Assault with intent to resist arrest
Offences against the Person Act 1861, s.38
Effective from 1 July 2021
Triable either way
Maximum: 2 years’ custody
Offence Range: Fine –1 year 3 months’ custody
This is a specified offence for the purposes of sections 266 and 279 (extended sentence for certain violent, sexual or terrorism offences) of the Sentencing Code.
Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.
In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after the effective date of this guideline, regardless of the date of the offence.*
Section 59(1) of the Sentencing Code provides that:
“Every court –
- must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
- must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice to do so.”
This guideline applies only to offenders aged 18 and older. General principles to be considered in the sentencing of children and young people are in the Sentencing Council definitive guideline, Overarching Principles – Sentencing Children and Young People.
*The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.
Step 1 - Determining the offence category
The court should determine the offence category with reference only to the factors listed in the tables below. In order to determine the category the court should assess culpability and harm.
Culpability
Where there are factors present from more than one category of culpability, the court should weigh those factors in order to decide which category most resembles the offender’s case.
A - High culpability
- Intention to cause fear of serious harm, including disease transmission
- Victim obviously vulnerable due to age, personal characteristics or circumstances
- Prolonged/persistent assault
- Use of substantial force
- Threatened or actual use of weapon or weapon equivalent*
- Strangulation/suffocation/asphyxiation
- Leading role in group activity
B – Lesser culpability
- Lesser role in group activity
- Mental disorder or learning disability, where linked to the commission of the offence
- All other cases not captured by category A factors
*Examples of a weapon equivalent can include but are not limited to: a shod foot, use of acid, use of animal in commission of offence.
Harm
In assessing the level of harm, consideration should be given to:
· the number of injuries
· severity of injury and pain suffered and
· the duration or longevity of any psychological harm or distress caused.
Category 1
- More than minor physical or psychological harm/distress
Category 2
- Minor physical or psychological harm/distress
Category 3
- No/very low level of physical harm and/or distress
Step 2 – Starting point and category range
Having determined the category at step one, the court should use the corresponding starting point to reach a sentence within the category range in the table below. The starting point applies to all offenders irrespective of plea or previous convictions.
An adjustment from the starting point, upwards or downwards, may be necessary to reflect particular features of culpability and/or harm (for example, the presence of multiple factors within one category, the presence of factors from more than one category (where not already taken into account at step 1), or where a case falls close to a borderline between categories).
Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black and Mixed ethnicity offenders receive an immediate custodial sentence than White, Asian and Chinese or Other ethnicity offenders. There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance at Chapter 8 of the Equal Treatment Bench Book.
| Harm | Culpability | |
|---|---|---|
| A | B | |
| Category 1 |
Starting point |
Starting point |
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Category range |
Category range |
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| Category 2 |
Starting point |
Starting point |
|
Category range |
Category range |
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| Category 3 |
Starting point |
Starting point |
|
Category range |
Category range |
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| Starting point | Range | |
|---|---|---|
| Fine Band A | 50% of relevant weekly income | 25 – 75% of relevant weekly income |
| Fine Band B | 100% of relevant weekly income | 75 – 125% of relevant weekly income |
| Fine Band C | 150% of relevant weekly income | 125 – 175% of relevant weekly income |
| Fine Band D | 250% of relevant weekly income | 200 – 300% of relevant weekly income |
| Fine Band E | 400% of relevant weekly income | 300 – 500% of relevant weekly income |
| Fine Band F | 600% of relevant weekly income | 500 – 700% of relevant weekly income |
- The court should determine the appropriate level of fine in accordance with this guideline and section 125 of the Sentencing Code, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender.
- Where possible, if a financial penalty is imposed, it should remove any economic benefit the offender has derived through the commission of the offence including:
- avoided costs;
- operating savings;
- any gain made as a direct result of the offence.
- The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to comply with the law.
- In considering economic benefit, the court should avoid double recovery.
- Where the means of the offender are limited, priority should be given to compensation (where applicable) over payment of any other financial penalty.
- Where it is not possible to calculate or estimate the economic benefit, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law.
- When sentencing organisations the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with the law. The court should ensure that the effect of the fine (particularly if it will result in closure of the business) is proportionate to the gravity of the offence.
- Obtaining financial information: It is for the offender to disclose to the court such data relevant to their financial position as will enable it to assess what they can reasonably afford to pay. If necessary, the court may compel the disclosure of an individual offender’s financial circumstances pursuant to section 35 of the Sentencing Code. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case. In setting a fine, the court may conclude that the offender is able to pay any fine imposed unless the offender has supplied financial information to the contrary.
