Bladed articles and offensive weapons - threats
Criminal Justice Act 1988 (s.139AA(1)), Prevention of Crime Act 1953 (s.1A)
Effective from 1 June 2018
Threatening with an offensive weapon in a public place, Prevention of Crime Act 1953 (section 1A)
Threatening with an article with blade/point in a public place, Criminal Justice Act 1988 (section 139AA(1))
Threatening with an article with blade/point or offensive weapon on education premises, Criminal Justice Act 1988 (section 139AA(1))
Triable either way
Maximum: 4 years’ custody
Offence range: 6 months’ custody – 3 years’ custody
This guideline applies only to offenders aged 18 or older.
This offence is subject to statutory minimum sentencing provisions. See Step 3 for further details.
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.
The Sentencing Council issues this definitive guideline in accordance with section 120 of the Coroners and Justice Act 2009. This guideline applies to all offenders aged 18 and older, who are sentenced on or after 1 June 2018, 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. For sentencing children and young people, see:
- Bladed articles and offensive weapons (possession and threats) - children and young people
- Sentencing children and young people - overarching principles
*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
A - higher culpability
- Offence committed using a bladed article
- Offence committed using a highly dangerous weapon*
- Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity
- Significant degree of planning or premeditation
B - lower culpability
- All other cases
*NB an offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury, or is intended by the person having it with him for such use’. A highly dangerous weapon is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.
Harm
The court should consider the factors set out below to determine the level of harm that has been caused or was intended to be caused to the victim
Category 1
- Offence committed at a school or other place where vulnerable people are likely to be present
- Offence committed in prison
- Offence committed in circumstances where there is a risk of serious disorder
- Serious alarm/distress caused to the victim
- Prolonged incident
Category 2
- All other cases
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).
| Harm | Culpability | |||||||||||||||||||||||||||||||||
| A | B | |||||||||||||||||||||||||||||||||
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Category 1 |
Starting point 2 years’ custody |
Starting point 1 year 6 months’ custody |
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| Category range 1 year 6 months’ – 3 years’ custody |
Category range 1 – 2 years’ custody |
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Category 2 |
Starting point 15 months’ custody |
Starting point 6 months’ custody |
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| Category range 9 months’ – 2 years’ custody |
Category range 6 months’ – 1 year 6 months’ custody |
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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.
Other aggravating factors:
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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 offence is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence).
- Other factors such as the victim being isolated, incapacitated through drink or being in an unfamiliar situation may lead to a court considering that the offence is more serious.
- The extent to which any vulnerability may impact on the sentence is a matter for the court to weigh up in each case.
- Culpability will be increased if the offender targeted a victim because of an actual or perceived vulnerability.
- Culpability will be increased if the victim is made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender).
- Culpability is increased if an offender persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim).
- The level of harm (physical, psychological or financial) is likely to be increased if the victim is vulnerable.
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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 mere membership of a group (two or more persons) should not be used to increase the sentence, but where the offence was committed as part of a group this will normally make it more serious because:
- the harm caused (both physical or psychological) or the potential for harm may be greater and/or
- the culpability of the offender may be higher (the role of the offender within the group will be a relevant consideration).
Culpability based on role in group offending could range from:
- Higher culpability indicated by a leading role in the group and/or the involvement by the offender of others through coercion, intimidation or exploitation, to
- Lower culpability indicated by a lesser or subordinate role under direction and/or involvement of the offender through coercion, intimidation or exploitation.
Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation (including as a result of domestic abuse, trafficking or modern slavery) which the offender may find difficult to articulate.
Where the offending is part of an organised criminal network, this will make it more serious, and the role of the offender in the organisation will also be relevant.
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 group offending.
- Attempts to conceal identity
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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
Refer to the Domestic abuse - overarching principles guideline
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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
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
This reflects:
- the fact that people in public facing roles are more exposed to the possibility of harm and consequently more vulnerable and/or
- the fact that someone is working in the public interest merits the additional protection of the courts.
This applies whether the victim is a public or private employee or acting in a voluntary capacity.
