Written evidence from Sentencing Council for England and Wales (CMP0002)
1 Summary
2 Introduction
2.1 The Sentencing Council for England and Wales (‘the Council’) is an independent, non-departmental public body of the Ministry of Justice. The Council was set up in 2010 to promote greater transparency and consistency in sentencing whilst maintaining the independence of the judiciary. The primary role of the Council is to issue guidelines on sentencing which the courts must follow unless it is in the interests of justice not to do so.
2.2 The Council welcomes the opportunity to submit evidence on the extent to which human rights considerations are articulated in current sentencing guidelines.
3 Evidence
3.1 The Sentencing Council has issued an overarching guideline effective from 1 February 2017 on the imposition of community and custodial sentences (the ‘Imposition’ guideline). The Imposition guideline applies to sentencing offenders aged 18 or over in all criminal courts in England and Wales where a community order or a custodial sentence is being considered.
3.2 The guideline states ‘for offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.’
3.3 This reflects the principle in the case of R v Petherick [2012] EWCA Crim 2214 in which the Court of Appeal (Criminal Division) considered the ECHR article 8 rights of defendants and dependent children.
3.4 In the Imposition guideline a factor indicating that it may be appropriate to suspend a custodial sentence is that ‘immediate custody will result in significant harmful impact upon others’.
3.5 The Imposition guideline also states that when imposing a community order, the court must ensure that the requirements imposed are the most suitable for the offender. This enables a court to have regard to care responsibilities when deciding what requirements to impose.
3.6 All Sentencing Council offence specific sentencing guidelines (except those where the offender is an organisation and some sexual offences) contain the mitigating factor ‘sole or primary carer for dependent relatives’. This ensures that in sentencing an individual the court takes account of the effect of that sentence on dependants (including children).
3.7 The Council is currently developing digital versions of its guidelines which will enable additional guidance to be embedded within offence specific guidelines to ensure that the guidance from the Imposition guideline on sentencing carers is easily accessible at all times. The Council will be consulting on this in early 2019.
3.8 The recently published Child Cruelty offences guideline contains a specific step as follows:
‘Step 5: Parental responsibilities of sole or primary carers
In the majority of child cruelty cases the offender will have parental responsibility for the victim.
When considering whether to impose custody the court should step back and review whether this sentence will be in the best interests of the victim (as well as other children in the offender’s care). This must be balanced with the seriousness of the offence and all sentencing options remain open to the court but careful consideration should be given to the effect that a custodial sentence could have on the family life of the victim and whether this is proportionate to the seriousness of the offence. This may be of particular relevance in lower culpability cases or where the offender has otherwise been a loving and capable parent/carer.
Where custody is unavoidable consideration of the impact on the offender’s children may be relevant to the length of the sentence imposed. For more serious offences where a substantial period of custody is appropriate, this consideration will carry less weight.’