PDS Advocacy Unit

The Sentencing Council recently issued a new Definitive Guideline for Child Cruelty offences, applicable to defendants aged 18 or over who are sentenced in the Crown Court on or after 1 January 2019.

The Sentencing Council is responsible for issuing guidelines which address overarching sentencing principles as well as specific types of offences. This aims to ensure consistent sentencing practice across Crown Courts in England and Wales. The body is also under a statutory duty to carry out periodic reviews of the impact of the guidelines.  

Adult defendants sentenced between 3 March 2008 and 31 December 2018 inclusive for child cruelty offences were sentenced in accordance with the Sentencing Guidelines Council’s Definitive Guideline entitled ‘Overarching Principles: Assaults on children and Cruelty to a child’. The first part of this guideline was intended to be read in conjunction with the separate guideline for non-fatal assault and provided additional principles which must be considered where the victim of the assault was aged 15 and under. The second part provided specific guidance in relation to the offence of cruelty to a child.

The new child cruelty guideline is welcome as it also encompasses the offences of causing or allowing a child to die or suffer serious physical harm contrary to s5 of the Domestic Violence, Crime and Victims Act 2004 and failing to protect a girl from the risk of genital mutilation contrary to s3A of the Female Genital Mutilation Act 2003. At the time of writing, only one person has been convicted of, and sentenced for, female genital mutilation. Defendants sentenced for causing or allowing the death or serious physical harm of a child were previously sentenced in accordance with case law, adopting general principles from sentencing manslaughter cases too in the former instance. Thus, the new guideline provides clarity and a structured framework for sentencing such cases.

In relation to the particular offence of cruelty to a child, the new guideline follows the current format of assessing the seriousness of the offence by reference to different categories of culpability and harm. Combinations of each category are then tabulated within a sentencing matrix to provide a number of sentencing starting points and ranges.

In the old child cruelty guideline, harm and culpability were discussed in very general terms under the heading of ‘Assessing Seriousness’ which commenced as follows, ‘It is not possible to identify one category of child cruelty as automatically being more serious than another… A long period of neglect, for example, could, in some circumstances, be more harmful to a child than a short period of violence’. Although physical and psychological harm are then referenced, long-term psychological harm was relegated to a subsequent section entitled ‘Other factors relevant to sentencing’. Thus, the highest sentencing range in the sentencing matrix was reserved for ‘serious cruelty over a period of time; serious long-term neglect and failure to protect a child from either of the above’.

In the new guideline this brief list has been explicitly supplemented by culpability factors including ‘gratuitous degradation and/or sadistic behaviour; use of very significant force; use of weapon; deliberate disregard for the welfare of the victim; offender with professional responsibility for the victim where linked to the commission of the offence’. Furthermore, in the highest category of harm, serious psychological, developmental and/or emotional harm is now front and centre, alongside serious physical harm including harm caused by illnesses contracted through neglect. In this way, the sentencing court is given specific guidance and advocates are not reliant upon their prior knowledge of how individual judges interpret the ‘Assessing Seriousness’ guidance. This improves the accuracy of advice that can then be given to their clients.

The other most notable benefit of the new guideline is that sentencing courts now have a greater number of sentence ranges defined for them. This reflects the breadth of differences between the types of child cruelty cases that come before the courts. In the old guideline the sentencing matrix provided only four sentencing ranges which were, as a consequence, reasonably broad. The new matrix, combining three categories of culpability – high, medium and lesser – with three categories of harm provides nine ranges and starting points. As with all Sentencing Council guidelines, factors increasing and reducing seriousness as well as personal mitigation then allow the court to identify the correct sentence within that range.