Breach of Court Orders - New Sentencing Guidelines

Welcome to data laws. Presentation on updates The sentencing guidelines Number two. And in this webinar, we're looking at a breach of court orders, these sentencing guidelines coming on the first of October, and they apply to all offenders who are 18 and over, and they fights on the first of October. Which means it doesn't matter when the offense was committed or when the plea resented or indeed, the date of conviction are not guilty play. If the defendant force to be sentenced on the first of October onwards, you won't have reference to these guidelines. Section 125 of the Coroners and Justice Act 2000 and nine obliges course tohave regards to the guidelines issued by the Sentencing Council. But as the Court of Appeal said famously in the case of Black short, 2012 guidelines aren't tram lines, so a court might go above the range or below the range indicated in a particular guideline. If it thinks that the interests of justice lie there, sometimes you might want if you're prosecuting to suggest that a case goes above the guidelines and if you're defending, you might want to suggest it falls below because thes air unusual circumstances perhaps not foreseen in the guidelines. You want to download the guidelines that we're looking out it Maybe you want to pause this webinar whilst you do that might make it easier to follow, but you're going to need the guidelines at the end when we come to do the problem. Question and there's your link. Www dot sentencing council dot or dot UK. Don't pay for these guidelines. You can download the one to your tablet or laptop completely free. So which offenses are going to be included in these guidelines? The next to Power point slides contain a list. I lost them. A very common. If you're used to doing overnight course in the Magistrates, you'll be wearily familiar of breaches of community orders, suspended sentences and pro sentence supervision. You'll also see lots of fell to surrenders, overnighters on a fair amount of breach of normals and restraining orders. Those are often the types of cases where bales refused or people have been walking on Warren's breach of crass pose breach of sexual harm prevention orders on their predecessor, the Sapporo. Those are not unusual nor breach of sexual offenses act notification requirements. Some of the other offenses a less common, and we won't spend as much time looking at those breach of a company directors disqualification or football burning order. Reach a community protection order, etcetera. Note. With the breach of community protection order, you're likely to see more of these because local authorities now use them to try to tackle beggars and street drinkers. But those model minor offenses often only carry a financial penalty, and it's unlikely. As a solicitor you're going to be dealing with them because they won't attract legal aid on a guilty play. And that's one of the benefits of being familiar with these guidelines. We need to come to fill in a crewman 14 on your arguing the interests of justice. One of the things you might do is to cut and paste a copy of the guidelines into your cream 14 application or send it as an attachment. Not so bad representation orders get knocked back by the legal aid agency because the person processing them fails to appreciate or indeed disputes that the offence crosses the custodial threshold. If the defendant sound guilty, these guidelines are a neat way of suggesting that Indeed, the defendant is likely to lose his liberty if convicted. And here's the proof the sentencing guidelines themselves. So let's start on one of the regular offenses that we do with both in the max and in the Crown Court, and those are breaches of community orders. You'll need the breach report. That's probably obvious, but you're going to need to get some details from it in order to help to persuade the court to remove you from the more serious categories of breach. The bottom line is that the court here begins by assessing the level of compliance at the top end. We have willful and persistent non compliance. So someone who keeps breaching it keeps ignoring appointments, keeps not attending, possibly committing offenses. Probation are generally pretty good at telling you they regard non compliance is offline, persistent, and in those circumstances, the guidelines suggests that the court should revoke and re sentenced to custody. Even if the original offense didn't cross the custodial threshold. What's gone wrong is the willful and persistent non compliance, and that justifies imposing custody. Now that might be immediate or it might be suspended. The guidelines don't say. But as an advocate. You'll want to use your imagination. Let's imagine we're gonna a low level of compliance. Check the breach report because, particularly with cases where the defendant has been bought in on warrant, the position may have changed since the report was written. Or it may be that the defendant, fearing the worst, suddenly appeared as his own paid work appointments with alarming regularity and has almost completed the outstanding hours. So make sure you got up today information here. If the court don't revoke, um, re sentence in the face of low level compliance that suggested means of dealing with matters are 20 to 30 day curfew. To extend the length of the community order to add further requirements or to consider 30 to 50 hours of unpaid work. Well, there's a band see auction in terms of fine where you got a medium level of compliance. It's