Fenners Chambers’ Michael Procter acted for the Respondent to the following appeal regarding a kidnapping case relating to a kidnapping that occurred in January 2020.

The case occurred during the pandemic, resulting in all 3 defendants being convicted unanimously by 9 jurors.

“It was a very difficult case for the prosecution as conditions in the criminal justice system during the pandemic in September 2020 meant there were significant delays, and resource issues. The trial had to be heard before the custody time limits were up, meaning that some evidence had to be abandoned as it was not ready in time. I feared my 18 year old victim would be found, intimidated or worse, if I did not proceed to trial.”

It is worth noting that these three defendants were convicted after a trial, during the Covid-19 pandemic, by a unanimous verdict from 9 jurors (the absolute minimum – we lost 2, through no testing facility being available for a fast enough turn around to avoid them being discharged when they started to show symptoms, and a 3rd through a non Covid-19 related medical reason). The trial judge, Judge Farrell QC and nobody in court had ever concluded a trial with just 9 jurors,

The appeal against conviction hearing was heard before they were sentenced on 1st June 2021. View the final judgement here.

The case clarifies the criminal law regarding whether kidnap is a continuing offence or not. It now, unequivocally, is.

On 27 May 2021, the Sentencing Council released new guidelines for all assault offences which will come into effect on 1 July 2021.

Sentencing for all three offences sees a significant change under the new guidelines. Whilst the statutory maximum for the offences has not changed, the sentencing range for ABH has been increased to 4 years custody and the sentencing range for GBH has been increased to 4 years 6 months custody. Meanwhile, the sentencing range for GBH with Intent has been reduced to between 2 years and 16 years custody. This means that a sentence that falls at the very lowest level of seriousness for GBH with Intent could now take the form of a suspended sentence.

Even at first glance, the extent of the changes to the guidelines are clear. All three offences will have nine categories as of 1 July 2021, with both culpability and harm consisting of three sub-categories each. The Sentencing Council have said this will ensure an appropriate assessment of culpability and harm is undertaken and will provide a proportionate sentence. The approach will allow for a more specific category to be identified which could result in more consistent sentences.

In terms of the relationship between the new and old categories of offence, in the majority of cases the top category (Culpability A, Harm 1) has a greater starting point and range than the former Category 1. The lowest category (Culpability C, Harm 3) also has a greater starting point range than the old Category 3 offence. The exception is GBH with Intent, where the lowest offence (Culpability C, Harm 3) has a range of 2 years to 4 years instead of 3 years to 5 years under Category 3. These changes will have the greatest significance for those convicted of ABH. A Defendant who falls within the lowest category of ABH on 30 June 2021 will be in the range of a Band A fine to a High-Level Community Order. However, a Defendant who falls within the lowest category on 1 July will be in the range of a Band B fine to 26 weeks custody. As a result, all Defendants will fall within a category with a range including a custodial sentence.

Culpability:

The guidelines introduce a range of new culpability considerations, many of which feature in all three guidelines. One of the most significant changes to the culpability assessment is the stronger focus on weapons. For all three offences, Culpability A includes the use of a ‘highly dangerous weapon or weapon equivalent’, Culpability B includes ‘use of a weapon or weapon equivalent which does not fall within Category A’ and Culpability C, ‘no weapon used.’ A highly dangerous weapon is defined as including knives and firearms, equivalents include corrosive substances. Highly dangerous weapons or equivalents are said to go above and beyond the legislative definition of an offensive weapon. Whilst the guidance provides some assistance, it is likely that a wealth of case law will quickly develop as to specifically what weapons are ‘highly dangerous’. What is not clear from the guidance is how the new focus on weapons will operate in situations where Possession of an Offensive Weapon is also charged. The current approach of making sentences for an assault offence and a possession offence consecutive will likely not be sustainable given consideration will already have been given to the presence of the weapon in sentencing for the assault offence. One cannot help but wonder if the stronger focus on weapons is, at least in part, a response to the increased prevalence of knife crime in recent years.

The culpability assessment for all three guidelines now includes ‘strangulation/ suffocation/ asphyxiation’. This is in response to research that highlighted the seriousness of strangulation as a mode of assault and the prevalence of strangulation in the context of domestic abuse. Protection for domestic abuse victims is a clear theme throughout the new guidelines.

There are several other new considerations in the assessment of culpability, namely:

• ‘Prolonged/persistent assault’ in Culpability A to replace ‘sustained or repeated’ due difficulties interpreting ‘repeated’.
• ‘Impulsive/spontaneous and short-lived assault’ in Culpability C for ABH and GBH.
• ‘Revenge’ in Culpability A for GBH with Intent to distinguish between offenders who act out of vengeance and those who lose control.
• ‘Offender acted in response to prolonged or extreme violence or abuse by the Victim’ in Culpability C for GBH with Intent to capture those cases where loss of control manslaughter would have been the appropriate verdict if death were caused.

The new guidelines have also removed the following considerations from the culpability assessment:

• Offence motivated by or demonstrating hostility to the Victim based on their sexual orientation (or presumed sexual orientation) or disability (or presumed disability) has been changed to an aggravating feature.
• ‘Intention to commit more serious harm than actually resulted from the offence’.
• ‘Deliberately inflicting more harm than is necessary for commission of offence’.
• ‘Deliberate targeting of vulnerable victim’.
• ‘A greater degree of provocation than normally expected’ has been removed from culpability and a ‘significant degree of provocation’ has been added as a mitigating feature for GBH.

