Domestic Homicide

Domestic violence remains a serious issue for society and the Probation Service in particular. I notice the government have published the 'Wade' Domestic Homicide Sentencing Review with 17 recommendations. 

1. Introduction 

1.1 Background 

1.1.1 This Review of sentencing in cases of domestic homicide was initiated as a response to an open letter (“the letter”) sent on International Women’s Day 2021 from the Victims’ Commissioner and the Domestic Abuse Commissioner to the previous Lord Chancellor the Right Honourable Robert Buckland MP. 

1.1.2 The letter highlighted systemic misogyny within the criminal justice system and also identified those aspects of the criminal justice process where it was thought female victims were being routinely let down. It coincided with an ongoing campaign by the families of two women who were murdered by their male partners. Ellie Gould was aged 17 at the time of her murder by Thomas Griffith and Poppy Devey Waterhouse was 24 years old when she was murdered by Joe Atkinson. That campaign also formed part of the impetus for the Domestic Homicide Sentencing Review (“the Review”). 

1.1.3 Both victims were murdered in their own homes where weapons in the form of knives had been readily available to the offender who could therefore not be said to have taken a knife or other weapon to the scene. As we explain in detail at paragraphs 2.3 2.4, if an offender who is aged 18 or over has taken a knife or other weapon to the scene of an offence intending to (a) commit any offence, or (b) have it available to use as a weapon, and (c) used that knife or other weapon when committing the murder, the starting point for the minimum term that the offender must serve in custody as part of a mandatory life sentence is much higher than it would be (all other things being equal) if the offender has not taken a knife or other weapon to the scene. There is a disparity of ten years between the respective starting points. 

1.1.4 Our terms of reference specifically task us with considering whether the issue of taking a knife or other weapon to the scene of a murder with the ulterior intent (which is described above) and then using it to commit the murder, is something which should be given particular consideration within the context of domestic murders. 

1.1.5 Thomas Griffith (17 years old at the time of the offence) and Joe Atkinson (25 years old at the time of the offence) were sentenced to detention for life and life imprisonment with minimum terms of 12 years 6 months and 16 years respectively. Legally, there is nothing wrong with either of the sentences imposed in these cases. Both offenders pleaded guilty, and the sentences imposed can neither be said to be “manifestly excessive”1 nor “unduly lenient” but questions have arisen as to whether sentencing guidelines in cases of domestic homicide reflect our growing understanding of the causes, characteristics and harms of fatal domestic abuse. 

1.1.6 Underlying these questions are broader issues such as: do the sentences imposed in the killings of intimate partners reflect the seriousness of the killings or not? Is there a need for a more specialist approach to these sentences with more account being taken of the specific nature of the offences? Is there a need for higher starting points within the context of the present sentencing framework? Finally, is it possible to address these issues short of detailed consideration of domestic homicides generally? 

1.1.7 Women comprise the majority of victims in domestic killings. Their voices are silenced not just in virtue of their killing but because at present, there is insufficient recognition in law of the harms which their killings involve. Not only are these women wronged by a breach of trust which is an integral part of domestic abuse, but the harms to them often extend to further harm to secondary victims in the form of the families (many of whom are children) and friends of the victims. There is then the harm to society in general which, to date, may not have been sufficiently considered. Where do domestic murders fit with other murders of women where the murder is clearly motivated by misogyny, but the victim and the offender are not and never have been in an intimate relationship? What inferences as to wider harms do we draw in circumstances where there is no domestic history to contextualise the killing? 

1.1.8 As far as sentencing for murder is concerned, there is a tension, which is often not acknowledged by proponents of the call for higher starting points or longer sentences. This tension lies in the fact that women, who are victims of domestic abuse and coercive control, sometimes kill their abusive partners. Such women are victims as well as being perpetrators. It would not be in the interests of justice for these women to receive longer minimum terms. Even allowing for judicial discretion, longer minimum terms would be a concomitant of simply increasing starting points for minimum terms. 

