Today, the Sentencing Council is publishing updated definitive guidance for courts about the process that should be followed when deciding whether offenders should be given community or custodial sentences. At the same time, it is announcing proposed new guidelines for judges and magistrates when they are dealing with offenders who have breached court orders, such as community orders, restraining orders and sexual offence prevention orders. For the first time, guidance for sentencing for breaches of these orders will require sentencers to take into account the risk of harm as well as actual harm caused by a breach.

The guidelines aim to provide comprehensive, consolidated guidance for sentencers in all courts, which will help ensure a consistent approach to imposing community and custodial sentences and for sentencing offenders who do not comply with orders imposed upon them.

The publication of the two guidelines in tandem is due to the links between them – that is, some orders dealt with in the imposition guideline have the potential to be breached. The Council aims to ensure that the right order is imposed at the original point of sentence to ensure that if an order is breached, sentencers can impose appropriate penalties.

At the moment, there aren’t guidelines for all types of breach of court order, and where there is guidance, its format and scope varies. The definitive imposition guideline replaces existing guidance for these sentences that is now out of date. It’s introduction was also prompted by evidence the Council considered during the development of the breach guideline, which revealed some suspended sentences were being imposed when a custodial sentence was not the appropriate sentence, which could affect the decision to activate these sentences upon any breach.

The imposition guideline clarifies the appropriate considerations to be made when a community or custodial sentence is imposed to ensure if the order is subsequently breached the breach can be dealt with robustly.

Compliance with court orders is important to ensure not only public confidence in the justice system, but in many cases to protect individuals or the wider public from harm either from specific types of offending or continuing criminal behaviour. The guidelines being proposed aim to ensure appropriate action can be taken when an offender doesn’t comply with a court order.

The guidelines will help courts assess the seriousness of any breach by looking at how much the offender has kept to the terms of their order and how deliberate any breach of the order has been. For breaches of orders imposed to prevent particular behaviour or activity they will also look at any harm caused or risked by the breach to individuals or the wider public. This will enable the court to identify the appropriate level of penalty for the breach.

For the first time, the guideline includes a focus on risk of harm for some breaches to ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public, without any actual harm needing to have occurred. This could include for example a sex offender who fails to comply with notification requirements with the intention of evading detection in order to commit further offences. The risk of harm posed by the breach will be assessed to ensure this is taken into account in the sentence given.

Sentencing Council member Martin Graham said: “Our guidelines aim to ensure that offenders get the type of sentence that reflects the seriousness of what they have done, and give courts clear guidance on what action should be taken against those offenders who ignore court orders. Where they breach orders and cause or risk harm or distress to others, they can expect robust penalties to be imposed.”

Javed Khan, Barnardo’s Chief Executive, said: “Court orders that prevent convicted abusers from sexually harming children are a vital way of protecting victims. Breaches of these orders can put children at risk and have devastating consequences.

“We welcome this consultation into new sentencing guidelines which enable courts to ensure people who breach court orders and pose a risk to children are dealt with appropriately.”

The consultation on the breach guideline lasts 13 weeks, closing on 25 January 2017 The Council is seeking the views of those with expertise or an interest in the sentencing of breach offences on aspects such as the approach taken to the breach guidelines, the principal factors that make any of the offences included within the draft guideline more or less serious and the approach taken to structuring the draft guidelines. During the consultation period, the Council will also host a number of consultation meetings with groups with an interest in this area as well as with sentencers.

The consultation on the imposition guideline was held earlier this year, and a number of changes were made to the guideline as a result. They include the inclusion of legislative references in the guideline, a more balanced focus on rehabilitative requirements and greater detail of requirements and the inclusion of factors relevant to the decision to suspend a custodial sentence. The guideline will come into effect in courts on 1 February 2017.