Blame game

The new guidelines for assault cases issued by the relatively new Sentencing Council come into force on 13 June, covering the whole range of inglorious violence from causing grievous bodily harm with intent, to common assault.

When first publicised, they were greeted with the usual howls of rage to be expected from the hang 'em and flog 'em brigade on any hint of leniency in sentencing, as one of the disclosed aims of the council was to reduce imprisonment for more minor offences. Another less obvious aim is to corral judges into sentencing consistency by providing more hoops to jump through than in the 'old' guidelines issued by the Sentencing Guidelines Council in 2008.

Consistency in sentencing is obviously a proper aim, overall; complainants and defendants should know what to expect, more or less, wherever the offence happens and whoever sentences for it. But consistency is not the only aim of an effective sentencing process: there has to be a margin of appreciation to cover the astonishingly wide variety of motive, reasons, personalities and circumstances displayed by the customers of the Crown Courts.

These new guidelines require judges to follow up to nine sequential stages, adding in different aggravating and mitigating factors at each stage. The first two steps are the most important: first to determine the 'offence category' '“ that is, how serious the offence is within its statutory context '“ and the second, to allocate a sentencing 'starting point' within that category range.

The primary factor in considering sentence is the seriousness of the offence committed. That obvious statement disguises a less obvious difficulty '“ seriousness is a mixture of the culpability or blameworthiness of the offender and the harm caused to the victim, and sometimes the imbalance between them leads to significant oddity. An extreme example to demonstrate the problem '“ a woman with long fingernails scratches a man.

He is, unknown to her, a haemophiliac. She is guilty only of common assault, but he bleeds horribly and needs days of hospital to stabilise his condition. Most people would see her as less blameworthy than a defendant who deliberately stubbed out a cigarette onto someone's hand, even if that only caused a blister. When we consider culpability, it is the defendant's circumstances and state of mind which is more to the fore: when we consider harm it is the victim's position which is more relevant.

Under the old guidelines, culpability rather than harm was the initial factor in determining the seriousness of an offence. Where there was an imbalance between high culpability/low harm and vice versa, the harm caused was judged in the light of the culpability of the offender: in other words, there was investigation of the moral deficits of the defendant as the primary sentencing exercise.

Reversed position

It may only be syntactical, but the new guidelines seem to have reversed this position. They speak first of harm, and second of culpability. When judges undertake the first stage they must classify the offence into one of three categories, each with different sentencing starting points. The first category is greater harm/higher culpability; the second greater harm/lower culpability or lesser harm/greater culpability; the third is lesser harm/lesser culpability. That classification is made on a factual basis, using '“ and only using '“ factors set out in the guidelines.

Greater harm is assessed by three factors: the presence of serious injury, as one would expect, and two victim-centred factors: the victim being particularly vulnerable because of personal circumstances, and sustained or repeated assault on the same victim. The factors for greater culpability, as well as the statutorily forbidden motives for assault (hostility on racial/religious/sexual orientation/disability grounds) include the well-known aggravating factor of deliberate targeting of a vulnerable victim.

As that replicates one of the three factors leading to 'greater harm' is this double-counting, or does it mean a defendant can now be liable for the vulnerability of a victim even if that was unknown to him at the time of the assault? Clearly someone who picks on an obviously frail victim can expect to be slammed hard, but there are less obvious vulnerabilities which escape notice. If this is so, then harm is the guide here rather than culpability.

The list includes two new, puzzling factors: one is the use of more violence than is 'necessary for the commission of the offence'. As GBH needs the infliction of really serious harm, do they mean more gratuitous violence than was actually needed to cause the physical mayhem of that assault? The other difficult new factor is the intention to commit more serious harm than actually resulted from the offence, which extends the mens rea of the offence beyond its statutory boundary. Should indictments be amended to read 'with intent to cause really serious harm, and then some'? Time '“ and the Court of Appeal '“ will tell.