Fraudulent evasion of a prohibition by bringing into or taking out of the UK a controlled drug
Crown Court
Magistrates
Fraudulent evasion of a prohibition by bringing into or taking out of the UK a controlled drug
Misuse of Drugs Act 1971, s.3; Customs and Excise Management Act 1979, s.170(2)
Effective from 01 April 2021
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Class A Maximum: Life imprisonment Offence range: Band A fine – 16 years’ custody
Class B Maximum: 14 years’ custody and/ or unlimited fine Offence range: Discharge – 10 years’ custody
Class C Maximum: 14 years’ custody and/ or unlimited fine Offence range: Discharge – 8 years’ custody
This offence is subject to statutory minimum sentencing provisions.
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.
Step 1 – Determine the offence category
The court should determine the offender’s culpability (role) and the harm caused (quantity) with reference only to the factors listed in the tables below.
In assessing culpability, the sentencer should weigh up all the factors of the case to determine role. Where there are characteristics present which fall under different role categories, or where the level of the offender’s role is affected by the scale of the operation, the court should balance these characteristics to reach a fair assessment of the offender’s culpability.
Culpability demonstrated by the offender’s role
One or more of these characteristics may demonstrate the offender’s role. These lists are not exhaustive.
Leading role:
Directing or organising buying and selling on a commercial scale
Substantial links to, and influence on, others in a chain
Close links to original source
Expectation of substantial financial or other advantage
Uses business as cover
Abuses a position of trust or responsibility
Significant role:
Operational or management function within a chain
Involves others in the operation whether by pressure, influence, intimidation or reward
Expectation of significant financial or other advantage, (save where this advantage is limited to meeting the offender’s own habit) whether or not operating alone
Some awareness and understanding of scale of operation
Lesser role:
Performs a limited function under direction
Engaged by pressure, coercion, intimidation, grooming and/ or control
Involvement through naivety, immaturity or exploitation
No influence on those above in a chain
Very little, if any, awareness or understanding of the scale of operation
If own operation, solely for own use (considering reasonableness of account in all the circumstances)
Expectation of limited, if any, financial or other advantage (including meeting the offender’s own habit)
Harm
In assessing harm, quantity is determined by the weight of the product.
Category of harm
Indicative quantities of some common drugs, upon which the starting point is to be based, are given in the table below. Where a drug (such as fentanyl or its agonists) is not listed in the table below, sentencers should expect to be provided with expert evidence to assist in determining the potency of the particular drug and in equating the quantity in the case with the quantities set out in the guidelines in terms of the harm caused. There will often be no precise calculation possible, but courts are reminded that in cases of particularly potent drugs, even very small quantities may be held to be equivalent to large quantities of the drugs listed.
Category 1
Heroin, cocaine – 5kg
Ecstasy – 7,000 tablets*
MDMA – 5kg
LSD – 250,000 squares
Amphetamine – 20kg
Cannabis – 200kg
Ketamine – 5kg
Synthetic cannabinoid receptor agonists (for example ‘spice’) –very large quantity indicative of an industrial scale operation
Category 2
Heroin, cocaine – 1kg
Ecstasy – 1,300 tablets*
MDMA – 1kg
LSD – 25,000 squares
Amphetamine – 4kg
Cannabis – 40kg
Ketamine – 1kg
Synthetic cannabinoid receptor agonists (for example ‘spice’) – large quantity indicative of a commercial operation
Category 3
Heroin, cocaine – 150g
Ecstasy –200 tablets*
MDMA – 150g
LSD – 2,500 squares
Amphetamine – 750g
Cannabis – 6kg
Ketamine – 150g
Synthetic cannabinoid receptor agonists (for example ‘spice’) – smaller quantity between categories 2 and 4
Category 4
Heroin, cocaine – 5g
Ecstasy – 13 tablets*
MDMA – 5g
LSD – 170 squares
Amphetamine – 20g
Cannabis – 100g
Ketamine – 5g
Synthetic cannabinoid receptor agonists (for example ‘spice’) – very small quantity
*Ecstasy tablet quantities based on a typical quantity of 150mg MDMA per tablet[1]
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).
Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the offender’s role.
Where the defendant is dependent on or has a propensity to misuse drugs and there is sufficient prospect of success, a community order with a drug rehabilitation requirement under part 10 of Schedule 9 of the Sentencing Code can be a proper alternative to a short or moderate length custodial sentence.
However, if a magistrates’ court is of the opinion that that the offending is so serious that the Crown Court should have the power to deal with the offender, the case should be committed to the Crown Court for sentence even if a community order may be the appropriate sentence (this will allow the Crown Court to deal with any breach of a community order if that is the sentence passed).
Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black, Asian and Other ethnicity offenders receive an immediate custodial sentence than White offenders. There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance at Chapter 8 of the Equal Treatment Bench Book.
CLASS A
LEADING ROLE
SIGNIFICANT ROLE
LESSER ROLE
Category 1
Starting point 14 years’ custody
Starting point 10 years’ custody
Starting point 8 years’ custody
Category range 12 – 16 years’ custody
Category range 9 – 12 years’ custody
Category range 6 – 9 years’ custody
Category 2
Starting point 11 years’ custody
Starting point 8 years’ custody
Starting point 6 years’ custody
Category range 9 – 13 years’ custody
Category range 6 years 6 months’ – 10 years’ custody
Category range 5 – 7 years’ custody
Category 3
Starting point 8 years 6 months’ custody
Starting point 6 years’ custody
Starting point 3 years’ custody
Category range 6 years 6 months’ – 10 years’ custody
Category range 5 – 7 years’ custody
Category range 18 months’ – 5 years’ custody
Category 4
Starting point 5 years’ custody
Starting point 3 years’ custody
Starting point Low level community order
Category range 4 years 6 months’ – 7 years 6 months’ custody
Category range 18 months’ – 5 years’ custody
Category range Band A fine – 18 months’ custody
CLASS B
LEADING ROLE
SIGNIFICANT ROLE
LESSER ROLE
Category 1
Starting point 8 years’ custody
Starting point 5 years 6 months’ custody
Starting point 4 years’ custody
Category range 7 – 10 years’ custody
Category range 5 – 7 years’ custody
Category range 2 years 6 months’ – 5 years’ custody
Category 2
Starting point 6 years’ custody
Starting point 4 years’ custody
Starting point 2 years’ custody
Category range 4 years 6 months’ – 8 years’ custody
Category range 2 years 6 months’ – 5 years’ custody
Category range 18 months’ – 3 years’ custody
Category 3
Starting point 4 years’ custody
Starting point 2 years’ custody
Starting point 9 months’ custody
Category range 2 years 6 months’ – 5 years’ custody
Category range 18 months’ – 3 years’ custody
Category range 12 weeks’ – 18 months’ custody
Category 4
Starting point 18 months’ custody
Starting point High level community order
Starting point Band C fine
Category range 26 weeks’ – 3 years’ custody
Category range Medium level community order – 9 months’ custody
Category range Discharge – 26 weeks’ custody
CLASS C
LEADING ROLE
SIGNIFICANT ROLE
LESSER ROLE
Category 1
Starting point 5 years’ custody
Starting point 3 years’ custody
Starting point 18 months’ custody
Category range 4 – 8 years’ custody
Category range 2 – 5 years’ custody
Category range 1 – 3 years’ custody
Category 2
Starting point 3 years 6 months’ custody
Starting point 18 months’ custody
Starting point 26 weeks’ custody
Category range 2 – 5 years’ custody
Category range 1 – 3 years’ custody
Category range 12 weeks’ – 18 months’ custody
Category 3
Starting point 18 months’ custody
Starting point 26 weeks’ custody
Starting point High level community order
Category range 1 – 3 years’ custody
Category range 12 weeks’ – 18 months’ custody
Category range Medium level community order – 26 weeks’ custody
Category 4
Starting point 9 months’ custody
Starting point High level community order
Starting point Band B fine
Category range High level community order – 2 years’ custody
Category range Medium level community order – 12 weeks’ custody
Category range Discharge – High level community order
Starting point
Range
Fine Band A
50% of relevant weekly income
25 – 75% of relevant weekly income
Fine Band B
100% of relevant weekly income
75 – 125% of relevant weekly income
Fine Band C
150% of relevant weekly income
125 – 175% of relevant weekly income
Fine Band D
250% of relevant weekly income
200 – 300% of relevant weekly income
Fine Band E
400% of relevant weekly income
300 – 500% of relevant weekly income
Fine Band F
600% of relevant weekly income
500 – 700% of relevant weekly income
The court should determine the appropriate level of fine in accordance with this guideline and section 125 of the Sentencing Code, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender.
