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.*
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.
This offence is subject to statutory minimum sentencing provisions which are taken into account at steps 2 and 3. Sentencers should follow each step of the guideline to ensure that all relevant factors are considered.
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:
Leading role where offending is part of a group activity, including but not limited to head of enterprise, a lead armourer or a key facilitator
Significant planning, including but not limited to significant steps to evade detection
Abuse of position of trust or responsibility, for example registered firearms dealer
Expectation of substantial financial or other advantage
Involves others through coercion, intimidation or exploitation
B – Medium culpability:
Significant role where offending is part of a group activity, including but not limited to a purchaser or a provider of significant assistance in facilitating transfer or manufacture
Some degree of planning, including but not limited to some steps to evade detection
Expectation of significant financial or other advantage
Other cases falling between culpability A and C because:
Factors are present in A and C which balance each other out and/or
The offender’s culpability falls between the factors as described in A and C
C – Lower culpability:
Lesser role where offending is part of a group activity, including but not limited to performing a limited function under direction
Involved through coercion, intimidation or exploitation
Little or no planning
Expectation of limited, if any, financial or other advantage
Harm
The court should consider the steps set out below to determine the level of harm caused.
This step is assessed by reference to the scale and nature of the enterprise and any actual harm caused, regardless of the offender’s role.
Where there are factors present from more than one category of harm, the court should weigh those factors in order to decide which category most resembles the offender’s case.
Category 1
Large-scale commercial and/or highly sophisticated enterprise – indicators may include:
Large number of prohibited weapons/ ammunition involved
Operation over significant time period
Operation over significant geographic range
Close connection to other serious criminal activity
Evidence firearm/ammunition subsequently used to cause serious injury or death
Category 2
Medium-scale enterprise and/or some degree of sophistication, including cases falling between category 1 and category 3 because:
Factors in both 1 and 3 are present which balance each other out; and/or
The harm falls between the factors as described in 1 and 3
Evidence firearm/ammunition subsequently used in criminal offending (where not at category 1)
Category 3
Smaller-scale and/or unsophisticated enterprise – indicators may include:
Limited number of prohibited weapons/ ammunition involved
Operation over limited time period
Operation over limited geographic range
Minimal/no connection to other serious criminal activity
Evidence firearm/ammunition not subsequently used in criminal offending
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).
The minimum term applies in respect of a firearm specified in section 5(1)(a), (ab), (aba), (ac), (ad), (ae) or (af), (c) or section 5(1A)(a) of the Firearms Act 1968 committed on or after 6 April 2007 or in respect of a firearm specified in section 5(1)(ag) or (ba) of that Act committed on or after 6 April 2022.
See step 3 for details of the minimum sentencing provisions and the approach to be taken to consideration of exceptional circumstances.
Harm
Culpability
A
B
C
Category 1
Starting point 20 years’ custody
Starting point 14 years’ custody
Starting point 10 years’ custody
Category range 16 – 28 years’ custody
Category range 12 – 18 years’ custody
Category range 8 – 14 years’ custody
Category 2
Starting point 14 years’ custody
Starting point 10 years’ custody
Starting point 8 years’ custody
Category range 12 – 18 years’ custody
Category range 8 – 14 years’ custody
Category range 6 – 12 years’ custody
Category 3
Starting point 10 years’ custody
Starting point 8 years’ custody
Starting point 6 years’ custody
Category range 8 – 14 years’ custody
Category range 6 – 12 years’ custody
Category range 3 – 8 years’ custody
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)
The offender is being resentenced for breaching a community or suspended sentence order
The offence was committed while the offender was subject to a community or suspended sentence order
Committing the offence, or an associated offence, was a breach of a court order or was closely connected with a breach of a court order (whether or not that breach was a criminal offence)
There is significant risk of physical or psychological harm to an individual
Exceptional circumstances relate to the offence or the offender which justify not suspending the sentence
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:
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
Realistic prospect of rehabilitation in the community
Offender does not present high risk of reoffending or harm
Strong personal mitigation
Immediate custody will result in significant harmful impact upon others, including any dependent children or where the offender is pregnant or postnatal (has given birth in the previous 12 months)
Offender presents a risk to any person
The seriousness of the offence means that appropriate punishment can only be achieved by immediate custody
History of poor compliance with court orders AND unlikely to comply in the future
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:
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:
(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 ofrelevance 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
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
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:
Firearm under section 5(1)(a) (automatic weapon)
Steps taken to disguise firearm (where not firearm under section 5(1A)(a))
Compatible ammunition and/or silencer(s) supplied with firearm (See step 6 on totality when sentencing for more than one offence)
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 there is risk of harm to other(s) not taken in account at step one and not subject to a separate charge, this makes the offence more serious.
Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.
Where any such risk of harm is 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.
Use of business as a cover
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.
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.
Offender prohibited from possessing weapon or ammunition because of previous conviction (Care should be taken to avoid double counting matters taken into account when considering previous convictions. See step 6 on totality when sentencing for more than one offence)
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.
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.
Factors reducing seriousness or reflecting personal mitigation
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.
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.