The Imposition of community and custodial sentences guideline outlines the general approach to sentencing and provides guidance on how sentencers should address specific issues that may arise when they consider the most appropriate sentence.
A community order must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) is serious enough to warrant the making of such an order (section 204(2) of the Sentencing Code). There is no power to make a community order for a non-imprisonable offence (section 202(1)(b) of the Sentencing Code).
- Even where the seriousness of the offence indicates that the threshold for a community order has been passed, sentencers must consider all available disposals at the time of sentence. A fine or discharge can achieve the purposes of sentencing (with, if relevant, any appropriate ancillary orders).
- If the offender received a non-custodial disposal for a previous offence, the court should not necessarily move to a custodial sentence for the fresh offence.
- Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions).
- As set out in certain offence specific guidelines, where there is a sufficient prospect of rehabilitation, a community order with a specific requirement can be a proper alternative to a short or moderate length custodial sentence. Short or moderate sentences are not defined, and may exceed two years’ custody.
See further information on previous convictions in section 2 of the Imposition guideline.
Pre-sentence reports (PSR)
When considering a community or custodial sentence, the court must request and consider a pre-sentence report (PSR) before forming an opinion of the sentence, unless it considers that it is unnecessary (section 30 of the Sentencing Code). A pre-sentence report may also be requested by a defence legal representative as part of the before-plea protocol.
A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.
- PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.
- A pre-sentence report may be unnecessary if the court considers that it has enough information about the offence and the offender.
See more information on pre-sentence reports at section 3 of the Imposition guideline.
Magistrates: Consult your legal adviser before deciding to sentence to a community order or custodial sentence without a pre-sentence report.
Section 4 of the Imposition guideline contains important information on the suitability and effectiveness of a sentence.
Community orders
Community orders can fulfil all of the purposes of sentencing. They can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities.
If, in all the circumstances of the case, a fine can achieve the purposes of sentencing, it may be imposed as an alternative to a community order. See more information at section 5 of the Imposition guideline.
Community order levels
Any requirement/s imposed for the purpose of rehabilitation should be determined by and aligned with the offender’s needs. The court may benefit from the Probation Service’s assessment of the offender’s needs and suggestion of appropriate rehabilitative interventions.
The levels table below offers non-exhaustive examples of the ranges of requirements imposed for the purpose of punishment that might be appropriate in each level of community order.
| Low | Medium | High |
| Offences only just cross the community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate. | Offences where the community order threshold has been passed but the custody threshold has not been passed. | Offences only just below the custody threshold, or where the custody threshold is crossed but a community order is more appropriate in the circumstances. |
| When imposing for the purpose of punishment, non-exhaustive examples of suitable ranges for one requirement* might include: | ||
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If order does not contain a requirement for the purpose of punishment, suggested fine levels are indicated below: |
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BAND A FINE |
BAND B FINE |
BAND C FINE |
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* When imposing more than one requirement, the court should moderate the intensity, volume or length of the requirements to ensure they are not disproportionate to the level of the order. ** Maximum of 112 hours in any period of 7 days. The court may vary the number of hours on different days if appropriate according to the circumstances of the offender. |
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Requirements
Community orders must consist of one or more requirements.
The court must ensure that requirements imposed are the most suitable for the offender. See more information at section 7 of the Imposition guideline.
Any requirement can be imposed for the purpose of punishment depending on the individual offender, though normally rehabilitation activity requirements (RARs) and treatment requirements should not be. One requirement can fulfil multiple purposes of sentencing.
Any requirement(s) imposed for the purpose of rehabilitation should be determined by, and align with, the offender’s needs.
The Imposition of community and custodial sentences guideline outlines the general approach to sentencing and provides guidance on how sentencers should address specific issues that may arise when they consider the most appropriate sentence.
A custodial sentence must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (section 230(2) of the Sentencing Code).
- Even where the seriousness of the offence indicates that the threshold for a custodial order has been passed, a custodial sentence should not be imposed if in all the circumstances of the case it is appropriate to impose a community order, for example, if a community order achieves the purposes of sentencing.
- Custody should not be imposed on an offender who is pregnant or within the postnatal period (within 12 months after giving birth) where the impact on the offender or dependants, including unborn children, would make a custodial sentence disproportionate to achieving the purposes of sentencing.
