Abusive men in England and Wales will walk free from court under a new sentencing policy that flies in the face of ministers’ claims to take domestic violence seriously, an independent government watchdog has said.
Nicole Jacobs, the domestic abuse commissioner, said ministers had not done enough to protect women from a decision to lift the pressures on overcrowded prisons by scrapping short prison sentences.
The government’s sentencing bill puts a duty on judges to give suspended sentences where they may otherwise have given jail terms of 12 months or less.
After advocacy groups raised concerns, an exemption was added in November in cases where convicted individuals had breached a court order or could be shown to pose a significant risk of causing psychological or physical harm to another person.
Speaking to the Guardian, Jacobs said this was inadequate and that the government’s failure to respond to her call for a specific exemption for perpetrators of domestic abuse was putting women at risk.
She claimed the probation service did not have the capacity to properly advise judges and magistrates on the dangers posed by perpetrators of domestic violence.
A recent recruitment drive for probation officers has increased numbers by 8.2% year on year. However, the service was lacking experience, Jacobs said, and the rehabilitation on offer to abusive men within the community was operating at full capacity.
She said it was unacceptable that the minority of women who felt able to cooperate with an investigation all the way to conviction should be left exposed by the system. Last year, 6.8% of domestic abuse reports resulted in a charge. For sexual offences flagged as domestic abuse, the charge rate was even lower, at 3%.
Jacobs said: “It’s not that I think that prison is the best idea for everyone. But it is not the case that someone who is in for a kind of low-level sentence is not a very dangerous person to the victim. What it has taken to get the victim to a point where that has actually happened, most of the time that will be relying on a statement by the victim.
“You know, four out of five won’t ever report [domestic abuse] to the police. So when you take the one out of five who report to the police, and then you get to a fraction of them who actually get to the court, and if at that stage the court says: ‘Oh, we’ll give you a community sentence,’ that really just flies in the face of this kind of rhetoric by the government that domestic abuse is serious, that it is as serious as terrorism, organised crime. That is such a mismatch.”
According to the latest Ministry of Justice statistics, 11,040 men were jailed for about 12 months or less for harassment, stalking and “revenge porn” last year. There are concerns that a proportion of this number would not be imprisoned in the future.
Jacobs said she had met the justice secretary, Alex Chalk, to make the point that a judge who wished to hand down a prison sentence to such men would be heavily reliant on the probation services to correctly identify the level of risk of a perpetrator causing psychological or physical harm.
“A full probation report is what it would take to have any confidence that the judge would be able to do that correctly,” she said.
She added that for those given community service sentences, probation did have some rehabilitative perpetrator programmes but “they are very over-capacity. You’d really want some proper rehabilitation, proper oversight of that community order, proper understanding put to the judge, and that all hinges on functions within probation, which [is] fairly under-resourced.”
She said: “I’ve been told by probation themselves they’ve got this huge recruitment drive, they have got very new probation officers. Are we really at a point where we are equipped to do this properly? Because for domestic abuse that really matters.”
Jacobs said she was concerned that ministers had “cherrypicked” from the government-commissioned review by Clare Wade KC into a culture of misogyny in the criminal justice system. The review was prompted by poor conviction rates in rape cases and soft sentences for domestic homicides.
Jacobs said the government had failed to ensure that sexual infidelity could not be raised as a mitigating factor in a domestic homicide, claiming there were already sufficient controls on a judge’s approach.
Wade also recommended that strangulation, as the common means of domestic homicide, should be made a statutory aggravating factor in domestic abuse cases, but the government did not agree.
Jacobs said: “What [Wade] was very clear about was that these recommendations really couldn’t be cherrypicked, they needed to come as a package. And they have been somewhat cherrypicked.”
A criminal justice bill going through parliament had also failed to ensure police forces were properly dealing with cases where an officer had been accused of domestic abuse, Jacobs added.
A freedom of information request made by the domestic violence charity Refuge found that between May 2022 and May 2023 there were 1,124 cases of police misconduct or gross misconduct involving violence against girls or women.
Jacobs said the bill should include a provision requiring the removal of warrant cards from police officers under investigation for crimes relating to women and girls.
In 2021, Wayne Couzens used his police warrant card to lure Sarah Everard off the street before raping and murdering her. He was later convicted of three incidents of indecent exposure committed in the run-up to the murder.
Jacobs said: “He had been exposing himself days and weeks earlier. If there’s known behaviour, or allegations are afoot, I don’t believe they should be carrying around a warrant card that gives them that kind of tremendous power.”
A government spokesperson said: “We have been clear our sentencing reform does not apply if an offender poses a serious risk to an individual, or is in breach of a court order, such as a stalking protection order, and we engaged with domestic abuse charities to raise awareness of these important safeguards.
“This government has taken unprecedented action to protect women, including landmark legislation in response to Clare Wade’s review to ensure domestic killers get the sentence they deserve. We have also introduced new laws to crack down on stalking and coercive control, Clare’s law, which gives women the right to know if their partner has an abusive past.
“Following the police dismissals review, the government is working at pace to introduce substantial changes to the misconduct, vetting and performance systems. The vast majority of these reforms are being implemented through changes to existing secondary legislation, not via the criminal justice bill.”
