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Sentencing Domestic Abuse

A Review of the Practical Issues

Anna Draper-Boxall

Last updated: Dec 2025

Summary

  • The Sentencing Academy has published a new paper by our Kalisher Trust intern, Anna Draper, exploring the practical issues arising from the Sentencing Council’s 2018 Overarching Principles: Domestic Abuse guideline.
  • Some of the key issues highlighted in this paper include:
    • The difficulty of evidencing whether an offence forms part of a pattern of behaviour for the purposes of sentencing.
    • A lack of clarity about exactly when in the sentencing process this guideline is to be consulted and the impact this may have on the sentence imposed.
    • Whether reference to this guideline may lead to the double counting of factors that have already been taken into account when following the offence specific guideline.

1. Introduction

Domestic abuse is a significant social problem, the gravity of which is only slowly starting to be acknowledged. Determining the volume of cases appearing for sentencing in which domestic abuse exists is challenging. According to the Crime Survey for England and Wales (CSEW) for the year ending March 2020, around 5.5% of adults experienced domestic abuse in the prevailing year (Office for National Statistics, 2020a). The police recorded over 1.25 million domestic abuse-related incidents and crimes in England and Wales in the year ending March 2020 (Office for National Statistics, 2020a). Instances of domestic abuse have further increased since the first Coronavirus lockdown in March 2020 (Office for National Statistics, 2020b). An indication of the incidence of domestic abuse cases at sentencing is available from the Sentencing Council’s Crown Court Sentencing Survey (CCSS).1 Over a limited time period, sentencers in the Crown Court completed a data return every time they imposed a sentence. The results of the survey provide insight into the incidence of domestic abuse cases appearing for sentencing in the Crown Court. During its period of operation, the CCSS found that 3% of Actual Bodily Harm cases and 5% of common assault cases featured domestic abuse.

This report considers the current sentencing regime for offences involving domestic abuse in England and Wales. The Sentencing Council’s Overarching Principles: Domestic Abuse guideline came into force on 24 May 2018 (the ‘Domestic Abuse Guideline’), following a public and professional consultation in 2017. The Council’s intention behind the guideline was to ‘ensure that courts identify and treat cases involving domestic abuse, of whatever type, seriously and factor it into all relevant sentencing decisions’ (Sentencing Council, 2017, p. 7).

There is no single offence of domestic abuse. Instead, many offences may be committed within a context of domestic abuse and this needs to be recognised to sentence offenders appropriately. To address this, the Sentencing Guidelines Council (a predecessor body to the Sentencing Council) introduced the Overarching Principles: Domestic Violence in 2006 (Sentencing Guidelines Council, 2006). The Sentencing Council’s 2017 consultation acknowledged that this earlier guidance needed reviewing to ‘reflect the important changes in terminology, expert thinking and societal attitudes over the last ten years’ in this area of sentencing (Sentencing Council, 2017, p. 4). The 2018 Domestic Abuse Guideline aims to assist the courts in sentencing in a way which sufficiently reflects the seriousness of offences involving domestic abuse. This report explores the guideline and considers how it may affect the sentencing of offences involving domestic abuse.

2. Background

Domestic abuse has become an increasingly common target of criminal justice policy in recent years. In 2018, one year after the Sentencing Council held their consultation (and the same year the new guideline came into force), the Government conducted its own consultation on the broader response to domestic abuse. The consultation posed a number of questions relating to four themes: promoting awareness; protecting and supporting victims; pursuing and deterring perpetrators; and improving the response to domestic abuse across all local areas, agencies and sectors (HM Government, 2018). The Government consultation noted that the Domestic Abuse Guideline makes offences involving domestic abuse ‘more serious and therefore likely to lead to a higher sentence’ (HM Government, 2018, p. 55).

The Domestic Abuse Guideline issued by the Sentencing Council in 2018 attempts to fill the gaps left by the 2006 guideline in reflecting the realities of domestic abuse when sentencing related offences. The findings from the consultation led to the new guideline which was renamed ‘Overarching Principles: Domestic Abuse’, to reflect the fact that abuse does not always involve physical violence. The new guideline intended to set out clear, relevant considerations for sentencing. It is a standalone guideline, to be referenced in all cases featuring domestic abuse. The Council states that the court should use the principles in the guideline to ‘ensure that the sentence reflects that an offence has been committed within this context’ (Sentencing Council, 2017, p. 7).

