Tough lines - understanding sentencing guidelines for breach of civil injunctions

Breaching an injunction order granted under Section 1 of the Anti-Social Behaviour, Crime and Policing Act (2014) is a serious matter, with established sentencing guidelines in place. Upon sentencing, advocates will address the court, making direct reference to the applicable guidelines, and therefore it is useful for social landlords to understand the framework.

The Sentencing guidelines provide an eight step approach to sentencing. Step one - defining the breach category and step two - considering any mitigating/aggravating factors are the most comprehensive steps, so these will be the main focus within this article, touching on the remaining steps three - eight briefly. 

Defining the category - culpability vs harm

The first consideration for the court is culpability vs harm. Culpability focuses on the Defendant's state of mind and responsibility - for example, whether the breach was a deliberate and sustained defiance of the injunction order, or whether it was a ‘one-off' lapse with mitigating circumstances. Harm, by contrast, centres the actual or potential impact of the breach - including distress caused to victims and disruption to the community. The court will balance these two elements within the below table to establish where the offences falls, and what sentencing guidelines and therefore applicable. 

By determining which category the breach falls within, the court will have a clear starting point and category range for applicable sentencing. For example - if an offence falls within Harm - Category 2 and Culpability A - the court will consider 2 years' custody as a starting point, and will then look to the advocates for submissions as to whether it should be higher or lower than 2 years within the category range of 1 - 4 years custody. 

Mitigating / aggravating factors 

The sentencing guidelines provide a ‘non exhaustive list’ of factors to be taken into account when considering the sentencing range. Advocates will generally make submissions, highlighting a combination of these, and any other relevant factors, to persuade the court to apply an upwards or downwards sentence from the starting point. The list of factors include:

Statutory aggravating factors:

• Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction;
• Offence committed whilst on bail;

Other aggravating factors:

• Offence is a further breach, following earlier breach proceedings
• Breach committed shortly after order made
• History of disobedience of court orders or orders imposed by local authorities
• Breach constitutes a further offence (where not separately prosecuted)
• Targeting of a person the order was made to protect or a witness in the original proceedings
• Victim or protected subject of order breached is particularly vulnerable due to age, disability, culture, religion, language, or other factors
• Offence committed on licence or while subject to post sentence supervision

Mitigating factors:

• Genuine misunderstanding of terms of order
• Breach committed after long period of compliance
• Prompt voluntary surrender/admission of breach or failure
• Age and/or lack of maturity where it affects the responsibility of the offender
• Mental disorder or learning disability
• Sole or primary carer for dependent relatives

Further steps 

As previously noted, the above considerations require a more comprehensive understanding, and are more applicable in the context of social housing, as opposed to the remaining steps three - eight, which, for completeness are outlined below - 

Step three - consider any factors where the Defendant has assisted with proceedings; ie; discounted sentence for giving assistance with investigations into organised crime ;

Step four - reduction on sentence for early guilty plea

Step five - if sentencing for more than one offence/where the Defendant is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending;

Step six - consider whether to make compensation/ancillary orders

Step seven - reasons and effect of any sentence given must be set out (Section 174 Criminal Justice Act 2003)

Step eight - court must consider whether to give credit for time spent on bail

This overview aims to provide greater clarity on the application of sentencing guidelines with a particular focus on defining the breach and mitigating/aggravating factors. As with many areas of housing law, the application of these principles will be fact-sensitive. If you would like to explore how it may apply in a particular context, please don't hesitate to get in touch with our housing management team.