House of Commons Justice Committee Sentencing Council draft guidelines on sentencing of youths and magistrates court sentencing

Transcription

1 House of Commons Justice Committee Sentencing Council draft guidelines on of youths and magistrates court Fifth Report of Session HC 646

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3 House of Commons Justice Committee Sentencing Council draft guidelines on of youths and magistrates court Fifth Report of Session Report, together with formal minutes relating to the report Ordered by the House of Commons to be printed 13 September 2016 HC 646 Published on 21 September 2016 by authority of the House of Commons

4 Justice Committee The Justice Committee is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies (including the work of staff provided for the administrative work of courts and tribunals, but excluding consideration of individual cases and appointments, and excluding the work of the Scotland and Wales Offices and of the Advocate General for Scotland); and administration and expenditure of the Attorney General s Office, the Treasury Solicitor s Department, the Crown Prosecution Service and the Serious Fraud Office (but excluding individual cases and appointments and advice given within government by Law Officers). Current membership Robert Neill MP (Conservative, Bromley and Chislehurst) (Chair) Richard Arkless MP (Scottish National Party, Dumfries and Galloway) Alex Chalk MP (Conservative, Cheltenham) Alberto Costa MP (Conservative, South Leicestershire) Philip Davies MP (Conservative, Shipley) Chris Elmore MP (Labour, Ogmore) Mr David Hanson MP (Labour, Delyn) John Howell MP (Conservative, Henley) Dr Rupa Huq MP (Labour, Ealing Central and Acton) Victoria Prentis MP (Conservative, Banbury) Marie Rimmer MP (Labour, St Helens South and Whiston) The following Members were also members of the Committee during the Parliament: Richard Burgon MP (Labour, Leeds East), Sue Hayman MP (Labour, Workington), Andy McDonald MP (Labour, Middlesbrough), Christina Rees MP (Labour, Neath), and Nick Thomas-Symonds MP (Labour, Torfaen). Powers The Committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the internet via Publications Committee reports are published on the Committee s website at and in print by Order of the House. Committee staff The current staff of the Committee are Nick Walker (Clerk), Jonathan Whiffing (Second Clerk), Gemma Buckland (Senior Committee Specialist), Nony Ardill (Legal Specialist), Christine Randall (Senior Committee Assistant), Anna Browning (Committee Assistant), and Liz Parratt (Committee Media Officer) Contacts All correspondence should be addressed to the Clerk of the Justice Committee, House of Commons, London SW1A 0AA. The telephone number for general enquiries is ; the Committee s address is justicecom@parliament.uk

5 Sentencing Council draft guidelines on of youths and magistrates court 1 Contents The role of the Sentencing Council Draft youth guidelines Overarching principles for youths References to international obligations Aggravating and mitigating factors Considerations of deterrence The use of age in setting the length of custodial sentences Sexual offences guideline Robbery guideline Draft magistrates court guidelines Alcohol sale offences Animal cruelty offences Communication network offences Drugs Class A fail to attend/ remain for initial assessment Railway fare evasion Taxi touting Vehicle taking without consent Careless driving (drive without due care and attention) Annex : List of draft magistrates court guidelines being consulted on Formal Minutes List of Reports from the Committee during the current Parliament

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7 Sentencing Council draft guidelines on of youths and magistrates court 3 The role of the Sentencing Council 1. The Sentencing Council for England and Wales is an independent non-departmental body of the Ministry of Justice, set up to promote greater transparency and consistency in, whilst maintaining the independence of the judiciary. Its primary role is to issue guidelines on, which the courts must follow unless it is in the interests of justice not to do so. The Council also assesses the impact of guidelines on practice and promotes public awareness of practice in the magistrates courts and the Crown Court. 2. Under section 120 of the Coroners and Justice Act 2009, the Council is required to publish guidelines in draft before they are finalised. Section 120(6) of the 2009 Act lists the Justice Committee as a statutory consultee on draft guidelines. The Council must also consult the Lord Chancellor and any person that the Lord Chancellor directs should be consulted, together with such other persons as the Council considers appropriate. 3. In this report we comment on two different sets of draft guidelines. We are grateful as ever to the Sentencing Council for sharing consultation responses with us1 and for agreeing to consider our report although it is published after the consultation deadlines. 4. Before turning to the draft guidelines, we note that some of the draft guidelines contain changes from the current guideline without providing any rationale, while other changes are specifically drawn to respondents attention and explained in the consultation document. An example of this is the draft animal cruelty guideline. The current guideline provides that several animals being affected is a factor indicating greater harm. The draft guideline does not include any reference to multiple animals being harmed and there is no explanation for why this change was made. 5. We believe it would be helpful if the Sentencing Council in future would ensure that all changes being proposed within draft guidelines were noted and explained within the Sentencing Council s consultation documents. We believe such explanations would greatly assist respondents in understanding the changes being proposed and offering constructive responses. 1 We do not publish the responses to the Sentencing Council that we receive.