See further information on previous convictions in section 2 of the Imposition guideline.
Pre-sentence reports (PSR)
When considering a community or custodial sentence, the court must request and consider a pre-sentence report (PSR) before forming an opinion of the sentence, unless it considers that it is unnecessary (section 30 of the Sentencing Code). A pre-sentence report may also be requested by a defence legal representative as part of the before-plea protocol.
A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.
- PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.
- A pre-sentence report may be unnecessary if the court considers that it has enough information about the offence and the offender.
See more information on pre-sentence reports at section 3 of the Imposition guideline.
Magistrates: Consult your legal adviser before deciding to sentence to a community order or custodial sentence without a pre-sentence report.
Section 4 of the Imposition guideline contains important information on the suitability and effectiveness of a sentence.
Custodial sentences
If the custodial threshold has been passed the court should ask the following three questions in the following order:
Is it unavoidable that a custodial sentence be imposed?
- A custodial sentence (whether immediate or suspended) must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (s.230(2) Sentencing Act 2020).
- Passing the custody threshold does not mean that a custodial sentence (whether immediate or suspended) is inevitable. Custody should not be imposed where the purposes of sentencing could be achieved by a community order or where circumstances exist which may make a custodial sentence disproportionate to achieving the purposes of sentencing (for example, where there would be an impact on dependants, including on unborn children where the offender is pregnant.)
- Community orders are often punitive and last longer than shorter custodial sentences. Community orders can restrict an offender’s day to day liberties, especially when imposed on an offender who may find regular attendance at a specific place or time challenging. Breach can result in custody.
- If the purposes of sentencing can be achieved by a community order, or any personal mitigation means that a community order may be a more suitable sentence, see the Community orders dropdown above.
What is the shortest term commensurate with the seriousness of the offence?
- If the court is considering an immediate custodial sentence of up to 12 months, it should take into account that research suggests that custodial sentences of up to 12 months are less effective than other disposals at reducing reoffending and can lead to negative outcomes. Any custodial sentence may disrupt factors which can discourage further offending, such as employment, education or accommodation, and may affect support networks by interfering with relationships with friends and family.
- While courts are encouraged to consider a community order in lieu of a custodial sentence where appropriate, there will be cases where a short custodial sentence is unavoidable.
- In considering the shortest term, the court must NOT consider any licence or post sentence supervision requirements or any other administrative or statutory consequences of the potential sentence imposed.
Can the sentence be suspended?
Cases where the offender was convicted before 22 March 2026
If the shortest term commensurate with the seriousness of the offence is 2 years or less, the court should consider whether it is appropriate to suspend that sentence so that the offender serves their sentence in the community under the supervision of the Probation Service.
Cases where the offender was convicted on or after 22 March 2026
If the shortest term commensurate with the seriousness of the offending is 12 months or less, the court must suspend the sentence under the statutory presumption of suspension, unless any of the following apply:
- The offender is in custody (whether serving a sentence, on remand for another offence, or detained under a hospital order)
- There is significant risk of physical or psychological harm to an individual
If the sentence is not to be suspended applying the presumption OR if the shortest term commensurate with the seriousness of the offending is more than 12 months and no more than 3 years, the court should consider whether it is appropriate to suspend that sentence so that the offender serves their sentence in the community under the supervision of the Probation Service.
The court should weigh the relevant factors below to consider whether it is possible to suspend the sentence:
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Factors indicating that it may be appropriate to suspend a custodial sentence |
Factors indicating that it may not be appropriate to suspend a custodial sentence |
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Suspending a sentence
- If the offender reoffends during the operational period or fails to comply with any requirements during the supervision period of the suspended sentence order, the custodial term will be activated and the offender will be required to serve some or all of the sentence in custody, unless it is unjust to do so, as set out in the Breach of suspended sentence orders guideline).
- A suspended sentence is a custodial sentence. A suspended sentence MUST NOT be imposed as a more severe form of community order. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence, such as a community order, should be imposed.
- In weighing any of the following non-exhaustive factors indicating whether to suspend a custodial sentence, the court will usually benefit from Probation’s assessment of any relevant circumstances (such as dependants) and whether the offender can be safely managed in the community (including safeguarding of the victim/s and/or public).
A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately. See more information on the operational and supervision periods in section 9 of the Imposition guideline.
