What are the guidelines and what offences do they affect?
The new child cruelty guidelines came into effect 1 January 2019 and broadly affect the following offences:
- Cruelty to a child under the Children and Young Persons Act 1933 Section 1(1)
- Causing or allowing a child to die (Domestic Violence, Crime and Victims Act 2004 Section 5)
- Failure to protect a child from female genital mutilation (Female Genital Mutilation Act 2003 – Section 3 A).
The guidelines follow the new familiar structure of recent sentencing guidelines for other offences and as such are extremely formalised. This is purportedly to achieve consistent and proportionate sentencing.
Whilst as in other areas, this should lead to a more consistent approach to sentencing it is to be hoped that not too formulaic an approach is used, particularly in relation to offences of cruelty to a child because there is a vast range of offending within that area and my personal view is that individual circumstances can be extremely significant.
The new sentencing guidelines are merely an update in relation to cruelty to a child. For that offence they were last updated in 2008 and the new guidelines bring them into the structure of the new approach of categorisation by harm and culpability etc.
The new guidelines are perhaps more significant in relation to the other two types of offences (causing or allowing a child to die and failing to protect a child from female genital mutilation) as these are the first guidelines to be issued for those offences.
What is the penalty for cruelty to a child?
The guidelines and the offence cover a large range of circumstances from a momentary lapse through to a sustained campaign of cruelty.
This is an either way offence and can be dealt with either at the Magistrates Court or Crown court depending on the seriousness of the individual case. Harm is first assessed in relation to psychological, development or emotional harm resulting in categorization of one two or three, and culpability is assessed by way of higher, medium or lesser culpability. The most serious of offences with category one harm and Culpability Level A have a starting point of 6 years with a range of 4 – 8 years. The huge variety of conduct covered by this offence is shown by the disparity in sentence when you come down to Culpability C with Category Three harm where the starting point is a community penalty and the range is a low level community penalty to 6 months in prison.
The Court of course then takes into account aggravating and mitigating features, plea, dangerousness, totality, parental responsibility, previous orders, time spent in custody and/or time spent on electronic tag before finally reaching a sentence.
What is the penalty for causing or allowing a child to die or to suffer serious harm?
This offence was created to allow both parents to be prosecuted in the event of their child dying without it being established who was responsible. Previously each parent could blame the other and often resulting in neither being convicted of an offence.
Here the same approach is used in terms of categorisation and culpability. The seriousness of the offence is demonstrated by the fact that it is indictable only, meaning that it can only be dealt with at the Crown Court. The maximum sentence is 14 years imprisonment with a range of 1 – 14 years. Where it is only serious harm that is caused or allowed there is a maximum of 10 years with a range of Community Order – 9 years.
At the more serious end of the spectrum is an offence categorised as culpability ‘A’ and category 1 harm which has a starting point of 9 years with a range of 7 – 14 years. This reduces down to the lower end of culpability ‘C’ with category 3 harm of a starting point of 9 months custody with a range from a high level Community Order up to 2 years imprisonment.
What is the penalty for failing to protect a child from female genital mutilation?
The seriousness of this offence is demonstrated by the fact that it is also indictable only with a range of a Community Order to 6 years custody. There is less variation in sentence in this offence but at the top end category 1 harm with Culpability ‘A’ has a starting point of 5 years with a range of 3 – 6 years. At the lower end, category 2 harm with culpability ‘C’ has a starting point of high community penalty with a range of low community penalty to 1 year custody.
In summary, the guidelines provide a structured and categorised approach to sentencing in respect of all three of the different types of offences. The range and starting points reflect the relative seriousness of the behaviours involved with the usual aggravating and mitigating features taken into account. As indicated earlier, my personal view is that nonetheless, sentencing should still be approached as an “art” rather than a “science” and I would hope that Judges will still feel able to depart from the guidelines in appropriate cases.
How can we help?
At Burton Copeland we have vast experience in dealing with all ranges of criminal offences including those described above. If you have been accused of a child cruelty offence it is crucial that you seek advice from a lawyer who are experts in this field and are able to defend, advise and guide you through the legal process which can be a frightening and daunting experience. If you need advice, please contact us now.
Rob Moussalli is a solicitor with over 25 years experience in criminal defence work and now specialises in youth court justice andnow heads the Youth Crime Department at Burton Copeland.