By Anthony Edwards, TV Edwards, London


Domestic violence



New guidelines have been published by the Sentencing Guidelines Council in relation to domestic violence, and breach of 'protective' orders that apply to all cases sentenced on or after 18 December 2006.



This guidelines make clear that offences committed in a domestic context should be regarded as no less serious than offences committed in a non-domestic context. For the purposes of the guidelines, domestic violence is defined as any incident of threatening behaviour, violence or abuse (psychological or physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.



The history of the relationship will often be relevant in assessing the gravity of the offence. The council identifies as aggravating factors:



l Abuse of trust and abuse of power. In this context, trust implies a mutual expectation of conduct that shows consideration, honesty, care and responsibility. An abuse of trust, whether through direct violence or emotional abuse, represents a violation of that expectation. An abuse of power in a relationship involves the exercise of control over an individual by means that are psychological, physical, sexual, financial or emotional.

l The victim is particularly vulnerable. This will include those who for cultural, religious, language, financial or other reasons &150; such as age, disability or the victim being pregnant or having recently given birth &150; are more vulnerable than others. Any steps taken to prevent victims from reporting an incident or obtaining assistance will aggravate the offence.

l Impact on children &150; the exposure of children to an offence, directly or indirectly.

l Using contact arrangements with the child to instigate an offence.

l A proved history of violence or threats by the offender in a domestic setting. The cumulative effect of a series of violent acts or threats has to be considered.

l A history of disobedience to court orders.

l The victim being forced to leave home.



The council has also identified mitigating factors. The court should take into account positive good character, although it recognises that one of the factors that allows domestic violence to continue unnoticed for lengthy periods is the ability of the perpetrator to have two personae. Thus an offender's good character outside the home is generally of no relevance where there is a proved pattern of behaviour. Positive good character will be of greater relevance where there is an isolated incident.



Allegations of 'provocation' will be treated with particular care. It will need to involve actual anticipated violence, including psychological bullying. Provocation is likely to have more effect as a mitigating factor if it has taken place over a significant period of time.



As a matter of general principle, a sentence imposed for an offence of violence is determined by the seriousness of the offence and not the expressed wishes of the victim. Nonetheless, there may be circumstances in which the court can properly mitigate a sentence to give effect to the wish of a victim that the relationship be permitted to continue.



However, the court must be satisfied that such a wish is genuine, and that giving effect it will not expose the victim to a real risk of further violence. If the interest of children arose, the court would wish to have regard not only to the effect on the children if the relationship is disrupted, but also the likely effect of further incidents of domestic violence.



Offences involving serious violence will warrant a custodial sentence in the majority of cases. Where the custody threshold is only just crossed so that any custodial sentence will be short, a court should consider whether the better option is a suspended sentence or a community order, including in either case a requirement to attend an accredited domestic violence programme. Such an option will only be appropriate where the court is satisfied that the offender genuinely intends to reform his behaviour, and there is a real prospect of rehabilitation being successful. This is unlikely where there has been a pattern of abuse.



Protective orders



The council has also published a guideline in relation to breach of a protective order. Protective orders are restraining orders made under the Protection from Harassment Act 1997 and, once available, non-molestation orders under Family Law Act 1996 and orders under the Domestic Violence Crime and Victims Act 2004 made on acquittal.



When sentencing for breach of such an order, the main aim is to achieve future compliance with that order. The court will need to assess the level of risk posed by the offender, and if the offender requires treatment or assistance for mental health or other issues, the willingness to undergo that treatment or accept help may influence the sentence.



The nature of the conduct that caused the breach, and in particular whether it was direct or indirect, is a key factor.



The nature of the original conduct is relevant to the sentencing for the breach, in so far as it allows a judgement to be made on the level of harm caused to the victim by the breach and the extent to which the offender intended the harm. However, the sentence following the breach is for the breach alone and must not punish the offender again for the original offence.



Where violence is used, custody is a starting point for sentence. Non-violent conduct may cross the custody threshold where a higher degree of harm or anxiety has been caused to the victim.



It is likely to be disproportionate to impose a custodial sentence for breach of a civil order where the order is made to cause the respondent to modify their behaviour rather than to imply that the conduct was especially serious.



In cases where a breach might result in a short custodial sentence, but the offender genuinely intends to reform his behaviour and there is a real prospect of rehabilitation, the court may consider it better to impose a sentence that will allow that to happen through a suspended custodial sentence or a community order.



The council's conclusions are summarised in the table.