Where possible, if a financial penalty is imposed, it should remove any economic benefit the offender has derived through the commission of the offence including:
avoided costs;
operating savings;
any gain made as a direct result of the offence.
The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to comply with the law.
In considering economic benefit, the court should avoid double recovery.
Where the means of the offender are limited, priority should be given to compensation (where applicable) over payment of any other financial penalty.
Where it is not possible to calculate or estimate the economic benefit, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law.
When sentencing organisations the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with the law. The court should ensure that the effect of the fine (particularly if it will result in closure of the business) is proportionate to the gravity of the offence.
Obtaining financial information: It is for the offender to disclose to the court such data relevant to their financial position as will enable it to assess what they can reasonably afford to pay. If necessary, the court may compel the disclosure of an individual offender’s financial circumstances pursuant to section 35 of the Sentencing Code. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case. In setting a fine, the court may conclude that the offender is able to pay any fine imposed unless the offender has supplied financial information to the contrary.
The Imposition of community and custodial sentences guideline outlines the general approach to sentencing and provides guidance on how sentencers should address specific issues that may arise when they consider the most appropriate sentence.
A community order must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) is serious enough to warrant the making of such an order (section 204(2) of the Sentencing Code). There is no power to make a community order for a non-imprisonable offence (section 202(1)(b) of the Sentencing Code).
Even where the seriousness of the offence indicates that the threshold for a community order has been passed, sentencers must consider all available disposals at the time of sentence. A fine or discharge can achieve the purposes of sentencing (with, if relevant, any appropriate ancillary orders).
If the offender received a non-custodial disposal for a previous offence, the court should not necessarily move to a custodial sentence for the fresh offence.
Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions).
As set out in certain offence specific guidelines, where there is a sufficient prospect of rehabilitation, a community order with a specific requirement can be a proper alternative to a short or moderate length custodial sentence. Short or moderate sentences are not defined, and may exceed two years’ custody.
See further information on previous convictions in section 2 of the Imposition guideline.
Pre-sentence reports (PSR)
When considering a community or custodial sentence, the court must request and consider a pre-sentence report (PSR) before forming an opinion of the sentence, unless it considers that it is unnecessary (section 30 of the Sentencing Code). A pre-sentence report may also be requested by a defence legal representative as part of the before-plea protocol.
A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.
PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.
A pre-sentence report may be unnecessary if the court considers that it has enough information about the offence and the offender.
See more information on pre-sentence reports at section 3 of the Imposition guideline.
Magistrates: Consult your legal adviser before deciding to sentence to a community order or custodial sentence without a pre-sentence report.
Section 4 of the Imposition guideline contains important information on the suitability and effectiveness of a sentence.
Community orders
Community orders can fulfil all of the purposes of sentencing. They can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities.
If, in all the circumstances of the case, a fine can achieve the purposes of sentencing, it may be imposed as an alternative to a community order. See more information at section 5 of the Imposition guideline.
Community order levels
Any requirement/s imposed for the purpose of rehabilitation should be determined by and aligned with the offender’s needs. The court may benefit from the Probation Service’s assessment of the offender’s needs and suggestion of appropriate rehabilitative interventions.
The levels table below offers non-exhaustive examples of the ranges of requirements imposed for the purpose of punishment that might be appropriate in each level of community order.
Low
Medium
High
Offences only just cross the community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate.
Offences where the community order threshold has been passed but the custody threshold has not been passed.
Offences only just below the custody threshold, or where the custody threshold is crossed but a community order is more appropriate in the circumstances.
