Last week’s publication of the Sentencing Council’s new Definitive Guidelines on Sentencing in cases of Domestic Abuse is the latest in a long series of measures designed to address the perception that the criminal justice system fails to appropriately serve the victims of domestic violence. The fanfare surrounding these new guidelines has focused on the “distinct change in emphasis in relation to seriousness”, as highlighted in the Sentencing Council’s press release. The intention of this new publication is plainly to increase the sentences handed to those convicted of domestic abuse offences; although, whether this aim will be achieved is questionable given the lack of amendment to any of the substantive sentencing guidelines attaching to specific offences. However, the major impact of these guidelines may in fact lie with its adverse impact on complainants, rather than defendants.

Since the introduction of the first Victims’ Code in 2006, the past 12 years have seen a determined shift in focus towards the rights of victims of crime. In 2018, victims now should be able to expect: regular updates on the progress of their case; the opportunity to make a Victim Personal Statement (VPS) to be read at sentencing describing the impact of the offending on them; the ability to challenge a decision not to prosecute a suspect by utilising the Victims’ Right to Review; and practical support through the process of giving evidence. Just last week, in the case of John Worboys, the Supreme Court ruled that victims of crime can sue police who fail to investigate their complaints sufficiently. The cumulative result of this shift is to provide a role and a voice in the criminal process for those who are the victims of crime. The contents of the new Domestic Abuse Sentencing Guidelines is entirely contrary to this grain.

The new sentencing guidelines are designed to stop pleas for mercy from complainants in domestic violence matters having any impact on the eventual sentence imposed. Relevant provisions in the guidelines include:

  • The sentence should be determined without reference to any expressed wishes of the victim [bold taken from guidelines as published];
  • The court should “take great care” with any requests by the victim to consider the interests of children when sentencing, and should focus instead on the offence itself;
  • The court can make a restraining order without the consent of the victim.

The motivation behind these provisions is obvious and well-intentioned. Indeed, the risk of a victim’s expressed wishes being influenced by threats from the defendant is listed specifically as a justification for these measures. However, the result is a paternalistic approach to sentencing which removes all agency, and all voice, from victims of domestic abuse.

Like all criminal offences, domestic abuse cases come in all shapes and sizes. Some of these reveal serial, violent, controlling individuals, whose partners are terrified into not giving evidence, and who will likely offend again. However, some are one-time offenders; an individual who lashes out once during a fight in the final stages of a divorce, or who sends one slew of offensive and cruel messages in the aftermath of a breakup. It is right that both types of offenders are punished, commensurate to the seriousness of their crime. But these new sentencing guidelines are a blunt instrument, albeit well-intentioned, which fails to allow the court to distinguish between these types of cases. Not all victims of domestic violence are incapable of expressing a sensible reason why, for example, they do not wish to be protected by a restraining order.

Defence lawyers have long been concerned at the use of the VPS as putting too much weight on the expressed views of the victim when deciding an appropriate sentence. These new guidelines take things even further, and suggest that we have entered an era where even the VPS falls into the background. The new focus for determining a sentence will instead be how seriously the courts wish to demonstrate they are taking domestic abuse.

Putting the rights of victims front and centre in the criminal justice system has been a focus of legislators, police, CPS, and indeed the Sentencing Council, for many years. But whilst all previous measures have done this by giving victims a voice, these new sentencing guidelines are trying to achieve the same aim by removing that voice. Without an ability to distinguish between victims who need protection at the expense of their expressed wishes, and those who do not, it is hard to see how this latest development can be truly said to protect the rights of anyone, whether defendant or complainant, involved in domestic abuse cases.

This article was originally published in Criminal Law & Justice Weekly and can be accessed here, behind a paywall.