Requirements on a suspended sentence order
When the court imposes a suspended sentence order, it may impose one or more requirements on the order for the offender to undertake in the community (section 286(2) of the Sentencing Code).
A suspended sentence order is a custodial sentence; as such, the imposition of a suspended sentence order is itself a punishment, with or without requirements. Any requirements that are imposed as part of a suspended sentence order are, therefore, more likely to be predominantly rehabilitative in purpose. The court should moderate the intensity, volume or length of any requirement imposed for the purpose of additional punishment so it is not disproportionate to the seriousness of the offending.
The requirements that may be imposed on a suspended sentence order are identical to those for community orders. The court must follow the guidance in section 7 of the Imposition guideline, including ensuring that any requirements imposed are the most suitable for the offender, realistic to fulfil, and where multiple requirements are imposed, they are compatible with each other and not excessive.
To ensure that the requirements of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. The court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.
The tables below contain a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in a further upward or downward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.
Factors increasing seriousness
Statutory aggravating factors:
- having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
Guidance on the use of previous convictions
The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:
Section 65 of the Sentencing Code states that:
(1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions.
(2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to— (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.
(3) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated.
- Previous convictions are considered at step two in the Council’s offence-specific guidelines.
- The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
- Previous convictions are normally of relevance to the current offence when they are of a similar type.
- Previous convictions of a type different from the current offence may be of relevance where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
- Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
- If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
- In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
- The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are of less relevance to the offender’s culpability for the current offence and less likely to be predictive of future offending.
- Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
- The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
- Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
- When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
- Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
Section 64 of the Sentencing Code states:
In considering the seriousness of any offence committed while the offender was on bail, the court must - (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
See below for the statutory provisions.
- Note the requirement for the court to state that the offence has been aggravated by the relevant hostility.
- Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role.
Section 66 of the Sentencing Code states:
Hostility (1) This section applies where a court is considering the seriousness of an offence which is aggravated by—
(a) racial hostility,
(b) religious hostility,
(c) hostility related to disability,
(d) hostility related to sexual orientation, or
(e) hostility related to transgender identity.
This is subject to subsection (3). (2) The court—
(a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and
(b) must state in open court that the offence is so aggravated.
(3) So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). (4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
(i) the victim’s membership (or presumed membership) of a racial group,
(ii) the victim’s membership (or presumed membership) of a religious group,
(iii) a disability (or presumed disability) of the victim,
(iv) the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)
(v) the victim being (or being presumed to be) transgender, or
(b) the offence was motivated (wholly or partly) by—
(i) hostility towards members of a racial group based on their membership of that group,
(ii) hostility towards members of a religious group based on their membership of that group,
(iii) hostility towards persons who have a disability or a particular disability,
(iv) hostility towards persons who are of a particular sexual orientation, or (as the case may be)
(v) hostility towards persons who are transgender.
(5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (6) In this section—
(a) references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins;
(b) references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief;
(c) “membership” in relation to a racial or religious group, includes association with members of that group;
(d) “disability” means any physical or mental impairment;
(e) references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment;
(f) “presumed” means presumed by the offender.
Other aggravating factors:
- Deliberate spitting or coughing (where not taken into account at step one)
- Biting
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- This reflects the psychological harm that may be caused to those who witnessed the offence.
- The presence of one or more children may in some situations make the primary victim more vulnerable – for example an adult may be less able to resist the offender if concerned about the safety or welfare of children present.
- When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
Where an offender deliberately causes additional harm to a victim over and above that which is an essential element of the offence - this will increase seriousness. Examples may include, but are not limited to, posts of images on social media designed to cause additional distress to the victim.
Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.
Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.
This applies regardless of whether the offender is under the influence of legal or illegal substance(s).
In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.
An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
- The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
- Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality.
- Care should be taken to avoid double counting matters taken into account when considering previous convictions.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- Commission of an offence while subject to a relevant court order makes the offence more serious.
- The extent to which the offender has complied with the conditions of an order (including the time that has elapsed since its commencement) will be a relevant consideration.
- Where the offender is dealt with separately for a breach of an order regard should be had to totality
- Care should be taken to avoid double counting matters taken into account when considering previous convictions.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
Factors reducing seriousness or reflecting personal mitigation
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
- First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
- Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
- When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it.
- Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). In general the more serious the previous offending the longer it will retain relevance.
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Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction).
Lack of remorse should never be treated as an aggravating factor.
Remorse can present itself in many different ways. A simple assertion of the fact may be insufficient.