8 4 Sentencing Council draft guidelines on of youths and magistrates court Draft youth guidelines 6. The consultation period for the draft youth guidelines ran from 12 May 2016 to 3 August The consultation covered three matters: guidelines on the overarching principles for youths (i.e. general principles for a youth for any offence); offence-specific guidelines for sexual offences (which covers all sexual offences committed by a person under 18) and offence-specific guidelines for robbery (which covers all types of robbery offending committed by those under 18).2 The offence-specific guidelines are to be read in conjunction with the overarching principles for youths. The resource assessment accompanying the draft guidelines explains that the Council does not intend or foresee a change in current practice by issuing any of the three guidelines consulted upon.3 We comment on each of the guidelines in turn. Overarching principles for youths 7. In the consultation document the Sentencing Council states the objective of the draft guidelines is not to alter significantly the content of the existing guideline but instead to update the guideline, and make it more accessible by adding flowcharts and tables that are easy to use We welcome the Sentencing Council s efforts to make the guidelines more accessible and believe the draft guidelines succeed in this aim by making use of tables and flowcharts. References to international obligations 9. We note that, except for a single reference to Article 8 of the European Convention on Human Rights, the draft guideline does not provide specific references to international obligations in particular the UN Convention on the Rights of the Child, which was ratified by the UK in 1991 although the draft guideline does make a singular reference to international convention.5 Box 1: The United Nations Convention on the Rights of the Child The United Nations Convention on the Rights of the Child is an international human rights treaty which recognises civil, political, economic, social and cultural rights of children. States ratifying the Convention are bound to observe its terms by international law. Some of the articles contained within the instrument affect the criminal justice systems of State Parties. For example, article 37(b) of the Convention states that arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. Source: The United Nation Convention on the Rights of the Child 2 Sentencing Council, Sentencing Youths Overarching Principles and Offence-Specific Guidelines for Sexual Offences and Robbery Consultation, May Sentencing Council, Consultation stage resource assessment: Youths, May 2016, p 7 4 Sentencing Council, Sentencing Youths Overarching Principles and Offence-Specific Guidelines for Sexual Offences and Robbery Consultation, May 2016, p 7 5 Ibid, Annex C, para 5.42

