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Paragraph 6 will be amended by s.127 of the Police, Crime Sentencing and Courts Act 2022 with effect from a date to be determined and any offender, aged under 18 at the date of the offence, who is convicted of murder on or after that commencement date will be subject to the new starting points.
- Foreword
- Executive Summary
- Introduction
- Background
- The Sentencing Framework
- Wider Programme of Reforms
- Section 1 – A minimum term starting point for cases of murder preceded by controlling or coercive behaviour against the murder victim
- Section 2: A minimum term starting point for all murders committed with a knife or other weapon.
Every year, around 90 people – overwhelmingly women – are killed by their current or ex-partner, leaving their devastated families with a lifetime of unimaginable grief. Tackling violence against women and girls, and making sure those who commit these cowardly crimes serve sentences that truly reflect the severity of their offences is a priority for me as Lord Chancellor, and for this Government.
All cases of murder rightly carry a mandatory life sentence. Our current sentencing framework also sets out guidance for judges deciding the minimum term that an offender must spend in prison before being considered for release by the Parole Board, to spend the rest of their life sentence on licence in the community.
This framework recognises the significant degree of premeditation and criminality involved in the illegal possession of weapons and the need to protect the public from the use of weapons on our streets. There is a range of starting points for murder cases beginning at 15-years, with a 30-year starting point for murders involving firearms. And in 2010, following the murder of Ben Kinsella - who was stabbed to death in the street in what was believed to be a case of mistaken identity - we added a 25-year starting point for murders committed with a knife or other weapon taken to the scene with intent.
Around a quarter of all homicides in England and Wales are committed by the partner, ex-partner, or relative of the victim, and most of these domestic murders take place in the home. Therefore, when a weapon is used - often a kitchen knife - it is normally already at the scene. This means that although weapons are often used in domestic murders, these offences generally do not qualify for one of the higher starting points.
Last year, Clare Wade KC considered this, and wider issues, in her important independent review of sentencing in cases of domestic homicide. The review highlighted several key themes in domestic murders. Of the murder cases analysed, over half had a history of controlling or coercive behaviour against the victim, 60 percent involved sustained and excessive violence, known as ‘overkill’, and just under half were connected with the end of the perpetrator’s relationship with the victim.
We acted swiftly in response. We have introduced legislation to bring in new statutory aggravating factors for murders which are preceded by controlling or coercive behaviour against the murder victim, for those involving ‘overkill’, and for murders connected to the end of a relationship. And there will be a new statutory mitigating factor for cases where the perpetrator was subject to controlling or coercive behaviour. While it is for the judge to determine the appropriate weight to be given to aggravating and mitigating factors in sentencing, we expect that together, these changes will have a significant impact on the minimum custodial terms given to the perpetrators in these cases.
Murder is the most serious crime a person can commit, and we must ensure that in every case the sentence is commensurate with the severity of the crime. Everyone should feel safe in their own home and our sentencing framework must reflect the seriousness of violence and abuse which is committed by those closest to them.
The Government has introduced legislation[footnote 1] to give domestic murders specialist consideration in the sentencing framework, as announced in response to the Domestic Homicide Sentencing Review, undertaken by Clare Wade KC. These measures were in direct response to recommendations made in the Review and mark a step change in the way in which our sentencing framework responds to cases of domestic murder.
However, we recognise that there are issues which would benefit from further consideration, beyond the recommendations made in the review. That is why we also committed to launch this public consultation, in order to ensure that all options for reform in this area have been fully explored.
This consultation is seeking views on a minimum term starting point for (i) cases of murder preceded by controlling or coercive behaviour against the murder victim, and (ii) all murders committed with a knife or other weapon.
In this consultation we are seeking views on a minimum term starting point for (i) cases of murder preceded by controlling or coercive behaviour against the murder victim and (ii) all murders committed with a knife or other weapon.
