Download EHRC response to the Sentencing Council`s Consultation on Draft

EHRC response to the Sentencing
Council's Consultation on Draft
Guidelines for Assault
Consultation details
Title:
Draft Assault Guidelines
Source of consultation: The Sentencing Council for England and Wales
Date:
January 2011
For more information please contact
Name of EHRC contact providing response and their office address:
Macius Kurowski
3 More London, Riverside, Tooley Street, London, SE1 2RG
Telephone number:
02031170402
Mobile number:
Email address:
[email protected]
Summary
The Equality and Human Rights Commission (the Commission) has
directly responded to the questions within the consultation document;
making recommendations and highlighting useful sources of guidance
and evidence. The main points of our response include:
 An expectation to conduct a full equality impact assessment on the
guidelines
 A recommendation to add reference to offences motivated by, or
demonstrating, hostility to the victim based on their transgender
status (or presumed transgender status) to the non-statutory
factors indicating higher culpability at step one of the decision
making process
 Highlighting concerns around inappropriate consideration of
vulnerability and hostility and recommending the development of a
definition and further guidance to support members of the judiciary
on this issue
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 Highlighting the importance of the use of victims’ impact
statements as a way of courts considering the impact on victims
along with concern at the current low levels of use of these.
 Highlighting concerns about the accessibility of the consultation
document and the sentencing process and recommending
potential mitigating steps.
 Suggesting that the provision of information alone will have a
limited effect in improving public confidence in sentencing and
recommending other action that could help achieve this.
Introduction
The Equality and Human Rights Commission (the Commission) is
working to promote fairness, eliminate discrimination, reduce inequality,
protect human rights and build good relations between communities.
The Commission is a non-departmental public body established under
the Equality Act 2006 but independent of Government. The Commission
has responsibilities in seven areas of equality: age, disability, gender,
race, religion or belief, sexual orientation and gender reassignment, as
well as human rights.
Assessing the impact on equality and good relations
The Sentencing Council for England and Wales is subject to the general
public sector equalities duties under the existing disability, gender and
race equality legislation. It therefore has a legal obligation to pay ‘due
regard’ to the need to eliminate discrimination and promote equality with
regard to race, disability and gender, including gender reassignment, as
well as to promote good race relations.
This law requires that the duty to pay ‘due regard’ be demonstrated in
the decision making process. Assessing the potential equality impact of
proposed changes to policies, procedures and practices is one of the
key ways in which public authorities can show ‘due regard’.
By law an assessment must:


2
contain sufficient information to enable a public authority to show it
has paid "due regard" to the equality duties in its decision-making
identify methods for mitigating or avoiding any adverse impact.
The new Public Sector Equality Duty will come into force in England,
Scotland and Wales from April 2011. The duty will extend statutory
equalities obligations to cover the protected grounds of age, disability,
gender, gender reassignment, marriage and civil partnership, pregnancy
and maternity, race, religion and belief and sexual orientation. It will
place a duty on public authorities to have due regard to the need to:
 eliminate discrimination, harassment, victimisation and any other
conduct that is prohibited by or under this Act;
 advance equality of opportunity between persons who share a
relevant protected characteristic and persons who do not share it;
 foster good relations between persons who share a relevant
protected characteristic and persons who do not share it.
Although the current public sector equalities duties require the
Sentencing Council to have ‘due regard’ in respect of disability, gender,
gender reassignment and race. We recommend that the Sentencing
Council also analyses the impact of the proposed guidelines on all the
new protected grounds in preparation for their new responsibilities.
We welcome that the Sentencing Council has undertaken an initial
screening for potential equality impacts on the draft assault guidelines.
However, we believe that the proposed guidelines for assault are
relevant to equality and good relations; will have an impact on equality
and good relations for victims and offenders; will provide an opportunity
to promote equality and foster good relations. The new guidelines may
also attract positive or negative opinion of members of the public. We
therefore expect that a full equality impact assessment is undertaken. As
well as considering the potential impact on both victims and offenders
from individual protected grounds, the equality impact assessment can
provide a helpful way of examining potential impacts in relation to what
maybe multiple characteristics of victims and offenders. For example an
equality impact assessment that showed a disproportionate number of
offenders were Black African young people with mental health conditions
would likely call for a different policy response.