9 Sentencing Council draft guidelines on of youths and magistrates court We believe it is desirable for the guidelines to make specific reference to international conventions, in particular the UN Convention on the Rights of the Child, where these are relevant to the drafting of the guidelines. As the term international convention implies they are vague or non-binding, we recommend the Sentencing Council replace the term international convention with international law. Aggravating and mitigating factors 11. After paragraph 4.8 of the draft guideline a table is provided listing both aggravating and mitigating factors to be considered when determining the appropriate sentence.6 The Sentencing Council s consultation states that the list is non-exhaustive and sentencers still have the option to use their discretion based on the facts of the case. 7 Although sentencer discretion is to be welcomed, the draft guideline itself does not contain an indication that the table of aggravating and mitigating factors provided is to be considered nonexhaustive. This can be contrasted with the offence-specific guidelines for sexual offences and robbery, which explicitly state that they are non-exhaustive We recommend that the Sentencing Council make it clear within the guideline of overarching principles for youths that the table of non-statutory aggravating and mitigating factors is not intended to be exhaustive. Considerations of deterrence 13. The current overarching principles guideline does not include considerations of deterrence9 but the draft guideline proposes to include this. In particular the draft guideline clarifies that section 142A of the Criminal Justice Act is not in force and that unless and until that happens, deterrence can be a factor in young offenders although normally it should be restricted to serious offences and can, and often will, be outweighed by considerations of the offender s welfare. 11 We support the Sentencing Council s draft guideline. The use of age in setting the length of custodial sentences 14. The draft guideline explains that when setting the length of a custodial sentence, sentencers may refer to the relevant adult guidelines. Specifically, the draft guidelines recommend offenders between the ages of 15 and 17 receive a sentence broadly within one-half to two-thirds of that under the adult guideline, with a greater reduction for those under the age of This is a greater suggested reduction than the current guidelines, which recommend a sentence between one-half and three-quarters of the adult sentence.13 The Sentencing 6 Ibid, Annex C, Para Ibid, p 21 8 Ibid, pp 42, 50 9 Sentencing Guidelines Council, Overarching Principles Sentencing Youths: Definitive guideline, Section 142A of the 2003 Act was inserted by the Criminal Justice and Immigration Act It covers the purposes of offenders under 18, which do not include the reduction of crime (including through deterrence), which is one of the purposes of adult offenders under s. 142 of the 2003 Act. 11 Sentencing Council, Sentencing Youths Overarching Principles and Offence-Specific Guidelines for Sexual Offences and Robbery Consultation, May 2016, p Ibid, p Sentencing Guidelines Council, Overarching Principles Sentencing Youths: Definitive guideline, 2009, p 24

10 6 Sentencing Council draft guidelines on of youths and magistrates court Council explains this is to reflect the fact that most sentencers were in reality taking as a starting point a range of one-half to two-thirds of the adult sentence. The draft guideline also makes clear that this is only a rough guide and should not be applied mechanistically, and suggests that in most cases when making this assessment the emotional age and maturity of the offender is of at least equal importance as their chronological age We welcome the caveat contained in the draft guidance that the suggested length of custodial sentences is only a rough guide and should not be applied mechanistically. We also agree with aligning the guideline s suggested range with current practice. Despite this we are concerned that the guideline as currently drafted places too much weight on chronological age, with the concept of maturity appearing too late in the section. We recommend the Sentencing Council emphasise earlier in the guideline (such as in paragraph 5.46) that emotional age and maturity can be as important as chronological age in making determinations of appropriate sentence length. Sexual offences guideline 17. The sexual offences draft guideline provides a short narrative on sexual offences which states that background factors may play a part, while providing some examples such as unstable living or educational arrangements We consider the short narrative on sexual offences is helpful but it is not explicitly clear whether the background factors included in the narrative section are intended to be illustrative or exhaustive. We recommend the Sentencing Council clarifies this in the guideline. Robbery guideline 19. We agree with the draft robbery guideline. 14 Sentencing Council, Sentencing Youths Overarching Principles and Offence-Specific Guidelines for Sexual Offences and Robbery Consultation, May 2016, Ibid, p 83

