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A new domestic abuse sentencing guideline was published on 22 February 2018, giving courts up to date guidance that emphasises the seriousness of offending involving domestic violence or other forms of abuse in a domestic setting.

What is domestic abuse?

There is no specific crime of domestic abuse.   It can be a feature of many offences including assault, sexual offences or harassment. The new domestic abuse sentencing guideline aims to ensure that the seriousness of these offences is properly taken into account when such offences are being sentenced.  The intention is that sufficient thought is also given to the need to address the offender’s behaviour and prevent re-offending.

Are there an existing domestic abuse sentencing guideline?

The new guideline replaces a domestic violence guideline which was published in 2006. A great deal has changed since then in terms of societal attitudes, expert thinking and terminology.

It was felt, therefore, that guidance for courts was therefore in need of revision to bring it up to date. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’.  This reflects that offences can involve psychological, sexual, financial or emotional abuse as well as physical violence.

When is the new guideline in force?

The domestic abuse sentencing guideline will apply to all offenders aged 16 and older sentenced on or after 24 May 2018.

How does this guideline change things?

The guideline identifies the principles relevant to the sentencing of cases involving domestic abuse, outlines how the seriousness of offences should be assessed and highlights other factors that should be taken into account.

It brings a distinct change in emphasis in relation to seriousness.

The previous sentencing guideline stated that offences committed in a domestic context should be seen as no less serious than those in a non-domestic context, whereas the new guideline emphasises that the fact an offence took place in a domestic context makes it more serious.

This is because domestic abuse is rarely a one-off incident, it is likely to become increasingly frequent and more serious the longer it continues and may result in death. It can also lead to lasting trauma for victims and their children.

For the first time, the guideline also includes a reference to abuse which is perpetrated through use of technology, such as email or text, social networking sites or tracking devices fitted to a victim’s car.  These are increasingly common methods by which domestic abuse can occur.

The guidelines recognise that these offences can affect people of all backgrounds and the guideline is also clear that abuse can occur between family members as well as between intimate partners.

Will anything else change?

Yes. In particular, there is now additional guidance on restraining orders, along with new guidance on Victim Personal Statements.

In relation to restraining orders, the guideline now includes additional guidance to assist the court with a renewed focus on keeping the victim safe, particularly for those who continue or resume their relationship with the offender.

The guideline further reminds courts to take any Victim Personal Statement into account.  Where there is no such statement, this is not an indication of any lack of harm to the victim.

Sentencing Council member Jill Gramann said:

“Domestic abuse comes in many forms such as harassment, assault and sex offences. The increasing use of technology in offending has meant that it has also evolved in its scope and impact. The new guideline will ensure that courts have the information they need to deal with the great range of offending and help prevent further abuse occurring.”

What factors will a court take into account on sentence?

The following list of non-exhaustive aggravating and mitigating factors are of particular relevance to offences committed in a domestic context and should be considered alongside offence specific factors.

 Aggravating Factors

• Abuse of trust and abuse of power
• Victim is particularly vulnerable.   Although all victims of domestic abuse are potentially vulnerable due to the nature of the abuse, but some victims of domestic abuse may be more vulnerable than others, and not all vulnerabilities are immediately apparent)
• Steps taken to prevent the victim reporting an incident
• Steps taken to prevent the victim obtaining assistance
• Victim forced to leave home, or steps have to be taken to exclude the offender from the home to ensure the victim’s safety
• Impact on children  as children can be adversely impacted by both direct and indirect exposure to domestic abuse
• Using contact arrangements with a child to instigate an offence
• A proven history of violence or threats by the offender in a domestic context
• A history of disobedience to court orders such as, but not limited to, Domestic Violence Protection Orders, non-molestation orders and restraining orders

Mitigating Factors

• Positive good character – as a general principle of sentencing, a court will take account of an offender’s positive good character. However, it is recognised that one of the factors that can allow domestic abuse to continue unnoticed for lengthy periods is the ability of the perpetrator to have a public and a private face. In respect of offences committed within a domestic context, an offender’s good character in relation to conduct outside these offences should generally be of no relevance where there is a proven pattern of behaviour
• Evidence of genuine recognition of the need for change, and evidence of obtaining help or treatment to effect that change

Will those convicted get a longer sentence?

A spokesperson for the Sentencing Council commented:

‘Overall, it is likely that there will be an increase in sentence severity as a result of the introduction of the guideline, however, the guideline emphasises the need to consider the most appropriate sentence to prevent further re-offending and protect victims, which may be a community order.’

How we can help

Many people feel that sentencing is increasingly a mechanistic process, with a danger that the new domestic abuse sentencing guideline will be rigidly stuck to, and the individual considerations of defendants either ignored or played down.