The consultation is aimed at all those with an interest in or views on the subject covered by this paper in England and Wales. The consultation will be open for 14 weeks and will close on 4 March 2024.
A Welsh language consultation paper is available https://www.gov.uk/government/consultations/murder-sentencing
An Impact Assessment has been prepared and published alongside consultation. Comments on the Impact Assessment are welcome.
The Domestic Homicide Sentencing Review
In March this year, the Government published the independent Domestic Homicide Sentencing Review, which had been undertaken by Clare Wade KC. The Government commissioned this review in response to concerns raised by a number of stakeholders including the Domestic Abuse Commissioner and the Victims Commissioner, and also by the parents of two young women, Poppy Devey Waterhouse and Ellie Gould, who were tragically murdered by their ex-boyfriends in 2018 and 2019 respectively. Around a quarter of all homicides in England and Wales are classed as domestic; that is, they are committed by the partner, ex-partner or relative of the victim. Over the last 10 years, this represents an average of nearly 160 homicides per year, with almost 90 of these being committed by a partner or ex-partner. The majority of domestic homicides are committed by men against women. The Review found that in many of these cases the victim has been subjected to years of abuse before their death. Where female perpetrators commit domestic homicide, it is often, though not exclusively, the case that they have been the victims of abuse and have killed their abuser. The legislation that sets out our sentencing framework for murder is contained in Schedule 21 to the Sentencing Act 2020. It was first introduced in the Criminal Justice Act 2003 some twenty years ago and it does not include any specific consideration of the seriousness of domestic homicides and the abuse that often precedes these cases. Over the last twenty years our societal and legal understanding of domestic abuse has evolved, and the Review found that our sentencing framework for homicide needs to be updated to reflect this.
Government response to the Domestic Homicide Sentencing Review
The Government’s full response to the Domestic Homicide Sentencing Review was published in July and marks a step change in the way in which our sentencing framework responds to cases of domestic murder. For the first time, the seriousness of domestic murders and the particular harms that arise in these cases will be recognised in our sentencing framework. The perpetrators in these cases must, and will, serve sentences that truly reflect the severity of these crimes. The package of measures in the full response include: Legislative changes to give domestic murders specialist consideration in the sentencing framework for murder. This legislation has now been introduced: A history of controlling or coercive behaviour by the perpetrator against the victim will be a statutory aggravating factor. A history of controlling or coercive behaviour by the victim against the perpetrator will be a statutory mitigating factor. Violence which amounts to overkill will be a statutory aggravating factor. This legislation will be introduced when parliamentary time allows: Killing connected to the end of a relationship, or the victim’s intention to end a relationship will be a statutory aggravating factor. Non-legislative measures to improve the way in which the Government responds to cases of domestic homicide: The Law Commission has been invited to undertake a review of the use of defences in domestic homicide cases. The Terms of Reference for this review have now been agreed and will be published shortly. The Home Office has launched a new Domestic Homicide Library, which will enable greater analysis of patterns, trends, and risk factors. The Crown Prosecution Service will continue to work with partners and improve mandatory training on understanding controlling and coercive behaviour. In the full response, the Lord Chancellor also committed to write to the Sentencing Council for England and Wales, proposing that it revises their guidelines in light of both the Review and the Government’s response to its recommendations. This was fulfilled and the Sentencing Council have subsequently published their own response to the recommendations relating to sentencing guidelines in the Review[footnote 4]. In this they announced they are consulting on: Adding an aggravating factor to all four manslaughter guidelines of the use of strangulation, suffocation or asphyxiation. Amending the aggravating and mitigating factors in all four manslaughter guidelines to include specific reference to controlling or coercive behaviour.