Care should be taken to avoid double counting where the statutory aggravating factor relating to emergency workers or to those providing a public service, performing a public duty or providing services to the public applies.
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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
- 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.
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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
Taken from the Offences Taken into Consideration Definitive Guideline: General principles When sentencing an offender who requests offences to be taken into consideration (TICs), courts should pass a total sentence which reflects all the offending behaviour. The sentence must be just and proportionate and must not exceed the statutory maximum for the conviction offence. Offences to be Taken into Consideration The court has discretion as to whether or not to take TICs into account. In exercising its discretion the court should take into account that TICs are capable of reflecting the offender's overall criminality. The court is likely to consider that the fact that the offender has assisted the police (particularly if the offences would not otherwise have been detected) and avoided the need for further proceedings demonstrates a genuine determination by the offender to ‘wipe the slate clean’. It is generally undesirable for TICs to be accepted in the following circumstances:
- where the TIC is likely to attract a greater sentence than the conviction offence;
- where it is in the public interest that the TIC should be the subject of a separate charge;
- where the offender would avoid a prohibition, ancillary order or similar consequence which it would have been desirable to impose on conviction. For example:
- where the TIC attracts mandatory disqualification or endorsement and the offence(s) for which the defendant is to be sentenced do not;
- where the TIC constitutes a breach of an earlier sentence;
- where the TIC is a specified offence for the purposes of section 306 of the Sentencing Code, but the conviction offence is non-specified; or
- where the TIC is not founded on the same facts or evidence or part of a series of offences of the same or similar character (unless the court is satisfied that it is in the interests of justice to do so).
Jurisdiction The magistrates' court cannot take into consideration an indictable only offence. The Crown Court can take into account summary only offences provided the TICs are founded on the same facts or evidence as the indictable charge, or are part of a series of offences of the same or similar character as the indictable conviction offence Procedural safeguards A court should generally only take offences into consideration if the following procedural provisions have been satisfied:
- the police or prosecuting authorities have prepared a schedule of offences (TIC schedule) that they consider suitable to be taken into consideration. The TIC schedule should set out the nature of each offence, the date of the offence(s), relevant detail about the offence(s) (including, for example, monetary values of items) and any other brief details that the court should be aware of;
- a copy of the TIC schedule must be provided to the defendant and his representative (if he has one) before the sentence hearing. The defendant should sign the TIC schedule to provisionally admit the offences;
- at the sentence hearing, the court should ask the defendant in open court whether he admits each of the offences on the TIC schedule and whether he wishes to have them taken into consideration;
- if there is any doubt about the admission of a particular offence, it should not be accepted as a TIC. Special care should be taken with vulnerable and/or unrepresented defendants;
- if the defendant is committed to the Crown Court for sentence, this procedure must take place again at the Crown Court even if the defendant has agreed to the schedule in the magistrates' court.
Application The sentence imposed on an offender should, in most circumstances, be increased to reflect the fact that other offences have been taken into consideration. The court should:
- Determine the sentencing starting point for the conviction offence, referring to the relevant definitive sentencing guidelines. No regard should be had to the presence of TICs at this stage.
- Consider whether there are any aggravating or mitigating factors that justify an upward or downward adjustment from the starting point.
The presence of TlCs should generally be treated as an aggravating feature that justifies an adjustment from the starting point. Where there is a large number of TICs, it may be appropriate to move outside the category range, although this must be considered in the context of the case and subject to the principle of totality. The court is limited to the statutory maximum for the conviction offence.
- Continue through the sentencing process including:
- consider whether the frank admission of a number of offences is an indication of a defendant's remorse or determination and/ or demonstration of steps taken to address addiction or offending behaviour;
- any reduction for a guilty plea should be applied to the overall sentence;
- the principle of totality;
- when considering ancillary orders these can be considered in relation to any or all of the TICs, specifically:
- compensation orders;
- restitution orders
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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 has had the benefit of warnings or advice about their conduct but has failed to heed it, this would make the offender more blameworthy.
This may particularly be the case when:
- such warning(s) or advice were of an official nature or from a professional source and/or
- the warning(s) were made at the time of or shortly before the commission 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/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
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
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 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
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Where an offender has committed the offence with little or no prior thought, this is likely to indicate a lower level of culpability and therefore justify a reduction in sentence.
