the guideline apply to all offenders?
The new guideline applies both to adults and those under 18. In relation to the latter, the guideline will work alongside the Sentencing Children and Young People guideline and encourage courts to look in far greater detail at the age/ maturity, background and circumstances of each offender in order to reach the most appropriate sentence that will best achieve the aim of preventing reoffending, which is the main function of the youth justice system.
What will be the effect of the new guidance?
Leading Court of Appeal judgments have emphasised the seriousness of this type of offending and have set out sentence levels that senior judges see as appropriate for dealing with offenders.
The proposed guideline takes these changes to the law and court judgments into account in consolidated, up to date guidance. It ensures that those offenders convicted of offences involving knives or particularly dangerous weapons, as well as those who repeatedly offend, will receive the highest sentences. The introduction of the guideline may, therefore, lead to some increases in sentence levels, predominantly in relation to adults convicted of possession offences.
Are there any minimum sentences for these offences?
The law on mandatory sentences for offences involving bladed articles or offensive weapons states:
- Where an offender is convicted of a second (or further) bladed article/ offensive weapon offence the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.
- Where an offender is convicted of threatening with a bladed article/ offensive weapon the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.
As the guideline gives the highest sentences to those offenders who threaten with knives or highly dangerous weapons, these offenders will always receive sentences greater than six months. The combination of the legislation and the guideline may therefore mean that there is an increase in sentences received by some offenders convicted of these offences.
Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider it unjust to impose the statutory minimum sentence.
The court should consider the following factors to determine whether it would be unjust to impose the statutory minimum sentence:
- Strong personal mitigation
- Whether there is a strong prospect of rehabilitation
- Whether custody will result in significant impact on others
What about ‘highly dangerous weapons’?
Additional guidance has been included as to what constitutes a highly dangerous weapon.
This has been set out as follows:
“An offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury or is intended by the person having it with him for such use”.
A highly dangerous weapon is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.
How we can assist
Sentencing is a complex process and all of our advocates understand how to navigate sentencing guidelines and ensure that they are not applied in a mechanistic manner, instead ensuring the court focusses on all relevant considerations.
For help with any criminal law related matter please contact John Howey, on 020 7388 1658 or firstname.lastname@example.orgRead More