Ellen Wright outlines changes in guidelines and perceptions for Domestic Violence

What are the new guidelines for domestic violence?

Devised by the Sentencing Council, and influenced by a public consultation, sentencing guidelines are a useful tool in a Judge’s inventory. They provide a framework within which an offence can be categorised, and an appropriate sentence determined.

On 24th May 2018, a new set of guidelines came into force bringing with them a change in which crimes containing an element of domestic violence or abuse are assessed and dealt with by the courts in England and Wales.

The guidelines apply to all offenders aged over 16 and specify that offences should be treated more seriously where a partner or family member is concerned. The Sentencing Council outline that this increase in severity for offences committed in the course of domestic violence is fuelled by the “violation of trust and security” that such offences naturally entail. It also recognises that domestic violence is rarely a ‘one off’, instead presenting as an ongoing pattern of behaviour; often increasing in severity and leaving a lasting effect on the victim.

 

What is the effect of the new domestic violence guidelines?

Not only do the guidelines increase the possible sentences in respect of offences committed through the course of an abusive relationship, they actively limit the mitigation that may be put forward by a defendant attempting to reduce the final sentence that they receive.

The guidelines advise Magistrates’ and Crown Courts to take “great care” where the offender or victim requests a less severe sentence in the interests of any children; a mitigating factor which ordinarily carries a great deal of weight. The guidance further stipulates that the potential detriment to any children caused by the breakdown of a relationship should be weighed against the harm that may be caused to a child through exposure to a relationship marred by domestic violence.

Furthermore, the guidelines outline that the penalty for domestic abuse should be determined by the seriousness of the crime and not by the wishes of the victim, combatting situations whereby a victim of domestic abuse makes an initial complaint in the ‘boil over’ point of fear or upset but then retracts the complaint after the situation has calmed and effectively reduced to ‘simmer’.

Victims who choose to reconnect with the offender after that person has been dealt with by the criminal justice system are further protected by the additional guidance that has been provided in respect of restraining orders with the guidance stating, “the views of the victim should be sought, but their consent is not required”. Where a victim makes a Victim Personal Statement (VPS) this will be considered by the court but where such a statement is not made, the new guidelines advise that it ought not to be assumed that no harm was caused.

Provocation will not be considered as a mitigating factor in sentencing, except in rare circumstances. A point which could perhaps, and with hope will, discourage ‘victim blaming’ on the part of the offender.

Perhaps most notable of all, is the consideration the new guidelines give to the use of technology in acts of domestic violence. It is anticipated that this extension will stretch across a wide range of offences currently absent from the variety of sentencing guidelines contained within the judge’s toolkit. In this respect, the guidelines outline that “abuse may take place through…other methods, including but not limited to, telephone calls, text, email, social networking sites or use of GPS tracking devices”. As a result, increasingly common methods of domestic abuse such as the use of social media to send threatening messages and the installation of electronic tracking devices on cars and phones are captured and dealt with by the sentencing framework.

The practical effect of the new guidelines is yet to be seen however, the changes indicate a new, more severe, approach to offences committed in an act of domestic violence. The fact an offence stems from a domestic incident will not be innocuous, instead it will be aggravating. Since the last guideline in 2006, societal perceptions of domestic violence have changed significantly, and a great deal has been done to tackle the taboo. The new guidelines recognise this and could potentially drive forward a further change in perceptions given their widely encompassing nature. Refuge, a charity for victims of domestic violence, welcome the new guidelines stating that they “better reflect the reality of domestic violence today”.

 

Are there any further changes?

The changes do not stop here. Summer of 2018 has seen the introduction of a new set of guidelines for the relatively new offence of coercive and controlling behaviour. It is hoped that these changes will lead to an increase in awareness, a development in perceptions and a reduction in instances of domestic violence.

 

 

Ellen Wright

15NBS Chambers