New sentencing guidelines for ‘intimidatory offences’: Sentencing is one small piece of the jigsaw.

On 30 March 2017 the Sentencing Guidelines Council (SGC) launched a 13-week consultation on the punishments for several different offences arising from legislation spanning 150 years. It includes all of the following offences:-

• Disclosing private images ('revenge porn') contrary to section 33 of the Criminal Justice and Courts Act 2015
• Controlling and Coercive Behaviour contrary to section 76 of the Serious Crime Act 2015
• Racially or religiously aggravated putting people in fear of violence contrary to section 31 Crime and Disorder Act 1998
• Racially or religiously harassment contrary to section 32 Crime and Disorder Act 1998
• Stalking and Harassment sections 2, 2A, 4 and 4A of the Protection from Harassment Act 1997
• Threats to Kill, contrary to section 16 of the Offences Against the Persons Act 1861

It is laudable that the SGC are attempting this task. The aim to update sentencing powers to combat the modern criminal in the age of social media and the internet is also sensible and proportionate.

For example, the most serious proposed category for revenge porn is disclosing private pictures or videos to the victim’s family, setting up victim-shaming websites, or setting up fake social media victim profiles in order to publish private images and videos. These are often highly calculated and utterly callous actions which can lead to significant damage and distress, sometimes even self-harm or suicide. Revenge porn, punishable with up to two years' imprisonment, is also an offence which is relatively easy to prove so long as the disclosing party is revealed.  This has meant that since its inception in April 2015 there have been over 200 prosecutions with very few leading to an acquittal. The prosecutorial strike-rate is often because evidence of guilt is usually technical and hence, both available and consistent. Nor does it strictly require victim testimony and thus the testing of ‘witness credibility’, so the victim evidence is less likely to be challenged in court.

In contrast, there has been a far slower take-up for the offence of "controlling and coercive behaviour" since it came into force in December 2015.  A Freedom of Information Act request revealed that in its first 21 months 8 of 22 police forces had brought no prosecutions at all, and 9 forces had brought less than 3 prosecutions. The aim of the new offence is to criminalise the pattern of abuse that typically precedes violence, in an attempt to prevent it happening. It can include isolating the victim from their family, preventing them having access to money and bank accounts, and revealing their medical conditions. This offence is punishable with up to 5 years' imprisonment. However, even for those police forces who have brought prosecutions it is difficult to find examples of a controlling behaviour charge pursued in isolation of a violent offence or offences.  In other words, the aim of intercepting violent abuse before it happens does not seem to be working at all.  It is also likely that a ‘controlled’ victim might well (1) still be unware that they are the victim of a crime and (2) not be sufficiently motivated to report or pursue the matter.  In this context, the problem here is plainly not the sentencing guidelines.

Harassment and stalking offences often arise from a relationship which has ended and where one party is behaving in a manner which is alarming, distressing or threatening.  The problem again here is not so much one of sentencing, but of witness motivation.  Those genuinely harassed often feel the entire police/ prosecution and potential court process is simply an elongation of the harassment. The same applies to victims of assault or threats of violence, who are put off by the entire prosecution being dependent upon their own credibility, tested whilst standing in a public courtroom and cross-examined by an expert.

The real question is how can these more traditional offences follow the successful example of revenge porn prosecutions?  The key is not to change the very nature of the criminal trial.  The key is to take the ‘victim credibility test’ out of that trial wherever possible, and hence minimise the scope for any sensible defence cross-examination.

In 2017, almost all parties will have left huge electronic footprints, footprints which remain available to police for many months.  Yet the vast majority of so-called ‘domestic’ prosecutions remain very basic ‘He-said-She-said’ prosecutions before magistrates.  These sorts of trials are no longer in keeping with the sentencing rhetoric, and should in large part have become relics of the 20th century.

The way ahead is speedily accessing all the technical evidence.  This requires better training for officers, far speedier processing of 999 tapes and the use of audio, text messages, social media posts, phone records, bank records, and even cell site positioning.  These days, the technical records in existence can often to prove where the defendant was, and even what they were 'saying' before, after and even during the offence.  As we see with revenge porn prosecutions, capturing this evidence gives all victims confidence by hugely reducing the need for them to attend Court and be cross-examined.  At the same time, it can also dissuade that small minority of complainants who are, for whatever reason, intent on misleading the police and the court.

So whether we refer to these matters as ‘domestic abuse’, as ‘intimidatory offences’, or any other umbrella term, the fact is that updating sentencing guidelines is only part of the answer.  It is also the part that is the least expensive, and the least inconvenient.

A copy of the consultation paper can be found here.