Going further – this consultation
We recognise that there are issues which would benefit from further consideration, beyond the recommendations made in the review undertaken by Clare Wade KC. That is why we committed to launch this public consultation, in order to ensure that all options for reform in this area have been fully explored. This consultation is open to the public and is seeking views on a minimum term starting point for (i) cases of murder preceded by controlling or coercive behaviour against the murder victim, and (ii) all murders committed with a knife or other weapon. We will carefully consider your views and feedback. The views collected through this consultation will help inform whether any further reform to the sentencing framework is required, beyond that which has already been committed to in response to the Domestic Homicide Sentencing Review.
Murder
A mandatory life sentence Anyone who is found guilty of murder will receive a mandatory life sentence. Alongside this life sentence, the sentencing judge is required to consider whether to impose a whole life order or a minimum term order. Offenders who receive a whole life order are only eligible for release on exceptional compassionate grounds by the Secretary of State. In practice, most whole life order prisoners spend the remainder of their lives in prison. Minimum term orders, by contrast, specify a minimum term of the life sentence which the offender must remain in prison before the Parole Board considers, for the first time, whether the offender can safely be released to serve the rest of their life sentence on licence in the community. If released, the offender will remain on licence for the rest of their life and can be recalled to prison at any time. The Parole Board may decide that it is never safe for the offender to be released, in which case the offender will spend all of their life sentence in prison. Schedule 21 to the Sentencing Act 2020 Schedule 21 to the Sentencing Act 2020 (previously Schedule 21 to the Criminal Justice Act 2003) sets out the principles which the court must have regard to when assessing the seriousness of all cases of murder, to determine whether to make a whole life order or, if making a minimum term order, the appropriate minimum term to be imposed. Schedule 21 does not set out all possible scenarios. It provides a framework for the determination of the appropriate minimum term based on the specific circumstances of each case. Judges are required to have regard to the general principles set out in Schedule 21. Sentencing Guidelines The independent Sentencing Council for England and Wales produces guidelines on sentencing. There is no offence-specific guideline for murder, but the court must follow any relevant sentencing guidelines unless it is contrary to the interests of justice to do so. Guidelines relevant to murder include the General Guideline: Overarching Principles, the Overarching Principles: Domestic Abuse Guideline, and the Sentencing Children and Young People Guideline. Starting Points in Schedule 21 Schedule 21 contains a range of starting points for determination of the minimum term. For each starting point, Schedule 21 specifies categories of case which will normally fall within them and the particular circumstances of a murder will determine which of these starting points apply. A baseline starting point of 15 years applies to all murder cases committed by offenders aged 18 or over. There is a 25-year starting point for murders involving the use of a weapon which has been taken to the scene with intent, which was put in place to recognise the seriousness of the illegal possession and use of knives in public. The highest starting points are 30 years and a whole life order. These recognise the particularly and exceptionally high seriousness of some murders, such as those involving the murder of two or more persons or the abduction and murder of a child. Offenders who are under 18 when they commit murder face a sliding scale of starting points ranging from 8 to 27 years, depending on the age of the offender when the offence was committed and the seriousness of the offence. Aggravating and Mitigating Factors in Schedule 21 After identifying the starting point, the minimum term imposed can vary significantly upwards or downwards from the initial starting point, depending on the aggravating and mitigating factors. It is for the sentencing judge to determine the appropriate weight to be given to the aggravating and mitigating factors, based on the specific circumstances of each case. Schedule 21 contains statutory aggravating and mitigating factors which may be relevant to the offence of murder. These statutory factors are not exhaustive, and the sentencing judge is able to consider any relevant factors in terms of aggravation and mitigation. There is no upper or lower limit on the final minimum term to be imposed. Having taken into account all the circumstances of the case and the relevant aggravating and mitigating factors, the judge is able to impose a minimum term of any length, whatever the starting point.
