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Sentencing Guidelines for Breaching Court Orders

On 7 June 2018 the Sentencing Council published new guidelines for judges and magistrates.  These are to be used when offenders are being sentenced for breaching court orders.

The guidelines provide a clear approach.  This mean that the way courts deal with such offenders will be tightened up.  These are people who are breaching court orders by not complying with orders such as suspended sentence orders, community orders, restraining orders and sexual harm prevention orders.

It is the first time there have been comprehensive guidelines setting out a consistent approach for courts to use.  They will help ensure that for offenders breaching court orders those sentencing will impose appropriate penalties according to the seriousness of the breach.

breaching court orders

What breaches of court orders are covered by the guideline?

  • Breach of a Community Order
  • Breach of a Suspended Sentence Order
  • Breach of Post Sentence Supervision
  • Failing to Surrender to Bail
  • Breach of a Protective Order (restraining and non-molestation orders)
  • Breach of a Criminal Behaviour Order and Anti-Social Behaviour Order
  • Breach of a Sexual Harm Prevention Order and Sexual Offence Prevention Order
  • Failing to Comply with Notification Requirement
  • Breach of Disqualification from acting as a director
  • Breach of Disqualification from keeping an animal

When does the guideline on breaching court orders come in to force?

The guideline for breaching court orders will come into effect in courts on 1 October 2018.

Is the guideline a change in approach?

Courts are required to follow guidelines and these guidelines closely reflect legislation and define more clearly appropriate court responses to breaching court orders.

For example, in relation to suspended sentence orders, legislation states that they must be activated – i.e. the offender will be sent to prison – in the event of a breach unless it would be unjust to do so.

The guideline gives clearer guidance on this consideration.  Offenders will now not get opportunities to avoid their sentence being activated. For activation to be considered to be unjust, there would need to be new and exceptional circumstances – not present at the time the order was imposed – that prevented them from complying with the order. This might involve for example the offender taking on caring for a disabled relative which greatly affects their ability to comply with an unpaid work requirement.

The guideline also covers breaching court orders imposed to prevent particular behaviour or protect individuals or groups from it.  These include Sexual Harm Prevention Orders and Restraining Orders. The guidelines prompt courts to look at an offender’s motivation and intention in committing a breach to assess the seriousness of the breach. The guidelines also instruct courts to look at any harm caused, and for the first time in a guideline, the risk of harm being caused.

Including a focus on risk of harm for such breaches helps ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public.  As a result no actual harm needs to have occurred. This could include for example a sex offender who fails to comply with notification requirements with the intention of evading detection in order to commit further offences.

Sentencing Council member Julian Goose said:

“Court orders are there to protect individuals and the wider public from particular types of offending or continuing criminal behaviour by offenders. Making sure that offenders comply with court orders is crucial in reinforcing public confidence in sentencing. Where offenders do not comply, the public have a right to expect that this is properly addressed by the courts. We are giving courts clear guidance on what action should be taken against those offenders who ignore court orders so that they are dealt with robustly and consistently.”

Will more people go to prison as a result?

The Sentencing Council conducts research to assess the impact of its guidelines on future sentencing practice. This is a difficult task and the findings are subject to many caveats.  However, the following pattern emerges:

Protective orders:

‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. There are two exceptions which may lead to higher sentences for some breaches of a restraining/non- molestation order.’

Criminal Behaviour Order:

‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. The exception is for the most serious breach cases that fall in categories A1, A2 and B1, where there has been an extension to the category ranges, and also at the bottom of the distribution where there may actually be a reduction in sentence severity.’

Breach of notification requirements:

‘A review of transcripts of cases has confirmed that current guidance is not considered adequate by sentencers to address offences falling within the top end of seriousness. The new guideline is more prescriptive and as a consequence it is possible that there may be more sentences at the top end of the guideline range.’

Suspended Sentence Orders:

‘…it has not been possible, (and it is not advisable), to calculate any informative or realistic estimate of the guideline on sentencing practice or the subsequent impact on prison or probation services.’

Breach of disqualifications:

‘…any potential impact would be minimal.’

Failing to surrender to bail:

‘The new wording and format of the guideline regarding consecutive sentences is considered to be in line with the existing guideline, and therefore is not anticipated to have an impact on prison or probation resources.’

There was insufficient data to provide an insight into the effect on sentencing for breach of Sexual Harm Prevention Orders or SOPOs.

In our experience sentencing guidelines often do lead to unintended rises in sentence length, possibly due to a lack of understanding, something our advocates are acutely aware of.

If you are breaching a court order how can we help?

