We need to think again about the effect of Victim Personal Statements on sentencing

How much should sentencing judges rely on a victim’s assessment of the harm they have suffered in a crime?

The issue was highlighted earlier this week when 27 year old Pavel Grushin arrived at Croydon Magistrates Court expecting to be sentenced for offences of sexual assault and common assault he committed at a party in the Royal Festival Hall last December. He was not legally represented, possibly thinking to himself “why bother with a solicitor” when the sentencing guideline suggested a community order, or at worst a short, and very probably suspended, prison sentence.

But District Judge Julie Cooper did not sentence him. Instead she sent the case to the Crown Court where he faces a theoretical maximum sentence of 7 years and a probable sentence of around two and a half years imprisonment. “I suggest you instruct a solicitor” she told Mr Grushin, “you will need it.”

In itself there is nothing especially unusual about that. Thousands of cases are sent from the Magistrates Court to the Crown Court for sentence every year. Your attitude might well be, so what? He’s just another drunken letch who thoroughly deserves to be locked up for as long as possible. Why should we care?

The answer is that if you want sentencing to be carried out fairly and dispassionately over-reliance on Victim Personal Statements (sometimes called “Victim Impact Statements”) has the potential to cause serious injustice.

These statements, setting out the effect that a crime has had on its victim, have become ever more ubiquitous at sentencing hearings over the last twenty or so years. They are sometimes drafted by the victim, perhaps more often by a police officer in consultation with the victim. Sometimes they can be very moving documents. Sometimes they can seem formulaic and predictable, although of course no-one would ever dream of saying so. Often they are out of date or so sparse as to be inconsequential. Occasionally they can be startling and unexpected as when the bereaved relative of someone killed by a driver pleads for a lenient sentence.

Before we come to that more general point on the dangers of victim personal statements, what had Mr Grushin done?

His victim, a 33 year old woman, described what happened at the earlier trial, which had been conducted in front of a different District Judge:

He very quickly walked towards me and tried to corner me, with his arms raised and using his body so I couldn’t get around him.

His eyes were very glazed over and he seemed to be enjoying himself and I was immediately very frightened by his demeanour and expression.

His motive seemed sexual. I was afraid for my safety.

He followed me out of the lift and grabbed my right wrist very, very tightly and pulled me in his direction, back towards the lift.

He said: “Come on,” a few times and I just kept saying: “No,” loudly, firmly and very clearly.

To escape, I kept walking backwards and his mouth was puckered as if leaning in for a kiss and I placed my hand on his chest to push him away as he leaned in three times to kiss me.

I firmly pushed with all my body strength and he stumbled back and stopped.

Afterwards I burst into tears and there was a big red mark on my wrist, like a Chinese burn.”

The reports do not make clear whether Mr Grushin was legally represented at the trial, though given his current lack of representation it seems unlikely. His defence was that he “absolutely did not touch her,” although he admitted that he might have “friendly patted her.”

His chances at the trial had not been improved by telling the officers who arrested him that she might have been attracted to him, adding “look at me,” and referring to his Instagram account where, he said, there were pictures of him “hanging out with cool people.” There are indeed: it contains pictures of Mr Grushin in happier times posing not only with Russian double gold-medallist pole-vaulter Elena Isinbaeva but also with the former Bank of England Governor Mark Carney (undoubtedly a somewhat cooler figure than his reassuringly grey successor).

For the offence of sexual assault (the common assault fades into irrelevance) there is a formal sentencing guideline which judges must, except in very rare cases, follow. There is no suggestion that this is one of the exceptional cases where the guideline should not apply.

It categorises the offence into levels of seriousness depending on the degrees of “culpability” and “harm.” There are 3 levels of harm (numbered 1 – 3) and two levels of culpability (labelled A and B). It sounds rather complicated when you try to explain it but it is in fact quite straightforward in practice, albeit there are often arguments over which category a particular offence falls into.

