Intimidatory Offences - New Sentencing Guidelines

Welcome to data loss. Webinar entitled Sentencing guidelines Update number one. Intimidate Tree Offenses There's a number two in this series on that deals with breach of France's so, firstly went to the guidelines. Come in. And who do they apply to? They're coming on the first of October 2018 and they applied to everybody who's 18 or over. It doesn't matter when the offense was committed. Doesn't matter when they pleaded guilty or were found guilty. If they're up for sentence on the 1st October onwards, these the guidelines. You want to print them out or download them to your tablet or laptop. They're completely free. But when we come to do the problem question. You'll need a copy in front of you to work through them. And it's by doing the problem. Question no right or wrong answers that you'll be get. You'll begin to get more familiar and see how they work. Just a quick reminder. Section 1 to 5 of the Coroners and Justice Act. The court has to follow guidelines produced by the Sentencing Council, but guidelines are guidelines, not tram lines, as the Court of Appeal was said in the case of black short 2000 and 12. So there may be situations where an offence really falls outside. The category on the court ought to go up in terms of severity, but it may also be that the guidelines don't really fit this type of offense, and they ought to come down in the interest of justice. So you always want to think if you're prosecuting or mitigating, I know what the guidelines say. I'm looking at them. But this offense doesn't really fit into them. This offense is worse for this offense isn't too serious. And when you want to download guidelines, go to the sentencing council. Look, they've got an app that you can download onto your tablet, and it will take you to everything you need at the touch of a button. So which offenses are included in these guidelines? Their offense is that we see day in, day out in both the mags from the Crown Court. They covers Section two and to a harassment and stalking, which is the summary only for on the cover section 44 a harassment or stalking with violence, which read away on. They cover the religiously aggravated forms. The religiously aggravated forms. Section four for a being either way, disclosing private sexual images under Section 33 of the Criminal Justice in Courts Act now has its guidelines here controlling and coercive behaviour and increasingly, common offence. Either way also has its guidelines here, and threats to kill rarely seen offense these days, often a public order charges laid instead. So let's just have a look at the maximum sentence. We've already looked at the summary only Section two to a Section 44 A. Either way carries a maximum eight years, but if it's religiously aggravated or racially aggravated, it's 14 years disclosing private sexual images maximum of two years. And it's either way controlling and coercive behaviour either way up to five years and threats to Kill, which is a specified offense for the purpose of Section 2 to 6 of the Criminal Justice Act two. But 2000 and three carries a maximum 10 years. So how did the guidelines work? Well, the good news is that there a familiar layout now they're looking at harm and culpability. So looking at Section four for a first here we have four categories of culpability that's unusual. Most offenses have three. We've got very high, high medium as lesser culpability, then we have three categories of home now. A lot of these offenses occur in a domestic setting. So on top of these guidelines, you're also going to need to have a look at the overarching principles domestic abuse guidelines that came in earlier this year. When you look at the combinations of culpability and harm, you will see that in many cases, the start point is going to let tend to lead a court, commit for sentence if there's a plea or a finding of guilt in the Magistrates court. In some cases, courts don't always follow the allocation guidelines, and they send matters for trial using these guidelines. The other thing to think about is that particularly with stalking and harassment in a non domestic setting, this frequent linked to mental health problems eso sentences here are invited to consider whether or law there ought to be a psychiatric report prepared. The issue, then, is if they're not represented, who's going to prepare it well under new criminal procedure rules coming in in October, the court, which has always been known toward er a report, has now got more detailed guidance about who to ask when toe ask what to ask for. So in the case of an unrepresented defendant, the court will have to obtain psychiatric report, which means in practice they won't want to because of the funding issues. If you're defending, the court may invite you to obtain Mom. The ethical question here is, Do you want to? Is it going to be detrimental to your clients, or is it going to be helpful to your clients? It is detrimental, or it shows the rely of mental health issues. It's possible the defendant could be committed for sentence under section 37 of the mental health outs and could receive a hospital order of the Crown Court Hospital orders don't get the reviews before the parole board, but prison sentences get if there of any length. Quite often defendants are actually better in prison. Then they are in a hospital setting because of the in frequencies of mental health review tribunals. Let's imagine the defendant has just pleaded guilty to a section for a stalking. The court wants a psychiatric report. He's represented. The defense agree that they will take responsibility for obtaining one Obviously, the case will have to be adjourned. Now it's a ground for remanding under the Bail act for the preparation of reports, Particular fits fell that the defendant wouldn't cooperate. So although courts generally allow bail where someone's come into court on about and they pleaded be alive to the risk that the defendant may be refused bail now that he's convicted and this may be the grounds that cited prosecutors you want a fall victim impact statement because you're going to need to demonstrate the harm