A number of the definitive guidelines published by the Sentencing Council direct Judges and Magistrates to consider whether the victim of an offence has suffered severe psychological harm.
In some guidelines, that question has to be considered at step 1 of the sentencing process: a finding of severe psychological harm places the case into a higher category and thus increases the starting point for sentence.
In other guidelines, the issue of whether the victim has suffered psychological harm – and if so, the degree of that harm – falls to be considered at step 2 as a potential aggravating factor which justifies an increase above the guideline starting point for the relevant category of offence.
It is therefore critical that those defending criminal cases are fully versed in the law relating to this area, as it may greatly affect sentencing outcomes.
How does a Judge assess harm?
- Expert evidence is not an essential precondition of a finding that a victim has suffered severe psychological harm.
- A judge may assess that such harm has been suffered on the basis of evidence from the victim, including evidence contained in a Victim Personal Statement (VPS), and may rely on his or her observation of the victim whilst giving evidence.
- Whether a VPS provides evidence which is sufficient for a finding of severe psychological harm depends on the circumstances of the particular case and the contents of the VPS.
- A VPS must comply with the requirements of the Criminal Practice Direction and be served on the defence in sufficient time to enable them to consider its contents and decide how to address them. If late service gives rise to genuine problems for the defence, an application for an adjournment can be made.
When a sentencing guideline directs an assessment of whether the victim of an offence has suffered severe psychological harm or any other assessment of the degree of psychological harm, a judge is not thereby being called upon to make a medical judgment. The judge is, rather, making a judicial assessment of the factual impact of the offence upon the victim.
Thus, submissions to the effect that a judge who makes a finding of severe psychological harm is wrongly making an expert assessment without having the necessary expertise are misconceived.
The judge is not seeking to make a medical decision as to where the victim sits in the range of clinical assessments of psychological harm, but rather is making a factual assessment as to whether the victim has suffered psychological harm and, if so, whether it is severe.
The assessment of whether the level of psychological harm can properly be regarded as severe may be a difficult one. The judge will, of course, approach the assessment with appropriate care, in the knowledge that the level of sentence will be significantly affected by it, and will not reach such an assessment unless satisfied that it is correct.
But it is an assessment which the judge alone must make, even if there be expert evidence. It is the sort of assessment which judges are accustomed to making.
In making the assessment of whether the psychological harm in a particular case can properly be described as severe, or serious (if a different guideline is being considered), the judge will act on the basis of evidence and will be required in the usual way to give reasons for his or her decision in the sentencing remarks.
If the evidence was not such as could provide a sufficient foundation for the judge’s assessment, the point can be raised on appeal.
Save where there is an obvious inference to be drawn from the nature and circumstances of the offence, a judge should not make assumptions as to the effect of the offence on the victim.
The judge must act on evidence. But a judge will usually be able to make a proper assessment of the extent of psychological harm on the basis of factual evidence as to the actual effect of the crime on the victim. Such evidence may be given during the course of the trial, and the demeanour of the victim when giving evidence may be an important factor in the judge’s assessment.
The relevant evidence will, however, often come, and may exclusively come, from the VPS. The court is not prevented from acting on it merely because it comes from a VPS.
In assessing whether the psychological harm in a particular sexual case is severe, a judge must keep in mind that the levels of sentence which the sexual offences guideline sets out already take into account the psychological harm which is inherent in the nature of the offence.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
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.[Image credit: “Blow Your Mind” by kozumel is licensed under CC BY-ND 2.0) Read More
A recent Court of Appeal case has considered recent changes to the early release provisions. The changes came about on 1 April 2020, when The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 came into force.
This statutory instrument’s effect was to alter the early release provisions for some offenders receiving relatively determinate lengthy custodial sentences. Anyone convicted of a relevant violent or sexual offence and sentenced to 7 years imprisonment or more, will now be released after 2/3 of their sentence, rather than 1/2.
By way of example, an offender who received a sentence of 12 years imprisonment would be released after serving eight years instead of 6 years, so “adding” 2 years to the sentence served.
Of course, Parliament is entitled to pass more or less whatever laws it wishes, but the feature of this legislation was that it applied to anyone sentenced on/after 1 April 2020, even if they had been convicted earlier.
