Tougher Sentencing Guidelines Introduced for Controlling or Coercive Behaviour and HarassmentThe Sentencing Council has today published new definitive guidelines for intimidatory offences that include offences involving the sharing of ‘revenge porn’. Tougher punishments could now be imposed against any defendant sentenced on or after 1 October 2018.

The new guidelines, introduced after a public consultation, also cover the range of sentences available for defendants charged with the relatively new offence of controlling and coercive behaviour, introduced in 2015, and stalking and harassment.

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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.”

What offences are covered?

The guideline covers:

  • Disclosing private sexual images (so called ‘revenge porn’)
  • Controlling or coercive behaviour in an intimate or family relationship
  • Harassment (putting people in fear of violence)
  • Racially or religiously aggravated harassment (putting people in fear of violence)
  • Stalking (involving fear of violence or serious alarm or distress)
  • Racially or religiously aggravated stalking (with fear of violence)
  • Harassment
  • Racially or religiously aggravated harassment
  • Stalking
  • Racially and religiously aggravated stalking
  • Threats to kill

Why has the guideline been issued?

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 and coercive behaviour.

While useful to an extent in that defendants can prepare themselves more for the length and type of sentence most likely for their category of offending, the penalties are also likely to be harsher following the publication of this guidance. This is due to the fact that magistrates and judges are now able to take into account specific aggravating factors. For example, the guidance on revenge porn includes both reposting revenge porn and setting up separate social media profiles to post the images as specified aggravating factors, which will increase the length of a defendant’s sentence.

‘Revenge Porn’

The offence of disclosing private sexual images, commonly known as revenge porn, was introduced in 2015.

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 reposting of images online after websites take them down.

Controlling or coercive behaviour

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, denying them access to money and controlling aspects of everyday life.

The guideline identifies factors that should be taken into account when assessing the seriousness of an offence. 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”.

Stalking and harassment

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.

Will sentences be more severe?

The Guidelines have not changed the maximum sentences for the offences concerned, which are imposed by statute. However, the introduction of specified aggravating factors gives Courts further powers to increase sentences to towards the maximum penalty available.

It is also important to note that, in addition to defendants sentenced for the first time for an offence after 1 October 2018, defendants who have already been sentenced but who appeal and lose may face being re-sentenced under the new guidelines.

How we can assist

In our experience, sentencing guidelines erode judicial discretion in sentencing, and overall, we see ‘sentence creep’ in respect of offences where a sentencing guideline is in operation.

It is therefore vital that if you or a loved one are charged with one of these offences, you instruct experienced solicitors. Our advocates have experience conducting sentencing hearings in both Magistrates’ and Crown Courts; we are always careful to ensure that guidelines are just that and that the fullest picture is presented to a Court when mitigating on behalf of our clients.

Contact us here if you would like to speak to a member of our criminal defence team.