The Sentencing Council (still known to everyone as the Sentencing Guidelines Council) has issued a draft set of guidelines for offences of theft. They are currently consulting on whether the guidelines are appropriate.
What will this cover?
It will be for theft and similar offences. The full list is:
- Theft (shoplifting)
- Theft (all other offences)
- Abstracting electricity
- Making off without payment
- Going Equipped
- Handling Stolen Goods
Note that it doesn’t apply to robbery and burglary, which have their own guidelines that remain in force. Also, the current guidelines for all offences of theft are put into one (apart from shoplifting).
How will it work?
Given that the purpose of Sentencing Guidelines is to ensure consistency, it is unhelpful that there have been so many different approaches to how individual guidelines are constructed.
It adopts the ‘current’ format – the first stage is to identify the culpability. It eschews the Sexual Offences guidelines form of ‘serious’, ‘really serious’ and ‘actually really really serious’ going, sensibly, for ‘lesser’, ‘medium’ and ‘high’.
There is then a question of allocating one of four (or two in the case of Making Off Without Payment and Abstracting Electricity where there are two) categories of ‘Harm A’ (not just harm – see later) based on the value of the property stolen. This gives a 4 by 3 grid with starting point and a sentencing range.
You then look at ‘Harm B’. This is a new development and is pandering to the neverending ‘rebalancing’ of the system in favour of ‘victims’ to give effect to the impact on victims. You look at whether there are certain factors (of a non-exhaustive list) are present and if they are, then it is a case of ‘additional harm’. If these show ‘a detrimental effect on the victim or others’ then it can knock the case up in seriousness within the category established and, depending on the amount of harm, into the category above. Note that this can only operate one way – it doesn’t matter how minor the harm, the case can’t be put into a lower category (although it may be that you can get a similar result by way of general mitigation).
After that you look at the aggravating and mitigating features as before and come up with an appropriate sentence before giving any credit for a plea of guilty.
It is stated that the new guidelines will not make any difference either way to the sentences handed down. Firstly, if that is so, is it really necessary to redo the theft ones? Secondly, on the worked examples (see page 26 for the two shoplifting examples) it seems to me that this isn’t accurate and it may lead to higher sentences.
What are your thoughts?
Well, since you are asking …
- I’m not sure of any real need for guidelines for Making Off Without Payment and (especially) Abstracting Electricity.
- One very welcome development is that there is, in all cases, a caveat that any case ‘where characteristics for [greater or lesser harm] are not present’ which stops the problem that most cases don’t fall into any of the categories identified.
- We have, finally and long overdue, got guidelines for Handling – why did it take so long?
- I am sceptical of the need for (and the calculation of) the treatment of ‘prevalence’ as an aggravating feature
- It was extremely useful to have different guidelines for different types of theft. It seems highly undesirable to have them all bar shoplifting lumped into one category
- The ‘Harm B’ factor is odd. It’s also probably unnecessary and unwieldy and I don’t think it’s particularly controversial to say that it is likely to cause problems of interpretation
- There are specific problems that will be caused in relation to several of the new guidelines. For example – in a theft case there will be ‘additional harm’ if the items stolen were “of an economic, sentimental or personal value“. Which cases aren’t encompassed by that?
How do I respond?
You can go to the consultation page and respond there. I find it quite difficult to use those (as I often want to say more). I’ve prepared this – Theft Guidlines Consultation – Template Response (cobbled from other consultations) if people want to use it, feel free to.
You have until 26th June 2014 to respond.