Amendments to Sentencing Guidelines

Amendments to Sentencing Guidelines

The Sentencing Council have published their response to the third annual consultation regarding numerous amendments to sentencing guidelines.

Before the Sentencing Council make changes to the sentencing guidelines, they petition for commentary on the changes they propose in a consultation from various groups, organisations and individuals. Respondents can be anybody and range from academics, charities, local government, legal professionals and members of the public.

The changes, will come into effect on 1 April 2024,

What are Sentencing Guidelines?

The Sentencing Guidelines are published by the Sentencing Council and are used daily by the judiciary (in Magistrates Court and Crown Court) and those working within the Criminal Justice System. The Sentencing Council are an independent body responsible for developing sentencing guidelines which courts in England and Wales must follow when passing a sentence. They provide general guidance for the sentencing of specific offences. The Sentencing Council aims to increase public understanding, transparency and consistency in sentencing of criminal offences.

The guidelines offer assistance in categorising offences according to culpability and harm caused. Each category of an offence provides varying starting point for sentence and the range of sentence which can be considered by the court. They also provide a non-exhaustive list of potential aggravating and mitigating factors the court may consider during sentencing.

The Sentencing Council have now set out amendments to the following sentencing guidelines:

• Fraud
• Equality and diversity during sentencing

The report also includes consideration of further offences and circumstances, but this article covers these two areas as they are predominant in the work which Olliers undertakes.

Fraud

The Justice Committee (UK Government) published a report in 2022 which identified that Fraud offences counted for 40% of all crimes in the UK at that time. They provided criticism of the law surrounding fraud and petitioned for a more victim-focused philosophy of the offence. The Sentencing Council observed that the report identified that within the sentencing guidelines for fraud, cases which involved a higher value of money are considered more serious. This seems to overlook the emotional and psychological impact on victims which any fraud, regardless of value, can cause. This led the Sentencing Council to recognise the significance of non-financial impacts on a victim.

Therefore, the Sentencing Council have agreed to include within the guidelines further significance of non-financial impact; for example, ‘serious detrimental effect’ will now explicitly include emotional and psychological harm.

Mitigation: Equality and diversity

The consultation reviewed existing mitigating and aggravating factors which may be relevant during sentence.

Mitigating factors are circumstances or characteristics of a defendant which may indicate the defendant having a lower culpability. Aggravating factors are elements or characteristics of an offence or offender which indicate them having higher culpability. These are delicately considered by the court during sentencing and effect the length or type of sentence the court may deliver.

Following the consultation, the Sentencing Council have taken steps to amending or adding mitigating factors and the associated expanded explanations to address issues which have been considered in more detail.

The amendments are as below:

Remorse

• Lack of remorse will never be treated as an aggravating factor
• The court should take into account how the ability of an offender to communicate remorse can be affected by multiple stressors such as nervousness, lack of understanding, mental health issues or a learning difficulty and communication difficulties

Good character and/or exemplary conduct

• The amendment makes it clear that during sentencing, ‘good character’ is not the same as having no previous convictions. Rather, the wording of the guidance has been amended to show that evidence of good character can be demonstrated regardless of previous convictions an offender may have.
• However, they have maintained a caveat that good character is less likely to be relevant where the offending is very serious or where a defendant has used their positive character or status in relation to the offending.

Determination and/or demonstration of steps having been taken to address addiction or offending behaviour

• Where offending is closely associated with drug or alcohol abuse, a commitment to address the underlying issue (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify a reduction in sentence.
• This is especially relevant where the court is considering imposing a sentence that focuses on rehabilitation.

Age and/or lack of maturity in young adults (18-25)

• The Sentencing Council considered that young adults (up to the age of 25) may still be developing and this may make them less able to evaluate the consequences of their actions and make it hard to regulate their impulsivity and risk taking.
• Furthermore, an immature offender may find it particularly difficult to cope with custody and therefore may be a more significant suicide or self-harm risk. An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.
• Where an offender has turned 18 after committing the offence but before their conviction, the court should consider the starting point of the sentence which was likely to be imposed on the date of the offence. However, the court will still apply the guidelines of sentencing adult offenders.

New factors: Difficult and/or deprived background or personal circumstances and Prospects of or in work, training or education

The courts should consider during sentencing the range of life experiences which may have disadvantaged an offender and relate to their offending indirectly.

The Sentencing Council have outlined circumstances such as:

• experience of discrimination
• negative experiences of authority
• early experience of loss, neglect or abuse
• early experience of offending by family members
• being care experienced or a care leaver
• negative influences from peers
• difficulties relating to the misuse of drugs and/or alcohol (but note: being
• voluntarily intoxicated at the time of the offence is an aggravating factor)
• low educational achievement
• insecure housing
• mental health difficulties
• poverty
• direct or indirect victim of domestic abuse

The Sentencing Council highlights the importance of the use of the Equal Treatment Bench Book which assists the courts in understanding potentially disadvantaged offenders.

Where an offender is in, or has a realistic prospect of starting, work, education or training this may indicate a willingness to rehabilitate and make reoffending less likely.

Courts should be aware that the absence of work, training or education should never be treated as an aggravating factor.

New factor: Pregnancy and maternity

When sentencing a pregnant or postnatal woman, relevant considerations may include:

• the medical needs of the offender including her mental health needs
• any effect of the sentence on the physical and mental health of the offender
• any effect of the sentence on the child

There may be difficulties accessing medical assistance or specialist maternity services in custody. This factor is particularly relevant where the court could impose either a community order or custody.

The impact of custody on an offender who is pregnant or postnatal can be harmful for both the offender and the child including by separation, especially in the first two years of life.

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