It has long been a problem that housing offences have no sentencing guidance. Although fines have now been increased such that they have no limit, Magistrates have little idea where to start and the fines can vary wildly between different courts. In some cases very high fines are given for relatively minor offences and in other cases breaches that put lives at risk are given token fines.
Of course, housing is not the only area of the criminal law which does not have any form of sentencing guidance. Given the huge number of criminal offences it would be almost impossible to have guidance for all of them.
To help cure this problem the Sentencing Council, the body tasked by the government with writing these guidelines, has recently carried out a consultation in which it sought views on producing general guidance for the range of offences which have no specific guidelines. This consultation has now concluded with a response and the general guideline has been published.
The new guideline requires a multi step process to reaching a sentence. This begins with a provisional sentence being reached based on the maximum level available, the sentencing decisions of the Court of Appeal (if any) and guidance for any similar offences. This is a useful start as there have been a number of cases where local authorities were attending court with press reports of other sentences given by magistrates courts in order to justify similar sentences. This guideline makes clear that this is not an appropriate approach. Similar offence guidance is more complex as it is hard to identify similar offences. There are some potentially relevant environment sentencing guides and some of the safety guidance may be appropriate depending on the offence but the guideline is clear that analogous offence guidance must be applied carefully and it is not just an exercise in porting the most relevant guidance over. As normal, the seriousness of the offence must be considered by looking at the harm caused and the culpability of the offender. This is a common process but it is a useful reminder of the correct approach.
In the next step there is the need to consider any aggravating or mitigating factors. Of note here is the statement that the fine should be set at a level which removes any profit. As the guideline says “it should not be cheaper to offend than to comply with the law”. However, as against this the guideline states that it is important to avoid “double recovery”. This point was inserted after representations made during the consultation process. This is an interesting conundrum as many housing offences now allow for tenants to seek a rent repayment order. In some cases if a conviction has been secured that order is set at the entirety of the rent for the period in which the offence was being committed, with a maximum of 12 months. However, the application for the RRO would not normally be made until after conviction. Therefore magistrates are going to have to sentence with the awareness that the tenants might well make an application for an RRO, thereby wiping out all profit made (a key sentencing point) but at the same time not knowing that the tenants will in fact do so. If the magistrates fine a low sum on the basis that the tenants will apply and then they fail to do so then the fine will likely be much too low. It is a bit of a conundrum for magistrates and there is no clear answer.
Finally, there will be reductions made for early guilty pleas and the like. However, in practice this is often somewhat notional and in my experience if a discount is to be given for an early plea the overall penalty is increased by the same amount first in the magistrates heads so it all ends up in the same place.
It is also worth noting that this guideline reminds magistrates of the requirement to give reasons for the sentence. This is something that is frequently not done, or not done properly and so a reminder is a positive step.
It remains to be seen what effect this will have. There seems to have been a gentle process of fines for housing offences drifting upwards as the removal of the maximum fine has been felt. Whether this guideline will push fines up more or just increase consistency is uncertain. The new guideline comes into effect from 1 October.