The court should be aware that the offender’s demeanour in court or the way they articulate their feelings of remorse may be affected by, for example:
- nervousness
- a lack of understanding of the system
- mental disorder
- learning disabilities
- communication difficulties (including where English is not their first language)
- a belief that they have been or will be discriminated against
- peer pressure to behave in a certain way because of others present
- age and/or a lack of maturity etc.
Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.
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Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Evidence that an offender has demonstrated a positive side to their character may reduce the sentence.
This factor may apply whether or not the offender has previous convictions.
However:
- This factor is less likely to be relevant where the offending is very serious
- Where an offender has used their positive character or status to facilitate or conceal the offending it could be treated as an aggravating factor.
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Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Where a person has committed the offence under the age of 18, regard should be had to the overarching guideline for sentencing children and young people. That guideline may also be relevant to offending by young adults.
Age and/or lack of maturity can affect:
- the offender’s responsibility for the offence and
- the effect of the sentence on the offender.
Either or both of these considerations may justify a reduction in the sentence.
The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater).
In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:
- evaluate the consequences of their actions
- limit impulsivity
- limit risk taking
Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers.
Immaturity can also result from atypical brain development. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development.
An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody.
An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.
There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.
Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties. Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending.
Where the offender is care experienced or a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17).
Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3).
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Effective from: 01 October 2020
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
Refer to the Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline.
Note in particular paragraph 5 for Black, Asian and Minority Ethnic offenders.
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Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline.
For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.
For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.
When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.
The court should ensure that it has all relevant information about dependent children before deciding on sentence.
When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.
Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 119 to 125)
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Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify a reduction in sentence. This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.
Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify the imposition of a sentence that focusses on rehabilitation.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case.
- However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate.
- There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending.
- A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG).
- But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing judge when determining the sentence that it would be just to impose.
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Effective from: 01 April 2024
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
When considering a custodial or community sentence for a pregnant or postnatal offender (someone who has given birth in the previous 12 months) the court should ensure it has all the necessary information before sentencing and adjourn the sentencing if necessary.
When sentencing a pregnant or postnatal woman, relevant considerations may include:
- the medical needs of the offender including her mental health needs
- any effect of the sentence on the physical and mental health of the offender
- any effect of the sentence on the child
The impact of custody on an offender who is pregnant or postnatal can be harmful for both the offender and the child including by separation, especially in the first two years of life.
Access to a place in a prison Mother & Baby Unit is not automatic and when available, the court may wish to enquire for how long the place will be available.
Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and the child. The NHS classifies all pregnancies in prison as high risk.
There may be difficulties accessing medical assistance or specialist maternity services in custody.
This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline.
For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
Where immediate custody is unavoidable, all of the factors above may be relevant to the length of the sentence.
The court should address the issues above when giving reasons for the sentence.
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Effective from: 01 April 2024
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
The court should consider whether there are factors in the offender’s background or current personal circumstances which may be relevant to sentencing. Such factors may be relevant to:
- the offender’s responsibility for the offence and/or
- the effect of the sentence on the offender.
Courts should consider that different groups within the criminal justice system have faced multiple disadvantages which may have a bearing on their offending. Such disadvantages include but are not limited to:
- experience of discrimination
- negative experiences of authority
- early experience of loss, neglect or abuse
- early experience of offending by family members
- being care experienced or a care leaver
- negative influences from peers
- difficulties relating to the misuse of drugs and/or alcohol (but note: being voluntarily intoxicated at the time of the offence is an aggravating factor)
- low educational attainment
- insecure housing
- mental health difficulties
- poverty
- direct or indirect victim of domestic abuse
There are a wide range of personal experiences or circumstances that may be relevant to offending behaviour. The Equal Treatment Bench Book contains useful information on social exclusion and poverty (see in particular Chapter 11, paragraphs 58 to 71). The Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline may also be of relevance.
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Effective from: 01 April 2024
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline.
Where an offender is in, or has a realistic prospect of starting, work, education or training this may indicate a willingness to rehabilitate and desist from future offending.
Similarly, the loss of employment, education or training opportunities may have a negative impact on the likelihood of an offender being rehabilitated or desisting from future offending.
The absence of work, training or education should never be treated as an aggravating factor.
The court may ask for evidence of employment, training etc or the prospects of such, but should bear in mind any reasonable practical difficulties an offender may have in providing this.