Firearm/ammunition not subject to minimum term
Firearm incomplete or incapable of being discharged (including stun gun that is not charged and not held with a functioning charger)
Genuine belief that firearm will not be used for criminal purpose
No knowledge or suspicion that item possessed was firearm/ammunition
No knowledge or suspicion that firearm/ammunition is prohibited
Voluntary surrender of firearm/ammunition
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).
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.
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.
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).
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
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)
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.
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.
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)
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 term and exceptional circumstances
Minimum Term
1. Where the minimum term provisions under section 311 and Schedule 20 of the Sentencing Code apply, a court must impose a sentence of at least five years’ custody irrespective of plea unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
Applicability
2. The minimum terms provisions apply when sentencing offences in respect of a firearm or ammunition specified in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or section 5(1A)(a) of the Firearms Act 1968. Note: the minimum term provisions do not apply to offences charged as conspiracies.
3. The minimum term applies to all such offences including the first offence, and regardless of plea. Where it applies the sentence cannot be reduced below the minimum term for a guilty plea (see Step 5 – Reduction for guilty pleas).
4. The minimum term of five years applies to offenders aged 18 or over when the offence was committed. See below for guidance when sentencing offenders aged under 18 when the offence was committed.
5. Where the minimum term applies, this should be stated expressly.
Exceptional circumstances
6. In considering whether there are exceptional circumstances that would justify not imposing the statutory minimum sentence, the court must have regard to:
the particular circumstances of the offence and
the particular circumstances of the offender.
either of which may give rise to exceptional circumstances
7. 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.
8. 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.
Principles
9. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence.
10. The circumstances must truly be exceptional. It is important that courts do not undermine the intention of Parliament and the deterrent purpose of the minimum term provisions by too readily accepting exceptional circumstances.
11. 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.
12. 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
13. 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. Note: a guilty plea reduction applies in the normal way if the minimum term is not imposed (see Step 5 – Reduction for guilty pleas).
Where the offender is aged 16 or 17 when the offence was committed, the minimum term is three years’ custody. Where the offender is under 16 when the offence was committed, the minimum term does not apply.
Subject to the minimum term, where the offender is aged under 18 at the date of conviction the court should determine the sentence in accordance with the Sentencing Children and Young People guideline, particularly paragraphs 6.42-6.49 on custodial sentences.
This guidance states at paragraph 6.46: “When considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age.”
The considerations above on exceptional circumstances relating to the offence or offender apply equally when sentencing offenders aged 16 or 17 at the date of the offence.
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).
Where a minimum sentence has been imposed under section 311 of the Sentencing Code, the court must ensure that any reduction for a guilty plea does not reduce the sentence to less than the required minimum term.
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.
Forfeiture and destruction of firearms and cancellation of certificate
The court should consider ordering forfeiture or disposal of any firearm or ammunition and the cancellation of any firearms certificate. Section 52 of the Firearms Act 1968 provides for the forfeiture and disposal of firearms and the cancellation of firearms and shotgun certificates where a person is convicted of this offence and is given a custodial sentence or a community order containing a requirement not to possess, use or carry a firearm.
Note:
The guidance provided here is only a very brief overview of confiscation orders
May be made by:
The Crown Court (see below for magistrates’ powers of committal)
1. Confiscation orders under the Proceeds of Crime Act 2002 may only be made by the Crown Court. The order is not a sentence in its own right, it may only be made in addition to a sentence. The Crown Court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the Crown Court believes it is appropriate for it to do so. See section 6 of POCA.
2. Where, following conviction in a magistrates’ court, the prosecutor applies for the offender to be committed to the Crown Court with a view to a confiscation order being considered, the magistrates’ court must commit the offender to the Crown Court to be sentenced there (section 70 POCA).
3. Where, but for the prosecutor’s application under s.70, the magistrates’ court would have committed the offender for sentence to the Crown Court anyway it must say so. Otherwise, the powers of sentence of the Crown Court will be limited to those of the magistrates’ court.
4. If postponing confiscation, the court must adjourn all other financial orders, including compensation, costs and a fine (see section 15 of POCA). Confiscation must be dealt with before, and taken into account when assessing, any other fine or financial order (except compensation and trafficking reparation order (STRO) or unlawful profit order (UPO)). If the court makes both a confiscation order and an order for compensation (or STRO or UPO) and the court believes the offender will not have sufficient means to satisfy both orders in full, the court must direct that the compensation be paid out of sums recovered under the confiscation order. (See section 13 of POCA)
Considerations
5. Although often the parties agree some or all of the figures in such cases, ultimately it is for the Judge to make a proportionate order following his/her assessment of the facts.
6. Where an order is made following an agreement by the parties this should be recorded in the order and it is prudent to ensure that the offender signs the schedule of available or realisable assets. Where an order is made after a contested hearing, it will follow the court’s findings of fact.
Payment
7. The full amount ordered to be paid under a confiscation order must be paid on the day on which the order is made unless the court is satisfied that the offender is unable to pay the full amount on that day in which case the court may make an order requiring whatever cannot be paid on that day to be paid in a specified period, or specified periods each of which relates to a specified amount. Any specified period must not exceed three months from the date of the order. If within any specified period D applies to the court for that period to be extended the court may, on being satisfied that D has made all reasonable efforts to comply, make an order extending the period for up to six months from the date of the order.
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.
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