The Sentencing Council yesterday released the “Overarching Principles: Domestic Abuse Definitive Guidelines” (the “Guidelines”) which will come into force for offenders aged 16 and over being sentenced for offences on or after 24 May 2018.
Courts should, of course, follow any relevant sentencing guidelines unless contrary to the interests of justice to do so. For family practitioners, in particular, this guidance could be of significant interest.
Whilst there is no specific offence of “domestic abuse”, plainly the term is commonly applied to a wide range of actions and behaviour and can occur in the context of, for example, assaults, criminal damage, sexual offences, harassment and malicious communication offences. Allegations of domestic abuse are unfortunately a common feature in Children Act proceedings, and the topic has gained particular focus since the coming into force of Practice Direction 12J (Child Arrangements and Contact: Domestic Violence and Harm) in October 2017.
At page 2 of the Guidelines, a non-statutory definition is provided which sets out that domestic abuse can be defined as:
“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 sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.”
The Guidelines then give a non-exhaustive list of controlling behaviour including “acts designed to make a person subordinate and/or dependant by isolating them from sources of support”
and examples of coercive behaviour such as assaults, threats or humiliation which “may take place through person to person contact…[or through, but not limited to] telephone calls, text, email, social networking sites or use of GPS tracking devices”
In terms of the assessment of seriousness, the Guidelines state that:
“the domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship” [emphasis added].
The aggravating factors at page 3 of the Guidelines include the “impact on children”
and “using contact arrangements with a child to instigate an offence”
. Evidently, the presence of domestic violence in a relationship is likely to affect children directly and/or indirectly, through the risk of physical harm to those children or exposure to arguing and violence between parents.
There is reference at page 5 of the Guidelines to consideration being given to offenders attending accredited domestic abuse programme or domestic abuse specific intervention. In accordance with the Guidelines, such options would normally only be appropriate “where the court is satisfied that the offender genuinely intends to reform his or her behaviour and that there is a real prospect of rehabilitation being successful”
. It will be interesting to monitor whether these Guidelines have an impact on court’s sentencing outcomes.
Finally, a development which, on the face of it seems slightly incongruous, is the reference to the offender (or the victim) being able to ask the court to consider the interests of any children by imposing a less severe sentence (see page 4). The Guidelines do go on, critically, to state that “the court should take great care with such requests, as the sentence should primarily be determined by the seriousness of the offence”
. The interplay between the criminal courts and family proceedings is not in any way novel but this reference to consideration of sentence being defined by the interests of children does not seem to sit well with the broader objectives of sentencing, such as protecting the public and the complainant.
What is evident from these Guidelines is a conscious, considered effort to reinforce the wide-ranging impact that domestic abuse has on more members of society than we would care to admit.
Source: Sentencing Council Guidelines: 22 February 2018