Controlling or coercive behaviour
The offence of controlling or coercive behaviour This Government made controlling or coercive behaviour a criminal offence in Section 76 of the Serious Crime Act 2015. This behaviour can comprise economic, emotional or psychological abuse, technology-facilitated domestic abuse, as well as threats, whether they are accompanied or not by physical and sexual violence or abuse. Controlling or coercive behaviour does not relate to a single incident. It is a purposeful pattern of behaviour which takes place over time which isolates the victim from support, exploits them, deprives them of independence and regulates their everyday behaviour. In 2018, the independent Sentencing Council for England and Wales introduced a sentencing guideline for the offence of controlling or coercive behaviour in an intimate or family relationship. In the same year the ‘Overarching Principles: Domestic Abuse Guideline’ was published, which recognises that the domestic context of offending behaviour represents a violation of trust and security, and therefore makes the offending behaviour more serious. Controlling or coercive behaviour is included in the guideline’s definition of domestic abuse. The courts must follow any relevant sentencing guidelines, unless it is contrary to the interests of justice to do so. All cases of controlling or coercive behaviour are serious. However, the relative seriousness of each case can vary significantly in terms of the culpability of the perpetrator and the harm caused to the victim. The guideline for the offence provides a framework for assessing the culpability and harm, in order to determine the offence category for the purposes of sentencing. The guideline then provides a starting point and category range, dependent on the offence category. For the lowest offence category the starting point is a medium level community order and for the highest offence category the starting point is 2 years 6 months custody. The maximum penalty is 5 years custody. Controlling or coercive behaviour and murder Although the ‘Overarching Principles: Domestic Abuse Guideline’ will be a relevant consideration in all domestic murders, Schedule 21 currently has no starting points or statutory aggravating or mitigating factors which recognise the seriousness of murders committed in the context of coercive or controlling behaviour. In response to the Domestic Homicide Sentencing Review the Government has introduced legislation[footnote 5] to change this. For cases where an abusive partner or family member has killed their victim, a history of controlling or coercive behaviour by the perpetrator against the victim will be a statutory aggravating factor to murder. For cases where a victim of abuse has killed their abuser, a history of controlling or coercive behaviour by the victim against the perpetrator will be a statutory mitigating factor to murder.
Use of a weapon
Sentencing Guidelines The ‘General Guideline: Overarching Principles’ includes the use of a weapon as an aggravating factor, which applies to all offences where a weapon has been used in any context. The guideline states that it is for the sentencing court to determine how much weight should be assigned to the aggravating and mitigating factors, taking into account all of the circumstances of the offence and the offender. The Guideline is clear that not all factors which apply will necessarily influence the sentence, and that care should be taken to avoid double counting factors, including those already taken into account in assessing culpability or harm or those factors inherent in the offence. The Guideline includes the following guidance for the court in determining whether use of a weapon should result in any upward adjustment to the sentence and if so, the weight that should be assigned to it: A ‘weapon’ can take many forms The use or production of a weapon has relevance to the culpability of the offender where it indicates planning or intention to cause harm; and to the harm caused (both physical or psychological) or the potential for harm. Relevant considerations will include: the dangerousness of the weapon; whether the offender brought the weapon to the scene, or just used what was available on impulse; whether the offender made or adapted something for use as a weapon; the context in which the weapon was threatened, used or produced. When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when assessing the relevance of this factor to culpability. Use of a weapon and murder Schedule 21 generally defines the seriousness with which a murder should be considered in sentencing by the circumstances in which the killing took place, as opposed to the means by which death was caused. There are two exceptions to this, where seriousness in Schedule 21 is ascribed according to the method of killing. The 30-year starting point applies to murders involving the use of a firearm or explosive, and the 25-year starting point applies to murders where a weapon used was taken to the scene with intent. The 25-year starting point was added to Schedule 21 in 2010, following the murder of Ben Kinsella, who was stabbed in the street by a gang in what was believed to be a case of mistaken identity. The change was prompted by concern that the starting point for this type of murder should be higher than the baseline starting point of 15 years, particularly as the starting point for murder using a firearm is 30 years. It was considered that the risk posed to the public by knives being carried on the streets, with the intention of using them to cause harm, needed to be reflected in the sentencing framework for murder. The baseline 15-year starting point would normally apply to all other murders committed with a knife or weapon, or by any other method of killing (unless circumstances in which the killing took place mean the 30-year or Whole Life Order starting points apply). There are no statutory aggravating factors to murder related to the use of a weapon, but the Sentencing Council’s ‘General Guideline: Overarching Principles’ lists the use of a weapon as an aggravating factor which applies to all offences. This position is also apparent in case law. For example, in R v M, AM, Kika (2010), the Court of Appeal stated that the use of a weapon will always be an aggravating factor, save for exceptional circumstances.
