“From now you must jail EVERY burglar, judges will be told. Judges and magistrates are to be told to send burglars to jail in instructions that end a decade of official leniency... The least serious crimes will continue to attract community punishments, but the guidelines say only in exceptional cases should a domestic burglar escape jail.” The Daily Mail, 12 May 2011. 

Get out of jail card for violent burglars. Senior judges will provoke fury today by unveiling new rules to let violent burglars dodge jail. The sentencing shake-up could mean a raider who threatens or attacks someone in their home will walk out of court with a community sentence. The Mirror, 12 May 2011.

“Burglars can still escape prison despite tougher sentences. Violent burglars could still escape prison under new sentencing guidelines for the courts, despite "grave concerns" over giving them community sentences. Offenders who break in while their victim is at home or even those who target vulnerable residents could also escape with a community order under the proposals... Although today's plans do make some penalties tougher, they still leave it open for even serious burglars to escape custody.” The Daily Telegraph, 12 May 2011. 

“The Sentencing Council for England and Wales is launching a three-month public consultation on its proposals. For domestic burglary it suggests only least serious offences should escape a custodial sentence, with three to six-year jail terms for the most serious. But the Criminal Justice Alliance said community sentences might be more appropriate in some cases.” BBC, 12 May 2011. 

Punishments for burglars tightened up by sentencing body. Judges and magistrates told to impose severe sentences on criminals who inflict anguish or trauma on victims. The Guardian, 12 May 2011. 

Today saw the launch of a public consultation period on new guidelines on burglary sentencing. While most of the broadsheets and tabloids covered this story, readers could be forgiven for thinking that the papers had been reporting on entirely different proceedings.

In reviewing the papers this morning, Full Fact quickly noticed an astonishing variation in reporting on the proposed sentencing guidelines, and so we went in search of clarification. 

In the Sentencing Council's press release on the new guidelines, it stated: “The aim of a single guideline is to increase consistency of sentencing across Crown and Magistrates' Courts and give a renewed emphasis on the impact on victims. It does not propose reductions in sentences for any of the offences, reinforces that burglars targeting people's homes can expect a custodial sentence and the statutory maximum sentences for burglary are not affected.”

On aggravated burglary, where a weapon is involved, they propose that the sentences for this offence are always custodial with a range of up to 13 years custody. This clearly contradicts what is said in the Mail and Telegraph, which suggests that 'violent' offenders could avoid jail under the new proposals. 

Further, in its impact assessment report, the Sentencing Council concluded that the proposals were unlikely to lead to a change in prison and probation resources required to deal with burglary cases, as average sentences would remain broadly the same. 

Looking in more detail at the sentencing guidelines document gives some clues as to where the wild variations in the press reporting may have started. 

The guidelines lay out the process of determining sentences, basing the seriousness of the offence on the harm caused and the culpability of the offender. Within these guidelines there is a level of flexibility and complexity that seems to have been conducive to misinterpretation and misrepresentation.

Cases where less severe sentences may be handed out include situations where the offender has been exploited by others, where the offender has a mental disorder or learning disability, or where the offender has made voluntary reparation to the victim. The Council also includes a subordinate role in a group or gang as a possible step towards a mitigating factor. 

Further, the guidelines state that: “there will be low level burglaries, with minimal loss and damage, without raised culpability or impact which may be dealt with by some form of punishment in the community rather than an immediate custodial penalty. So whilst emphasising through this guideline that the majority of domestic burglaries should receive a custodial sentence the Council also proposes that where there has been no/minimal loss or damage, low harm in any wider sense and low culpability that the appropriate starting point should be a non-custodial sentence.”

While there is the possibility of a community sentence in this case, there is also the sentencing range for a short custodial sentence where circumstances deem this to be appropriate. 

Conclusion

Depending on which paper you read this morning, you may have got the impressing that all, some, or still not enough burglars will be locked up under new proposals.

Looking at everything that has been said, it seems the Daily Mail most closely reported the new sentencing guideline proposals, making clear that only in exceptional circumstances would domestic burglars escape jail, although it perhaps should have avoided suggesting that every burglar would be jailed earlier in its article.

The Mirror and the Daily Telegraph on the other hand concluded that violent burglars would escape jail. Aggravated burglary involving a weapon or other violent force will still carry a custodial sentence, meaning that burglars given community orders can only be described as 'violent' in relation to other crimes they may have committed. 

Finally, it was only the BBC who made clear that these proposals from the Sentencing Council have been released for a period of consultation, and therefore are subject to possible change following this process. 

Full Fact got in contact with the Sentencing Council over the press reporting. They told us that many of the headlines we have highlighted here are misleading and lack the necessary complexity. They have promised to provide us with further detail to some of these errors, and we'll update once we have received them.

UPDATE

We have now received a more detailed response from the Sentencing Council to the seemingly contradictory reporting of the burglary sentencing proposals.

The Council explained that the coverage in the Daily Mirror and Daily Telegraph, which suggested violent burglars could escape jail, was based on a simplistic reading of the guidelines.

It was argued that cherry-picking elements of the sentencing guidelines is likely to lead to a misleading understanding of what is being proposed. 

Looking again at the press reports, the Mirror claimed that “senior judges will provoke fury today by unveiling new rules to let violent burglars dodge jail. The sentencing shake-up could mean a raider who threatens or attacks someone in their home will walk out of court with a community sentence.”

However in response the Sentencing Council said: “Here, one factor has been selected without reference to any other aspect of an offence. A violent attack on a householder would indicate high harm, thus it would be at least a category two offence (before one even considers other factors of the offence). 

“The starting point for a category two offence is 1 year’s custody and it is expected that the vast majority of cases that fall into category two will result in a custodial sentence. Whilst it is possible that a category two offence could lead to a community sentence there would need to be significant mitigating circumstances.

“However, the scenarios cited take one element of an offence in isolation and a judge would be taking into account the full details of any case, with there likely to be other aggravating factors that could make an offence more serious and push it higher within the category two range or to a category one, so such simplistic hypotheses are misleading.

“It is also misleading to suggest that it is these new rules that let violent burglars avoid jail sentences – we are reflecting current sentencing practice, so it is not a new system for sentencing that is more lenient or that makes less use of custody.

Likewise, the Daily Telegraph reported that “Violent burglars could still escape prison under new sentencing guidelines for the courts, despite "grave concerns" over giving them community sentences. Offenders who break in while their victim is at home or even those who target vulnerable residents could also escape with a community order under the proposals... Although today's plans do make some penalties tougher, they still leave it open for even serious burglars to escape custody.” 

But the response from the Sentencing Council explained: “As with the Mirror, what has happened here is that various high harm or high culpability factors have been taken in isolation from any other element of the offence, presenting scenarios that could therefore fall into category two and thus potentially lead to a community sentence.

“Such scenarios lack any complexity – any offence is made up of a number of aggravating and mitigating factors that a judge would take into account, so such statements are very misleading. 

“While a situation could conceivably occur whereby someone could assault a householder and get a community sentence, it is very unlikely to happen, as there may be other factors involved in the offence that would make it more serious.”

While the Mirror and Telegraph are right that in some cases violent burglars could escape jail, this is in practice an extremely unlikely scenario. Instead, in this case the Daily Mail reporting of the new guidelines much better reflected the changes introduced in the proposals.