With the implementation of the new Domestic Abuse Guideline, the Sentencing Council sought to recognise that offences involving domestic abuse are ‘pernicious, personal and can cause great distress for the victims’ (Sentencing Council, 2017, p. 12). The aim of the guideline was to ‘ensure that all sentences are proportionate to the offence committed and in relation to other offences’, and to recognise the ‘very intimate, personal and intrusive nature of these offences’ (Sentencing Council, 2017, p. 12).

3. Domestic Abuse and the Sentencing Guidelines

Domestic abuse features within several offences which commonly include assault occasioning actual bodily harm, common assault, harassment and making threats to kill (Sentencing Council, 2017). In 2015, the offence of ‘Controlling or coercive behaviour in an intimate or family relationship’ was created to criminalise the non-physical harms perpetrated by domestic abuse. The Sentencing Council guideline for this offence came into effect on 1 October 2018. While this is specifically a domestic abuse offence, it still refers sentencers to the Domestic Abuse Guideline. The Domestic Abuse Guideline defines principles relevant to sentencing cases involving domestic abuse; it should be cross-referenced when sentencing any offence with a domestic abuse component. It provides a new definition of domestic abuse, emphasises the seriousness of these offences, and sets out a non-exhaustive list of aggravating and mitigating factors. It clarifies the use of restraining orders and the role of Victim Personal Statements in sentencing. These amendments to the previous guideline are intended to ensure sentences better reflect the realities of offending in a domestic abuse context.

Definition of domestic abuse

The guideline provides a new definition of domestic abuse. At the time the Domestic Abuse Guideline was introduced, this definition was used in governmental discourse but was not statutory. There is now a statutory definition of domestic abuse which was implemented in April 2021 through the Domestic Abuse Act 2021.

The definition used in the Domestic Abuse Guideline defines domestic abuse as:

‘Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.’ (Sentencing Council, 2018, p. 2)

This builds upon the definition in the 2006 guideline by adding that the incident may be part of a pattern, as well as citing a list of possible forms of abuse to assist courts in recognising it. It also broadens the definition to those aged 16 and over as opposed to adults.

Seriousness

Unlike the previous guideline which stated that offences involving domestic abuse were ‘no less serious’ (Sentencing Guidelines Council, 2006, p. 3), the new guideline explicitly states that offences are more serious when committed in a domestic context. The domestic abuse context increases the seriousness of offending because the offence is a violation of ‘trust and security that normally exists between people in an intimate or family relationship’ (Sentencing Council, 2018, p. 3). The addition of the word ‘pattern’ to the definition is noteworthy. The increased seriousness acknowledges the potential for ongoing and increasingly serious abuse, the longer it continues. The guideline recognises that the offence for which an individual has been brought before the court may only be a single episode of past offending or the offending to come: it is very rarely the entirety of the abuse. The guideline instructs the courts to consider this when determining the seriousness of an offence where this guideline is applicable. This is one of the features of the guideline that may increase the severity of the sentence that would otherwise be imposed as a result of the principal offence.

Aggravating and mitigating factors

The guideline sets out non-exhaustive aggravating and mitigating factors of particular relevance to sentencing offences committed in a domestic context. These factors are intended to better recognise the unique harms caused by domestic abuse offences. These aggravating factors are to be considered in addition to the standard aggravating and mitigating factors. The aggravating factors include the following, among others:

  • Abuse of trust and abuse of power;
  • Victim particularly vulnerable;
  • Impact on children; and
  • A proven history of violence by the offender in a domestic context.

Mitigating features include positive good character (distinct from good character) and evidence of the genuine recognition of the need for change. This is separate to good character generally: it is of no relevance if it relates to the offender’s general good character outside of the relationship, in cases where there is a proven pattern of abuse. This is to recognise that abusers often have significantly different public and private personas. These are the only two mitigating factors provided in the guideline.

The guideline states specifically that the use of provocation as a mitigating factor in these cases is only sufficient to mitigate seriousness in rare cases. This recognises that victim blaming is a symptom of abusive relationships and should not be accepted lightly as mitigation by the courts sentencing these offences.