Tackling violence against women and girls
Tackling violence against women and girls remains a top priority for this Government and the changes proposed in the Government response to the Domestic Homicide Sentencing Review sit in the context of significant, wider cross-Government work to tackle violence against women and girls. This includes the creation of the offence of controlling or coercive behaviour in intimate or family relationships in Section 76 of the Serious Crime Act 2015, and the introduction of the Domestic Abuse Act 2021 which helps to ensure that domestic abuse is properly understood, rightly deemed completely unacceptable and is actively challenged across statutory agencies and in public attitudes. The Domestic Abuse Act also introduced the new criminal offence of non-fatal strangulation. In 2021 the Government also published two major strategies. Firstly, the Rape Review Action Plan committed to more than double the number of adult rape cases reaching court by the end of this Parliament, and to improving support for victims and survivors. Secondly, the Tackling Violence Against Women and Girls strategy, which helps to ensure that women and girls are safe everywhere – at home, online, at work and on the streets. These were followed in March 2022 by the complementary Tackling Domestic Abuse Plan containing key commitments to drive further change in response to domestic abuse. Together, these transformative cross-government programmes set out the programme of reforms that this Government is pushing forward to prevent abuse, support victims, pursue perpetrators, and strengthen the system’s response to violence against women and girls.
Preventing domestic homicides
Last year the Home Office published its Tackling Domestic Abuse Plan which introduced key commitments to reduce domestic homicide, including reform of the Domestic Homicide Review (DHR) process, introducing a domestic abuse policing and domestic homicide prevention pilot, investing significantly in healthcare settings to improve agencies’ abilities to identify and refer victims into support services and continuing to invest in research to build the evidence base on domestic homicide prevention. Although the Government is committed to the fundamental principles underpinning the DHR process, we have also recognised there is room for improvement in the way these are conducted, and how the lessons learned are applied. New reforms to this process will include refreshing the DHR statutory guidance, introducing a formal role for the Domestic Abuse Commissioner, providing a more bespoke training package for DHR Chairs and working with the Association of Police and Crime Commissioners to explore the possibility of creating a formal role for PCCs in the process. The Home Office is also working with the National Police Chiefs’ Council on a new Domestic Abuse Policing and Domestic Homicide Prevention Pilot which will identify forces that have relatively high levels of domestic homicide and serious domestic abuse incidents. These forces will be audited to ensure they are doing everything they can to prevent domestic abusers from causing harm. Up to £7.5 million investment over three years has been committed by the Home Office for interventions in healthcare settings. This will support training for healthcare professionals and ensure they can effectively identify and refer victims and survivors to support services. The Home Office is continuing to build the evidence base on domestic homicides through the Vulnerability and Knowledge Practice Domestic Homicide Project run by the National Police Chiefs’ Council, and the College of Policing. The project counts all domestic abuse related deaths which, as well as domestic murder by a (current or ex) partner, family member or co-habitee, also counts child deaths in a domestic setting, unexplained or suspicious deaths, and suspected suicides of individuals where the police are aware of a known history of domestic abuse victimisation. Now in its third year, the Home Office has continued to provide further funding for the project to build on the initial findings and learnings from these deaths to aid the police in their response to tackling domestic abuse and to prevent further deaths. The Home Office is also continuing to provide funding to support the provision of domestic abuse perpetrator interventions. It has invested £25m over the past two years and will continue to provide support over this spending review period. It is also designing pilots for Domestic Abuse Protection Orders, including using electronic monitoring of high-risk domestic abuse offenders, and has just launched the first central library for DHRs.