However, case law over the last few years emphasises that courts should be cautious to ensure that this does not happen. All of our advocates are experienced in presenting the best mitigation possible to courts, ensuring the best possible outcome.

We can advise, for example, on the best way to present your regret and remorse following a guilty plea. 

A specific case study can be found here.

If you intend to fight your case at trial then we have a proven track record of securing not guilty verdicts.  Examples can be found here and here.

We can advise on how to tackle difficult issues relating to whether  hearsay evidence should be admitted in your case.

Contact a specialist in defending domestic abuse cases

The new domestic abuse sentencing guideline mean that it may be easier in the future for courts to justify a custodial sentence.  As a result, you will want to contact us as soon as the police make contact with you.

Your nearest office can be found here.  We provide a nationwide service, 24 hours a day, 7 days a week. All advice and assistance in police interview will be free of charge to you.  Legal aid is available for many cases before the Magistrates’ and Crown Courts.

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Senior Crown Court Litigator Sarah Lees-Collier was recently instructed in the case of a 65 year old defendant charged with serious sexual offences involving his foster or adopted daughters.  The case involved careful and detailed cross examination.

The allegations were almost exclusively historic sexual offences, with the complainants giving very similar accounts of offending.  All of the offences were denied.

Sarah had chosen to instruct experienced counsel Vanessa Marshall from 7 Bedford Row Chambers, known for her eye to detail and exhaustive analysis and preparation of such cases.  During the currency of this case Ms Marshall discovered that she had been successful in her application to be Queen’s Counsel.

Expert cross examination of four complainants

Here, all four complainants had the benefit of special measures permitting them to give evidence behind screens.  Cross examination was expertly conducted in relation to a great deal of material including social care records.  A substantial amount of material was not disclosed until the trial had started.

Counsel insisted on sufficient time to be able to consider this additional material and plan her expert cross examination accordingly.  One of the witnesses was extremely volatile under questioning.

The detailed preparation meant that we were able to show that the witnesses had told some lies that were relevant to the case.  For example, one of the complainants had no choice but to accept that she had previously made false allegations about another carer.  The defence identified, within the unused material, reasons why further false allegations might have been made.

Counsel had to treat the witnesses with care.  It was clear that whatever the reality of the allegations they were now making, they had had a difficult early life.

Our client was of good character.  As a result, character evidence was gathered.  A number of witnesses attended court to speak as to his character in the trial.

Although the the trial lasted for five weeks, the defence was compelling.  As a result, our client was found not guilty of all charges with the jury deliberating for just under three hours.

Our client was, of course, particularly pleased and relieved.

Contact a Crown Court litigation specialist

If you face proceedings before the Crown Court, whether you intend to plead guilty or fight your case at trial, you will want to instruct an expert Crown Court litigator.

You can contact your nearest office here.  To instruct Sarah Lees-Collier she can contacted on 0115 9599550 or using the contact form below.

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The government has recently announced that it intends to bring into force a number of provisions contained within the Housing and Planning Act 2016 including banning orders.

From 6 April 2018 the Act will allow local authorities to apply for a banning order where a landlord has been convicted of a ‘banning order offence.’

What is a banning order?

A banning order will ban a person from:

• letting housing in England,
• engaging in English letting agency work,
• engaging in English property management work, or
• doing two or more of those things.

The banning orders will operate whether a landlord acts on their own behalf or via a corporate body.

What offences might prompt an application for a banning order?

The following offences are capable of triggering an application for a banning order as they are banning order offences:

Any offence involving:

• fraud
• the production, possession or supply of illegal drugs
• violent and sexual offences

will be appropriate banning order offences subject to there being a link between the property being rented out and/or the tenant/household.

The offences below (subject to there being a link between the property being rented out and/or the tenant/household) are also on the list of banning order offences:

• An offence under sections 327-329 Proceeds of Crime Act 2002.
• An offence under sections 2 or 2A Protection from Harassment Act 1997.
• An offence under sections 30 or 48 Anti-social behaviour, crime and Policing Act 2014.
• An offence under sections 7, 9, 21 or 22 Theft Act 1968.
• An offence under sections 1(1) or 2 Criminal Damage Act 1971.
• Illegally evicting or harassing a residential occupier in contravention of the Protection from Eviction Act 1977 or the Criminal Law Act 1977.

Offences under the Housing Act 2004 that will trigger banning orders

Unsurprisingly, any of the following offences under the Housing Act 2004 are also relevant offences for banning orders:

Failure to comply with an Improvement Notice

Offences in relation to licensing of Houses in Multiple Occupation (HMOs);

Offences in relation to licensing of houses under Part 3 of the Act;

Allowing a HMO that is not subject to licensing to become overcrowded;

Providing false or misleading information.