Everyone was agreed that Mr Grushin’s case fell into the lower level (“B”) for culpability. That was because there were no features such as “a significant degree of planning” or “abuse of trust.”

The “harm” classification must have appeared almost as straightforward.

The Guideline sets out the criteria for each level of “harm,” Category 1 being the most serious. Before the trial everyone was agreed that the case fell into the lowest category.

Category 1

  • Severe psychological or physical harm
  • Abduction
  • Violence or threats of violence
  • Forced/uninvited entry into victim’s home

None of these seemed applicable. There was no suggestion that “severe physical harm” had been sustained and no evidence was given of psychological harm; in fact it would have been unusual for any such evidence to have been given since “harm” of any kind is not something that the prosecution need to prove in a sex case. There was no abduction or uninvited entry into the victim’s home: the incident took place in a public place, either in or just outside a lift at the Royal Festival Hall. The grabbing of the victim’s wrist, horrible and frightening though it must have been, is hardly the sort of “violence” envisaged by the guidelines in the context of an offence of sexual assault, which by definition always involves unwanted touching.

Category 2

  • Touching of naked genitalia or naked breasts
  • Prolonged detention/sustained incident
  • Additional degradation/humiliation
  • Victim is particularly vulnerable due to personal circumstances

There had been no such touching even over clothing. The incident appears to have been over fairly quickly and until recently there had been no reason to suppose that the victim was “particularly vulnerable.”

Category 3

  • Factor(s) in categories 1 and 2 not present

Thus up to, and in the immediate aftermath of, the trial Mr Grushin’s offence appeared to be in Category 3B, the lowest level of both harm and culpability.

The guideline “starting point” for a 3B offence of sexual assault is a “high level community order.” Typically, that might involve an order to carry out unpaid work for 200 or more hours, coupled perhaps with some sort of probation activity, although the guideline encompasses a range up to and including 26 weeks imprisonment. These were all sentences which the Magistrates Court had the power to impose. Believing that they had adequate powers of sentencing, the Magistrates (or District Judge) accepted jurisdiction and did not exercise their power to send the case to the Crown Court for trial. Mr Grushin could have himself elected trial by jury – many people in his shoes would have done so – but he decided against it.

So although his trial had not gone well, the absolute worst that Mr Grushin would have anticipated following his conviction was a 26 week prison sentence. Even that could have been suspended, and very well might have been, given his lack of previous convictions.

So why then did DJ Cooper decide that her sentencing powers were inadequate and send the case to the Crown Court?

The reason was that shortly before the planned sentencing hearing she was presented with a Victim Personal Statement from the woman whom Mr Grushin had assaulted. It revealed that since the incident she had suffered panic attacks and had had to leave her career, because it involved large crowds who often drank alcohol. She explained:

I was overwhelmed and the thought of facing members of the public with alcohol reminded me of December. I had flashbacks of this man trapping me in the lift and trying to grope me, or even worse try to rape me.

I hyperventilated and had a panic attack. I felt faint and had to lie down until my breathing returned to normal after ten to fifteen minutes. I never had panic attacks before and this added to my stress.”

She said that she had been prescribed sleeping pills, antidepressants and an inhaler to assist her breathing and had attended therapy sessions for sexual trauma.

I have had sleepless nights, I can’t shut this off and can’t sleep. … I had a nightmare about a man trying to break in and try to kiss me and this woke me up.”

In the view of DJ Cooper, the VPS demonstrated that she had in fact suffered “severe psychological harm.” If that was right, the original assessment of the case as belonging in Category 3 was wrong. Where “severe psychological harm” is caused the case falls into Category 1. Instead of the “starting point” of a community order for a 3B case, the “starting point” for a 1B case is 2 ½ years imprisonment. In other words, a sentence five times as long as the most severe possible sentence the Magistrates Court can impose. Just as important, a sentence of over 2 years imprisonment cannot be suspended.