Undertaking a full equality impact assessment should help the
Sentencing Council identify potential impacts on equality and good
relations. These can the be considered in further detail with identification
of how the impacts will be mitigated or justified; identify other missed
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opportunities to promote equality of opportunity and provide evidence to
deal effectively with potential negative public opinion or media coverage.
The Commission has published a range of guidance for public
authorities on the existing disability, gender and race public sector
equalities duties that will be useful to the Sentencing Council. This
includes guidance on equality impact assessments and is available on
our website.
We have also just published guidance for public authorities on the new
public sector equality duty. This includes guidance on equality analysis
and is also available on our website. The change in terminology for
'equality impact assessment' to 'analysis of the effects on equality'
is intended to focus more attention on the quality of the analysis
and how it is used in decision making, and less on the production
of a document, which some may have taken to an end in itself.
Where organisations have an established method for reviewing policies
to assess the impact on the aims of the previous duties, they maybe
able to continue to use this tool, although it will be advisable to review
this to ensure that it works under the new equality duty.
Involvement and consultation of people from equality groups
The race equality duty requires that proposed policies are consulted on
as well as assessed. The gender and disability duties are not as explicit,
but require involvement of disabled people and consultation of women
and men as a key method of meeting the equality duties.
Information and insights that can be gained from involvement and
consultation are crucial to equality impact assessments. Giving people
from equality groups who will be affected by the proposals input into this
process will improve outcomes and also provide a powerful means of
increasing understanding and confidence in the sentencing process. We
have produced guidance on involvement and consultation that will assist
the Sentencing Council and is available on our website.
EHRC response to consultation questions
1. Do you think that the proposed decision making process will
increase public understanding of, and confidence in, the
sentencing process?
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Only to a very limited extent. The Commission recommends that the
Sentencing Council should produce more accessible information on
the decision making process.
The consultation document and the proposed decision making
process is difficult to understand because of its complexity; the use of
technical language and references to criminal law that people with no
experience of the criminal justice system will not be familiar with.
It is also likely to be inaccessible to certain groups of disabled people;
people whose first language is not English and people with low
literacy levels. A number of the Commission's disability stakeholders
have explicitly raised concerns to us about the inaccessibility of this
consultation.
We recommend that the Sentencing Council produces an easy read
version of the consultation and decision making process using
images and simple language wherever possible. To some extent, the
glossary helps explain some of the most important words but this
would be more usefully positioned at the front of the document.
Providing a simple summary of the legislation that is referenced as
well as case studies or practical examples of how the process would
be applied in real life would also help everyone outside of the criminal
justice system understand how the process would work in practice.
Providing information will only ever act as the first stage in increasing
public understanding of the decision making process. This must be
accompanied by the range of actions (as outlined in our response to
question eight) to increase public understanding and confidence.
2. Do you think that there is anything else which courts should take
into account when considering harm and culpability at step 1 of
the decision making process?
The Commission welcomes that the Sentencing Council has included
offences that are racially or religiously aggravated, or motivated by
hostility to victims’ actual or presumed sexual orientation or disability
within the factors indicating higher culpability.
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However we are concerned that there is no recognition of offences
motivated by hostility to victims’ actual or presumed transgender
status within the factors indicating higher culpability. This is a missed
opportunity to promote equality of opportunity for transgender people.
The Commission recommends that offences motivated by, or
demonstrating, hostility to the victim based on his or her transgender
status (or presumed transgender status) are explicitly included within
the non-statutory factors indicating higher culpability. We recommend
that the Sentencing Council use an appropriate definition of
transgender status in the guidelines. We suggest that this is based on
the definition of gender reassignment provided in section seven of the
Equality Act 20101.
Providing a definition of transgender status will help add greater
clarity to the guidelines on this equality issue. It is important, however,
that the guidelines make it clear that the key evidence to consider in
identifying greater culpability relating to hostility to the victims
transgender status (or assumed transgender status) should focus
solely on the behaviour and actions of the offender. Courts should not
focus on attempting to analyse or investigate the actual identities of
transgender people who are victims of assault.
Including this factor is relevant for the purposes of protecting
transgender people and reducing crime against transgender people
by deterrence. It would promote consistency in sentencing across the
protected grounds covered by the new public sector equality duty. It
would also have potential positive impacts on the confidence of
transgender people in the criminal justice system and the impact of
sentencing decisions on victims of transgender hate crime.