When imposing for the purpose of punishment, non-exhaustive examples of suitable ranges for one requirement* might include:
40 – 80 hours of unpaid work
Curfew of up to 16 hours in any day for up to 4 weeks**
Exclusion requirement lasting in the region of a few months
80 – 150 hours of unpaid work
Curfew of up to 16 hours in any day for up to 6 months**
Exclusion requirement lasting in the region of 6 months
150 – 300 hours of unpaid work
Curfew of up to 20 hours in any day for up to 24 months**
Exclusion requirement lasting in the region of 12 months
If order does not contain a requirement for the purpose of punishment, suggested fine levels are indicated below:
BAND A FINE
BAND B FINE
BAND C FINE
* When imposing more than one requirement, the court should moderate the intensity, volume or length of the requirements to ensure they are not disproportionate to the level of the order.
** Maximum of 112 hours in any period of 7 days. The court may vary the number of hours on different days if appropriate according to the circumstances of the offender.
Requirements
Community orders must consist of one or more requirements.
The court must ensure that requirements imposed are the most suitable for the offender. See more information at section 7 of the Imposition guideline.
Any requirement can be imposed for the purpose of punishment depending on the individual offender, though normally rehabilitation activity requirements (RARs) and treatment requirements should not be. One requirement can fulfil multiple purposes of sentencing.
Any requirement(s) imposed for the purpose of rehabilitation should be determined by, and align with, the offender’s needs.
The Imposition of community and custodial sentences guideline outlines the general approach to sentencing and provides guidance on how sentencers should address specific issues that may arise when they consider the most appropriate sentence.
A custodial sentence must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (section 230(2) of the Sentencing Code).
Even where the seriousness of the offence indicates that the threshold for a custodial order has been passed, a custodial sentence should not be imposed if in all the circumstances of the case it is appropriate to impose a community order, for example, if a community order achieves the purposes of sentencing.
Custody should not be imposed on an offender who is pregnant or within the postnatal period (within 12 months after giving birth) where the impact on the offender or dependants, including unborn children, would make a custodial sentence disproportionate to achieving the purposes of sentencing.
See further information on previous convictions in section 2 of the Imposition guideline.
Pre-sentence reports (PSR)
When considering a community or custodial sentence, the court must request and consider a pre-sentence report (PSR) before forming an opinion of the sentence, unless it considers that it is unnecessary (section 30 of the Sentencing Code). A pre-sentence report may also be requested by a defence legal representative as part of the before-plea protocol.
A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.
PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.
A pre-sentence report may be unnecessary if the court considers that it has enough information about the offence and the offender.
See more information on pre-sentence reports at section 3 of the Imposition guideline.
Magistrates: Consult your legal adviser before deciding to sentence to a community order or custodial sentence without a pre-sentence report.
Section 4 of the Imposition guideline contains important information on the suitability and effectiveness of a sentence.
Custodial sentences
If the custodial threshold has been passed the court should ask the following three questions in the following order:
Is it unavoidable that a custodial sentence be imposed?
A custodial sentence (whether immediate or suspended) must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (s.230(2) Sentencing Act 2020).
Passing the custody threshold does not mean that a custodial sentence (whether immediate or suspended) is inevitable. Custody should not be imposed where the purposes of sentencing could be achieved by a community order or where circumstances exist which may make a custodial sentence disproportionate to achieving the purposes of sentencing (for example, where there would be an impact on dependants, including on unborn children where the offender is pregnant.)
Community orders are often punitive and last longer than shorter custodial sentences. Community orders can restrict an offender’s day to day liberties, especially when imposed on an offender who may find regular attendance at a specific place or time challenging. Breach can result in custody.
If the purposes of sentencing can be achieved by a community order, or any personal mitigation means that a community order may be a more suitable sentence, see the Community orders dropdown above.
What is the shortest term commensurate with the seriousness of the offence?
If the court is considering an immediate custodial sentence of up to 12 months, it should take into account that research suggests that custodial sentences of up to 12 months are less effective than other disposals at reducing reoffending and can lead to negative outcomes. Any custodial sentence may disrupt factors which can discourage further offending, such as employment, education or accommodation, and may affect support networks by interfering with relationships with friends and family.