For more serious offences where a substantial period of custody is appropriate, this factor will carry less (if any) weight.
Step 3 – Consider any other factors which indicate a reduction, such as assistance to the prosecution
The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Case law has established that there are no inflexible rules as to the method by which any reduction should be assessed nor the amount of the reduction. It will be a fact specific decision in each case. The rationale for making a reduction is the same whether the statutory procedure or the common law “text” procedure has been engaged. In principle, there is no reason to distinguish between the two procedures in terms of the extent of the reduction which is made. See also the relevant Criminal Procedure Rules: CPR 28.11 (statutory procedure) CPR 28.12 (text procedure).
The following sequence of matters for a sentencing court to consider reflects case law:
- The court should assess the seriousness of the offences being sentenced following any relevant sentencing guidelines.
- The court should then consider the quality and quantity of the material provided by the offender in the investigation and subsequent prosecution of crime. The court should take into account the period of time over which the information was provided and the seriousness of the offending to which it relates. Particular value should be attached to those cases where the offender provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, especially where the information either produces convictions for the most serious offences, or prevents them, or which leads to disruption of major criminal networks. In cases where it is too early to say what impact the information will have, the Court should take into account the potential value of the information provided.
- This consideration should be made in the context of the nature and extent of the personal risks to, and potential consequences faced by, the offender and members of the offender’s family.
- A guilty plea is not an essential prerequisite of the making of a reduction for information and assistance provided, but contesting guilt may be one of the factors relevant to the extent of the reduction made for that assistance. The extent to which an offender has been prepared to admit the full extent of their criminality is relevant to the level of the reduction.
- Any reduction for a guilty plea is separate from and additional to the appropriate reduction for assistance provided by the offender. The reduction for the assistance provided by the offender should be assessed first to arrive at a notional sentence and any guilty plea reduction applied to that notional sentence.
- A mathematical approach to determining the level of reduction for assistance to the authorities is liable to produce an inappropriate answer – the totality principle is fundamental.
- Where the statutory procedure applies, the court should take into account that this requires offenders to reveal the whole of their previous criminal activities which will often entail pleading guilty to offences which the offender would never otherwise have faced.
- An informer can generally only expect to receive credit once for past information or assistance, and for that reason the court should be notified whether particular information and assistance has been taken into account in imposing a previous sentence or when making an application to the Parole Board.
- The court should enquire whether an offender has received payment for assistance provided and if so, how much. Financial reward and a reduction in sentence are complementary means of incentivising the disclosure of the criminal activities of others and therefore a financial reward, unless exceptionally generous, should play only a small, if any, part in the sentencer’s decision.
- The totality principle is critical in the context of an offender who is already serving a sentence, and who enters into an agreement to provide information which discloses previous criminal activities and comes before the court to be sentenced for the new crimes, as well as for a review of the original sentence (under section 388 of the Sentencing Code).
- Where an offender has committed serious crimes, neither the statutory nor common law process provide immunity from punishment, and, subject to appropriate reductions, an appropriate sentence should be passed. By providing assistance to the authorities the offender is entitled to a reduction from the sentence which would otherwise be appropriate to reflect the assistance provided to the administration of justice, and to encourage others to do the same.
- It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed. The normal level for the provision of valuable information will be a reduction of somewhere between one half and two thirds of that sentence.
- In cases where the information provided was of limited value, the reduction may be less than one half and where the information given is unreliable, vague, lacking in practical utility or already known to the authorities, any reduction made will be minimal.
- The risk to an offender who provides information, and the importance of the public interest in encouraging criminals to inform on other criminals, will often mean that the court will not be able to make any explicit reference to the provision of information or the reduction of the sentence on that ground. The duty to give reasons for the sentence will be discharged in such cases by the judge stating that the court has considered all the matters of mitigation which have been brought to its attention. See also CPR 28.12(4).
Step 4 – Reduction for guilty pleas
The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and the Reduction in Sentence for a Guilty Plea guideline.
Step 5 – Dangerousness
The court should consider whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose an extended sentence (sections 266 and 279).
Step 6 – Totality principle
If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. See Totality guideline.
Step 7 – Compensation and ancillary orders
In all cases, the court should consider whether to make compensation and/or other ancillary orders. The court must give reasons if it decides not to order compensation (Sentencing Code, s.55).
Step 8 – Reasons
Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.
Step 9 – Consideration for time spent on bail (tagged curfew)
The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the Sentencing Code.