Tuesday, 27 October 2020

Victim Personal Statements and sentencing

Victim Personal Statements "provide a practical way of ensuring that the sentencing court will, consider, in accordance with s.143 of the Criminal Justice Act 2003, "any harm which the offence caused", reflecting on the evidence of the victim about the specific and personal impact of the offence or offences, or in the cases of homicide, on the family of the deceased" - per Lord Judge LCJ in Perkins [2013] EWCA Crim 323.

A number of cases have reached the Court of Appeal (Criminal Division) in which Victim Personal Statements resulted in an offence being placed into a higher category of seriousness. The result of that is of course a longer sentence. Sentencing requires up to date information about the offender at the time of sentencing and a VPS can assist with this but fairness demands that such statements are not only accurate but that the correct procedure is followed when bringing the statements into evidence.

Consider R v Reece Dylan Jones [2020] EWCA 1139.

On 25 October 2019, the appellant

(Reece Jones) pleaded guilty to one offence of conspiracy to rob and was sentenced to 5 years detention in a young offender's institution (YOI). He appealed successfully against the sentence which was reduced to one of 3 years and 4 months' detention in a YOI. The reason he was successful concerned a Victim Personal Statement (VPS) made by the young man targeted in the actual "knife-point" robbery - Mr Lewis Purcell. The facts are set out at paragraphs 1 to 9 of the judgment handed down by Nicklin J.

Mr Purcell's VPS (para 10) stated - "I have been reluctant to sit down and write how the events of Tuesday 10th September have affected me as I don't want to be reminded of it or even acknowledge how it has affected me. But the truth is, it has been the most traumatic event of my whole life and left me with mental scars that I  just hope one day will fade in time. I'm struggling to sleep every night but when I do, I have vivid nightmares about that evening which leave me feeling anxious and shaken up. I'm going to college every day to try and reinstate a 'normal' routine back into my life but I am tired and struggling to focus in class. I'm panicked by this as this is my final, crucial year to complete my A levels. I'm meant to be applying for universities in other cities which a month ago was excising but now, I don't even feel safe in my home town anymore. I'm suspicious of everyone I see in case they are the masked offenders who threatened me with knives and robbed me, or somebody associated with them.

I don't like to go out of an evening, as the dark nights remind me of what happened that night. I feel vulnerable and scared. Through the day, I get flashbacks of the threatening language the masked offenders used and how they used the knives towards me.

… I've withdrawn from friendship groups who are associated with Reece in a way to try to protect myself from being hurt further.

… Before the robbery, I was enjoying life to the full, socialising with friends, loving college, going to the gym, cycling, learning to drive and looking forward to the future. Now I feel nervous and [wary] but I'm taking each day at a time and trying to be positive in order to get my life back on track."

On the day of sentencing an "undated, unsigned note" was presented to the court (para 11). The note was from a Witness Care Officer and purported to add to the VPS that Lewis "continues to suffer stress and anxiety as a result ... He does not go out socialising  ... " and went on to claim that poor A Level results were expected as a result of fearing reprisals. 

This "update" was not in line with the Practice Direction for Victim Personal Statements. In R v Perkins [2013] EWCA Crim 323, the court referred to the Criminal Practice Direction VII Sentencing (§F.2-F.3), where it is stated that a VPS should be in the form of a witness statement which must be served on the defence in good time before the sentencing hearing. See also R v Chall [2019] EWCA Crim 865,

Nevertheless, at the sentencing hearing the judge placed the offence into category A1 of the sentencing guidelines since the judge found that Mr Purcell had suffered serious psychological harm. This gave a starting point of 8 years' custody and a range of 7-12 years. It was common ground that, without that finding of serious psychological harm, the appropriate sentencing category would have been A2, with a starting point of 5 years' custody and a range of 4-8 years.