11 Sentencing Council draft guidelines on of youths and magistrates court 7 Draft magistrates court guidelines 20. The consultation on the magistrates court guidelines ran from 19 May 2016 to 11 August The Sentencing Council s consultation document explains that the current magistrates court guidelines are out of date following the Sentencing Council s introduction of a standard approach to guidelines regardless of the offence being considered.16 The proposals include twenty-six updated guidelines, for summary offences, with further guidelines to be reviewed in due course.17 The document further explains that although the proposals do take account of legislative change and other related factors, it is not the intention for the draft guidelines to result in significant changes to levels or existing practice. 18 We annex to this report a list of the guidelines being consulted on by the Sentencing Council We only offer substantive comment on a few matters raised in the consultation document and the associated draft guidelines; we agree with most of the proposals put forward by the Sentencing Council and accordingly have restricted our response to the matters we feel are most salient or deserving of reconsideration. 22. We support the Sentencing Council s intention to provide the guidelines in a single consistent format. This has benefits for both sentencers and the public in navigating and understanding the guidelines. Alcohol sale offences 23. In the draft guideline for alcohol sale offences20 one of the factors indicating higher culpability is Few entries in refusals/incident book (where defendant is licence holder or regularly making alcohol sales).21 Similarly a factor suggesting lower culpability is many/recent entries by offender in refusal/incident book. The consultation responses to this proposal have been generally negative. In particular some respondents questioned whether this would be prejudicial to organisations who have a low turnover of alcohol sales, or who are known to have robust policies in place (thereby discouraging individuals from attempting to illegally purchase alcohol). The Sentencing Council s consultation document acknowledges such a concern and suggests that the local licensing authority will be best placed to gauge what would be typical level entries in the refusals/incidents books for the premises We agree with the concerns raised by respondents that including reference to the number of entries in a refusals/incidents book is not desirable. We are not convinced a local licensing authority will necessarily have enough information about premises to make an informed determination of whether the number of entries in the refusal log should lead to heightened or lowered culpability. We recommend the Sentencing Council removes this as a factor for both higher and lower culpability. 16 Sentencing Council, Magistrates court guidelines, May 2016 p 1 17 Ibid. 18 Ibid 19 See Annex 1 20 Sentencing Council Draft Alcohol sale offences, May A refusal/incidents log is a book recording incidents in which alcohol sales have been refused. 22 Sentencing Council, Magistrates court guidelines, May 2016 p 6

12 8 Sentencing Council draft guidelines on of youths and magistrates court Animal cruelty offences 25. The draft guideline23 seeks to provide greater nuance in the factors for determining the seriousness of an offence, in order to better enable sentencers to determine the appropriate level. Specifically the intention is to ensure that the most serious cases do attract custodial sentences and that the length of such sentences is appropriate, while also providing more nuanced factors for judging the seriousness of an offence. The consultation document explains that the change in the animal cruelty offences draft guideline is intended to have some effect on decisions The draft resource assessment estimates that the resource implication of the proposed guideline will be negligible.25 This is due to, among other things, the fact that animal cruelty is a low volume offence. From the consultation responses we have seen it is clear that the Sentencing Council received a large number of responses addressing this matter. In particular many respondents felt the sentences currently available for such offences are too low, although this does not fall within the Council s remit to affect. 27. We agree with the Sentencing Council s proposals regarding animal cruelty offences and welcome the seriousness attached to the gravest of cases for such offences. Communication network offences 28. The most important change in the guideline for communication network offences26 is that both section 127(1)27 and 127(2)28 of the Communications Act 2003 offences will attract a starting point of nine weeks custody as a starting point for the highest category of offences, with the top of the range being fifteen weeks for both offences.29 This represents an increase of three weeks for section 127(1) offences and a three week reduction for section 127(2) offences. 29. The Sentencing Council explain that this is because in their view there was no reason for a category one case of grossly offensive, indecent, obscene or menacing messages to be seen as less serious than a category one case involving false/persistent use of a communication network for the purposes or causing annoyance, inconvenience or needless anxiety. The resource assessment estimates that, owing to the small number of offenders receiving custodial sentences for this offence, and the fact that such custodial sentences are at the lower end of the custodial range, the impact on prison places is likely to be minimal and entail fewer than five prison places Sentencing Council, Draft Animal cruelty, May Sentencing Council, Magistrates court guidelines, May 2016, p 7 25 Sentencing Council, Consultation Stage Resource Assessment: Summary offences in the Magistrates Court Sentencing Guidelines (MCSG), May 2016, p 7 26 Sentencing Council, Draft Communication network offences, May A person is guilty of an offence if he sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or causes any such message or matter to be so sent. 28 A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he sends by means of a public electronic communications network, a message that he knows to be false, causes such a message to be sent; or persistently makes use of a public electronic communications network. 29 Sentencing Council, Draft Communication network offences, May Sentencing Council, Consultation Stage Resource Assessment: Summary offences in the Magistrates Court Sentencing Guidelines (MCSG), May 2016