suggested the court considers revocation re sentence, or it might come down to a 10 to 20 day curfew. Mm, 20 to 30 hours of unpaid work, a game with the options of extending the order or imposing additional requirements or band be fine and where you have a high level of compliance. It suggested the breach might be marked with 6 to 10 day curfew or 10th 20 hours of unpaid work. New requirements extend the order or a band a file. So what sort of matters all you to address the court on? Well, the courts obliged to have regards to the defendant's overall attitude to this order on how well he's engaged on the report will help you there. At least it'll help you in terms of telling you the answers to that. But the answers might not be what you want to read, what proportion of the requirements have been complied with to date. In some areas, it's very difficult to get onto programs on courses because the preparation service need a set number of people before they can run. It may be that the defendant hasn't started, for example, building better relationships courses in domestic abuse cases because the course simply hasn't run yet. So it makes sure that you know why a requirement hasn't been started or hasn't been completed. It might not be the defendant's fault, but going generally probation will be up front with you about that. How does the defendant actually completed any of the requirements, and if so, is that partial, complete and if he has, is that affected his behavior? If he's done the unpaid hours, but he's singling out and committed identical offenses, that's going to go against him. How soon after making the order has he breached it as he breached it? Within a matter of days? He's not turned up to his induction from paid work. He's not answered the breach letters. He's no answer. The calls, Um, has he breached the order? Almost a the end of it. Clearly, he's in a better position if he forms into that latter case on other factors at work that might impede his compliance learning difficulties, disabilities, mental health issues. So you want to try to get the original PSR to see whether or not those were flagged up. It might be that those requirements aren't practicable anymore. And the opportunity for deleting those requirements is there, there, as the court's got the matter in front of it, let's turn out of reach of suspended sentences if you're defending your up against it with these, because there's a presumption that the suspended sentence must be activated unless it's unjust, to do so. That's in the statute. But it's also reiterated in these guidelines. So let's look, firstly a breach by re offending. Then we'll look at breach by non compliance the options of these where you got multiple or more serious offenses it envisages that will be full activation of the original sentence. So, for example, that he was given a restraining order which he don't breached, he's on. A suspended sentence of the breach of restraining order automatically triggers the breach of suspended sentence. In those circumstances, the quarter unlikely to be sympathetic, and he's likely to face activation just something on top for the new offense. What if he re offends committing offenses of a similar type of gravity to the one for which the original suspended sentence was imposed? The court will then look at compliance if there's no compliance or it's only low level. It suggested that they activate the suspended term in full if there's medium or high level compliance. It's still suggested that the the activation, but credit for any unpaid work or curfew done so, not credit for programs completed. Let's imagine the situation where the defendant re offends, but the new offense doesn't cross the custodial threshold itself. Or let's imagine it doesn't carry imprisonment like a Section five or drunk and disorderly goes collection of options here. Number one. Activate a suspended sentence, but get credit for the punitive element of the order served. Or make the current order more onerous. Extend the supervision, extend the operational period or impose a maximum fine of 2.5 £1000. To mark the breach, the court should have regard to the same considerations as we've just looked at when we saw the slide Factors to have to regard Teoh on the community order part of this weapon all where we have breach of requirements. No or low compliance, because should activating full medium compliance. Activate but give credit for the punitive element where you have a high level of compliance. You should still activate as per medium compliance. But the options are also there to make the order more onerous to extend supervision or operational period or to impose that 2.5 £1000 fine. So the presumption is in favor of activation because the original core had already found that across the custodial threshold. How are we going to do with the unjust argument. What strong personal mitigation might help? Let's say that the defendant has pleaded to common assault but has got a good run on arguing that it was excessive self defense just over the threshold of what was reasonable. He might argue there's a strong prospect of rehabilitation, and that might attract the court if they think they're not going to see him again. If he successfully completes the SSO, what about a major custody being in pilots time without effect, not simply the offender? But will it have a significant impact on other people, such as the lady shoplifter, with no one else to look after the Children or a defendant with an elderly relative for