Overarching Principles: Domestic Abuse
Applicability and Scope
The new domestic abuse guideline was published on 22 February 2018 and applies to offenders aged 16 and older who are sentenced on or after 24 May 2018, regardless of the date of the offence. The overarching principles on youth sentencing will continue to apply in conjunction with the domestic abuse guidelines where the defendant is under 18.
The guideline does not set out recommended sentencing starting points or ranges for specific offences, rather it is a summary of the correct approach to sentencing offences classified as domestic abuse.
The guideline is wide in scope and applies to any offence which meets the following definition: “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”.
In order to define controlling and coercive behaviour the guideline borrows much of the language from the Statutory Guidance Framework governing the relatively new offence of coercive and controlling behaviour under Section 76 of the Serious Crime Act 2015.
The language used in the guideline is forceful in reminding the courts why domestic abuse ought to elevate the seriousness of any offence:
“… there may be a continuing threat to the victim’s safety, and in the worst cases a threat to their life or the lives of others around them. Domestic abuse is likely to become increasingly frequent and more serious the longer it continues, and may result in death. Domestic abuse can inflict lasting trauma on victims and their extended families…Domestic abuse is rarely a one-off incident” (paragraphs 7-8)
The guideline sets out the following aggravating features:
- Abuse of trust and power;
- Victim particularly vulnerable, beyond domestic abuse context;
- Steps taken to prevent reporting;
- Impact on children;
- Using child contact arrangements to facilitate abuse;
- Proven history of domestic violence or threats;
- History of disobedience of court orders.
Just two mitigating factors are identified: good character and willingness to reform. The guideline recommends caution in taking good character into account where there has been a pattern of abusive behaviour, particularly where the defendant has used his good reputation to conceal his offending. Defence practitioners would be sensible to gather evidence of a genuine intention to self-rehabilitate where the defendant is keen to reform.
The guideline explicitly states that sentences should not be affected by the wishes of the victim or their non-participation in proceedings; to do so would create the obvious danger of pressure being placed on victims and detract from a proper assessment of the seriousness of the offence. The welfare of any children in the event of imprisonment of a parent may be relevant but it will rarely be decisive. Provocation should not act as mitigation other than in rare circumstances.
In essence the new guideline amounts to a consolidation of several principles that were formally reflected across a number of guidelines. Breach of trust and vulnerability are already recognized as aggravating features across sex, fraud and assault guidelines. The guidelines on assault have long recognized the presence of children, repeated patterns of behaviour and the fact that a victim is forced to leave home as features increasing seriousness. Those principles now explicitly apply to any type of criminality.
The introduction of the guidelines was met by wide press coverage suggesting that domestic abusers are now more likely to go to prison. Whilst the Sentencing Council is undoubtedly conveying that such offences should be treated very seriously, the following passages of the guideline are of note: “Offences involving serious violence or where the emotional/psychological harm is severe, will warrant a custodial sentence in the majority of cases” (paragraph 13); “Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Where the custody threshold is only just crossed, the court will wish to consider whether the better option is instead to impose a community order, including a requirement to attend an accredited domestic abuse programme or domestic abuse specific intervention”(paragraph 15). The principle that serious physical or psychological harm is likely to warrant custody is not a new one and the path to non-custodial sentence remains open to those defending in these cases.