13 Sentencing Council draft guidelines on of youths and magistrates court We agree with the Sentencing Council s rationale for equalising the starting point and range for both communication network offences and agree with the guideline as drafted. Drugs Class A fail to attend/ remain for initial assessment 31. This draft guideline applies to offences under section 12 of the Drugs Act 2005, where an individual fails to attend or fails to remain at an initial assessment following testing for presence of Class A drugs. The consultation document notes that the existing factor of threats or abuse to assessor or other staff has been widened to aggressive or disruptive during attendance in the draft guidance.31 This change was motivated by a desire to ensure the factor covered behaviour towards individuals including non-members of staff such as vulnerable service users We welcome the widening of the ambit of the factor of aggressive or disruptive to include individuals who are not staff. However, we believe that the term abusive is not necessarily synonymous with aggressive and certain kinds of behaviour are potentially at risk of not being included in the guideline as currently drafted. We recommend the Sentencing Council also include the term abusive within the guideline. Railway fare evasion 33. The factor of offensive or intimidating language or behaviour towards railway staff, which appears in the current guideline, has been replaced in the draft guideline33 with aggressive towards staff as a higher culpability factor. The consultation document asks respondents if they believe aggressive towards staff covers both verbal and non-verbal behaviour We believe that aggressive towards staff should cover both verbal and non-verbal behaviour, although it may be helpful to clarify that point through such phrasing as aggressive towards staff, either verbally or non-verbally. Similar to our view expressed in relation to the Drugs-Class A - fail to attend/remain for initial assessment draft guideline, we would suggest including the term abusive in the factor. Taxi touting 35. The Sentencing Council explain in their draft guideline35 that they have added a general comment on the effect of taxi touting on the taxi industry and the factor deliberately diverting trade from taxi rank has been removed, as it was felt that it was too restrictive and diffcult to evidence. Positive steps to deceive and targeting of vulnerable/unsuspecting victim(s) including tourists have been added as factors indicating higher culpability.36 While the current guideline for taxi touting includes the option for sentencers to consider disqualification for a period of months, the draft guideline omits this Sentencing Council, Draft Drugs class A fail to attend/ remain for initial assessment, May Sentencing Council, Sentencing Council, Magistrates court guidelines, May 2016, p Sentencing Council, Draft Railway fare evasion, May Sentencing Council, Sentencing Council, Magistrates court guidelines, May 2016, pp Sentencing Council, Draft Taxi touting/soliciting for hire, May Sentencing Council, Magistrates court guidelines, May 2016, pp Sentencing Council, Draft Taxi touting/soliciting for hire, May 2016

14 10 Sentencing Council draft guidelines on of youths and magistrates court 36. We agree with respondents who suggested disqualification ought to remain in the ranges for taxi touting. Given the nature of the offence we believe disqualification will often be a suitable punishment for sentencers to have brought to their attention when passing sentence. Vehicle taking without consent 37. We are in broad agreement with the proposals contained within this draft guideline.38 We note however that the disqualification bands appear to have been inadvertently listed in reverse order, with the lowest period of disqualification being applied to the most serious offence category. We draw the error in the table concerning the draft vehicle taking without consent guideline to the attention of the Sentencing Council to correct this. We also note the introduction in this draft guideline of limited awareness or understanding of offence as an entry in the lower culpability section. It is also mentioned in the factors reducing seriousness or reflecting personal mitigation section. We are not convinced of the relevance of this factor to this particular offence. Careless driving (drive without due care and attention) 38. The factors used to determine the sentence in the current careless driving guideline39 have been amended at the first stage and the draft guideline40 loses the reference to momentary lapse of concentration or misjudgement at low speed. These should be added to the lower culpability section. It also omits the reference to overtaking manoeuvre at speed resulting in collision of vehicles, or driving bordering on the dangerous, which could be included in the higher culpability section. We believe it would be better to retain these references. 38 Sentencing Council, Draft Vehicle taking, without consent, May Sentencing Council, Careless driving, August Sentencing Council, Draft careless driving, May 2016