 If you know that you are in breach of a court order then please contact us immediately.  The breach may be a matter investigated by the police and involving a police interview.  If so, our independent advice and representation of you in such an interview will be free of charge.

If you face court proceedings it may well be that you are entitled to free legal aid in the Magistrates’ Court or legal aid with or without a contribution in the Crown Court.

You can find the office most convenient to you here.

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Alternatively you can use the contact form below.

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Prison sentence avoided for breach of a suspended sentence order

Chesterfield Crime Solicitor Kevin Tomlinson had to use all of his experience and persuasive advocacy to ensure that his client did not receive a prison sentence after his breach of a suspended sentence order.

Kevin’s client was charged with nine offences.  Five of these were committed whilst he was subject to a suspended sentence order.  The law is such that if an offence is committed during the lifetime of a suspended sentence a court must activate the suspended sentence.   The only opportunity a person will have to avoid this is where it is successfully argued that it would be unjust to do so.

It was perhaps the case that in the circumstances that Kevin’s client found himself in, custody would seem inevitable.  In the event, Kevin  managed to achieve for his client what at first seemed impossible.

Allegations in breach of a suspended sentence order

Kevin’s client had been arrested in relation to a number of thefts from shops.  Perhaps unsurprisingly Kevin’s client was a drug user.  The offences were committed over a period of time, but he was interviewed about them by the police in a single interview.

In interview, Kevin’s client accepted each offence.  Because of his record the police had kept him for court on a Saturday morning.  Kevin represented him when he pleaded guilty to all of the offences.

The court had insufficient information to allow our client to be sentenced at a Saturday court.  As a result the case was adjourned until later in the week for the sentencing hearing.  Unfortunately, our client was remanded into prison to await sentence.

The sentencing hearing

At the sentencing hearing, Kevin set about securing information to put before the court in a bid to convince them that it would be unjust to send his client to prison for breach of a suspended sentence and the new offences.

Kevin took all the information that he would need to provide the court with detailed personal mitigation.  He took the time not to rush through this important part of the process, resisting pressure from the court for the case to be called on.

After taking these instructions, Kevin’s next port of call was the probation service.  The probation staff confirmed that our client was progressing well on his suspended sentence order in terms of trying to tackle his drug use.

As a result, Kevin had enough helpful information to allow him to argue that his client should not receive an immediate prison sentence but should be given a further chance.  This was a credible argument even though there was a breach of a suspended sentence order.

Prison sentence avoided

Kevin’s client was due to be sentenced before the resident District Judge at Chesterfield Magistrates’ Court.  Following the prosecution opening and some information from the probation service, Kevin then addressed the Judge.

He argued at length on behalf of his client.  Kevin relied upon the reasons behind the offending, some personal mitigation, the good progress under the order and the short period spend in prison before sentence.  In conclusion he asked the Judge to decide that it would be unjust to impose the sentence for breach of a suspended sentence order.

After listening to this mitigation the District Judge agreed with Kevin.  He decided to impose a sentence which allowed our to retain his freedom.  Kevin’s client was understandably delighted with the outcome and relieved to not face a custodial sentence.

Free legal aid funding in the Magistrates’ Court

Our client had the benefit of legal aid. for these hearings in the Magistrates’ Court.   This means that our advice and representation of him was free of charge to him.

Instruct a Chesterfield criminal defence solicitor

breach of a suspended sentence order
Chesterfield Crime Solicitor Kevin Tomlinson

If you find yourself being investigated by the police or facing court proceedings then please contact us immediately.  Our office number 0246 283000 is answered 24 hours a day, 7 days a week to ensure that you receive emergency free and independent legal advice if you are being interviewed by the police.

Advice and assistance in police interview will always be free of charge to you.  If you case proceeds to either the Magistrates’ or Crown Court then we will give you the best advice as to whether you are entitled to legal aid or alternative ways of funding your case.

Alternatively you can contact us using the form below.

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Prison Avoided For Repeated Restraining Order Breach

derby criminal defence lawyer mitigates restraining order
Derby crime solicitor John Young

Derby crime solicitor John Young recently acted for a client who faced what appeared to be an inevitable prison sentence.  His client had an appalling history for breaching his restraining order.  A first order had been made in 2010 but this had been breached five times.

Although that order was revoked in 2012, a  second Restraining Order was imposed in 2014.  That order had already been breached 10 times with the most recent sentence for breach being three weeks prior to this sentencing.

New breaches of a restraining order

John’s client was originally charged with two allegations of breaching the restraining order.  On the second occasion he had been arrested at his ex-partner’s address so was clearly guilty of the offence.  However John was able to negotiate with the prosecution that it wasn’t in the public interest to proceed with both charges.  As a result, his client only pleaded guilty to the single offence.