Other factors affecting sentence

The guideline states that the sentence imposed should be ‘determined by the seriousness of the offence, not by any expressed wishes of the victim’ (Sentencing Council, 2018, p. 4); instead, the court sentences on behalf of the public. This is intended to protect the victim, as there is an assumption that a victim may be reluctant to express their desires for sentence for fear of repercussions by the perpetrator, or may ask for a lighter sentence for the same reason. The provision attempts to remove the causative link between the victim’s wishes and the ultimate sentence and, in doing so, removes any incentive for the offender to cause them further harm. However, this is qualified by the guideline stating that the offender or victim may ‘ask the court to consider the interests of any children by imposing a less severe sentence’ (Sentencing Council, 2018, p. 4). While the courts should primarily sentence according to the seriousness of the offence, submissions on the impact of that sentence on children involved are considered to be relevant.

The guideline contains provisions for the making of a restraining order. Again, the victim’s views may be sought but consent is not necessary for a restraining order to be put in place. Finally, it is recommended that a court consider a Victim Personal Statement (VPS) if one is available, but the guideline emphasises that the lack of a VPS is not evidence of a lack of harm.

4. Use of the Guideline at Sentencing

When a judge sentences an offender for an offence involving domestic abuse, they are required by section 59 of the Sentencing Code to follow ‘any relevant guideline’ unless it would be contrary to the interests of justice to do so – in this case the definitive offence guideline along with the Domestic Abuse Guideline. The Domestic Abuse Guideline does not state the generic list of aggravating and mitigating factors for this reason; the sentencer should consider the definitive guideline (where those factors are listed), alongside the Domestic Abuse Guideline factors.

The sentencer should place the offence, following the offence specific guideline, into a category for sentence by assessing the culpability and harm. Courts are encouraged to refer to the Domestic Abuse Guideline in all relevant cases as the guideline is intended to apply in all cases where there is evidence of domestic abuse.

Pattern of incidents

The current guideline attempts to better address the characteristics of offending in a domestic abuse context. One of the ways it does this is by changing the language from that used in the 2006 Domestic Violence Guideline to encompass the realities of offending.

The 2018 Domestic Abuse Guideline sets out a new definition of abuse in which it is defined as ‘any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse’ (Sentencing Council, 2018, p. 2). The addition of ‘or pattern of incidents’ is key to understanding the seriousness of offending in a domestic context; it demonstrates the Sentencing Council’s recognition that offences in a domestic abuse context are rarely a one-off. It is, therefore, an important addition that could change the way that courts view domestic abuse offending.

However, evidentiary issues arise in demonstrating that the offence is part of a pattern. Offences committed within a domestic context often reach the criminal justice system at the pinnacle of offending. In many cases there may have been a lengthy history of unreported abuse, whether through fear or lack of understanding that the circumstances are abusive. Given this, it is unlikely that there will be sufficient evidence to demonstrate a pattern of incidents. To demonstrate this history is particularly difficult due to the nature of domestic abuse and even where there is evidence to sustain a conviction for a single offence the offender may deny that it is part of a pattern.2

The definition states ‘incident or pattern’ meaning, arguably, there is no need to evidence a pattern of offending at all. However, if a pattern exists but cannot be shown, the single incident will be sentenced, and the sentence is unlikely to be commensurate with the seriousness of the overall offending. Again, this evidentiary issue means that the guideline is less likely to be capable of fulfilling its aim to produce sentences which appreciate the gravity of offences committed in a domestic abuse context.

A similar problem arises with the aggravating factor ‘proven history of violence or threats by the offender in a domestic context’ (Sentencing Council, 2018, p. 3). This is a significant aggravator in the level of violence that it indicates and, therefore, the impact it could have on sentence. The unreported nature of domestic abuse again means that it is unlikely that there will be evidence of previous misconduct; it is highly unlikely that there will be a proven history of previous offending in most cases. The case law suggests that this is a problem. Often the victim and any witnesses related to the victim state that there was a history of abuse, and that threats were made over many years, but this is not evidenced through previous convictions.

