The Sentencing Council is an independent entity that promotes consistency in sentencing while preserving the judiciary’s independence. The Council is in charge of formulating and monitoring sentencing guidelines for use by the judiciary and criminal justice professionals.
New draught guidelines have been released for the crimes of witness intimidation and perverting the course of justice. There are currently no guidelines for perverting the course of justice, and only a few guidelines for witness intimidation in magistrates’ court.
The draft guidelines are available for public comment until June 22, 2022. Any ideas for revisions to the draught guidelines will be evaluated, and relevant changes will be made as needed. These rules apply to offenders aged 18 and up; ideas to consider for younger offenders are outlined in a guideline tailored to that age group.
The consultation seeks views on:
- the principal factors that make any of the offences included within the draft guidelines more or less serious;
- the additional factors influencing sentence;
- the types and lengths of sentence that should be passed;
- whether there are any issues relating to disparity of sentencing or broader matters relating to equality and diversity that the guidelines should address; and
- any other issues you feel should be considered.
The offender’s level of responsibility is the first consideration in a guideline. The guideline includes high and low culpability indicators to help determine if an offence is high, medium, or low in severity.
The offence’s level of injury caused or intended to be caused is assessed in the second phase. There are three categories of harm, and once they’ve been determined, the harm level is combined with the culpability classification to give a beginning point and range, or the sentence. To determine where the punishment should fall within the range, aggravating and mitigating elements are considered.
Perverting the course of justice
This offence of perverting the course of justice covers a wide range of behaviour from fabricating evidence, providing false information to evade prosecution or lying to incriminate an innocent person. The elements of the offence are:
- doing an act or series of acts;
- which has or have the tendency to pervert; and
- which is or are intended to pervert;
- the course of justice.
Around 400 people were convicted for this crime in 2020.
According to the guideline, any term for an act that tends to pervert the course of justice should be served concurrently with any sentence for the substantive offence. In many circumstances, deterrence is a key goal of sentencing, but it can be accomplished by imposing an immediate jail sentence without requiring a lengthy sentence.
The magnitude of the underlying offence, the type of the deceptive activity, the amount of time it continued, whether it threw suspicion on or led to the arrest of an innocent person, and the success or failure of the action are all significant elements in determining the sentence.
The factors described in a leading case for the most serious sort of crime are reflected in the highest culpability factors. This requires long-term behaviour, a sophisticated or premeditated character, and a very serious underlying offence. An unplanned, unsophisticated offence, where the underlying offence was not serious, the offender was involved as a result of coercion, intimidation, or exploitation, or he had substantially reduced responsibility as a result of a mental disorder or learning disability, would indicate lower culpability.
The harm elements are based on the considerations mentioned in a leading case for this offence and vary from substantial consequences for an innocent party (such as imprisonment or arrest) to some distress or limited impacts at the lowest end.
The penalty varies from a medium-level community order for the lowest level of guilt and harm to a minimum of four years in prison for the most serious offenders.
Despite the fact that there is some overlap with perverting the course of justice, this is a separate offence. Witness intimidation is defined as forcing a witness to remove remarks or refuse to testify in court. Around 180 people were convicted for this crime in 2020.
Actual or threatened violence, intentionally seeing out witnesses, or violating bail conditions if this makes the offence more serious are among the highest culpability considerations. Nonviolent conduct that amounts to a threat and offending is covered by medium culpability, which isn’t covered by the high and low elements. Lower culpability refers to unintentional or short-term offences, as well as offenders who are involved in coercion, intimidation, or exploitation, or whose responsibility is significantly diminished by a mental illness or learning disability.
Contact made in or near the victim’s home, as well as causing substantial anguish to the victim, are factors in the serious level of harm. The middle bracket involves some pain, whereas the lowest bracket comprises only a minor consequence of the offence.
Sentencing for this crime ranges from a low-level community order to a minimum of two years in prison for the most serious offenders.
The Council debated whether other crimes involving the administration of justice should be included in the rules. Perjury, contempt of court, and helping an offender were considered, but were not included due to the low amount of offences. The method used aims to keep present sentencing practises and encourage consistency in sentencing practises.