All of the circumstances would suggest that a prison sentence was inevitable in this case:

  • offence committed during a period of supervision
  • offence placed him in breach of a community order
  • he had an extremely poor record for identical offending

The sentencing guidelines suggested that not only should the case be dealt with by a prison sentence, but that the client should have been committed to Derby Crown Court for sentence.  A sentence of six months in prison was represented by the prosecution as being insufficient because of these guidelines.

Suspended sentence rather than immediate custody

Instead, John used all of his experience and persuasive advocacy to ensure that his client received a further chance to turn his offending around while in the community.   It is hoped he can avoid further breaches of his restraining order.

Continuity of Representation

John’s client was assisted by the fact that we are able to provide continuity of representation in most cases.  He had dealt with his client for the previous court appearance so knew all of his background and the history of previous orders.  As a result, all of this worked to his client’s advantage.

John’s client was both surprised and pleased to receive a suspended sentence rather than an immediate prison sentence of some length.

Contact a Derby Criminal Defence Solicitor

We offer 24 hour emergency advice and representation for those being investigated for criminal offences or detained for court at weekends.  Police station advice and representation will always be free of charge to you, as will any interview with the police under caution, whether you are arrested or a volunteer, at the police station or at your home address.

The locations and contact details for your nearest office can be found here.

John Young can be contacted on 01332 546818 or if you want to email him then please use the form below.

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Breach of a suspended sentence at Chesterfield Magistrates

breach of a suspended sentence Chesterfield criminal solicitor
Chesterfield crime solicitor David Gittins

Chesterfield Crime Solicitor David Gittins recently represented a client in difficulties at Chesterfield Magistrates’ Court.  The client had committed an offence in breach of a suspended sentence.

The court would have to be given a good reason not to activate the sentence.

 

 

The Allegation

David’s client had been arrested in relation to two allegations of common assault owing to having been drinking all day.  He had drunk about 20 pints of lager so had not considered the consequences.

His partner who had been with him left the public house.  Unfortunately she had taken an item of sentimental value belonging to the pub landlord.  As a result the landlord understandably followed her and retrieved the item.  Meanwhile, David’s client remained at the pub.

When his partner returned she was suddenly tripped up and landed heavily on the floor.  Without thinking, our client punched the male to the face and a small scuffle began. The scuffle ended after a few moments and the David’s client began talking to others at the scene.

During this time, he lashed out again, punching another male to the face before walking away from the pub.

Offence in breach of a suspended sentence

When charged and before the court David’s client accepted that he was guilty of the charges.  He entered guilty pleas.  Unfortunately, these offences were committed in breach of a suspended sentence imposed three weeks previously.

As a result, the court would immediately consider that the suspended sentence ought to be activated.  A separate sentence would be imposed for the new offences. The likelihood was that this would happen at the first appearance and without reports being prepared.

Mitigation sought to try and avoid the inevitable

David secured information to put before the Court in a bid to convince it not to send his client to prison.  David took detailed personal mitigation from his client. The client was very proud to say that he had undertaken a period of alcohol abstinence and had been dry, albeit for a short period.

His main concern was not for himself but rather his daughter.  He cared for her four nights per week so that his ex-partner was able to work on the evenings he had his daughter.  If his client was sent to prison it was unclear who would provide the necessary case.  His ex-partner may have had to leave her employment because there were no other family members close by to assist.

Additionally any period of imprisonment would have resulted in our client’s  online business closing so staff would be made redundant. His current partner would be as a result unable to maintain payments on their family home.  Customers would lose out as well.

David spoke with the probation service at court.  Therefore he gained information confirming that his client was progressing well on his suspended sentence order.  He had begun to resolve long term issues in his life.

Unjust to activate the suspended sentence

Owing to his detailed preparation, David was able to address the Magistrates at length about the reasons behind the recent offending.  He could provide significant personal mitigation.  David outlined the good progress that his Client was making under his current order.  Much emphasis could also be placed on the impact to others if our client was sent to prison.  This last factor was perhaps the most important in persuading the court it was unjust to activate the prison sentence.

After listening to this extensive mitigation the Magistrates agreed that the suspended sentence should not be activated. Instead they imposed a community order with a stand alone curfew for 12 weeks.

Following the breach of a suspended sentence the court extended the operational period by 6 months.

Our client was relieved not to face a prison sentence and because of that he was delighted with the outcome.

 Contact a Chesterfield Criminal Defence Lawyer

If you find yourself under investigation by the police or face court proceedings and wish to instruct David then please him telephone at our Chesterfield office on 01246 283000.

Alternatively you can contact him using the form below.

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