15 Sentencing Council draft guidelines on of youths and magistrates court 11 Annex : List of draft magistrates court guidelines being consulted on Alcohol sale offences - Licensing Act 2003, s.141; s.146; s.147 Animal cruelty - Animal Welfare Act 2006, ss.4, 8 and 9 Careless driving - Road Traffc Act 1988, s.3 Communication network offences - Communications Act 2003, s.127 (1) Drive whilst Disqualified - Road Traffc Act 1988, s.103 Drugs fail to attend/remain for initial assessment - Drugs Act 2005, s.12 Drugs fail/refuse to provide a sample - Police and Criminal Evidence Act 1984, s.63b Drunk and disorderly in a public place - Criminal Justice Act 1967, s.91 Excess alcohol (drive/attempt) - Road Traffc Act 1988, s.5 (1) (a) Excess alcohol (in charge) - Road Traffc Act 1988, s.5 (1) (b) Fail to provide specimen for analysis (drive/attempt) - Road Traffc Act 1988, s.7 (6) Fail to provide specimen for analysis (in charge) - Road Traffc Act 1988, s.7 (6) Fail to stop/report road accident - Road Traffc Act 1988, s.170 (4) Football related offences - Sporting Events (Control of Alcohol etc.) Act 1985, ss.2 (1) and 2(2), Football Offences Act 1991, ss.2, 3 and 4 and Criminal Justice and Public Order Act 1994, s.166 No insurance - Road Traffc Act 1988, s.143 Obstruct/resist a police constable in execution of duty - Police Act 1996, s.89 (2) Railway fare evasion - Regulation of Railways Act 1889, ss.5 (1) and 5(3) School non-attendance - Education Act 1996, ss.444 (1) and 444(1A) Sexual activity in a public lavatory - Sexual Offences Act 2003, s.71 Speeding - Road Traffc Regulation Act 1984, s.89 (10) Taxi Touting/soliciting for hire - Criminal Justice and Public Order Act 1994, s.167 TV licence payment evasion - Communications Act 2003, s.363 Unfit through drink or drugs (drive/attempt) - Road Traffc Act 1988, s.4 (1)

16 12 Sentencing Council draft guidelines on of youths and magistrates court Unfit through drink or drugs (in charge) - Road Traffc Act 1988, s.4 (2) Vehicle interference - Criminal Attempts Act 1981, s.9 Vehicle taking, without consent - Theft Act 1968, s.12

17 Sentencing Council draft guidelines on of youths and magistrates court 13 Formal Minutes Wednesday 14 September 2016 Members present: Robert Neill, in the Chair Richard Arkless Alex Chalk Philip Davies Mr David Hanson John Howell Dr Rupa Huq Victoria Prentis Draft Report (Sentencing Council draft guidelines on of youths and magistrates court ), proposed by the Chair, brought up and read the first time. Ordered, That the draft Report be read a second time, paragraph by paragraph. Paragraphs 1 to 38 read and agreed to. Annex agreed to. Resolved, That the Report be the Fifth Report of the Committee to the House. Ordered, That the Chair make the Report to the House. Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No [Adjourned till Tuesday 11 October at 9.15am

18 14 Sentencing Council draft guidelines on of youths and magistrates court List of Reports from the Committee during the current Parliament All publications from the Committee are available on the publications page of the Committee s website. The reference number of the Government s response to each Report is printed in brackets after the HC printing number. Session First Report Draft Allocation Guideline HC 404 Second Report Criminal courts charge HC 586 (HC 667) Third Report Appointment of HM Chief Inspector of Prisons and HM Chief Inspector of Probation HC 624 Fourth Report Criminal Justice inspectorates HC 724 (HC 1000) Fifth Report Draft guideline on community and custodial sentences HC 876 Sixth Report Prison Safety HC 625 (HC 647) First Special Report Women offenders: follow-up: Government response to the Committee s Thirteenth Report of Session Second Special Report Criminal courts charge: Government Response to the Committee s Second Report of Session Third Special Report Criminal justice inspectorates: Government Response to the Committee s Fourth Report of Session HC 374 HC 667 HC 1000 Session First Report Reduction in sentence for a guilty plea HC 168 guideline Second Report Courts and tribunals fees HC 167 Third Report Pre-appointment scrutiny of the Chair of the HC 416 Judicial Appointments Commission Fourth Report Restorative Justice HC 164 First Special Report Prison safety: Government Response to the HC 647 Committee s Sixth Report of Session