The Sentencing Council has published new definitive guidelines for intimidatory offences, it will take effect in respect to all cases sentenced on or after 1 October 2018, so may well affect your current case.
Sentencing Council member Judge Rosa Dean said: “Our guidelines recognise and reflect the very intimate, personal and intrusive nature of these offences, which can have devastating, often long-term impacts on victims and their families. They will provide courts with comprehensive guidance that will help ensure sentences reflect the seriousness of these offences.”
What offences are covered?
The guideline covers:
• Harassment (putting people in fear of violence)
• Racially or religiously aggravated harassment (putting people in fear of violence)
• Stalking (involving fear of violence or serious alarm or distress)
• Racially or religiously aggravated stalking (with fear of violence)
• Harassment
• Racially or religiously aggravated harassment
• Stalking
• Racially and religiously aggravated stalking
• Controlling or coercive behaviour in an intimate or family relationship
• Disclosing private sexual images
• Threats to kill
Why has the guideline been issued?
Until now, there has only been very limited guidance in this area of offending. There has been some for magistrates’ courts on harassment and threats to kill, but publication of the new guidelines marks the first time that there has been guidance produced for stalking, for disclosing private sexual images and controlling & coercive behaviour.
The new guidelines, introduced following a public consultation, will, therefore, provide judges and magistrates in England and Wales with consistent and comprehensive guidance when sentencing these related offences.
‘Revenge Porn’
The offence of disclosing private sexual images, commonly known as revenge porn, was introduced in 2015. The guidelines reflect the particularly unpleasant and intrusive nature of this offence, acknowledging that any offence of this type can cause severe distress to the victim.
By their nature, these offences involve an offender aiming to cause distress, but the guidelines identify some of the factors that make these offences particularly serious. This includes aiming to maximise distress and humiliation, significant planning, such as setting up fake social media profiles to post the images, and inviting comment and contact, which could result in abuse and sexualised contact from strangers. As a result of the consultation, the Council included an additional factor that would show high culpability on the part of the offender of “repeated efforts to keep images available for viewing”. This was added to reflect the nature of online offending as some offenders repost images online many times after websites take them down.
Controlling or coercive behaviour
The offence of controlling or coercive behaviour in an intimate or family relationship also came into force in 2015, aiming to give more protection to victims experiencing repeated or continuous abuse. Coercive and controlling behaviour can be characterised by an abuser preventing their victim from having friendships or taking part in activities, denying them access to money and controlling aspects of everyday life such as what they can wear, what they can eat and where they can go.
The guideline reflects the nature of this kind of offending and the impact it can have on the victim to ensure an effective and consistent approach to sentencing.
The guideline identifies factors that should be taken into account when assessing the seriousness of an offence. A high level of seriousness would be indicated by factors such as conduct intended to humiliate and degrade the victim, persistent action over a prolonged period and significant psychological harm.
As a result of the consultation, the Council also added a new aggravating factor of “victim left in debt, destitute or homeless due to exploitation of finances” since this was highlighted as an effect of these offences when an offender controls the victim’s access to their money.
Stalking and harassment
The guideline for stalking and harassment comprises entirely new guidance on stalking and significantly expanded guidance for harassment offences. It highlights the main factors that should be taken into account in assessing the seriousness of an offence, such as the level of planning and sophistication, how persistent it was and the level of distress and psychological harm caused to the victim. Aggravating factors include using a position of trust to facilitate the offence, sending grossly violent or offensive material to the victim and the impact of offending on others, such as children.
The guidelines are not intended to alter sentencing practice in the types or levels of sentence given, but they do reflect recent legislative changes that doubled the maximum sentences for stalking and harassment from five years to 10 and from seven to 14 years for the aggravated form of these offences – that is, when they are racially or religiously aggravated.
Offenders falling into the very highest category of seriousness are likely to receive higher sentences as a result of the new legislation which the guidelines reflect.
Will sentences be more severe?
The Sentencing Council does not intend to change sentence severity in respect to these offences significantly. However, one of the key aims of sentencing guidelines is to promote consistency in approach, so offenders who may have received a more lenient sentence than they ought will be less likely to do so in the future.
In our experience sentencing guidelines erode judicial discretion in sentencing, and overall, we see ‘sentence creep’ in respect to offences where a sentencing guideline is in operation.
Our advocates are careful to ensure that guidelines are just that and that the fullest picture is presented to a court when mitigating on behalf of our clients.
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