‘How Fair is Britain? (available on our website) is the Commission's
first triennial review. This identifies that hate crimes (including
assault) present a serious barrier to equality for people from all
equality groups who are targeted.
Experiencing hate crime can often have a significant negative effect
on the life chances of individuals who experience it. There is
1
Equality Act 2010. Available at: http://www.legislation.gov.uk/ukpga/2010/15/contents
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widespread recognition that targeted violence can also have a 'ripple
effect' and a wider impact on others, who share a targeted
characteristic. For example, disabled people can restructure their
lives to minimise real or perceived risk of hate crime even if they have
not experienced this personally2.
Emotional and physical security is a precondition for good relations to
be experienced by people from different backgrounds3. The extent to
which people, who share a particular equality characteristic, feel safe
affects their behaviour and their ability and opportunity to interact with
others.
Offences against the person were also the largest category in all the
hate crime strands prosecuted by the Crown Prosecution Service
(CPS) in 2008 - 09 (42% for racial and religiously aggravated cases,
48% for homophobic and 45% for disability hate crimes)4. CPS data
also suggests that the majority of defendants were men and were
identified as belonging to the White British category.
Although there is no statutory offence in relation to transgender
status. Transgender hate crime is recognised as one of the five
categories of 'monitored hate crime' in England and Wales. The
Association of Chief Police Officers and the Crown Prosecution
Service (CPS) have a nationally agreed to definition of this as 'Any
criminal offence which is perceived, by the victim or any other person,
to be motivated by a hostility or prejudice against a person who is
transgender or perceived to be transgender'.
Therefore all police forces recognise transgender hate crime and,
from April 2011, will be required to include data on the number of
transgender hate crimes reported to them in their annual data
requirement submission to the Home Office. The CPS also recognise
Sin et al (2009), EHRC Research Report 21 - Disabled peoples’ experiences of targeted violence
and hostility. Available at: http://www.equalityhumanrights.com/key-projects/good-relations/safetyand-security-for-disabled-people/
3 Wigfield and Turner: EHRC Research Report 60 - Good Relations Measurement Framework (2010).
Available at: http://www.equalityhumanrights.com/publications/our-research/researchreports/research-reports-51/
4 (p15) CPS Hate Crime Report 2008-09. Available at:
http://www.cps.gov.uk/publications/docs/CPS_hate_crime_report_2009.pdf
2
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hostility or prejudice towards transgender status as being a relevant
factor in bringing prosecutions on hate crime.
Our evidence shows that prejudice and negative attitudes towards
transgender people are widespread5. Despite there being no statutory
aggravating factor in relation to transgender status, 312 transgender
hate crimes were reported to police forces in England, Wales and
Northern Ireland in 20096. This was more than a 50% increase from
the 200 transgender hate crimes reported the previous year7.
There is significant under reporting for all hate crime so the real scale
of transgender hate crime is likely to be much higher than the number
of incidents reported to the police suggests. Underreporting may arise
from the fear that pursuing a prosecution may necessitate the
disclosure of one’s gender identity which may have negative
consequences8. It may also arise from a lack of trust in police9.
It is difficult to conclude, from these figures alone, that transgender
hate crime is increasing, as other factors such as increased
awareness or confidence among transgender people to report
incidents to the police, could also be relevant. There have been ,
claims in the media, however, that transphobic attacks are
increasing10.
Research shows that transgender people experience high levels of
harassment, including physical abuse while in public spaces11.
English respondents to a study of transphobic hate crime in the
5
EHRC (2008) Who do you see? Available at:
http://www.equalityhumanrights.com/wales/projects/who-do-you-see/reports/
6 ACPO (2010) Total of recorded hate crime from regional forces in England, Wales and Northern
Ireland during the calendar year 2009 Available at:
http://www.acpo.police.uk/asp/policies/Data/084a_Recorded_Hate_Crime__January_to_December_2009.pdf
7 Hate crimes in the OSCE region - incidents and responses. Annual Report for 2008.
http://www.osce.org/item/41314.html Note: Figures are rounded to nearest 100 after using the
average monthly number of crimes for the missing month.