There can be no legitimate criticism of DJ Cooper. Being psychologically unable to continue in one’s job, and suffering nearly a year of insomnia, nightmares and flashbacks could certainly be considered “severe” psychological harm. Since last year when the Court of Appeal decided a case called Chall [2019] EWCA Crim 865, the law has been clear: a judge does not need expert evidence to conclude that severe psychological harm has been suffered. She was entitled to find that “severe psychological harm” has been suffered on the basis of a Victim Impact Statement alone.

But has the decision in Chall placed too much responsibility in the hands of victims? Is there a danger that sentences will be higher where the victim can articulate their distress than in cases where the victim is inarticulate or simply reluctant to express their emotions in public?

Severe psychological harm” is itself a slippery concept. “Psychological harm” is not the same as “recognised psychiatric condition.” It is certainly not, in the view of the Court of Appeal, a medical issue at all:

When a sentencing guideline directs a sentencer to assess whether the victim of an offence has suffered severe psychological harm or to make any other assessment of the degree of psychological harm, a judge is not thereby being called upon to make a medical judgment. The judge is, rather, making a judicial assessment of the factual impact of the offence upon the victim. Thus, submissions to the effect that a judge who makes a finding of severe psychological harm is wrongly making an expert assessment without having the necessary expertise are misconceived. The judge is not seeking to make a medical decision as to where the victim sits in the range of clinical assessments of psychological harm, but rather is making a factual assessment as to whether the victim has suffered psychological harm and, if so, whether it is severe.”i

Put more shortly: “psychological harm” means “psychological harm,” and “severe psychological harm” means “severe psychological harm.” It is not, with respect, terribly helpful.

Because it is not seen as a medical issue the assessment of psychological harm does not require medical evidence. In fact, the Court of Appeal said, it does not require any evidence beyond that of the victim herself. It is “the sort of assessment which judges are accustomed to making.” In practice the written word of the victim is often the only evidence the judge has.

This places a great deal of responsibility on the victim. Their statements are not meant to offer any opinion on what the sentence should be (see Criminal Practice Direction VII F.2), and if they do so courts are not meant to pay any attention to those opinions. On the other hand, if a victim wants to increase the chances of a severe – or less often a lenient – sentence it is not difficult, at least for the knowledgeable and articulate, to word the statement accordingly.

And of course victims do not always write their own victim statements; they are often drafted by police officers. When the police are careful and conscientious that is fine, especially for victims who might find it difficult to express themselves, but there is always the danger that the officer’s own views on sentencing influencing the wording of the statement.

And the reality is that it is virtually impossible for a defendant to challenge the contents of a VPS. Indeed, the Court of Appeal recognised this in Chall:

Whilst the defence are entitled to cross-examine the author of a VPS, we agree with counsel’s submissions that it is a right which will only very rarely be exercised, for a number of obvious reasons, including the risk that the process of cross-examination may actually increase the psychological harm suffered.”

The Court rightly pointed out that the judge should

approach the assessment with appropriate care, in the knowledge that the level of sentence will be significantly affected by it, and will not reach such an assessment unless satisfied that it is correct.”

Yet unless the defence are able to challenge the victim’s impact statement, in most cases such a careful assessment is hardly possible; judges simply have to accept that the VPS is accurate. Except in a very clear case it would be a bold judge to publicly doubt the accuracy or veracity of what a victim says about the effect that the crime has had on them.

A case decided last August, Jones [2020] EWCA Crim 239, illustrated some of the dangers of giving the victim of a crime the responsibility of self-diagnosing “severe psychological harm.”

Mr Jones persuaded the victim to go to some secluded scrubland, ostensibly to sell him cannabis. Once safely out of reach of CCTV, Jones’s hooded accomplices appeared, armed with knives, and they proceeded to rob the victim and to pretend to rob Jones. The plan unravelled when Jones – originally treated by the police as a victim of the robbery – panicked and admitted that he had in fact been one of the organisers of the robbery. It was certainly a nasty crime, made worse by Mr Jones’s trickery and deception. However, for sentencing purposes it was important to determine whether his victim had suffered “serious psychological harm.”

