Mitigating in the Modern World: Considering the New Sentencing Guidelines

29/05/2024

Introduction

Last month, the Sentencing Council made changes to the Sentencing Guidelines. In particular, there were substantial modifications to the ‘Mitigating Factors’ to be considered by sentencers. This article hopes to provide a digest of some significant alterations and question how they may work in practice.

There exist many principles that are never formally integrated into the Guidelines. For instance, there is no explicit mention of the benevolence that is shown to male defendants who will soon become fathers. Some may think that formal inclusion in the Guidelines does not make much difference as unwritten principles may still be applied by the court whether or not they are within the Guidelines. However, one would imagine that that argument comes mostly from lawyers who are already familiar with the unwritten principles of sentencing. The inclusion of some principles in written Guidelines will make them more accessible to lay people who are less familiar with them – just one example of why formal inclusion makes a difference. The number of litigants in person continues to rise, making accessibility more vital than ever before. That being said, it might be that incorporation of common principles into the written Guidelines is not always a good thing. As explained below, this could risk the exacerbation of fabrication, for example.

Difficult and/or deprived background or personal circumstances

This element of mitigation is often considered by the courts during sentencing hearings, and so it is no surprise to see its formal incorporation into the Guidelines. This new factor was introduced as part of the Council’s attempt[1] to be more mindful of ‘Equality and Diversity’. It will be interesting to see how the courts interpret and quantify something which is so subjective. Indeed, a background that one person may find challenging might be overcome by another without their resorting to crime. Sentencers should be careful to apply this mitigating factor only where it is relevant and necessary.

Introduction of this new factor will include consideration of the following:

• an offender’s experience in care
• housing status
• difficulties relating to misuse of drugs and/or alcohol
• loss, neglect, and abuse
• poverty and low educational attainment

An offender’s experience in care could juxtapose another’s, and even where they may have had the same experience, that experience could impact each person differently. It would be helpful and just if sentencers could bear that fact in mind.  It is plain that those who leave the care system are much more likely to commit crime – the need for this factor to be considered at sentence is palpable. Differentiating between an offender who uses an unfortunate background as an excuse for their crime and an offender who has genuinely struggled because of their background may be challenging, but the task should at least be considered by sentencers. Although this mitigating feature is fundamental, interpreting it in a ‘blanket’ fashion may have a counterproductive effect.

Separately, it is refreshing to see that the Guidelines now formally reflect the reality that intoxication may not always be an aggravating factor – something which the Guidelines have mostly ignored until now. This will be a great way for those struggling with substance misuse to avoid further unnecessary punishment for their illness.

Prospects of or in work, training, or education

Whilst there are obvious reasons for highlighting this mitigating feature at sentence, it would be useful to verify the authenticity of claims to any future work, training, or education. There is a risk that offenders will fabricate vocational opportunities, knowing that the court is likely to pass a lighter sentence in response. This is particularly concerning as the prospect of employment or education is often the deciding factor when an offender is ‘on the cusp’ of an immediate custodial sentence. Although instances of fabrication may already be commonplace, there is a risk that including this factor in the Guidelines will encourage such fabrication. Whilst contemplation of this mitigating feature is obviously paramount, offenders could be urged to provide evidence of any future work, training or education and the court could be, at the very least, sceptical when there is a lack of evidence.

Pregnancy, childbirth, and post-natal care

This change is a welcome one. The criminal justice system has long acknowledged the need to treat pregnant and post-natal women with compassion. The new Guidelines formally illustrate awareness of the difficulties faced by pregnant or postnatal people in custody. This issue was formerly mentioned within the “sole or primary carer” mitigating factor, it now has greater prominence as a standalone factor with its own guidance. The new Guidelines will hopefully increase awareness of the challenges the system faces in keeping pregnant or postnatal people, and their children, safe and healthy.

It would be particularly impressive if this change to the Guidelines was further amended so that it could be used as mitigation for other genders too. For example, men who have heavily pregnant partners could be afforded the more formal use of this mitigating factor. Whilst a lawyer would have the knowledge to express how this principle relates to males, a male litigant in person may not have the same knowledge and would benefit from it being highlighted in a Guideline.

Remorse

The new Guidelines express consideration of the varying ways offenders may demonstrate remorse about their offence.  The extended explanation of “remorse” has been expanded to consider learning disabilities, cultural differences, and communication difficulties. This is another response to concerns about ‘Equality and Diversity’. The new Guidelines focus on the assessment of remorse and express the need to be aware that learning disabilities, cultural differences, and communication difficulties may impact this assessment. This addition is valuable, it assists by stressing that not every person will be able to express their remorse, despite feeling it. It also emphasises that some people show remorse in distinctive and/or contrasting ways. This new feature will improve the sentencing in cases where the offender struggles to communicate their remorse, making sentencing exercises fairer and more accessible for those with language barriers, disabilities, or other possible obstacles to verbal and/or emotive expression.

Conclusion

The changes made by the Sentencing Council represent an intention to move towards more understanding and accessible sentencing hearings that are sensitive to ‘Equality and Diversity’. These alterations are welcome and, in some instances, have formalised principles that have been used and accepted for a long time. There are some improvements which could be made, but it can be properly said that the new Guidelines do consider mitigation in a more sympathetic and modern way. Whether or not the amendments will fulfil their intended purpose will largely depend, it is thought, on how sentencers interpret and enforce them.

For more information on the new Guidelines and their origins, please follow the link to the relevant Consultation: Miscellaneous amendments to sentencing guidelines – Consultation

As an example of a new Guideline, please follow the link to the Guideline for Robbery: Robbery – Sentencing Guideline

[1] https://www.sentencingcouncil.org.uk/publications/item/equality-and-diversity-in-the-work-of-the-sentencing-council/