whom the defendant ist sole carer? Do you expect course to be skeptical because many defendants make these claims, see what proof you can gather, reach a post sentence Supervision is another regular forests. It often crosses the custodial threshold because 14 days imprisonment is one of the sanctions here. The approach is going to be the same as breach of community order on suspended sentence order when assessing compliance, and then the guidelines divide into two breach by fairly to comply and breach of supervision. Default order supervision. Default order is what the court can make on the first breach of Pierce s. And it might be a curfew or it might be unpaid work. If somebody breaches the supervision to four order, then the court have the option of extending their order or imposing a fine or sending someone to custody. But they've always got the power to send someone to custody for 14 days on a breach. There's no requirement to ratchet up the sanctions. And those guidelines give you quite detailed guidance on the appropriate levels of custody. Hours of unpaid work on Lend the curfew. So our next defense fell to surrender to bail again. Well, we're really familiar both in the mags on the ground core. With this now, our guidelines to take on that familiar appearance of culpability and harm harm now is measured in terms of Firstly, was it listed here at the MAGS, or was it listed down the road at the Crown Court? Has the failure to attend caused a substantial delay? For example, the defendant wasn't aware of his trial date. Perhaps listings have moved it and he's disappeared. He can't be found. You can't be tried in his absence. It's months and months and months before he's arrested. There's a victim impact statement saying how distressed the witnesses are as a result of the Delai. Those sorts of features are going to sit seriously, aggravate the culpability. Has he interfered with the admin of justice, is a result of his being on his toes? Is another matter for them to consider on culpability will then look at whether the failure was a deliberate attempt to avoid or delay the proceedings. Or was his failure to attend really just short of a reasonable excuse? Now, bear in mind that again, defendants often come up with extent extremely interesting explanations as to why they didn't surrender, of course, are not always prepared to accept both at face value. A court can reject mitigation, which is absurd or unworthy of belief. The defendant that situation will have to go on to give evidence. If he's not believed by the court, he might not want to do that. Looking at the guidelines. Custody is a potential outcome in most of those combinations of culpability and home, but it's not inevitable In these guidelines, the Magistrates courts are positively encouraged to consider committing for sentence under Section 66 a of the Bail Act. It's a very serious bridge which has severely impacted on witnesses. If that happens, the Crown Court should treat. It is a category A one, and that means in excess of 26 weeks imprisonment. Ground course powers of sentence being no more than 12 months. In this case, if the breach happens in front of the Crown court, the defendant fails to surrender. A Crown Court can also treat that as a contempt to cough, which the maximum sentences two years If a court steps back from immediate custody but wants to impose requirements on a suspended sentence or community order, those need to be punitive i e. Unpaid work or curfew according to the guidelines reach of normal gestational restraining order. Next again that familiar formula, culpability and harm. But these often bring into play the domestic abuse overarching principle, so you'll need to look at those on the guidance here. Tell sentences to take care, not to underestimate the harm which may be present in a breach in domestic abuse cases. So if you prosecute when you're listening, you're going to want to make sure that a comprehensive victim impact statement is available to evidence that it looks as if under these new guidelines, the going rate is going to go up and therefore there will be more committed for sentence. However, in terms of allocation, these offenses will generally be suitable for some retrial quite often in court people everything about paragraph one coming up on your slide of the allocation guidelines, the paragraph to In cases with no factual or legal complications, the court should bear in mind its power to commit for sentence after a trial on May retain jurisdiction. Notwithstanding that the likely sentence might exceed its powers is an oft forgot approach. What's the benefit? Well, if you prosecute your witnesses, get it over and done with quicker, because Magistrates listings of far faster. If you defend, you've got your right of appeal. If you're convicted, which you may not have in the Crown Court, the other thing being cynical if you defend it may be that the prosecution don't get the matter ready for trial in time in the Magistrates court. The downside, of course, is the fees. So what would we be looking at in terms of culpability and harm for the normal estacion? Oh, the guidelines spit into ABC. Very serious and or persistent breach is going down to a minor breach or breach. Just sort of reasonable excuse. For example, the defendant is a big man. He sent down his former wife Street to empty the bins because they're short staffed, only bumped into his wife. Collective have been. It's simply a disaster for him. But it wasn't planned. It wasn't organized. It's just a