Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom

Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom.

Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom.

New Sentencing Guidelines for ABH, GBH and GBH With Intent

New Sentencing Guidelines for ABH, GBH and GBH With Intent

New Sentencing Guidelines for ABH, GBH and GBH With Intent

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
Pupil v Pandemic [2020]

Pupil v Pandemic [2020]

Pupil v Pandemic [2020]

“The start to my second six was a little different…”

Fenners’ pupil, Anne Hogarth, provides a light-hearted account of her first day in court prosecuting a CPS Magistrates List at the start of her second-six on the 16th March 2020, one week before the Covid-19 lockdown.

Any barrister will tell you about their first day in court as counsel—their first day on their feet at the start of their second six. Normally this will be a story of how they were a bundle of nerves and overly prepared, wanting to do something spectacular, or just desperately trying to get through it with some of their dignity intact.

There are hundreds and thousands of stories out there from barristers about their first days on their feet. Some involved successes—such as having your client found not guilty to walking around with a knife at 3 am, which we all know was definitely being used for cooking—and some rather less so.

The start to my second-six was a little different…

I started on my feet on 16 March 2020, one week before the lockdown started. We were being told that people with sick family members should self-isolate, and if you had been exposed you should stay away from people; don’t even think about leaving the house if you live with someone vulnerable.

All of this is would be seen as a good reason not to turn up to court.

On that fateful day I had been instructed to prosecute a CPS list. For those unaware, this involves a list of trials which you are normally sent the night before. You have to juggle witnesses, defendants and court staff. Luckily, I had the weekend to prepare, meaning that like most pupils on their first day, I could firmly fit into the overly prepared but slightly terrified category.

Having prepared my five trials over the weekend, I turned up to court carrying my slightly out of date copy of Blackstones and huge bundle of papers. I spent that first morning running around trying to deal with negotiating a guilty plea, talking to my room (and I mean quite literally an entire room) of police officers who were to appear as witnesses in my many trials, talking to a defence advocate who had not seen the 45 minutes of body-cam footage, and trying to deal with a self-represented defendant. By 9.45 only one defendant had not arrived. I also noted that I had another defendant sitting calmly in the waiting area with their advocate who was cross courted—but we’ll get to him later.

Bang on 10am, while I’m looking somewhere else and trying to learn to juggle in high heels (which incidentally I have learnt is a must have as a woman at the bar—as a six foot tall woman I have now developed the ability to tower over most people, which is a highly effective way not to feel intimidated), the legal adviser calls in the magistrates. I think thoughts that are inappropriate to put on paper, mainly along the lines that I would have appreciated some warning.

Luckily, I have managed to arrange a guilty plea, having taken instructions from the CPS, and I quickly get a sentence done. Result! It may have just been for speeding, but I can officially say I have successfully done my duty to the Crown by giving some guy a relatively significant fine for going 80 miles per hour on the motorway.

After this I open the prosecution case against the litigant in person and start to examine my witnesses. Meanwhile, I find out later, our missing Defendant has arrived at court. He’s been charged with a few different things, so he’s brought a friend to court as a surprise witness. Said surprise witness has brought a weapon with him and is arrested by the same officers who arrested the Defendant a few months previously. Note to Defendants and witnesses—do not bring weapons to court; they have metal detectors and will probably find them.

I successfully manage to close the Prosecution case with only a few strange looks from the bench. Another result! At this point it’s nearing 12 and I am 1.5 cases through my 5-case list. However, a rather worried looking court usher comes into the court and is urgently whispering at the back.
Coronavirus has arrived.

My defendant who has been quietly sitting there all morning has a mum who may have coronavirus, and a friend with a confirmed case he saw a week ago. The court erupts into panic—the magistrates flee, we all desperately start sanitising our hands, my litigant in person gets up and leaves. At this point I am sitting there (not standing, because of the new heels) confused with no idea what to do. The potential coronavirus spreader is swiftly sent home. His advocate goes and starts a trial next door. After about ten minutes the defence advocate with the surprise witness and I shrug ‘well, he’s not been in the court room, so we should be fine?’ and I start to show her the CCTV footage. Ten minutes later one of the magistrates comes back; they are not going to sit any more and they swiftly retreat to the safety of their retirement rooms.

Very quickly all my cases are adjourned by the understandably stressed but amazingly composed legal adviser.

Being a good pupil, I call Cathy, our deputy head clerk, to tell her what has happened. Shortly afterwards I am banned from chambers and am told to go home and await further information from the court.

On returning home I collapse on the sofa. Things may have turned into chaos but I did it. I survived my first day on my feet.

While most of my experiences are fairly standard, learning how to be a barrister in these conditions is, for obvious reasons, a new challenge both for me and for my supervisors. However, what Coronavirus has taught me (apart from how to use Zoom) is how to remain calm under pressure and adapt to changing circumstances.

At this point I would also like to thank Charles Snelling, who was in the Magistrates earlier that morning and left me an excellent sandwich for lunch with the usher. I was also allowed to return to Chambers the next day although then promptly told I could work remotely a few days later. I have not worn heels since.

 

Anne Hogarth
Second-Six Pupil