caused to assist the core in its function of imposing sentence. And it's going to be difficult to do that effectively motor cases without a victim impact statement. If you're defending, don't forget you can cross examine the maker of a victim impact statement that you need to ask yourself whether or not it'll actually do any good. The last thing you want is an angry, honest witness being cross examined because they come up to proof spectacularly. Don't forget. Psychiatric and psychological injury are also components of harm. Sometimes that has to be evidenced by way off medical report, which the prosecution were unlikely to obtain again because of the funding issues, but it may be the an account from a victim as to how their health's been affected will suffice in these circumstances, where you're looking at a religious or racially aggravated offence, of course, the court has to impose an up lift on sentence. The guidelines, if some considerable detail on how to deal with this one example, building that a court may well commit for sentence in order that an uplift that's meaningful can be imposed. It may be that where the case crosses the custodial threshold, the uplift is reflected by increasing the length of the custodial element. Or if the offence viewed without the racial or religious aggravation merited a community pay, don't say, then the uplift might be reflected in bringing it up to the custodial bracket. It may be suspended, or it may be immediate custody where we've got a medium level in terms of the aggravation. Then the court should impose what the guidelines called a significantly more onerous penalty than the one that they had in mind at the start. All they should move up a category from the disposal that was suggested in the guidelines for the basic offense, where it's a low level, according to the guidance, more onerous penalty at the same time, but for the aggravated feature than would normally be imposed for the basic offense. So you'll need to first of all, look at the guidance for the plain offense. Then you're going to need to consider the uplift that the quarter likely to impose on again. If you're completing Crim 14 and you're justifying the interests of justice test by indicating that the defendant is likely to go into custody and lose his liberty. These guidelines are particularly useful, and they can be cut and pasted or attached to your crewman 14 or certainly reference commune made and perhaps a link supplied in that way. Hopefully, the Legal Aid agency employees will then look at the guidance on will Be satisfied that you are correct and that the offence does across the custodial threshold, and you'll get your reporter quick. Look at summary only harassment stalking again. Three categories of culpability. Three categories of harm. Same approach to up lift A. So we've just seen. If you have a religious or racial element disclosing private sexual photos, this is becoming more common, and again, we've got a collection of harm on culpability categories. A similar approach, as we've already seen, be alive to the fact that almost all the combinations of calm and culpability have. Custody is part of their range, if no part of their start point. So you should be getting a rep order for most of these offenses. Seven out of nine of the combinations of Car Harmon culpability have the capacity to put the defendant at risk of committal for sentence. And again, prosecutors going toe one quite comprehensive victim impact statements so the court can assess the harm components. Of course, a court could also use it's common sense. I'm judicial notice. There's no right to anonymity at present for the complainant in a private sexual photo case. It's no yet on the list of offenses covered by the Sexual Offenses Amendment Act. The contempt of Court Act has a power to grant anonymity or imposed reporting restrictions. But it's much simpler to go to section 46 of the Youth Justice and Criminal Evidence Act, where a reporting direction can be made that can prohibit the name of the complainant from being broadcast. All reporters, the court can sit in private to view the images or to hear evidence from a complainant by wear special measures. Quite often, the police in these cases asked the CPS to obtain a forfeiture and destruction order. You need to be careful here whether you prosecute or defend, What is it that is the court of being asked to forfeit and destroy. If it's simply a collection of old fashioned photographs, then those are easy to remove and destroy. But let's imagine they're stored digitally. Are we suggesting that it's proportionate to destroy the entire hard drive? Are we suggesting that if they're in the cloud, somehow, the defendant should have his cloud closed down, preventing them from accessing legitimately store documents? Think hard when applying for a forfeiture and destruction order. If you prosecute, what is it that you actually want and is it proportionate? A restraining order with a prohibition on distributing images may simply be the easiest way to deal with this. Disclosing private sexual photos sometimes invokes the overarching domestic abuse guidelines as well, so don't get to have regard to those coming to the end. Let's have a quick look at threats to kill. These offenses used to be charged all the time and used to be taken extremely seriously. Thes days. Quite often, it's a public order offence that's charged. They're often and everyday feature of domestic violence. And it may be that with the publication of these guidelines, threats to kill becomes more popular offense. The difficulty for a prosecutor is that they have to prove the defendant intended the victim to fear the threat would be carried out. Sometimes when tempers Floyd words of I'm going to kill you might be shouted or uttered, but it's simply a knee jerk reaction, and it's not the real intent. So the prosecution have that hurdle of proving the defendant intended the victim to fear the threat would be carried out. That makes proving, for example, of Section four or a common assault a more attractive option because it's easier to prove threats to killers we've already considered is a specified