Miscellaneous Amendments to Sentencing Guidelines

In response to a recent consultation (following changes in legislation and feedback from users), the Sentencing Council has published a list of miscellaneous amendments to sentencing guidelines. The changes apply to both Magistrates’ Courts and Crown Courts and came into effect on 1 April 2023. These changes do not apply to guidelines for sentencing children and young people.

What has Changed?

Breach of a sexual harm prevention order (SHPO)

A note has been added to the guideline that states when dealing with a breach of an SHPO, it is not open to the court to vary it or make a fresh order of its own. This change has been implemented to prevent courts from falling into error. 

To avoid misunderstanding, the Sentencing Council also included the following:

  • The court only has the power to vary an order if an application is made in accordance with section 103E Sexual Offences Act 2003 or section 350 Sentencing Code. 
  • The court only has the power to make an order in the circumstances set out in section 103A Sexual Offences Act 2003 or section 345 Sentencing Code.

Compensation

The court has a statutory duty to give reasons if it decides not to order compensation. Previously, this duty was not referred to in the guidelines. 

A reference has now been added to all relevant guidelines that states:

  • Where the offence has resulted in personal injury, loss or damage the court must give reasons if it decides not to order compensation (Sentencing Code, s.55).

Confiscation

Prior to these changes, the wording in respect of confiscation varied between guidelines. In order to aid clarity and transparency, the following information on confiscation will be included in all relevant guidelines: 

  • Confiscation orders under the Proceeds of Crime Act 2002 may only be made by the Crown Court. The Crown Court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the Crown Court believes it is appropriate for it to do so. 
  • Where, following conviction in a magistrates’ court, the prosecutor applies for the offender to be committed to the Crown Court with a view to a confiscation order being considered, the magistrates’ court must commit the offender to the Crown Court to be sentenced there (section 70 of the Proceeds of Crime Act 2002). This applies to summary only and either-way offences.  
  • Where, but for the prosecutor’s application under s.70, the magistrates’ court would have committed the offender for the sentence to the Crown Court anyway it must say so. Otherwise, the powers of sentence of the Crown Court will be limited to those of the magistrates’ court.  
  • Confiscation must be dealt with before, and taken into account when assessing, any other fine or financial order (except compensation). 

(See Proceeds of Crime Act 2002 sections 6 and 13)

Racially or religiously aggravated offences

This change applies to the following guidelines: 

  • Criminal damage (under £5,000) and criminal damage (over £5,000);
  • S4, S4A and S5 Public Order Act offences; and 
  • Harassment/stalking and harassment/stalking (with fear of violence).

The change creates a third (new and separate) step in the guidelines for consideration of the racially or religiously aggravated uplift. The subsequent steps have been renumbered. 

Domestic Abuse Overarching guideline

The following changes have been implemented to align with the statutory definition of domestic abuse in the Domestic Abuse Act 2021. They expand the application of the guideline (to include a wider range of relationships eg. where there is no familiar or intimate personal relationship as in the case of AG Ref: R v Tarbox [2021] EWCA Crim 224). 

This guideline identifies the principles relevant to the sentencing of cases involving domestic abuse. Domestic abuse is a general term describing a range of violent and/or controlling or coercive behaviour.

This guideline applies (but is not limited to) to cases which fall within the statutory definition of domestic abuse as defined by Part 1 of the Domestic Abuse Act 2021. In summary, domestic abuse is defined for the purposes of that Act as: 

Behaviour (whether a single act or a course of conduct) consisting of one or more of: 
  • physical or sexual abuse;  
  • violent or threatening behaviour;  
  • controlling or coercive behaviour;  
  • economic abuse (any behaviour that has a substantial adverse effect on the victim’s ability to acquire, use or maintain money or other property, or obtain goods or services);  
  • psychological, emotional or other abuse 
Between those aged 16 or over: 
  • who are, or have been married to or civil partners of each other; 
  • who have agreed to marry or enter into a civil partnership agreement with one another (whether or not the agreement has been terminated);  
  • who are, or have been, in an intimate personal relationship with each other; 
  • who each have, or have had, a parental relationship in relation to the same child; or 
  • who are relatives

This definition applies whether the behaviour is directed to the victim or directed at another person (for example, the victim’s child). A victim of domestic abuse can include a child who sees or hears, or experiences the effects of, the abuse and is related to the primary victim or offender.

For the purposes of this guideline, domestic abuse also includes so-called ‘honour’ based abuse, female genital mutilation (FGM) and forced marriage.

The principles in this guideline will also apply to persons living in the same household whose relationship, though not precisely within the categories described in para 2 above, involves a similar expectation of mutual trust and security.

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 capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating their everyday behaviour.

Coercive behaviour is an act or pattern of acts of assault, threats, humiliation (whether public or private) and intimidation or other abuse that is used to harm, punish, or frighten the victim. Abuse may take place through person-to-person contact, or through other methods, including but not limited to, telephone calls, text, email, social networking sites or use of GPS tracking devices.

Care should be taken to avoid stereotypical assumptions regarding domestic abuse. Irrespective of gender, domestic abuse occurs amongst people of all ethnicities, sexualities, ages, disabilities, religions or beliefs, immigration status or socio–economic backgrounds. Domestic abuse can occur between family members as well as between intimate partners.

Many different criminal offences can involve domestic abuse and, where they do, the court should ensure that the sentence reflects that an offence has been committed within this context.

Conclusion 

The expansion of the application of domestic abuse cases as well as the added step in racially/religiously aggravated offences could result in sentence uplifts, but there is nothing to suggest that any of these changes will impact the length or levels of sentencing. 

Generally, these additions and amendments have been introduced to prevent the courts from making errors when sentencing. None of them makes a substantive difference to the sentencing guidelines.