1.1.9 At the outset, it is necessary to remember the purpose of sentencing which is described in the Sentencing Act 2020. In cases of murder, the protection of the public is afforded by the life sentence, which includes a minimum term which must be served in full before the offender becomes eligible for parole. After release, he or she is on licence for life. However, the punishment of offenders requires us to identify the conduct and fault to which culpability can be ascribed. This assists with the reduction of crime (of which deterrence is only one part) because identification of the levels of culpability together with the relevant circumstances in which it is formed, means that it is possible to identify and quantify risk. Once risk is appreciated, then we can begin to prevent domestic homicide.

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Dominic Raab published a statement:-

WRITTEN MINISTERIAL STATEMENT 

Domestic Homicide Sentencing Review 

Tackling violence against women and girls is a top priority for this Government and we are committed to ensuring that the most serious offenders spend longer in prison. Women should feel safe in their own home and our sentencing framework must reflect the seriousness of violence and abuse committed by those closest to them. 

The Government commissioned an independent expert, Clare Wade KC, to review sentencing in domestic homicide cases to establish whether current law and sentencing guidelines are fit for purpose and identify options for reform. 

Today, I am publishing Ms Wade KC’s Domestic Homicide Sentencing Review (the ‘Wade Review’) and announcing a package of proposed reforms to change the law so that sentencing reflects the seriousness of domestic homicides. The published review can be found here: https://www.gov.uk/guidance/domestic-homicidesentencing-review. 

The Wade Review makes a number of other recommendations and the government's position will be outlined in a full response to be published before the summer recess. The measures announced today demonstrate our commitment to delivering tougher sentences for the perpetrators of these horrific crimes and allow for necessary legislation to be introduced as soon as possible. All recommendations in the review and the measures announced today apply to England and Wales. 

We will increase sentences for murderers with a history of controlling or coercive behaviour against the victim. 

The Serious Crime Act 2015 introduced the criminal offence of controlling or coercive behaviour. Controlling or coercive behaviour can comprise economic, emotional or psychological abuse. It does not relate to a single incident, but a purposeful pattern of behaviour over time. Controlling or coercive behaviour by the perpetrator towards the victim was identified in 51% of the murder cases analysed for this Review. 

Despite around a quarter of all homicides being classed as domestic, the legislation which sets out the sentencing framework for murder does not currently specifically account for the abuse that the victims in these cases often experience before death. 

The review recommends that a history of coercive or controlling behaviour should be added to the statutory aggravating factors to murder. We will introduce legislation to make this change as soon as possible to ensure abuse experienced before death is properly considered and serious offenders are kept off our streets for longer. 

We will consider further reform by consulting on whether the starting point should be 25 years for murders preceded by controlling or coercive behaviour. 

While the addition of a history of coercive or controlling behaviour as a statutory aggravating factor to murder will be an immediate step to increase sentences, we do not rule out further reform to ensure perpetrators are kept behind bars for longer. 

We will launch a public consultation this summer seeking views on whether there should be a starting point of 25 years for cases of murder where the perpetrator has controlled or coerced the victim before killing them. The current sentencing framework recognises the particular seriousness of the illegal possession and use of knives in public with a 25-year starting point for murders where a weapon used has been taken to the scene with intent. It is important that this starting point is maintained and therefore we will not be accepting the recommendation made in the Wade Review to disapply it from domestic cases. The sentencing framework must recognise the seriousness of anyone who walks onto our streets with a knife, intending to use it to cause harm. However, the changes announced today will ensure that the framework also recognises the particular seriousness of domestic murder, and this consultation will ensure all reform options have been fully explored. 

We will make ‘overkill’ a statutory aggravating factor in the sentencing framework for murder.

Overkill is defined in the Wade Review and wider literature as the use of excessive or gratuitous violence, beyond that necessary to kill. It amounts to violation of the body and causes intense distress to the families of victims. Overkill is prevalent in domestic murders and was identified in 60% of the cases analysed for this Review. 