However, impulsive acts of unprovoked violence or other types of offending may indicate a propensity to behave in a manner that would not normally justify a reduction in sentence.
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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
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Assisting or cooperating with the investigation and /or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction).
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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 - Minimum Terms
When sentencing these offences a court must impose a sentence of at least 6 months’ imprisonment unless:
- (If the offence was committed on or after 28 June 2022) the court is of the opinion that there are exceptional circumstances which relate to the offence or to the offender, and justify not doing so; or
- (If the offence was committed before 28 June 2022) the court is of the opinion that there are particular circumstances relating to the offence or the offender which make it unjust to do so in all the circumstances.
In considering whether there are exceptional circumstances that would justify not imposing the minimum term the court must have regard to:
- the particular circumstances which relate the offence and
- the particular circumstances of the offender.
either of which may give rise to exceptional circumstances.
Where the issue of exceptional circumstances has been raised the court should give a clear explanation as to why those circumstances have or have not been found.
Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.
It is for the offender to establish that the exceptional circumstances exist.
Principles
The circumstances must truly be exceptional. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence.
It is important that courts adhere to the statutory requirement and do not too readily accept that the circumstances are exceptional. A factor is unlikely to be regarded as exceptional if it would apply to a significant number of cases.
The court should look at all of the circumstances of the case taken together. A single striking factor may amount to exceptional circumstances, or it may be the collective impact of all of the relevant circumstances.
The mere presence of one or more of the following should not in itself be regarded as exceptional:
- One or more lower culpability factors
- One or more mitigating factors
- A plea of guilty
Where exceptional circumstances are found
If there are exceptional circumstances that justify not imposing the statutory minimum sentence then the court must impose either a shorter custodial sentence than the statutory minimum provides or an alternative sentence.
In considering whether a statutory minimum sentence would be ‘unjust in all of the circumstances’ the court must have regard to the particular circumstances of the offence and the offender.
Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.
It is for the offender to establish that the exceptional circumstances exist.
If the circumstances of the offence or the offender make it unjust to impose the statutory minimum sentence then the court must impose either a shorter custodial sentence than the statutory minimum provides or an alternative sentence.
The offence
Having reached this stage of the guideline the court should have made a provisional assessment of the seriousness of the offence. Where the court has determined that the offence seriousness falls far below the custodial threshold the court may consider it unjust to impose the statutory minimum sentence.
The offender
The court should consider the following factors to determine whether it would be unjust to impose the statutory minimum sentence:
- any strong personal mitigation;
- whether there is a realistic prospect of rehabilitation;
- whether custody will result in significant impact on others.
Step 4 - Consider any factors which indicate a reduction for 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 5 - 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.
Where a statutory minimum sentence has been imposed, the court must ensure that any reduction for a guilty plea does not reduce the sentence to less than 80 per cent of the statutory minimum.
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 overall offending behaviour in accordance with the Totality guideline.
Step 7 - Ancillary orders
In all cases the court should consider whether to make ancillary orders.
| May be made by | A magistrates’ court or the Crown Court |
| Relevant legislation | Sentencing Act 2020, Part 7, Chapter 4 |
| Availability | The court has the power to deprive an offender of any property used, or intended to be used, for the purpose of committing or facilitating the commission of an offence, whether or not it deals with the offender in any other way. This includes where it is committed by aiding, abetting, counselling, or procuring.
Facilitating the commission of the offence includes any steps taken to, either dispose of any property relating to the offence or avoid apprehension or detection. |
| Vehicles used for the purpose of certain offences | A vehicle is to be treated as used for the purpose of certain offences (see below) where the person commits the offence by:
Those offences are:
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| Considerations | The court must have regard to the value of the property and the likely financial and other effects on the offender of making the order.
If the court considers that the offence related to immigration or asylum, or was committed for a purpose in connection with immigration or asylum, it may order that the property is to be taken into the possession of the Secretary of State. |
| May be made by | A magistrates’ court or the Crown Court |
| Relevant legislation | Prevention of Crime Act 1953, section 1(2) |
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Availability
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Where an offender has been convicted of an offence under section 1(1) the court may make an order for the forfeiture or disposal of any weapon in respect of which the offence was committed.