8 Whittle, S. and Stephens, P. (2001), Provision for Transsexual and Transgender People in the
Criminal Justice System, Press for Change, http://www.pfc.org.uk/node/384
9 Moran, L. J. and Sharpe, A. N. (2004), ‘Violence, Identity and Policing: The Case of Violence
Against Transgender People’, Criminal Justice, 4 (4): 395:417.
10 BBC news article. http://www.bbc.co.uk/news/uk-10803570
11 Whittle, S., Turner, L. and Al-Alami, M. (2007), Engendered Penalties: Transgender and
Transsexual People’s Experiences of Inequality and Discrimination, London: The Equalities Review.
8
European Union reported the higher levels of physical abuse than
respondents from other EU countries12. Male to female trans people
are more likely to become victims of transphobia than female to male
trans people13 and poorer transgender people are also more likely to
experience hate crime14.
The evidence above highlights a number of potential positive impacts
of the draft sentencing guideline for equality and good relations in
respect of victims of disability, race, religion, sexual orientation and
transgender status hate crime. There are also potentially negative
impacts in relation to the race and gender of offenders. This
reinforces the need to conduct a full equality impact assessment that
involves people from relevant equality groups.
Within the proposed guidelines, vulnerability due to victims'
circumstances is included as a factor indicating greater harm and
deliberate targeting of a vulnerable victim is included as a factor
indicating greater culpability. The distinction between these two
factors is not made clear and there is no clear definition of what
constitutes vulnerability. We recommend that this is clarified in the
guidance and that it makes clearer how vulnerability related to other
equality groups (such as children, older people, women etc) should
be taken into account in the sentencing decision making process.
An accurate assessment of a person's vulnerability cannot be made
solely on the basis of their age; disability; gender; race; religion and
belief; sexual orientation or transgender status. People can, however
be targeted because of hostility towards these characteristics. There
are also other factors such as levels of income; tenure type; social
isolation etc, when considering an individual's level of risk of
experiencing crime (including assault) and the impact that this has on
victims. These need to be looked at the same time as equality
characteristics when assessing vulnerability.
12
Turner et al (2009) Transphobic hate crime in the European Union
http://www.pfc.org.uk/files/Transphobic_Hate_Crime_in_EU.pdf
13 Whittle, S., Turner, L. and Al-Alami, M. (2007), Engendered Penalties: Transgender and
Transsexual People’s Experiences of Inequality and Discrimination, London: The Equalities Review.
14 Lombardi, E. L., Wilchins, R. A., Priesing, D. and Malouf, D. (2001), ‘Gender Violence: Transgender
Experiences with Violence and Discrimination’, Journal of Homosexuality, 42 (1), pp. 89-101.
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In some cases inappropriate assumptions about a victims
vulnerability because of their identity have resulted in hostility towards
that person being overlooked. The court's recognition of this hostility
through prosecution and sentencing is often very important for victims
of hate crime. Therefore inappropriate consideration of vulnerability
without recognising other factors such as hostility will have a negative
impact on satisfaction and confidence in the criminal justice system.
We recommend that the Sentencing Council produces further
guidance on the consideration of vulnerability and hostility. Training
for judges and magistrates on this issue will also help ensure that the
implementation of the new guidelines is as effective as possible in
sentencing hate crime cases.
3. Do you agree that consideration for mental illness should be
included at step 1 of the process and/or do you think that it
should be built into the guideline in any other way?
The Commission agrees that the guidelines should take mental health
conditions in consideration as a factor indicating lower culpability at
step one of the sentencing decision making process.
However the Bradley Report15 and subsequent research into the court
experiences of adults with mental health conditions or learning
disabilities16 highlights the importance of identifying and considering
the mental health conditions of defendants; victims and witnesses
during their first contact with criminal justice agencies and well in
advance of the sentencing stage of the court process.
Taking measures in relation to supporting defendants, victims and
witnesses and providing training on mental health issues for judges
and magistrates) that would support the implementation of this
proposal.
15
Lord Bradley's review of people with mental health problems or learning disabilities in the criminal
justice system (2009). Available at:
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_0
98694
16 McLeod et al (2010) Court experiences of adults with mental health conditions or learning
disabilities. Available at: http://www.justice.gov.uk/court-experiences-adults-mental-health.htm
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The potentially impacts of this proposal reinforces the need and value
of conducting a full equality impact assessment that involves the
people who are likely to be effected by any positive or negative
equality impacts.