offense. And so the court can impose an extended sentence at the Crown Court. It may be given the defendant's record, given the history of the matters in the severity of the threat that a court will send the matter to the Crown court simply because the Crown court has that extended sentencing power and again guidelines have three categories of culpability in harm. And with all of these guidelines, if you're prosecuting, you want to tell the court where you think the offense forwards in terms of harm and culpability and why. If you're defending you, of course, have a vested interest in being the lowest culpability on the lowest harm. And it may be that you want to concentrate your mitigation on those aspect rather than personal mitigation. Personal mitigation. But in the Crown Court has very little boys looking at the actual guidelines. You can see that only the lowest grade of offenses on the threat to kill guidelines have a range on the start point within the community order band of sentence that suggests when you're applying for a rep order that you are going to succeed in obtaining one providing. Of course, the person granting the order understands the law here, because most threats to kill will tend to four within the custodial range, even taking out of the arrange the brand of offenses that would attract a community order. The next lowest combination of Harmon Culpability has 26 weeks custody as its start point, parking it right on the threshold of committal for sentence. And again, the overall impression of these guidelines is that committed for sentence is going to be more likely when it even when a defendant pleads guilty in these offenses again, if it's a domestic setting, don't forget to have regard to the domestic abuse guidelines. Where those come into play, they're likely to ratchet up the original category that the court places the offense into because they're aggravated by their domestic setting. Motor trial ongoing. This applies to all of the either way offences were looking. We've looked up. The allocation guidelines say that in general, offenses ought to be tried in the Magistrates court. So there's a presumption in favour of some retrial that's not much used to those who practice in the Crown Court because of the loss of fees that are involved in matters being resolved in the Magistrates Court. The committal for sentence He doesn't really make up for the loss of a trial for your guilty plea fee in the Crown Court. The presumption won't buy where the outcome would clearly be a sentence in excess of the court's powers for the offense concerned after taking into account personal litigation and any reduction for a guilty plea. Who the case ought to go to the crown call. If there are unusual legal, procedural, factual issues of complexity, making it the sort of matter that ought to be tried in the ground core, the exception might apply in cases where a very substantial fine is the likely sentence as well. So you're looking at water known as Appendix eight unlimited fines, cases, other circumstances where the exception to the presumption of summary trial are likely to be rare and case specific on the guidance and visages that the advocates will address the quarter in appropriate circumstances. However, what doesn't seem to be particularly well known his paragraph, Tomb of the allocation, Guidance. In cases with no leak, factual legal complications, the court should bear in mind its power to commit for sentence after a trial may retain jurisdiction, notwithstanding that the likely sentence might exceed its powers. Let's imagine you have a defendant who's charged with drug dealing. He's on his own. There's nothing complicated. It's just found in the street with an awful lot of drugs from dealers lists a mobile phone showing that he's trading and he's got a lot of cash. That's the sort of matter that's eminently suitable for some retrial. Forget the cost side of it in the lack of fees. Just look at it for the time being of suitable for some retrial. What are the advantages to the prosecutor? Well, it's cheaper, and it's quicker to deal with. And it could be committed to the Crown Court for sentence. One of the advantages to the defendant. It's quicker if he's being remanded in custody and it looks as if he might be acquitted. It's dealt with the quicker the prosecutor might not get the papers ready in time for a Magistrates court trial listing on if the defendants convicted in the Magistrates, he's got a power of stop. If the defendants convicted in the Magistrates, he's got a right of appeal against conviction. It was convicted in the crown. Cool. His right of appeal is only that which the single judge or the full court of appeal will give him. So what sort of things do you want to think about having looked at this new guidelines? Well, defendants, if you're offering an alternative play or you're offering a basis of play. Where's that actually going to leave you in terms of where you are on the guidelines? Do you want to risk a new turn, which very often happens where there's an argument about the appropriate guy line? Because if it goes wrong, you're losing credit. Does the proposed basis actually help reduce the risk of custody to the defendant or the risk of committal for sentence? If you're prosecuting, do you want to take an offer? Is it going Teoh? Reduce the court sentencing powers, or is it going to interfere with their ability to make any ancillary orders? But ask yourself looking at these guidelines, particular looking at the allocation guidelines when you prosecute, why is the Magistrates Court not a suitable venue for trial? Given as a power to commit? Well, that's the end of the webinar. What you need to do next to get your full hours, CPD points, is to have a look at the problem. Question. You want to download the guidelines for that? The point of the problem question isn't a pass or fail in exam. It's nothing like that. The object is just for you to look at the problem. Question. Have a look? A. The guidelines where the question promise you to do that, and that will just give you a feel. And it'll start your mind ticking over and thinking about things. Thank you.