NB for bladed article offences see deprivation of property order. |
| May be made by | A magistrates’ court or the Crown Court | |
| Relevant legislation | Licensed Premises (Exclusion of Certain Persons) Act 1980 | |
| Availability | A court may make an exclusion order Where an offender has been convicted of an offence committed on licensed premises* involving the use or threat of violence.
An exclusion order can be made in addition to any other sentence including an absolute or conditional discharge * premises licensed for the supply of alcohol for consumption on the premises |
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| Considerations | An exclusion order may specify one or more licensed premises. The name and address of each of the specified premises must be set out in the order and a copy of the order must be sent to the licensee of each of the premises (section 4).
The purpose of the order is to prevent the offender from creating a nuisance and possible danger to the licensee or customers of licensed premises. |
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| Effect of the order | The order prohibits the offender from entering specified licensed premises without the express consent of the licensee. | |
| Length of order | Minimum three months, maximum two years | |
| Consequences of breach | Breach of an exclusion order is a criminal offence, maximum penalty one month’s custody or a level 4 fine. | |
| May be made by | A magistrates’ court or the Crown Court |
| Relevant legislation | Football Spectators Act 1989, Part II |
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Availability
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Where a person is convicted of a relevant offence the court must make a banning order in respect of the offender unless the court considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so. |
| Relevant Offences | A “relevant offence” is one listed in Schedule 1.
Some offences become relevant if the offence is committed during a period ‘relevant’ to a football match. The following periods are ‘relevant’ to a football match (Football Spectators Act 1989, Sch.1 para.4): (a) the period beginning: i) 24 hours before the start of the match; or ii) 24 hours before the time at which it is advertised to start; whichever is the earliest, and ending 24 hours after the end of the match; (b) where a match advertised to start at a particular time on a particular day is postponed to a later day, or does not take place, the period in the advertised day beginning 24 hours before and ending 24 hours after that time. |
| Considerations | For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.
It is immaterial whether the evidence would have been admissible in the proceedings in which the offender was convicted. A banning order made on conviction must be made: (a) in addition to a sentence imposed in respect of the relevant offence, or (b) in addition to an order discharging the offender conditionally. |
| The Order | On making a banning order the court must, in ordinary language, explain its effect to the subject of the order. |
| Content of the order |
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| Notification | A banning order must require the person subject to the order to give notification of any of the following events (as set out in section 14E(2B):
(a) a change of any of his names (b) the first use by him after the making of the order of a name for himself that was not disclosed by him at the time of the making of the order (c) a change of his home address (d) his acquisition of a temporary address (e) a change of his temporary address or his ceasing to have one (f) his becoming aware of the loss of his passport (g) receipt by him of a new passport (h) an appeal made by him in relation to the order (i) an application made by him under section 14H(2) for termination of the order (j) an appeal made by him under section 23(3) against the making of a declaration of relevance in respect of an offence of which he has been convicted. A notification required by a banning order must be given before the end of the period of seven days beginning with the day on which the event in question occurs and
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| Length of the order
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Where the order is in addition to a sentence of imprisonment taking immediate effect, the maximum is ten years, and the minimum is six years. “Imprisonment” includes any form of detention.
In any other case, the maximum is five years, and the minimum is three years. |
| Adjournments | The court may adjourn hearing the application for a football banning order until after the offender has been sentenced for the offence.
If the offender fails to appear on the adjourned date, the court has the power to further adjourn or issue a warrant for the offender’s arrest. |
| Notice | The prosecutor must serve a notice of intention to apply for a football banning order as soon as practicable (Criminal Procedure Rule 31.3) |
| Reasons | The court is required to give reasons if it decides not to make an order. |
| Consequences of Breach | Breach of a football banning order is a criminal, maximum penalty six months custody, or a fine not exceeding level 5 on the standard scale, or both.
Breach offences (other) – Sentencing (sentencingcouncil.org.uk) |
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.