Some offenders might, but for the Coronavirus pandemic, have been sentenced prior to the 1 April and therefore have avoided the new rule, but because of the shutdown of the criminal courts were sentenced after the 1 April.
What did the appellants say?
The appellants arguments were expressed in these terms:
‘The appellants each argue that through no fault of their own, or the defence generally, they will serve substantially more time in custody prior to release than would otherwise have been the case if the matter had proceeded to sentence as originally intended. They say that this is manifestly unfair and that it is wrong in principle that an appellant, through no fault of his own, should suffer the detrimental effect of the 2020 Order when the court’s intention had been that they should be sentenced before those provisions came into effect’
The Court of Appeal rejected the arguments put forward by the appellants, deciding as follows:
- Nothing in the legislative framework, or the definitive guidelines of the Sentencing Council, requires, or explicitly permits, a sentencing court to take account of the impact of the early release provisions on these decisions.
- It would defeat the statutory purpose of the early release provisions if their effect were ordinarily to be taken into account when passing sentence. The clear intention underpinning the 2020 Order (as is clear from the text of the Order itself, and is spelt out in the Explanatory Memorandum) is that, where it applies, the offender should, before being entitled to release, serve a further one sixth of the sentence than was previously the case. If the sentencing judge reduced the length of sentence to reflect the harsher effect of the early release provisions then that would directly undermine the legislative purpose.
- Accordingly, the courts have consistently made it clear that a sentencing judge should not ordinarily take account of early release provisions when deciding the length of a determinate custodial sentence.
- Nothing in the authorities explicitly rules out the possibility that there may be exceptional cases where it is appropriate to take account of the impact of early release provisions.
- The Court must take account of mitigating features when setting the length of a fixed-term custodial sentence (s231(2) and (7) Sentencing Code; s153 Criminal Justice Act 2003). There is no closed exhaustive list of mitigating factors. Depending on the case, they may include the fact that custody will have a particularly harsh impact on the individual offender. Moreover, a court may depart from the approach required by an applicable definitive Sentencing Council guideline where it would be unjust to follow that approach.
- The court has recognised the exceptional impact that the Covid-19 pandemic may have on sentencing decisions, however ‘we do not, however, accept that an analogy can properly be drawn, for the purpose of sentencing, between the effect of the pandemic on prison conditions, and the effect on the date of sentence (with the resulting impact of the 2020 Order). There is a principled difference between prison conditions and the effect of a change in the early release regime.’
- A change in the early release regime is different. It is a legislative change that is introduced by Parliament (or by a Secretary of State with Parliament’s authority).
- ‘Nor does the fact that the offender has been given an expectation that he will be sentenced before 1 April 2020, or otherwise sentenced in a way that defeats the change introduced by the 2020 Order, amount to a justification for departing from the [usual] principle.’
It is unlikely that there will be further attempts to challenge the effect of the 2020 Order, but as always we will be closely monitoring this and other cases to ensure the best outcomes for our clients.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
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: “The Royal Courts of Justice” by R/DV/RS is licensed under CC BY 2.0) Read More
Pre-sentence reports are an important tool to help Judges and Magistrates when it comes to sentencing. In some cases, a court must order a pre-sentence report (s 156 Criminal Justice Act 2003). A report will be appropriate in many instances when it is not a legal requirement.
The primary purpose of a report is to:
‘…assist the court in determining the most suitable method of dealing with an offender’.
How are they prepared?
The pre-sentence report is prepared by a probation officer. The probation officer will meet with the defendant, either face-to-face if they are on bail or if they are in custody then the meeting will usually take place by video-link.
During the meeting, the probation officer will ask about what happened and why, and assess the defendant’s attitude to the offence. They will also want to know more about the defendant’s background and to establish if there are any particular issues in their life. These could be drug or alcohol problems, problems with accommodation, employment or relationships, any mental health issues, or anything that might have caused the person to offend.
Our view is that clients need to be fully prepared for the report process.
Why is preparation essential?
The report is an opportunity for defendants to advance significant mitigation well in advance of their advocate standing up to mitigate formally on their behalf.
Reports are often (although not always) supplied in advance to sentencing magistrates’ and Judges. Therefore, it is an early opportunity to try and influence, positively, the sentencing outcome.