4. Do you think that there are any other aggravating and mitigating
factors that should be included at step 2 of the process?
No additional factors identified
5. Do you agree with the Council’s proposed change to encourage
the court to take account of a lack of maturity and/or is there any
further role for the guideline to play in addressing the specific
issues of younger offenders?
The Commission agrees that the guidelines should permit the court to
take a lack of maturity into account. Our reasons for supporting this
proposal are as follows:
 Firstly, as a matter of principle, sentencing should take into
account both the nature of the offence and the personal
circumstances of the offender including age and maturity. This is
particularly significant for young offenders.
 We consider that children are not always able to differentiate
between bad behaviour and serious wrongdoing in the context of
criminal law. This is because legal concepts such as intention to
commit an offence and recklessness as to the effects of an act
require more complex cognitive skills to understand how a person
foresees the consequences of his or her actions.
 Secondly, we consider that this proposal is an important safeguard
and counterweight to the low age of criminal responsibility. In its
periodic report to the UN Committee on the Rights of the Child, the
Government stated that that the total number of children aged
10-17 sentenced in 2005 was as high as 96,200. According to the
Howard League for Penal Reform as at 20 June 2008 the total
number of children in custody was 3,022 of which 2,542 were held
in prison and 480 were held in either a secure children's home or
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secure training centre[1] - these would be children aged from 12 to
17 years.
 Thirdly, the proposal would comply with the requirement for
proportionality in international human rights law in sentencing child
offenders. The CRC article 40 states that: ''States Parties
recognize the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in a
manner consistent with the promotion of the child's sense of dignity
and worth, which reinforces the child's respect for the human rights
and fundamental freedoms of others and which takes into account
the child's age and the desirability of promoting the child's
reintegration and the child's assuming a constructive role in
society''.
 This provision is also reflected in the new child friendly guidelines,
published by the Council of Europe in November 2010, which
elaborate on article 6 of the European Convention on Human
Rights when it is applied to children. Paragraph E (82) provides
that: ''Measures and sanctions for children in conflict with the law
should always be constructive and individualised responses to the
committed acts, bearing in mind the principle of proportionality, the
child's age, physical and mental well being and development and
the circumstances of the case...''
 United Nations Standard Minimum Rules for the Administration of
Juvenile Justice ("The Beijing Rules") article 5 also states that, for
the aims of juvenile justice: "The juvenile justice system shall
emphasize the well-being of the juvenile and shall ensure that any
reaction to juvenile offenders shall always be in proportion to the
circumstances of both the offenders and the offence."
The potentially impacts of this proposal reinforces the need and value
of conducting a full equality impact assessment that involves the
people who are likely to be effected by any positive or negative
equality impacts.
6. Do you think that the aggravating/mitigating factors of harm
within the draft guideline sufficiently allow the court to take into
account consideration of victims, or are there other ways in
which victims could be considered?
[1]
The Howard League for Penal Reform, Weekly Prison Watch 2008 Updates
12
In 2009, the Commission funded a project which brought together
volunteers from Witness Services and Victim Support, trans women
and disabled people. This group formed an action learning set to
explore how disabled people and trans people, who had been victims
of hate crime, could be empowered to improve responses and the
support provided to other victims of hate crime
The final report of this project, entitled Empowering people to tackle
hate crime made six recommendations aimed at improving services
provided to victims of hate crime. One of these highlighted the
important role victim personal statements have in sentencing hate
crimes and achieving justice for victims.
It is vital that every victim is encouraged and supported to complete
personal statements by the police and CPS. This is valuable evidence
that can help criminal justice agencies to better assess the impact of
hate crime on people. The effects on a wider community (for
example, transgender women and disabled people) should also be
included in community impact statements.
However the Commissioner for Victims and Witnesses has
highlighted that 'only 43% of victims are offered the opportunity to
make a victim personal statement. Of those who did make a
statement, 69% felt that the views in it were taken into account by a
court; potentially a big plus for a victim’s sense of fairness in the
system'17.
Victims’ personal statements should always be taken into account by
the Court when deciding sentences. The Court should also highlight
when a victim personal statement has not been made available to
them and request that the CPS and police explain why this is the
case.