The Wade Review recommends that overkill should be added to the statutory aggravating factors to murder. This would mean that a judge must consider increasing an offender's minimum custodial term where overkill has occurred. We will introduce legislation to make this change as soon as possible. It will ensure that the horror of overkill is recognised in statute and that the anguish it causes the families of victims is taken into account when sentencing such cases. 

Building on our ban of the ‘rough sex defence’ in the Domestic Abuse Act, we want to see longer sentences for perpetrators of so-called rough sex manslaughter. We are requesting that the Sentencing Council update their guidelines and will keep under review the need for legislation. 

The government is clear the ‘rough sex defence’ is not recognised in law as a person is legally unable to consent to “serious harm”, including where it results in death. However, there continues to be concern about apparent low sentences given in some cases of manslaughter where consent to so-called rough sex is argued. 

The review recommends manslaughter sentencing guidelines should be amended to consider the offender highly culpable where death occurs during violence alleged to be consensual during a sexual encounter, and therefore impose a higher sentence. 

The production or revision of sentencing guidelines is a matter for the independent Sentencing Council. However, today I will ask the Council, which has a statutory duty to consider my request, to consider revising sentencing guidelines to reflect the recommendation made in the Wade Review. While this is our preferred approach, we will keep legislative options under review to ensure we can deliver reform. 

These measures build on our zero-tolerance approach to violence against women and girls by ensuring that sentencing delivers justice for the victims and families. 

I am very grateful to Clare Wade KC for her work on this review. I would also like to pay tribute to Carole Gould and Julie Devey for their tireless campaigning after the tragic murders of their daughters, Ellie Gould and Poppy Devey-Waterhouse.

Dominic Raab MP

Deputy Prime Minister and Lord Chancellor and Secretary of State for Justice

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Clare Wade KC has responded:-

The Government has responded in part to the recommendations which are contained in my Review.

I am pleased that the issues which are raised in the Review are being taken seriously. I have concerns that Domestic Homicides comprise so many of the killings of women by men. In particular, I welcome the news that the harms consequent on “overkill” (as defined in the Review) are to be recognised in law.

However, the model which I have used in the Review has been constructed in an attempt to address all of the harms which obtain in these types of cases while simultaneously avoiding unintended consequences. This was implicit in my terms of reference which involved looking at the sentencing of killings by perpetrators of domestic abuse and at sentences for perpetrators of killings who are victims of domestic abuse. The Review makes clear the law in this area is gendered.

It is important that women who are the victims of controlling and coercive behaviour have access to justice when they have struggled, and sometimes, fought to resist the fear and entrapment caused by controlling and coercive behaviour. If controlling and coercive behaviour is to be a statutory aggravating factor then it should also be a statutory mitigating factor because ultimately it is a way of ascribing seriousness to the individual offence. This is what I recommended. The Government has only so far announced that it is to be a statutory aggravating factor.

I fear that making overkill a statutory aggravating factor in the absence of adopting the other recommendations I have made will lead to injustice. In relation to controlling and coercive behaviour, there should be training across the criminal justice system and controlling and coercive behaviour should mitigate the seriousness of murders committed by victims who kill their abusers.

I am concerned that, to date, there has been no response to my recommendations on strangulation and the use of weapons. Both issues present the gendered nature of the law in acute form.

I would encourage people to read the Review in its entirety as the theory and policy underpinning the 17 recommendations which I have made cannot be fully appreciated by looking at recommendations in isolation, in part, or in the abstract.

Ultimately I would like to see a proper forensic approach to domestic abuse within the criminal justice system. This is what is lacking at the moment and that is what the proposals in the Review are designed to achieve.

I note the Government’s intention to consult on the idea of a 25-year starting point for domestic murders. For the detailed reasons which are set out in the Review, I am against the idea of introducing more starting points into the sentencing framework for murder.

I welcome informed debate on the issues raised and on all of the recommendations and look forward to the full Government response.

Clare Wade KC