Intimate partners or family members

The definition of domestic abuse in the guideline defines it as instances of the relevant behaviour between ‘intimate partners or family members’ (Sentencing Council, 2018, p. 2). This appears to encompass the relationships where domestic abuse may be present. However, this is a limiting definition. Domestic abuse can occur between any two people cohabiting together, whether linked romantically or as family members, and these relationships do not necessarily fall easily into an intimate partner or family member categorisation.3

The case of R v Tarbox4 is an example of the guideline’s limitations: the victim was cohabiting with her abuser, and eventual killer, although they were not intimate partners nor family members. Before sentencing this offence, the court first had to ascertain whether the Domestic Abuse Guideline applied at all. The Court found their relationship to mimic one of intimacy, but they were not, by definition, intimate partners. This presents a practical issue for sentencing courts, given that the Domestic Abuse Guideline is intended to reflect the unique seriousness of offending in this context. It is crucial that it applies in all domestic abuse scenarios and this definition limits the cases in which the guideline may apply. While the guideline has attempted to broaden the definition of domestic abuse to include all circumstances in which domestic abuse offences are committed, it is still limiting.

Unclear interaction with definitive offence guidelines

One issue is that there is an unclear interaction between the definitive offence guideline and the Domestic Abuse Guideline. For the offence of non-fatal strangulation, for example, Ormerod and Kelly (2021) point out that as many as four guidelines may be needed to sentence the offender: the General Guideline, the assault guideline, the Domestic Abuse Guideline and the guideline for controlling or coercive behaviour. It is unclear when in the sentencing process the Domestic Abuse Guideline should be referenced or whether, in fact, it is referenced at all. The definitive offence guideline is always the first guideline referred to as there is no offence of domestic abuse, but the stage at which the Domestic Abuse Guideline should be considered is unclear. The guideline itself does not address this ambiguity.

Guideline step where the Domestic Abuse Guideline is considered

Provided that the definitive offence guideline is likely to take precedence, the question is then whether the Domestic Abuse Guideline is a first or second stage consideration. The process for sentencing an offence involving domestic abuse can be summarised as follows: the courts refer to the definitive offence guideline, and the culpability and harm considerations put the offence into a category (first stage). Each guidelines category carries a specific starting point sentence and sentence range. The aggravating and mitigating factors are applied (second stage) and the sentence suitable for the offence moves within the category depending on the relevant aggravating and mitigating factors.

At what stage should the Domestic Abuse Guideline be considered within this process and what effect should it have on sentence? An offence involving domestic abuse should be treated as being more serious, as per the guideline; this should increase the sentence, essentially, in the same way an aggravating factor would. The case of R v Love5 provides interesting, if conflicting, commentary on this, with the judge stating that ‘[t]he guideline on section 18 [of the Offences Against the Person Act 1861] must be informed by the Domestic Abuse Guideline’.6 This suggests that the entire reading of the offence definitive guideline should be with the Domestic Abuse Guideline forming the basis of the sentencing decision. Further, the Crown Court Compendium on sentencing indicates the same: the template for sentencing at Appendix I features a ‘Checklist of Guidelines to consider’, within that is the Domestic Abuse Guideline. The template then states that the next step is to consider the culpability and harm factors before deciding on a category and category starting point (Judicial College, 2021).

The Domestic Abuse Guideline may not be either a first stage or a second stage consideration, but rather an overarching consideration throughout. The lack of clarity provided by the guideline itself as to what stage it is to be considered, means that sentencers may find a reference to its existence to suffice as consideration.

Potential double counting of sentencing factors

Many of the characteristics of offences committed in a domestic abuse context are also features that the offence specific guidelines deem aggravating. For example, as per the guideline on assault occasioning actual bodily harm (Sentencing Council, 2021), at the first stage, culpability is defined by factors including:

  • Victim obviously vulnerable due to age, personal characteristics or circumstance;
  • Strangulation/suffocation/asphyxiation; and
  • Prolonged/persistent assault.

These are factors that are all common in domestic abuse offences. It is highly likely that victims in these situations are vulnerable, and prolonged assault is common in domestic abuse offending, while strangulation is one of the most common types of domestic violence (Ormerod and Kelly, 2021). When assault is committed in a domestic abuse context, it is more likely that the assault is placed in a high culpability category due to these factors.