disaster that would fall into a breached, a short of reasonable excuse. He's not going to tell his boss about the restraining order because he might suddenly become unemployable. And then we go are three categories of home. Very serious formal distress in between and causes little or no harm or distress on again. Watch out because six out of the nine combinations here have custody is a start points, and quite a lot of the combinations of Harmon culpability are going to send the defendant up to the Crown Court, where we're committed for sentence breach. A crossbow? No, not in everyday offense. It's either way. It's nearly always going to be suitable for summary trial. Same approach. Culpability in harm. But the sentence was directed to consider the continuing risk of criminal or anti social behaviour. Is there a risk of serious or is it a risk of minor criminal or anti social behaviour? Or somewhere in between? If there's a risk of serious antisocial behavior or crime that going to militate towards custody? Don't forget when you're mitigating on this offense. Section 30 subsection three of the anti social behavior Crime and policing at removes the possibility of a conditional discharge breach of a soft dough or S H p o or foreign travel order again. Same approach of harm and confit. Culpability, as we've seen note reaches, may indicate an increased risk of re offending. And if there is re offending, the harm that might be caused is often going to be high. For those reasons, the court might want to pay a soul. It's not always good news when the court wants Pierce are because if a probation demonstrate that the risk is increasing, the call be Thinking of deterrence is one of its sentencing prints. Suppose if you have a breach of foreign travel order made under the Sexual Offenses Act. It may be the defendants also breached his license, which would have forbidden him from leaving the United Kingdom. Or he might breach supervision terms. If he's a had a sentence that invoked post sentence supervision in that situation, they may be looking to recall him, and so you'll want to check that if he's re called, the court may feel that immediate custody is the only sentence to impose now. The other thing to be alive for is that the prosecution might want a fresh sexual harm prevention order in some cases. Or they may wish to vary the existing one breach of sexual offenses that notification requirements. That's under Section 82 of the act Again, the familiar culpability home a determined attempts to avoid detection on long periods of non compliance, deliberate failure to comply it be on a minor breach or something just short of reason. Excuse See, and then under categories 123 The call is us to look to see whether there's a actual course off serious harm or distress, or has the risk of that serious harm or distress being created. The bottom category being that he's caused all risked little harm or distress and category to being in between again. It looks as if there's a high risk of committal for sentence on those guidelines. And if you, the defendant has previous convictions and frequently they do, then the risk of committed for sentence is even greater. If there's some suggestion on the part of the prosecution that the breaches to facilitate further offenses, for example, he's moved into his girlfriend's home and breach of the order where the mature Children that might be perceived as him getting ready to re offend and again a deterrent sentence might be one of the things the courts thinking about again. Classic territory for the court asking for appear. So you may want to persuade the court just to get on with it. So what other breaches air covered there, Things that we don't encounter that often in practice, and some of them only carry a fine. It's a penalty where you've got offenses like breach of a company director disqualification that quite often arises because the police have encountered a fraud or some insolvency act defense. In that situation, you probably go the breach offense plus the offenses that threw up the breach, and you'll want to consider the guidelines from the sentencing council on totality. Likewise, reach of disqualification from keeping an animal sometimes rises with dangerous dog at defenses. They're coming direct to disc. All is either way, but the moment the breach of disqualification from keeping an animal is summary. Only that may well change is the government look to increase the penalties under the Animal Welfare Act. So to put it all together before you start the problem. Question. If you're defending and you're offering an alternative plea, we were offering a basis of play. Where is that going to leave you in terms of culpability and harm? If you're advancing a basically, do you want a Newton with a risk of lost of credit? Does your proposed basis actually help reduce the risk to your clients? If you're prosecuting and you're going to accept the offer, where does that place the offense on the new guidelines? If you accept an offer, are you reducing the court's powers of sentence? Are you impeding its ability to make ancillary orders? And if you're seeking to persuade the court to commit a matter whether it's for trial or sentence to the Crown Court. Think why bearing in mind allocation guidelines and particularly paragraph to the matter can't be dealt with in the Magistrates Court. Now, if you turn to the problem question and you have the guidelines toe hand, you'll be able to test your knowledge on See how the guidelines work in practice.