Failure to comply with management regulations in respect of HMOs;

An offence under the Health and Safety at Work etc. Act 1974 where a person contravenes section 36 of the Gas Safety (Installation and Use) Regulations 1998;

Failure to comply with a Prohibition or Emergency Prohibition Order under sections 20, 21 and 43 of the Housing Act 2004;

An offence under section 32 of the Regulatory Reform (Fire Safety) Order 2005.

Can a landlord argue against the making of a banning order?

Yes, you can make representations both to the local authority before the making of the application and to a tribunal if proceedings are commenced.

There are the following protections for landlords facing applications for banning orders:

Before applying for a banning order the authority must give the person a notice of intended proceedings.  This notice will inform the landlord that the authority is proposing to apply for a banning order and explain why.

The notice will also stating the length of each proposed ban, and invite the person to make representations within a period specified in the notice of not less than 28 days.

Once the notice has been issued, there are the following obligations:

• The authority must consider any representations made during the notice period.
• The authority must wait until the notice period has ended before applying for a banning order.

A notice of intended proceedings may not be given after the end of a period of 6 months.  This period begins with the day on which the person was convicted of the offence to which the notice relates.

What happens if a landlord breaches the banning order?

Breach of a banning order is a criminal offence.  It carries up to six months imprisonment and an unlimited fine. It is also highly likely that confiscation proceedings under the Proceeds of Crime Act 2002 will follow to recover income derived in breach of  banning orders.

How we can help you as a landlord

This type of law illustrates perfectly the often-hidden consequences of a criminal conviction.  To represent people properly, it is not enough that a solicitor understands only the main offence.  Any solicitor you choose will need a wider appreciation of the effects on a defendant.  Once these are understood, they will be fully considered during the planning of your defence.  As a result, it may not be the solicitor who handles a landlord’s property matters who is best placed to handle a criminal investigation.

Our highly experienced team can assist you in navigating the initial criminal proceedings that can give rise to the banning order application.  We also understand confiscation proceedings and skilled in the practice of negotiation with public bodies.

As a result, we will help you work towards the most favourable resolution in your case.

Contact crime and regulatory solicitor Martin Hadley

Contact crime and regulatory solicitor Martin Hadley on 0115 9599550.  Alternatively you can use the contact form below.  You will then be able to discuss any allegations of criminal conduct arising out of your business as a landlord.

We will be able to provide you with free and independent legal advice if you are interviewed by the police, whether as a volunteer or under arrest.  This is because be have a contract with the government to provide criminal legal aid.

Martin will discuss with you your options for funding any interview with the local authority or court proceedings.

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“Revenge porn”, more formally known as the offence of disclosing private sexual images, is the criminal act of posting online intimate sexual pictures/video of a person without their consent.

It carries a potential prison sentence of up to 2 years.  We await the outcome of the consultation into a sentencing guideline for this offence.

Revenge porn used to cause maximum distress

In the meantime, however, it is clear that the most serious type of revenge porn will be conduct that is intended to maximise distress.  This might be where images are sent to  victim’s family who are very religious, or to a victim’s young siblings.  Offending that involves setting up fake internet profiles purporting to be the victim and inviting abuse or sexualised contact from strangers will also be treated very seriously.

At the other end of the sentencing range will be impulsive posting of revenge porn or where the offending is by those affected by a mental disorder or learning disability.

Aside from the manner of the offending, a court will also consider level of harm caused in any particular case.  Where very serious distress has been caused, or a victim is particularly vulnerable, or there had been a very real practical impact on a victim then these factors will all increase the seriousness of the offence and therefore the sentence.

Such cases will include instances of images being posted a victim’s business website, or circulated to business contacts.

Case Study

The offender and the victim had briefly been in a relationship which ended acrimoniously. He sent the victim an email which contained a naked picture of her and said he would post it on social media to
‘teach her a lesson’.

She discovered that he had created a false account in her name and used the naked photograph as the profile picture. He had also posted three other intimate photographs of her. The false account had been used to contact 12 of the victim’s friends. She contacted the social media company and they agreed to close the account but this took two days.

A few weeks later B set up another false account in the same way and then he used a different social media platform to send the photograph to some of the victim’s work colleagues.  The victim and her friends contacted the social media companies and eventually had the photographs removed. In total the naked picture of her was live on social media sites for 18 days.

The victim reported that the incidents had left her feeling extremely embarrassed and anxious.

The offender made admissions in police interview and pleaded guilty at the first opportunity.   On the proposed guideline he could expect a sentence of 20 weeks immediate imprisonment.

Another reason to think twice about revenge porn

If the prospect of a prison sentence is insufficient deterrent, a recent case shows that there is another good reason to think twice before exacting this type of revenge on a former lover.

Celebrity vlogger Chrissy Chambers took the matter one step further in launching an action in the High Court designed to secure no further infringement of her rights as well as substantial financial damages.