Sentencing and Parole
The 2019 Government Manifesto committed to introduce tougher sentencing for the worst offenders and the changes on which we are consulting in this paper build on the action that has already been taken to achieve this. Most recently, the Government announced changes to ensure that convicted rapists (and those convicted of the most serious sexual offences) must serve 100% of their custodial term in prison. Rape is a despicable and serious offence with hugely personal and traumatic victim impacts and it is important the justice system appropriately addresses and punishes this offending. This change builds on other recent announcements to do with whole life orders. We have announced changes to ensure that the courts must impose a whole life order in circumstances which currently trigger the whole life order as a sentencing starting point, unless there are exceptional circumstances. The murder of a single victim involving sexual or sadistic conduct will also be added to the categories of murder for which a whole life order must be given (other than in exceptional circumstances). These reforms will ensure that those who commit the very worst crimes are given the most severe punishment available and will be introduced when parliamentary time allows. The Police, Crime, Sentencing and Courts Act 2022 delivered changes to ensure that the most serious and dangerous offenders spend longer in prison, serving sentences that truly reflect the severity of their crimes. These changes included abolishing automatic halfway release for certain serious sexual and violent offenders, instead requiring them to serve two-thirds of their sentence in prison. We also changed the way that discretionary life sentences are calculated, to ensure longer tariffs in these cases. We introduced a new power to prevent the automatic release of offenders who become of significant public protection concern while in prison. We made a Whole Life Order (life imprisonment without Parole Board release) the starting point for the premeditated murder of a child, and judges now also have the discretion to impose this sentence on offenders aged 18 to 20 in very exceptional cases. In the Police Crime Sentencing and Courts Act, we also took action in response to the tragic case of Ellie Gould, who was murdered by her 17-year-old ex-boyfriend. A different sentencing framework applies to children and within this we raised the starting points for murder committed by older children to ensure sentences in these cases better reflect both the seriousness of the crime and the age of the perpetrator. Building on this, the Victims and Prisoners Bill which is currently before Parliament contains significant new parole reforms to protect the public and increase confidence in the system. This includes giving the Justice Secretary the power to intervene on the release of the most serious offenders, such as murderers or rapists, to ensure there is a second check on whether the prisoner is safe to release. We have also made a commitment to introduce measures that will allow victims to observe parole hearings, as part of our work to improve the transparency and openness of the parole system in England and Wales. And we have committed to developing a process to allow victims to make written submissions to the Parole Board, in addition to their Victim Personal Statement. This change will be enshrined in the Victims’ Code. These changes show that this Government is serious about keeping dangerous offenders off the streets for longer and ensuring that the punishment is appropriate for the crime. We are committed to protecting the public and having a system that delivers justice for victims, their families and the wider public.
The primary question considered in this section is:
Q1.1: Should a minimum term starting point, above the baseline starting point of 15- years, apply to cases of murder preceded by a history of controlling or coercive behaviour against the murder victim or not?
There are then two secondary questions. These questions assume that a starting point applies to cases of murder preceded by controlling or coercive behaviour against the murder victim, and considers the details of such a policy.
The secondary questions are:
If a minimum term starting point were to apply to cases of murder preceded by controlling or coercive behaviour against the murder victim…
Q1.2: What should the starting point be?
The primary question considered in this section is:
Q2.1: Should a minimum term starting point, above the baseline starting point of 15- years, apply to all murders committed with a knife or other weapon or not?
There are then two secondary questions. These questions assume that a starting point applies to all murders committed with a knife or other weapon and considers the details of such a policy.
The secondary questions are:
If a minimum term starting point were to apply to all murders committed with a knife or other weapon…
Q2.2: What should the starting point be?
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