After the sentence of 5 years had been imposed, the appellant's mother provided a witness statement in which she said that Lewis Purcell's friend (Samuel Webb) had said that Lewis  had been socialising on a regular basis and had posted a lot of his activities on social media. However, Lewis Purcell's family continued to maintain that Lewis' ability to turst anyone had been irreparably damaged as a result of what happened to him. 

The failure to follow the correct procedure at the sentencing hearing meant that the Judge made his assessment of psychological harm on evidence that was not up to date and did not give a full or reliable picture of psychological harm. There is an obvious danger that Victim Personal Statements, taken in the immediate aftermath of an offence, may well describe intense emotions and fears, but in many cases those raw feelings subside with time. Obviously, each person will react differently to being a victim of an offence, but the Court's task is to attempt to identify, if possible, those cases in which serious psychological harm has been caused. That is not to say that evidence of harm falling below that level will not be considered. It will, but the impact falling short of serious psychological harm will then take its correct place as an aggravating factor when selecting the correct sentence in the range indicated in the relevant sentencing guidelines - (para 27).

The law requires up-to-date evidence demonstrating serious psychological harm before a sentencing Court can be justified in applying the highest sentencing category for the offence. 

The Court of Appeal was satisfied that sentencing judge did not have that evidence. 

The court was satisfied that this was not a case where, on the evidence, a conclusion that it caused serious psychological harm, in the sense that that term is used in the sentencing guidelines, can be sustained. In this case there was no suggestion that Lewis Purcell was lying. There perhaps was a genuine attempt to rebuild his life and maybe to do so with a small number of trusted friends. The case nevertheless illustrates the need for correct procedure to be followed when obtaining a VPS or an update to a VPS.

Barrister Blogger has an interesting "must-read" post on these statements - We need to think again about the effect of victim personal statements on sentencing.

As was decided in R v Chall [2019] EWCA Crim 865 it is not necessary to have expert evidence to establish the existence of severe psychological harm (or any degree of such harm). It is a matter for the sentencing judge. In Chall the court stated the following:

    1. Expert evidence is not an essential precondition of a finding that a victim has suffered severe psychological harm.
    2. A judge may assess that such harm has been suffered on the basis of evidence from the victim, including evidence contained in a VPS, and may rely on his or her observation of the victim whilst giving evidence.
    3. Whether a VPS provides evidence which is sufficient for a finding of severe psychological harm depends on the circumstances of the particular case and the contents of the VPS.
    4. A VPS must comply with the requirements of the Criminal Practice Direction and be served on the defence in sufficient time to enable them to consider its contents and decide how to address them. If late service gives rise to genuine problems for the defence, an application for an adjournment can be made.

Links:

Joint Agency Guide to the Victim Personal Statement

Victims Commissioner - Analysis of the offer and takeup of Victim Personal Statemengts 2018-19

Court of Appeal (Criminal Division) judgments:

  1. Jones, R v [2020] EWCA Crim 1139 (18 August 2020) 

  2. Panta, R v [2020] EWCA Crim 633 (16 January 2020) - discussed by Alexandra Sutton (Exchange Chambers) - Victim Personal Statements and categorisation in sentencing exercises

  3. Chall & Ors, R. v [2019] EWCA Crim 865 (16 May 2019) 

    4. Perkins & Ors v R. [2013] EWCA Crim 323 (26 March 2013) - Their purpose is to allow victims a more structured opportunity to explain how they have been affected by the crime or crimes of which they were victims. They provide a practical way of ensuring that the sentencing court will, consider, in accordance with s.143 of the Criminal Justice Act 2003, "any harm which the offence caused", reflecting on the evidence of the victim about the specific and personal impact of the offence or offences, or in the cases of homicide, on the family of the deceased. The statements may, albeit incidentally to the purposes of the sentencing court, identify a need for additional or specific support or protection for the victims of crime, to be considered at the end of the sentencing process. At the same time, the process does not create or constitute an opportunity for the victim of crime to suggest or discuss the type or level of sentence to be imposed. (per Lord Judge LCJ). 


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