A Judge will always be looking for signs of regret and remorse, not just because they were brought to justice, but because they have genuine victim empathy and regret their actions.
Report writers will be looking for evidence of insight into offending. That often provides compelling evidence of an individual’s willingness and ability to change behaviour. Such positive signs might weigh heavily in a decision to impose a community penalty as opposed to custody.
In cases where a person does not wish to evidence remorse, for example because they are maintaining their innocence, it will generally be better to say nothing than suggest that they do not care.
It is also vital not to implicate yourself in criminality more severe than for which you were convicted.
The author of the pre-sentence report will recommend what they think is the appropriate sentence. However, the final decision is always with the Judge or Magistrates. They do not have to follow the recommendation of the report.
How we can assist
As you can see, we take sentencing reports seriously. We will offer you detailed guidance to ensure that all opportunities to secure the most favourable sentencing outcome are taken.
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
Ten years for a double killing may not sound a lot, but look behind the headlines and you will find a ‘hybrid-order’.
In a truly tragic case, Samantha Ford drowned her 23-month-old twins in the bath.
Appearing at the Old Bailey for sentence, the Judge, Mr Justice Edis, handed down a 10-year sentence, causing widespread outrage. Longer sentences are routinely handed down for drug dealing and other crimes.
To understand more about this case, we need to look beyond the headlines and examine the facts more carefully.
Mrs Ford carried out the killing to avenge her husband calling time on their marriage. Ford was suffering from a significant psychiatric illness which the defence team explored in detail. The medical evidence ultimately led to a plea being accepted to manslaughter due to diminished responsibility.
A conviction for murder will attract a life-sentence but sentencing for manslaughter will typically attract lower sentences.
There is also a massive clue in the defence deployed in this case, ‘diminished responsibility’.
It is clear that in large part, this crime was due to Ford’s unbalanced mind at the time of the killing.
While the Judge did pass a 10-year custodial sentence, that is not the full picture when it comes to sentencing in this case. The complete sentence passed is referred to as a Hybrid-Order.
Hybrid-orders and the Mental Health Act
A Hybrid-Order comprises mental health treatment, followed by a custodial term to reflect some degree of liability.
Ford was sentenced to a hospital order with a limitation direction, which means that she will be detained in a secure medical facility until such time it is safe to release her from that part of the sentence.
It could be a great many years before this happens.
When Ford is released from medical care, she will then have to serve the unexpired part, if any, of the 10-year sentence (with release half-way through as for any other prisoner) and remain on licence in the usual way.
Cases such as this one illustrate the fragility of the human mind. What drives an otherwise loving mother to kill her two young children is beyond the comprehension of most people.
Samantha Ford is not a danger to the broader public; she was and is a very poorly lady who will be haunted for the rest of her life with the tragic events that unfolded. First and foremost, she requires and will receive urgent medical help.
As specialists in criminal law, we are trained to recognise medical defences and ensure that the full picture is presented to the court. You can read more about mental health and the criminal law here.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org and let us help. We can advise on all aspects of your case.Read More
You may have heard about ‘texts’ or a ‘brown envelope to the Judge’, some of the names for the old system by which someone could get a reduced sentence.
If you helped the police a ‘text’ may be handed to the sentencing judge explaining that you had assisted and a reduction in sentence may have followed. It was a murky world, clouded in some secrecy and one that few people properly understood.
A formal statutory system has now been put in place to regulate reduction in sentence for a defendant who aids the authorities, although the ‘text’ regime is still around.
The aim of the new regime is to govern assistance provided and the benefits that might flow as a result.
The old principles (the text) remain in use as it has always been the case that anyone convicted of a crime will receive credit against sentence for assistance rendered to the police or authorities.
Requirements under the new regime
The key features of the statutory scheme are:
- The offender must admit the full extent of his own criminality before the statutory framework can begin to apply, and he must agree to participate in a formalised process which has its own immediate purposes intended to avoid some of the problems which the earlier processes could create.
- Provided the offender admits the full extent of his criminality the process is not confined to offenders who provide assistance in relation to crimes in which they participated, or were accessories, or with which they are linked.