A fortnight after the robbery, the victim gave a Victim Personal Statement to the police in which he said the robbery had been:

The most traumatic event of my whole life and left me with mental scars ….”

He described sleeplessness, nightmares and flashbacks. He no longer felt safe to go out in his own home town.

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.”

Just before the sentencing took place, a further note was given to the court, from a Witness Care Officer.

[The victim] would also like to add to his victim impact statement that he continues to suffer stress and anxiety as a result of the incident. He does not go out socialising, except for visiting friends at their homes. He only knows one of the offenders, so is very worried that whilst out he may come across them and he doesn’t know them.”

In reliance on this information the judge decided that the effect of the robbery had been “absolutely devastating”. He found that he had suffered “severe psychological harm,” and imposed a sentence based on the robbery sentencing guideline which, like the sexual assault guideline, required any robbery causing such harm to be placed in Category 1 for sentencing purposes. He received a sentence of 5 years detention in a young offenders’ institute.

Some time after he had been sentenced, his mother received information that the victim was in fact regularly going out into town, socialising with his friends, and working as a DJ (as a disc jockey not a District Judge). Some of his activities had been posted on social media. It was hard to reconcile this with the description of a severely traumatised partial-recluse that had been presented to the Crown Court.

Mr Jones appealed against his sentence, arguing that the sentencing judge’s finding of “severe psychological harm” was undermined by the evidence uncovered by his mother.

The Court of Appeal agreed, as tactfully as possible.

We are quite satisfied that [the victim’s] original victim statement faithfully articulated how he felt. Unfortunately, that was not a reliable indicator as to whether the harm he felt was likely to be long-standing. Happily, we consider that the updated information of the social media posts and the information provided by his mother gives cause for optimism that he will continue to return to a normal life and emerge fully from the shadow of this offence. … A substantial period of detention was clearly the only sentence available for the offence. But we are 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.

Mr Jones’s 5 year sentence was reduced to 3 years and 4 months.

In that case the Court actually had information to contradict that contained in the VPS. But that is very rarely the case in practice, and had it not been for Mr Jones’s mother’s private investigations

A victim can easily make things worse for her attacker by exaggerating the effects of the assault, in the reasonably confident expectation that the exaggeration will not be noticed. By the same token the stoical uncomplaining or simply inarticulate victim can give the false impression that in fact no great harm has been done. In some cases – and Mr Grushin’s appears to be one of them – the wording of a practically unchallengeable VPS can make the difference between a Community Order and a lengthy prison sentence. That does not seem to me to be just or fair to either victim or defendant.

I am not altogether sure what the solution to the problem should be. Perhaps the definition of “severe psychological harm” needs to be tightened: in other areas of the criminal law the courts have been strict in drawing a distinction between psychological injury resulting in a recognised illness and, ordinary emotions such as anxiety or depression: see R v. D [2006] EWCA Crim 1139. Perhaps the Court of Appeal’s view that proof of severe psychological harm does not require medical evidence should be reconsidered, or at the very least modified so that it requires more than the word of the victim.

It is obviously right that sentencing judges should take the effect of a crime on victims into account and Victim Personal Statements are now deeply embedded in sentencing law and practice. If nothing else, they provide victims of some crime with some assurance that their voices will be heard. We are of course a long way from those systems of law in which the word of a victim can mean the difference between a defendant’s death or his freedom. But we have drifted too far in that direction. Criminal justice requires objectivity, consistency and fairness to victims and to defendants. There is not enough of any of these in our current system of Victim Personal Statements.

 

i see Holroyde LJ in Chall at para 15

The post We need to think again about the effect of Victim Personal Statements on sentencing appeared first on BarristerBlogger.

Source: https://barristerblogger.com/2020/10/24/we-need-to-think-again-about-the-effect-of-victim-personal-statements-on-sentencing/

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