Until now, there has only been very limited guidance in this area of offending. There has been some for magistrates’ courts on harassment and threats to kill, but publication of the new guidelines marks the first time that there has been guidance produced for stalking, for disclosing private sexual images and controlling & coercive behaviour.
The new guidelines, introduced following a public consultation, will therefore provide judges and magistrates in England and Wales with consistent and comprehensive guidance when sentencing these related offences.
The offence of disclosing private sexual images, commonly known as revenge porn, was introduced in 2015. The guidelines reflect the particularly unpleasant and intrusive nature of this offence, acknowledging that any offence of this type can cause very serious distress to the victim.
By their nature, these offences involve an offender aiming to cause distress, but the guidelines identify some of the factors that make these offences particularly serious. This includes aiming to maximise distress and humiliation, significant planning, such as setting up fake social media profiles to post the images, and inviting comment and contact, which could result in abuse and sexualised contact from strangers. As a result of the consultation, the Council included an additional factor that would show high culpability on the part of the offender of “repeated efforts to keep images available for viewing”. This was added to reflect the nature of online offending as some offenders repost images online many times after websites take them down.
The offence of controlling or coercive behaviour in an intimate or family relationship also came into force in 2015, aiming to give more protection to victims experiencing repeated or continuous abuse. Coercive and controlling behaviour can be characterised by an abuser preventing their victim from having friendships or taking part in activities, denying them access to money and controlling aspects of everyday life such as what they can wear, what they can eat and where they can go.
The guideline reflects the nature of this kind of offending and the impact it can have on the victim to ensure an effective and consistent approach to sentencing.
The guideline identifies factors that should be taken into account when assessing the seriousness of an offence. A high level of seriousness would be indicated by factors such as conduct intended to humiliate and degrade the victim, persistent action over a prolonged period and significant psychological harm.
As a result of the consultation, the Council also added a new aggravating factor of “victim left in debt, destitute or homeless due to exploitation of finances” since this was highlighted as an effect of these offences when an offender controls the victim’s access to their money.
The guideline for stalking and harassment comprises entirely new guidance on stalking and significantly expanded guidance for harassment offences. It highlights the main factors that should be taken into account in assessing the seriousness of an offence, such as the level of planning and sophistication, how persistent it was and the level of distress and psychological harm caused to the victim. Aggravating factors include using a position of trust to facilitate the offence, sending grossly violent or offensive material to the victim and the impact of offending on others, such as children.
The guidelines are not intended to alter sentencing practice in the types or levels of sentence given, but they do reflect recent legislative changes that doubled the maximum sentences for stalking and harassment from five years to 10 and from seven to 14 years for the aggravated form of these offences – that is, when they are racially or religiously aggravated. Offenders falling into the very highest category of seriousness are likely to receive higher sentences as a result of the new legislation which the guidelines reflect.
Sentencing Council member Judge Rosa Dean said: “Our guidelines recognise and reflect the very intimate, personal and intrusive nature of these offences, which can have devastating, often long-term impacts on victims and their families. They will provide courts with comprehensive guidance that will help ensure sentences reflect the seriousness of these offences.”
The guideline, which can be accessed on the Sentencing Council website will be used in courts from 1 October 2018.
For more information on any of the above, please contact Jamie Strong on 01926 491181 or email JStrong@moore-tibbits.co.uk