Guiding light

On 13 June, the new sentencing guidelines for assault offences issued by the Sentencing Council came into force in courts in England and Wales. These definitive guidelines are the first to be issued by the council, which was established last year.

The council had a number of aims in drafting this guideline, including its statutory duties set out in the Coroners and Justice Act 2009. One of the key objectives was to create a step-by-step guideline which could be better understood by the public and victims, and at the same time be easily applied by the courts.

The most important steps of the guideline are steps one and two, forming the assessment of seriousness and arriving at a provisional sentence. Harm and culpability are still considered together by the sentencer at step one to make a preliminary assessment of seriousness based on the principal factual elements of the offence rather than by comparison with a descriptive scenario, as under the old guideline. These factors determine the starting point for the offence.

Any other relevant factors, concerning either the offence or the offender, are taken into account by the sentencer at step two. These can result in the sentence moving up or down from the starting point, based on the weighting of those factors by the sentencer. It is important to remember that the lists of factors at step two are not exhaustive. If factors thought to be important to the offence or the offender are present then the court can and should take them into account at step two. If the list of factors includes some that are irrelevant to the case then they can be ignored. The lists at step two are designed to highlight a number of factors likely to be commonly present. These lists are specifically tailored for each of the offences within the guideline and this model will be used in future guidelines wherever possible.

Not to blame

On 7 June, Jeannie Mackie's article in Solicitors Journal entitled 'Blame game' sought to investigate the assault guideline and expressed concern about the perceived shift away from a focus on the culpability of the offender. When drafting the new guideline, the council had a very clear view that, in cases of assault, the elements of harm and culpability should carry equal weight. There was no intention for the new guideline to lose sight of culpability or reverse its position in the assessment of seriousness '“ the clear equality between harm and culpability within the category system being much more important than the positioning of the factors on the printed page.

The integrated decision-making process was designed to assist the courts when passing sentence. The steps required of the courts are not 'more hoops to jump through' '“ the courts have always been required to consider various steps. The old guideline included an eight-step decision-making process but the council has restructured that process in an attempt to encourage a greater consistency of approach to sentencing. This is not an attempt to 'corral' judges but to ensure increased transparency in their decision making.

The council believes that the new format of the guidelines will achieve not only consistency of approach across both the magistrates' courts and the Crown Court but will also allow sentencers the discretion to properly reflect the unique circumstances of each case that comes before the courts.