So, the new sentencing guideline implementation, which was due on April 1st, is now postponed.
The key purpose is to resolve the contested issue about prioritisation of cohorts who should normally have the benefit of a pre-sentence report.
During the pause, there is an opportunity to address another big change in the guideline. This seems to be passing under the radar – the removal of guidance on the number of requirements in a community order. The new guideline carries no limits at any level of community order.
We are in real danger of overloaded orders. Inevitably this will lead to more breaches and more custodial sentences. The very opposite of the current direction of travel.
No limit to the number of requirements at each level of community order
The current guideline gives some definition to each level of community order. The low level order is defined as ‘in general only one requirement’. The high level is defined as ‘more intense sentences which combine two or more requirements'. The new guideline removes any guidance on the number of requirements. The only guidance at each level relates to the range periods of some punitive penalties.
There is a clear basis for this ‘no limits’ approach. Any requirements for the purpose of rehabilitation are stated to be ‘determined by and aligned with the offender’s needs’. The more vulnerable the offender is, the greater their needs, and the more rehabilitative support they will need. This is understandable. Need not number.
For instance, an offender at low level may need a Treatment Requirement enhanced by a Rehabilitation Activity Requirement (RAR) and a Residence Requirement to provide support during and after the treatment. A package of three requirements.
However, we need to recognize that this approach creates an increased restriction on liberty. Proportionality with the seriousness of the offence must remain relevant, and this is where the problem arises.
Statutory duty to include a punitive requirement
On top of the potential for increased orders, there is the existing statutory duty to impose the ‘requirement for the purpose of punishment’ within the order.
The obvious ‘punishment’ requirements are unpaid work and electronic curfew.
Alcohol Treatment and RARs were clearly determined not to constitute punitive requirements by the case of R v. Gregson 2020 EWCA Crim 1529. The case is clearly detailed in the Council‘s response paper, but not in the guideline.
The ‘get-out’ clause to avoid the overloading burden of a punitive requirement is to impose a fine instead or find ‘exceptional circumstances’ to make it ‘unjust’. No guidance exists on what the exceptional circumstances might be or how they are to be identified. A fine is seldom appropriate for offenders with existing fines, or for those who are on limited means. There is already a court bill in the region of £200 for the community order surcharge and the prosecution costs.
Something must be done. One option is to ensure that every offender has the benefit of a report, but we await the outcome on that.
A second option is to repeal the outdated legislation which demands a ‘punitive’ requirement. The legislation began its life back in 2013. Since then, there has been an increase to 13 different requirement options and the problematic ‘soft’ option of supervision has long gone.
Of relevance, there is no such obligation within a suspended sentence order and the guideline states that its requirements are ‘more likely to be predominantly rehabilitative in purpose’. It just doesn’t make sense for the lower level sentence of a community order to be more onerous than a suspended sentence. Both sentences carry the sanction of imprisonment on breach of requirements and re-offending.
The prevention of offending debate is moving away from punishment purely for the sake of it. That is what s.208(10) Sentencing Act 2020 is – resource-sucking punishment for the sake of it. Punishment is just one purpose of sentencing and will fit the bill perfectly for some offenders, but for many, it will be the ruin of their rehabilitation.
A perfect opportunity to repeal the section. It needs to go so that the guideline, when implemented, will work fairly and effectively. Right now, there is a real danger of generating overloaded orders and an increase in the prison population. Not what we want!
