Transforming the response to domestic abuse

Closes 31 May 2018

Aggravating factors in sentencing

Having the right legal framework to allow the courts to deal effectively with perpetrators of abuse is fundamental. Sentencing should recognise the devastating impact of domestic abuse on victims.

These include children who are either witnesses or are used as emotional collateral to torment the victim. For example, in cases where a child is repeatedly stopped from comforting or communicating with the abused parent in an attempt to further isolate them.

Recent analysis of the Crime Survey for England and Wales, year ending March 2016, showed that those who had witnessed domestic violence or abuse as a child (before the age of 16) were more likely to experience domestic abuse by a partner as an adult (34% compared with 11% who did not witness domestic abuse).[1]

A revised set of guidelines for sentencing in domestic abuse cases were published by the independent Sentencing Council on 22 February 2018.[2]

While there is no specific offence of domestic abuse, the guideline identifies principles relevant to the sentencing of cases involving domestic abuse.

The guidelines outline the seriousness of domestic abuse and state that:

"The domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim’s safety, and in the worst cases a threat to their life or the lives of others around them.”

The guidelines apply to sentencing of all offences involving domestic abuse, making the offence more serious and therefore likely to lead to a higher sentence.

The guidelines list specific aggravating and mitigating factors which may have particular relevance to offences committed in a domestic abuse context. 

As part of a list of suggested aggravating factors the guideline refers to factors such as abuse of trust or where the perpetrator takes steps to prevent the victim reporting an incident or obtaining assistance.

The guidelines also highlight the need to consider the impact of the offence on children (by direct or indirect exposure to domestic abuse) or where contact arrangements with children as used to instigate an offence.   

Sentencing guidelines, once in force, have to be followed by judges, unless they consider that to do so is contrary to the interests of justice.

The government welcomes these new overarching guidelines from the Sentencing Council but continues to consider ways to strengthen the law. 

An example of potential changes would be to supplement guidelines by creating a statutory aggravating factor that would apply to all offences in sentencing, similar to those already in law for hate crimes (where consideration is given to the offender’s hostility towards the victim based on a particular protected characteristic).

With a statutory aggravating factor, the court could be required to consider that factor, and to state in open court that they had done so. The aggravating factor could be drafted to apply to circumstances of domestic abuse, including behaviour involving, or with particular impact on, a child.

Under this approach, courts would consider any aggravating factors and increase sentences accordingly within the statutory maximum penalty available for the offence.

However, a statutory aggravating factor would require the domestic abuse aggravation to be established beyond reasonable doubt, which risks placing additional evidential burdens on the police and Crown Prosecution Service (where the factual circumstances are disputed) and increases the potential for more defendants to plead not guilty to the charges.

46. Do you think the current approach of using sentencing guidelines, as per guidelines issued in February 2018 is effective in ensuring sentences imposed reflect the seriousness of domestic abuse when it involves children?

47. Is a statutory aggravating factor needed in order for the court to reflect the seriousness of offences involving domestic abuse and children in sentencing?

48. Please share any other views on how to ensure domestic abuse and its impact on children are taken into account in sentencing?