Her ex-partner allowed six sexual videos to be uploaded to the adult site redtube.com.  Ms Chambers was identified by name in three of those videos.  The videos were filmed in her home, but without her consent, and showed sexual activity between her and her then partner.

She argued in court that this conduct had caused her ‘serious distress’ resulting in post-traumatic distress disorder.

In the 19 months that the videos were online a large number of people had viewed them, including some people who wrote to her expressing their displeasure at the belief that she was ‘intentionally involved in pornography’.  These viewers were affected to such a degree that they did not wish to continue watching her YouTube channel.

High Court Financial Settlement

In a settlement agreed by the High Court on 18th January 2018, her partner accepted that the posting of the videos was in breach of confidence, misuse of private information and a breach of her Article 8 rights (the right to privacy).  To provide future protection, copyright in the videos was transferred to her.

While this is not the first action of its kind (singer Tulisa Contostavlos brought a similar case in 2012), it is notable that Ms Chambers has actively sought publicity about this case, when she could have chosen anonymity.

The legal action was funded by way of a crowd-funding campaign, itself designed to raise public awareness of this issue.

By doing so, she has put this issue into the public domain, and it may well act as a deterrent to those thinking of doing something similar in future.  It is also a reminder to victims that there could be an easy route to substantial damages, provided of course that the person committing this unlawful act has the means to pay them.

Contact us for specialist legal advice about disclosing private sexual images

It may be that you acted without thinking, or it may be that you are not responsible for the offending.  Either way, we will be able to provide you with advice and representation whether your case is a guilty plea or will be prepared for trial.

Please contact one of our experts in criminal law at your nearest office.  Alternatively you can use the contact form below.

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On 31st January 2018, regulations bring into force sections of The Criminal Finances Act 2017.  These deal with unexplained wealth orders as well as various other related provisions.  They are intended to be used with existing civil recovery powers.

The purpose of the unexplained wealth orders is to allow for certain people who obtain property, which would ordinarily be beyond their obvious means, to be required to prove how they lawfully acquired it. This is, in effect, a reverse of the usual burden of proof where the prosecution must make a court sure of wrong doing.

Law enforcement agencies often have reasonable grounds to suspect that identified assets of such persons are the proceeds of serious crime. However, they are often unable to freeze or recover the assets under provisions in the Proceeds of Crime Act due to an inability to obtain evidence (often due to the inability to rely on full cooperation from other jurisdictions to obtain evidence).

Who can apply for unexplained wealth orders?

The authorities which may apply for such an order are:

• The National Crime Agency
• HM Revenue and Customs
• The Financial Conduct Authority
• The Director of the Serious Fraud Office
• The Director of Public Prosecutions

What happens if you are subject to an order?

If you are subjected to an order of this kind, you must provide a statement which does the following:

• Sets out the nature and extent of your interest in the property
• Explains how you obtained the property, particularly how any costs involved were met
• Provides details of any settlement if the property is held by trustees
• Sets out any other information about the property specified in the order

In addition to a statement, it may be necessary to supply documents connected to the property as required by the order.

What does the High Court need to be satisfied of?

Before it can make an order, the High Court must be satisfied that the following criteria are met:

• There is reasonable cause to believe that the person in question holds the property and that it is worth over £50 000;
• There are reasonable grounds for suspecting that this person’s known income (from lawful sources) would not be enough to obtain the property; and,
• The person in question is a politically exposed person (see definition below) or there are reasonable grounds for suspecting that they are or have been involved in a serious crime or someone connected to this person is or has been so involved.

A politically exposed person (PEP) is someone who is or has been entrusted with prominent public functions by an international organisation, a State other than the UK or another EEA State, a family member of such a person, a close associate or someone connected to them in another way.

Are any criminal offences created?

It is a criminal offence to knowingly or recklessly make a statement that is false or misleading in response to an unexplained wealth order. Doing so can result in two years’ imprisonment and/or a fine. This offence can be tried in either the Magistrates’ Court or the Crown Court.

What if I fail to provide the information?

Failing to provide the information, in full or part, may prejudice any civil forfeiture proceedings.

In some cases, an unexplained wealth order will be accompanied by an interim freezing order. This prohibits the respondent to the order and any other person with an interest in the property from in any way dealing with the property.

Property held outside this country

Where the property is thought to be in a country outside the UK, the Secretary of State may forward a request for assistance to the government of the receiving county. This can be a request to prevent anyone in that country from dealing with the relevant property and provide assistance in managing it as required.

Contact VHS Fletchers for specialist legal advice

To discuss unexplained wealth orders, or any other matter, please contact confiscation law solicitor Julia Haywood on 0115 9599550 at our  Nottingham office.  Alternatively use the contact form below for prompt expert advice.