Harm:

The new ABH guidelines distinguish between ‘serious physical injury or serious psychological harm and/or substantial impact upon victim’ in Harm 1 and ‘some level of physical injury or psychological harm with limited impact upon the Victim’ in Harm 3. Cases in the middle fall within Harm 2. The aim is that it will more accurately reflect the broad range of injuries sustained in ABH offences. The inclusion of ‘and/or substantial impact upon victim’ broadens the consideration from one focused on the specific injury to the overall impact of the offence on the Victim. In theory, this may mean that even very low-level injuries are capable of falling within the highest category of harm where there has been a substantial impact on the Victim.

The GBH and GBH with Intent guidelines contain the same considerations of harm. The new harm considerations emphasise the level of harm suffered in GBH cases. Category 1 applies to cases where there is ‘particularly grave and/or life-threatening injury caused’, where the injury results in lifelong dependency on a third party or medical practitioner and/or causes ‘a permanent, irreversible injury or condition which has a substantial long-term effect on the Victim’s ability to carry out their normal day to day activities.’ Category 2 is for ‘grave injuries’ and offences that result in ‘permanent, irreversible injury or condition not falling within category 1.’ Category 3 is for ‘all other cases of really serious injury’ and wounding.

All three guidelines, when read alongside their predecessors, contain a stronger focus on the level of injury sustained. This takes the focus away from the level of harm the Defendant intended to cause and focuses on the impact of the offence on the Victim. In line with this, the Sentencing Council has removed the phrase ‘in the context of the offence’ from the harm assessment as it led to problematic arguments about how much worse the harm could have been. The GBH and GBH with Intent guidelines have also removed the vulnerability of the Victim as a consideration.

Aggravating Features:

The new guidelines have also introduced several new aggravating features:

• ‘Offence motivated by, or demonstrating hostility based on, any of the following characteristics or presumed characteristics of the Victim: disability, sexual orientation or transgender identity’ has been moved from the assessment of culpability and introduced as a statutory aggravating feature.
• ‘Deliberate spitting or coughing’ has been introduced for ABH to reflect Covid.
• ‘Offence committed in prison (where not taken into account as a statutory aggravating factor)’ has been introduced in light of the removal of ‘location of the offence’.
• ‘Offence committed in a domestic context’.
• ‘History of violence or abuse towards victim by offender’.

The latter two new aggravating features combine to widen the scope of aggravating factors reflecting domestic abuse. The features do not restrict who the offence or abuse must have been between, meaning that it is not restricted to partner offences but also includes parent-child abuse. The final feature, whilst initially appearing to be tailored to domestic abuse, is not so restricted and could be relevant in cases of long-running neighbour disputes, for example.

A significant number of aggravating features have been removed:

• Time and location of the offence have been removed. Whilst their importance in the sphere of domestic abuse has been compensated for by the presence of the new aggravating features, ‘location of the offence’ had a much wider scope in practice. The consequence of its loss is that the fact that the offence took place in a Court, school or hospital will no longer be an aggravating feature.
• ‘Ongoing effect on the Victim’ has been removed in light of the new harm considerations.
• ‘Presence of others including relatives’ and partners has been removed, however, the presence of children has been retained.
• ‘In domestic violence cases, Victim forced to leave their home’ has been replaced with the wider protections outlined above.
• ‘An attempt to conceal or dispose of evidence’.
• ‘Failure to respond to warnings or concerns expressed by others about the offender’s behaviour’.
• ‘Exploiting contact arrangements with a child to commit an offence’.
• ‘Offences to be taken into consideration (TICs)’.

Mitigating Features:

Two new mitigating features have been introduced. The first is a ‘history of significant violence or abuse towards the offender by the Victim’. This covers instances of domestic abuse where the Victim of the abuse has turned on the perpetrator. This consideration means that even if the case does not fall within the situation where the Victim of domestic abuse has snapped in a GBH with Intent offence, there is still recognition of the abuse which they have suffered. It also means that in GBH and ABH cases, there is recognition of the past abuse which has been suffered. The fact that the wording is not limited to ‘violence’ means that the feature will apply equally to cases of physical and non-physical abuse. The second new mitigating feature appears in the GBH guideline: ‘provocation’, which has been moved from the assessment of culpability.

The following have been removed as mitigating features:

• ‘Single blow’.
• ‘Isolated incident’.
• ‘Lapse of time since the offence where this is not the fault of the offender.’

The removal of ‘single blow’ and ‘isolated incident’ goes to intent and reiterates the shift from the Defendant’s intention being at the forefront of the sentencing considerations to the impact on the Victim. It also changes the approach from having a starting point of being multiple blows/prolonged incident which is mitigated by being a single blow/isolated incident, to the starting point being a single blow/isolated incident which is aggravated by multiple blows/being a prolonged incident.

Conclusion:

As a whole, the new guidelines place greater emphasis on the impact on the Victim in determining the appropriate sentence. This moves the focus from the harm the Defendant intended to cause onto the harm actually suffered by the Victim. The broader definition of harm takes us away from looking simply at the injury and encourages consideration of the overall impact of the offence. This could make Victim Impact Statements carry greater importance, with Judges likely placing more weight on the content of any such statement in determining the appropriate offence category. This will almost certainly lead to an increase in the prevalence of Victim Impact Statements with them almost being an essential component of any assault prosecution.

The change which is likely to receive the most praise is the greater protection for Victims of domestic abuse. Not only do the guidelines make a history of domestic abuse an aggravating factor where the Perpetrator is the Defendant, but they also protect when the Victim of domestic abuse is the Defendant in question. This provides greater recognition for the range of scenarios in which domestic abuse comes before the Courts and is likely to be welcomed by many.

Abigail Robinson

Fenners Chambers