New sentencing guidelines have come into force this week, despite a ‘predominately negative’ response from judges and magistrates when they were proposed.

The guidelines introduced a new mitigating factor which courts should consider when sentencing offenders: judges and magistrates should now take account of the ‘difficult and/or deprived background or personal circumstances’ of offenders.

Such disadvantages include but are not limited to: experience of discrimination; negative experiences of authority; early experience of loss, neglect or abuse; negative influences from peers; low educational attainment; insecure housing; mental health difficulties; poverty and being a direct or indirect victim of domestic abuse.

The change has attracted commentary in the national press, with a Daily Telegraph leader column today calling the criteria for judging disadvantage ‘subjective’. ‘Lawyers for alleged offenders will have a field day exploiting these factors to reduce the sentence for their clients’, it states.

In focus group discussions during a consultation about the possibility of introducing this mitigating factors, views ‘were predominantly negative or neutral from judges and magistrates’, the Sentencing Council has revealed. Concerns relating to the new factor included that ‘it covered the large majority of offenders being sentenced, the link to mitigation for some of the factors was not clear’ and that it was ‘inappropriate or too broad’.

Respondents had ‘a general feeling that a new mitigating factor was not necessary as sentencers took these matters into account already’, the Sentencing Council wrote in a report on the consultation to the proposed amendments, published in September. But the minority who shared positive views on the factor suggested it was useful and liked the way it clearly listed what to consider, it added.

Following the consultation, the Sentencing Council did make a change, which was to clarify one disadvantage which had read ‘misuse of drugs and/or alcohol’.

Some magistrates felt the reference to misuse of drugs or alcohol conflicted with the aggravating factor ‘commission of offence under the influence of alcohol or drugs’.

The disadvantage on the final guidelines reads ‘difficulties relating to the misuse of drugs and or alcohol (but note: being voluntarily intoxicated at the time of the offence is an aggravating factor)’.


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