Equally, the highest harm category for assault occasioning actual bodily harm is defined by ‘serious physical injury or serious psychological harm and/or substantial impact upon victim’ (Sentencing Council, 2021). Offences committed in a domestic abuse context invariably cause psychological harm through the trauma they cause the victim. There are instances when domestic violence causes serious physical injury. Features of domestic abuse are, therefore, more likely to put an offence in the higher culpability and harm categories and, subsequently, the more severe sentencing bracket even before the Domestic Abuse Guideline is consulted.

At the second stage, the aggravating factors listed under the assault guideline include:

  • Offence committed in a domestic context;
  • Presence of children; and
  • Abuse of power and/or position of trust.

The guideline states that the assault being committed in a domestic abuse context is aggravating. The other aggravators, presence of children and abuse of power, are also common for offences involving domestic abuse. It is likely, therefore, that an assault occasioning actual bodily harm, when it is committed in a domestic abuse context, is going to sit at the higher end of the sentencing bracket simply due to the offence specific guideline.

The Sentencing Council’s intention was for the guideline to be referred to by courts whenever they are sentencing a case involving domestic abuse (Sentencing Council, 2017). The final step then, once the judge has decided on a category for sentence, is to apply the Domestic Abuse Guideline to the facts of the offence.

The guideline sets out aggravating factors specific to domestic abuse including: abuse of trust, victim particularly vulnerable, and proven history of violence by the offender in a domestic context. These are factors that already appear in the culpability assessment and aggravating factors for many offences; assault occasioning actual bodily harm in this example. This creates a risk that features of the offence will be accounted for twice in the resulting sentence. The Domestic Abuse Guideline does not state what should happen in this scenario; whether the same aggravating features should be counted again, or whether they be discounted if they have already been applied. If the latter is true, the guideline seems of limited relevance, but if the former is true then an offender is being punished twice for the same facts.

It may be that sentencers have considered this risk and, hence, why they may not refer to the Domestic Abuse Guideline as might be expected. This ambiguity is evidenced in several cases where judges state that they recognise the offence is committed in a domestic abuse context, but they do not refer to the Domestic Abuse Guideline.7 Courts may deem the aggravating factors within the offence guidelines sufficient to address the seriousness of domestic abuse offending. While this avoids double counting, it seems to defeat the object of having a separate guideline to reference in domestic abuse cases and leads to further confusion over the guideline’s impact on sentencing.

Onus on the judge to decide if an offence constitutes domestic abuse

For the Domestic Abuse Guideline to apply a judge must decide whether the case is one of domestic abuse. Courts must be able to understand how the symptoms of domestic abuse present themselves. Domestic abuse is a complex, and often hidden, event; this harm is difficult for non-victims to recognise and interpret its effects (Easteal, Bartels and Mittal, 2019, p. 15). Advocates can play an important role in this respect by bringing the issue to the court’s attention. In R v Jeffs, the Court of Appeal acknowledged this duty, stating that ‘any judge sentencing for any incident of domestic violence must have regard to these guidelines [the Domestic Abuse Guideline] as a matter of course’;8 it specifically highlighted that it was not defence counsel’s duty. While this may be done with the intention to ensure that the guideline is raised in all relevant cases, it places the significant burden on judges to have a detailed understanding of how domestic abuse presents itself, and of the guideline. In addition, there may be discrepancies between the sentencer’s ability to identify domestic abuse in cases where there has been a trial, versus where defendants only appear before them for sentencing. Clearly, when the sentencer has been presented with evidence throughout trial they are far more likely to be able to adequately assess whether the offending is part of a pattern of domestic abuse.

5. Research Gaps and Priorities

Magistrates’ courts and sentencing

Many offences involving domestic abuse are sentenced in the magistrates’ courts. Research is needed into the sentencing of offences involving domestic abuse in the magistrates’ courts and specifically, the use of the Domestic Abuse Guideline. It is likely that the magistrates’ courts sentencing powers lead to a different application of the guideline. Despite this, there is little existing, accessible guidance for magistrates sentencing offences involving domestic abuse. Notably, the Adult Court Bench Book does not draw any attention to the Domestic Abuse Guideline nor does it highlight any additional considerations to be made by the bench when sentencing these offences.