7. Do you agree with the proposed category ranges and starting
points?
This falls outside of the Commission's remit and area of expertise.
Commissioner for Victims and Witnesses (2010) The poor relation – victims in the criminal justice
system. Available at: http://www.justice.gov.uk/about/docs/victims-in-justice-system.pdf
17
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8. Are there any other ways in which you think that the proposed
guideline could increase public understanding and confidence?
Involving people from different equality groups in developing the draft
assault guidelines will provide the Sentencing Council with greater
insight and practical solutions for how this can be achieved for people
from different equality groups.
It will be essential for the Sentencing Council to take action to
promote the final version of guidelines. This will be most effective
when delivered at a Community Safety Partnership or Local Criminal
Justice Board level and through initiatives such as 'Seeing Justice
Done'.
The confidence, of people across equality groups, in the criminal
justice system varies. Evidence to reflect this includes the following:
 Older people and people with a disability or limiting long-term illness
are significantly less likely to believe that the criminal justice system
meets the needs of victims18
 More people from ethnic minority backgrounds were confident that
the CJS as a whole was fair (68%, compared to 57% of White
people). However, an in-depth study of 47 young ethnic minority
people’s attitudes suggested that young Black men remain wary of
being perceived as criminals by the police.19
 1 out of 5 of the 1,658 lesbian, gay and bisexual people they
surveyed would expect discrimination from the police if they reported
an offence20
 A survey of attitudes among 872 transgender people found that two
thirds felt confident that they would be treated appropriately by
members of the police service as their acquired gender. However,
around 1 in 5 of those who had had contact with the police (68/367)
felt that they were treated inappropriately, with attacks against them
18
How fair is Britain? Equality, Human Rights and Good Relations in 2010. The First Triennial
Review. October 2010. EHRC
19 How fair is Britain? Equality, Human Rights and Good Relations in 2010. The First Triennial
Review. October 2010. EHRC
20 Taken from: Hunt, R. and Dick, S. 2008. Serves You Right: Lesbian and gay people’s expectations
of discrimination. London: Stonewall.
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not being taken seriously and inappropriate searches being carried
out21.
 The successful prosecution rate for hate crimes in 2008-09 was lower
than the overall conviction rate of all offences22. This suggests that
victims of hate crimes do not always receive equal justice and this
has a negative impact on confidence of victims of hate crime in the
criminal justice system.
Providing publically available information and giving defendants,
victims and witnesses clear details on what to expect in relation to
sentencing decisions before the court process begins could provide
an important first step in increasing public confidence in sentencing.
However, once the new guidelines are established, it will be also
important to provide clear explanations, throughout the court process,
of why decisions were made to defendants, victims and witnesses.
It will also be important to collect, analyse and publish data on court
decisions that are made using the new guidelines to identify
disproportionately impact on victims and defendants from different
equality groups. This will provide valuable intelligence on
performance for the courts and judiciary and will help facilitate greater
accountability to increase public confidence.
Once established the decision making process for individual hate
crime cases should also be considered by CPS hate crime scrutiny
panels. As well as providing a means of performance focused
scrutiny these panels also play a valuable communication function to
different communities.
Appendix - Relevant Commission resources
Relevant sources of Commission evidence that can be useful to the
Sentencing Council include the following:
21
Whittle, S. Turner, L. and Al-Alami, M. 2007. Engendered Penalties: Transgender and Transsexual
People’s Experiences of Inequality and Discrimination. London: The Equalities Review.
22 CPS Hate Crime Report 2008-09. Available at:
http://www.cps.gov.uk/publications/docs/CPS_hate_crime_report_2009.pdf
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 How Fair is Britain? presents evidence on age, gender, disability,
ethnicity, religion or belief, sexual orientation and transgender status,
against a set of equality indicators across 8 different areas including
physical and legal security. This gives the best available data to show
how these different groups fare in relation to the indicators.
 In preparing the triennial review we commissioned research and
analysis entitled Physical and legal security and the criminal justice
system: A review of inequalities
 Research on Homophobic hate crime and hate incidents.
 The Trans Research Review provided evidence on the high levels of
hate crime experienced by transgender people.
 Not just another statistic provides an overview of individual
experiences of transgender people in Wales
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