- This is largely a new process in which a post-sentence review of the sentence passed in the Crown Court can be reviewed in a judicial process on a reference back to the court by the prosecutor. That does not prevent there being such an analysis during a Crown Court sentencing decision.
- The decision whether a reduction in sentence should follow a post-sentence agreement is vested in the judge sitting in the Crown Court. The court is able to take into account the specific post-sentence situation. That is quite different from the former practice.
- If in the end the offender fails to comply with his agreement, that does not itself constitute a crime but he is liable to be brought back to the court and deprived of the reduction of sentence which has been allowed or would have been allowed if he had complied with the agreement in full.
New versus old
Following the new regime, rather than the old text regime, may result in a greater discount in sentence. There is no guarantee, however, that providing information will result in a reduction in sentence. It would very much depend on the nature of the information, how it can be used, and whether action can be taken by the police as a result (particularly action that might result in others being prosecuted).
It is important to note that as the formal regime requires full admissions of any criminality on your part, this may result in further charges being brought against you or further offences being taken into consideration on sentence. There is a careful decision to be made here.
How will I know if it has been taken into account?
The law says that if you are given a reduction in your sentence you have to be told that you have been given a lesser sentence and you must also be told what the greater sentence would have been. You will then know exactly how much of a reduction you were given.
How we can help
The decision is not an easy one, nor is the process, because of the potential consequences, which may include having to attend court as a witness, or receiving a longer initial sentence.
It is vital, therefore, that you obtain expert advice before speaking to the police. If this is something that you wish to discuss, please contact John Howey on 020 7388 1658 or email@example.comRead More
Convicted Before A Magistrates’ Court – Can I Appeal?
Many people convicted before magistrates feel aggrieved at the outcome, and wish to consider an appeal.
A grievance may arise because they think that their case was not prepared correctly, or that the court reached the wrong result.
For many people, a conviction could be a major barrier to employment or travel overseas, even where the offence itself is relatively minor.
The court process is far from perfect. If you have a grievance, it is only right and proper that you consider your options.
So, what can I do about it?
The first thing to remember is that you must act quickly as you only have 21 days from the date of sentencing to appeal your conviction – you should not delay in contacting us.
If more than 21 days have passed, then get in touch as soon as possible as we can advise on ‘out of time appeals’.
When you contact us, we will also be able to consider whether other avenues of appeal, namely judicial review and appeal by way of case stated (both to the High Court) are more suitable.
I pleaded guilty, can I appeal?
You might be able to appeal against ‘conviction’ if you pleaded guilty, but only if your plea is ‘equivocal’. In this instance, there are two remedies that we can explore with you.
Do I need permission to appeal?
An appeal against conviction from the magistrates’ court to the crown court is what is termed ‘an appeal as of right’, which means that you do not need any permission to appeal.
In effect, you are entitled to ‘2 bites of the cherry’ although there are some other issues, such as sentence and costs (see below) that you should consider first.
Is sentence suspended pending an appeal?
Your sentence is not suspended pending appeal, although:
– We can apply for bail if you are in custody, and
– Apply for any driving disqualification to be suspended.
If you have been made subject to a community order, this will need to be complied with, although we will take steps to try and expedite the hearing.
What happens at the appeal hearing?
The crown court, presided over by a Judge and Lay Magistrates (not a jury), hears the case afresh.
We do however have a valuable opportunity to review what might have gone wrong at the first trial and take steps to remedy any failures.
We can also examine what other evidence ought to the gathered on your behalf, or what lines of attack we might usefully deploy against the prosecution case.
If I lose the appeal, what happens?
If that happens, you will be re-sentenced by the crown court, and be liable for prosecution costs. We will discuss the costs implications with you in detail before any decision to appeal is made.
It is important to note that the crown court is not restricted to the same sentence imposed by the magistrates’ court, so, you may receive a higher penalty.
This is one of the risks that you need to balance – and one of the reasons why we will at an early stage examine the other avenues of appeal with you (judicial review and case stated).
Can I get legal aid?
Some people are eligible for legal aid, and in some circumstances we can apply for legal aid on your behalf.
We will be happy to discuss fixed fee arrangements – the price of high-quality representation is almost certainly much less than you might imagine it to be. If you are successful in your appeal, some of your costs may be refunded.Read More