Distinctions between different abuse offences

The Domestic Abuse Guideline applies when courts sentence any case involving domestic abuse, but it does not specify how the type of abuse may impact upon the guideline’s application or use in practice. There are several types of abuse, those listed in the guideline specifically are: psychological, physical, sexual, financial and emotional. In practice, it is likely that most cases coming before the court involve physical or sexual abuse as these are the most obvious and evidencable offences linked to domestic abuse. It would be helpful to have research on the types of domestic abuse coming before the courts, how they are being sentenced, and whether the Domestic Abuse Guideline is being applied. Particularly, since the offence of controlling or coercive control was enacted in 2015, it would be helpful to analyse whether, in sentencing this offence, courts refer to the Domestic Abuse Guideline (as intended).

Effect on BAME Communities

Domestic abuse causes great harm for all victims. However, there is evidence to suggest that those from a minority background (‘BAME groups’) are disproportionately affected by abuse, particularly those from migrant groups (Interventions Alliance, 2021). The Office for National Statistics, reporting findings from the Crime Survey for England and Wales, noted that in 2018-19, the rate of domestic abuse among some BAME groups was higher than for their white counterparts (Office for National Statistics, 2019). The Domestic Abuse Guideline applies to all cases involving domestic abuse. The intersectionality of race, gender, socio-economic status, and other factors needs to be considered at sentencing, both in terms of the impact a sentence has on victims, and the offender. Research into the different ways in which sentences affect those from BAME backgrounds needs to be carried out to acknowledge that the same sentences will not affect all victims or offenders equally.

Domestic Abuse Act 2021

The Domestic Abuse Act 2021 makes several changes, including creating a statutory definition of domestic abuse, creating a new offence of non-fatal strangulation and attempting to clarify the law on the controversial ‘rough sex defence’. It makes little reference to sentencing or its interaction with the existing sentencing guidelines on domestic abuse offences (e.g. controlling or coercive behaviour). The Domestic Abuse Guideline may require updating since the implementation of the Domestic Abuse Act 2021; the definition of domestic abuse is different to that in the statute, and there are now additional, specific domestic abuse offences recognised in law. The new definition of domestic abuse has the potential to significantly broaden the circumstances where the court should refer to the Domestic Abuse Guideline at sentencing. Failure to update the definition in the guideline, runs the risk that potentially many more offences involving domestic abuse will not be sentenced appropriately and, at the time of writing, the Sentencing Council is consulting on a revised definition to bring it in line with the Domestic Abuse Act 2021 and to expand it to include a wider range of relationships. Research is therefore needed into how, and to what extent, the Domestic Abuse Guideline is now inconsistent with the law.

6. Conclusion

Domestic abuse needs to be approached carefully by sentencing courts at all levels. Sentencing these cases inadequately may lead to further harm caused to victims and a lost opportunity to rehabilitate offenders. Research is needed to determine how the guideline is being used by courts across the country. The Domestic Abuse Guideline indicates that progress is being made in the approach to sentencing offences involving domestic abuse. The guideline is useful in aiding courts to sentence these offences appropriately, if it is used properly, as intended, and applied uniformly across courts. It is not yet clear if the guideline is being utilised in all the cases it is intended for. With the implementation of the Domestic Abuse Act, it may be that it needs to be amended to accommodate the changes within the Act: this may solve some of the ambiguities in its application.

References

  1. The Crown Court Sentencing Survey was a data collection exercise conducted by the Sentencing Council between 1 October 2010 and 31 March 2015. For more information, see: https://www.sentencingcouncil.org.uk/research-andresources/data-collections/crowncourt-sentencing-survey/. ↩︎
  2. See, for example, R v Chappell [2020] EWCA Crim 903. ↩︎
  3. This issue has since been recognised by the Domestic Abuse Act 2021 which uses the phrase ‘personally connected’ (Domestic Abuse Act 2021, s1(2)(a)) instead. ↩︎
  4. [2021] EWCA Crim 224. ↩︎
  5. [2020] EWCA Crim 1497. ↩︎
  6. [2020] EWCA Crim 1497 at para. 16. ↩︎
  7. For example, R v Strong [2020] EWCA Crim 1712. ↩︎
  8. [2020] EWCA Crim 1393 at para. 10. ↩︎