The Burglar's Gamble

Last week the Sentencing Council published a new consultation on the sentencing regime applicable to offences of burglary. The consultation invited responses on the Council's proposals to increase sentences depending on the consequences of the burglary, particularly the actual harm inflicted on the victim. Sir Brian Leveson, Chairman of the Council, summed up the new approach by stating that it would ensure 'that the impact on victims is at the centre of considerations about what sentence should be passed on a burglar.'

The Council's latest intervention represents a continuation in thinking in criminal justice policy apparent over the last 10 years with victims placed at the forefront of political rhetoric. Successive Home Secretaries have hit the airwaves promising to make victims the most important players in the criminal justice system. Much of the reform has been largely symbolic, such as the unenforceable Victims Charter, and victims have gained few new rights despite the political posturing. This suggested change, however, may do more to improve the standing of victims when it comes to the consequences of offending.

Is this really right though? For those of us who would like to see tougher sentences across the board, any change that increases the punishment for people who commit burglary is to be welcomed. However, there are wider considerations that make this a problematic development in the theory of sentencing.

Traditionally, sentencing has concentrated on the culpability of offenders, rather than the actual harm caused. This is why attempted murder is treated largely the same as murder itself. Society recognises that failing to commit an offence - whether by luck or bad judgment - does not extinguish the offender's culpability. That person is as morally responsible as if he had succeeded in committing the crime.

Applying these principles, the sentence for a burglar should be the same whether or not his victims are upstairs asleep, downstairs watching TV, or out of the house. The burglar's act and mental state are the same in each case. The presence or absence of any victim is a matter of simple luck. Under the Council's new proposals, however, a burglar who frightens victims inside a house will receive a markedly longer sentence than a burglar who has the happy fortune of finding his house unoccupied.

This reflects a general trend towards compensating victims for harm caused. I once witnessed a case where a drunk driver drove from Cambridge to Huntingdon as high as a kite, swerving around moving vehicles, riding the kerb, and driving over roundabouts. Amazingly, his tripped out journey resulted in no casualties or damage. As a result he was given a suspended sentence. Just imagine the sentence he would have received had he hit a child. What would be the principled difference? His culpability would be the same in both cases and sentencing ought to recognise this.

While I am always satisfied, therefore, to hear about offenders being dealt with more severely, I have a profound objection to the current obsession with consequence rather than culpability. I see no reason why a burglar who finds his victim in the house should face different treatment to the burglar who guesses right and discovers an empty house. Both are serious acts warranting significant punishment. To punish one but not the other is a bizarre social choice.