While courts are encouraged to consider a community order in lieu of a custodial sentence where appropriate, there will be cases where a short custodial sentence is unavoidable.
In considering the shortest term, the court must NOT consider any licence or post sentence supervision requirements or any other administrative or statutory consequences of the potential sentence imposed.
Can the sentence be suspended?
Cases where the offender was convicted before 22 March 2026 If the shortest term commensurate with the seriousness of the offence is 2 years or less, the court should consider whether it is appropriate to suspend that sentence so that the offender serves their sentence in the community under the supervision of the Probation Service.
Cases where the offender was convicted on or after 22 March 2026 If the shortest term commensurate with the seriousness of the offending is 12 months or less, the court must suspend the sentence under the statutory presumption of suspension, unless any of the following apply:
The offender is in custody (whether serving a sentence, on remand for another offence, or detained under a hospital order)
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.
he 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) nature of the offence to which conviction relates and relevance to current offence; and b) time elapsed since 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:
Offender used or permitted a person under 18 to deliver a controlled drug to a third person
Exploitation of children and/or vulnerable persons to assist in drug-related activity
Involving an innocent agent in the commission of the offence
Exposure of drug user to the risk of serious harm over and above that expected by the user, for example, through the method of production or subsequent adulteration of the drug
Exposure of those involved in drug dealing to the risk of serious harm, for example through method of transporting drugs
Exposure of third parties to the risk of serious harm, for example, through the location of the drug-related activity
Use of sophisticated methods or technologies in order to avoid or impede detection
Presence of weapons, where not charged separately
Use of violence (where not charged as separate offence or taken into account at step one)
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
Involvement due to pressure, intimidation or coercion falling short of duress, except where already taken into account at step one.
Importation only of drug to which offender addicted and quantity consistent with personal use
Mistaken belief of the offender regarding the type of drug, taking into account the reasonableness of such belief in all the circumstances
Isolated incident
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
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 (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.
Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify a reduction in sentence. This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.
Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify the imposition of a sentence that focusses on rehabilitation.
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)
Offender’s vulnerability was exploited
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 Terms
For class A cases, section 313 of the Sentencing Code provides that a court should impose an appropriate custodial sentence of at least seven years for a third class A trafficking offence except:
(If the offence was committed on or after 28 June 2022) where the court is of the opinion that there are exceptional circumstances which (a) relate to any of the offences or to the offender; and (b) justify not doing so; or
(If the offence was committed before 28 June 2022) where the court is of the opinion that there are particular circumstances which (a) relate to any of the offences or to the offender; and (b) would 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 to any of the offences 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 seriousness of the previous offence(s) and the period of time that has elapsed between offences will be a relevant consideration.
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, the previous 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 current offence. In addition, the court must consider the seriousness of the previous offence(s) and the period of time that has elapsed between offences. Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, 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, such as assistance to the prosecution
The court should take into account section 74 of the Sentencing Code (assistance by defendants: reduction or review of sentence) 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).
In circumstances where an appropriate custodial sentence of 7 years falls to be imposed under section 313 of the Sentencing Code (third Class A drug trafficking offences), the court may impose any sentence in accordance with this guideline which is not less than 80 per cent of the appropriate custodial period.
Step 6 – Totality principle
If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. See Totality guideline.
Step 7 – Confiscation and ancillary orders
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.
the court may order that anything shown to the satisfaction of the court to relate to the offence, be forfeited and either destroyed or dealt with in such other manner as the court may order.
The court shall not order anything to be forfeited where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless they have been given an opportunity to show cause why the order should not be made.
Where an offender has been convicted of an offence under Psychoactive Substances Act 2016:
Section 4 - Producing a psychoactive substance
Section 5 - Supplying, or offering to supply, a psychoactive substance
Section 6 - Aggravation of offence under section 5
Section 7 - Possession of psychoactive substance with intent to supply
Section 8 - Importing or exporting a psychoactive substance
Section 9 - Possession of a psychoactive substance in a custodial institution
Section 26 – Offence of failing to comply with an access prohibition etc, or
An ancillary offence as defined by section 54(11)
the court must make an order for the forfeiture of any psychoactive substance in respect of which the offence was committed. The court may also make an order for the forfeiture of any other item that was used in the commission of the offence.
Before making a forfeiture order, the court must give an opportunity to make representations to any person (in addition to the convicted person) who claims to be the owner of the item or otherwise to have an interest in it.
Where the court makes a forfeiture order, it may also make such other provision as it considers to be necessary for giving effect to the forfeiture. This may include provision relating to the retention, handling, destruction or other disposal of the item.
Can be made by the Crown Court if the offender has:
been convicted of a serious offence and
there are reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales.
A serious offence is one which is specified in Part 1 of Schedule 1 or is one which the court considers to be sufficiently serious to be treated for the purposes of the application as if it were so specified.
Content of the order
An order may contain prohibitions, restrictions or requirements and any other terms that the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the offender in serious crime in England and Wales.
The SCPO can contain prohibitions, restrictions or requirements. For example the SCPO may include:
Prohibitions, restrictions, or requirements in relation to:
an individual's financial, property or business dealings or holdings
an individual's working arrangements
the means by which an individual communicates or associates with others, or the persons with whom the individual communicates or associates
the premises to which an individual has access
the use of any premises or item by an individual
an individual's travel (whether within the United Kingdom, between the United Kingdom and other places or otherwise)
Requirement(s) to answer questions, or provide information, specified or described in an order:
at a time, within a period or at a frequency
at a place
in a form and manner, and
to a law enforcement officer or description of law enforcement officer
notified to the person by a law enforcement officer specified or described in the order
Requirement(s) to produce documents specified or described in an order:
at a time, within a period or at a frequency
at a place
in a manner, and
to a law enforcement officer or description of law enforcement officer
notified to the person by a law enforcement officer specified or described in the order.
The order may include prohibitions, restrictions or requirements in relation to an individual's private dwelling (such as where an individual may reside).
Length of the order
The order must specify when it comes into force and when it will end.
The order cannot exceed 5 years.
The order may specify different times for different provisions but must be clear about when each starts and ends.
Effect on earlier orders
Where an offender is already the subject of a serious crime prevention order that existing order must be discharged.
Powers of Crown Court to vary orders on conviction
Where the Crown Court is dealing with a person who has been convicted of having committed a serious offence in England and Wales and is the subject of a SCPO:
· The Court may, in addition to dealing with the person in relation to the offence, vary the order if the court has reasonable grounds to believe that the terms of the order as varied, would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales.
Such a variation may only be made on an application by the relevant applicant authority.
A variation can only be made in addition to a sentence imposed in respect of the offence concerned (including conditional discharge).
A variation may include an extension of the period during which the order, or any provision of it, is in force)
Consequences of breach
Breach of a SCPO is a criminal offence, maximum penalty five years’ custody.
A travel restriction order may be made on conviction of a drug trafficking offence as defined in Section 34 of the Criminal Justice and Police Act 2001 which includes importation, production and supply of controlled drugs (but not possession with intent to supply or cultivation of cannabis plant) and where an offender is sentenced to a custodial sentence of four years or more.
Duty of the court
The court must consider making an order where it is available.
It is appropriate to make an order where there is reason to believe that it will reduce the risk of re-offending on release from prison.
If it does not make an order the court must give reasons.
Length of the order
The minimum length of an order is two years from the date of the offender’s release from custody. There is no maximum length. The length should be that which is required to protect the public in the light of the assessment of the degree of risk which is presented by the facts of the case and the circumstances of the offender. Relevant considerations may include (but are not limited to): the quantity and type of drug, the degree of sophistication of the offence(s), the offender’s role, the offender’s age, previous convictions, past and prospective employment, family and work connections abroad. The court should invite submissions on the relevant considerations before making the order.
Effect of the order
The effect of an order is to prohibit the offender from leaving the UK for the period of the order, commencing on the date of release from custody. The offender may be required to deliver up any passport, which is a pre-requisite to enforcing such an order
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.
[1] NB. In the earlier guidelines, published in 2012, ecstasy tablet quantities were based on a typical quantity of 100mg MDMA per tablet
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