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.
*This guideline does not apply to offenders being sentenced for offences committed prior to 4 April 2005. The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.
Reading this guideline
This 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. Sentencers should have this guideline in mind throughout the sentencing process, beginning with when a guilty plea is entered or finding of guilt is made, right up to the imposition of the sentence.
This guideline provides general guidance only, as no fully comprehensive guide to sentencing could ever be possible. Each sentence should always be decided on its own facts and on its own merits.
The reduction of crime (including its reduction by deterrence)
The reform and rehabilitation of offenders
The protection of the public including victims of crime
The making of reparation by offenders to persons affected by their offences
The weight each purpose should be given will vary from case to case. Both community and custodial sentences can achieve all the purposes of sentencing.
A restriction on liberty will sometimes be necessary to safeguard victims and/or the public. The court must ensure, however, that any restriction on the offender’s liberty is commensurate with the seriousness of the offence. A restriction on liberty can be achieved by a community or a custodial sentence.
2. Thresholds
The circumstances of the offence and the factors assessed by offence specific guidelines will indicate whether the community or custody threshold may be passed. Where no offence specific guideline exists, the General guideline provides a framework for assessing the seriousness of the offence taking account of the harm caused by the offence, the culpability of the offender, any previous convictions and other relevant factors.
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.
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.
Previous convictions
The existence of one or more relevant previous convictions should not generally be used as the sole basis to justify the case passing the custody threshold.
Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction or experience of domestic abuse) that could be addressed more effectively through a community order with relevant requirements and will not necessarily indicate that a custodial sentence is necessary, even where a custodial sentence has previously been imposed. This may be particularly true for young adults (aged typically 18-25).
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
3. Pre-sentence reports (PSRs)
Requesting a 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.
Magistrates: Consult your legal adviser before deciding to sentence to a community order or custodial sentence without a pre-sentence report.
Indication to the Probation Service
When ordering a PSR, the court must make clear to the offender that it may impose any sentence that the law allows, including a custodial sentence, and, if applicable, the court retains its power of committal for sentence to the Crown Court.
Subject to the above, the court may indicate to the Probation Service a provisional view as to the level of harm and culpability which appears to be involved in the offence for the purposes of the PSR.
The court may also indicate to the Probation Service any specific requirements that Probation should consider the individual’s suitability for and/or any issues or concerns the court would specifically like to be addressed, including when a dangerousness assessment is required.
Adjournments
Pre-sentence reports can be verbal or written, and may require an adjournment to allow time for the necessary information to be collected by the Probation Service. Offenders with more complex needs or who may find the court environment overwhelming for whatever reason may benefit from an adjournment for a pre-sentence report to facilitate a more appropriate environment to discuss personal matters. The court should liaise with the Probation Service on whether a quality report can be delivered on the day and adjourn the case if it cannot. The need for an adjournment may be reliant on the availability of third parties to gather necessary information.
On committal and sending
Where a case is being committed to the Crown Court for sentence, a PSR should be requested on committal to allow the Probation Service as much time as possible to prepare a quality report, minimise any delay and reduce the risk of the need to adjourn at the first hearing. The same approach should be taken where the defendant indicates an intention to plead guilty to all offences at the Crown Court, on being sent for trial to the Crown Court.
4. Effectiveness of sentencing
The court should ‘step back’, and review whether its provisional sentence fulfils the purposes of sentencing.
Where relevant, the court should ensure that a rehabilitative sentence has been fully considered. Research has shown that a rehabilitative sentence can reduce the risk of reoffending when compared to a short immediate custodial sentence. Depending on the circumstances, a rehabilitative sentence can fulfil all the purposes of sentencing.
The suitability and effectiveness of a sentence will depend upon the circumstances of the individual offender. Courts should consider the potential effectiveness of recovery from addiction in the community with a relevant requirement as compared to in custody.
Sentencing young adult offenders (typically 18-25 years)
Courts should be aware that age and/or lack of maturity can affect the offender’s responsibility for the offence and the effect of the sentence on the offender.
Further information on age and/or lack of maturity can also be taken into account by courts when sentencing a young adult (typically 18-25).
When sentencing a young adult offender, courts should consider that the available evidence suggests:
There is a risk of young adults being perceived as more mature than they actually are. This can lead to their age and any related needs or disadvantage not being taken into proper consideration during the sentencing process. Research shows that young adults from an ethnic minority background are at particular risk of this.
Young adulthood is generally a formative period of social transition and custodial sentences in particular could interfere with their education and consequent life prospects. Education, work or training may be critical to a young adult’s career development which is a key factor in the prevention of reoffending. Courts should place particular emphasis on rehabilitation as a purpose of sentencing for young adults.
Young adults may seem less remorseful than they are and may mask or be unable to fully express their emotions because they are still maturing and developing emotional awareness skills. This is particularly relevant given the prevalence of neuro-disability among young adults in the criminal justice system compared to the general population.
Young adults in the criminal justice system have disproportionately disadvantaged backgrounds compared to their peers in the general population. This may include adverse childhood experiences and experiences of the care system, disrupted accommodation or education, exposure to abuse, neglect, trauma and loss. Some young adult offenders have multiple disadvantages or needs which can increase the complexity of their circumstances that will need to be taken into consideration during sentencing.
There are high levels of mental disorders, developmental disorders, and neurological impairments among young adults in the criminal justice system compared to their peers in the general population. This means that they may struggle more with behaviour typically linked to offending and this can increase their vulnerability to bullying, peer pressure, coercion or manipulation.
The disadvantages young adult offenders face in the criminal justice system may be compounded for young adult offenders from an ethnic minority background. For some offences, there is evidence of a disparity in sentence outcomes for offenders from some ethnic minority backgrounds.
Sentencing female offenders
It is important for the court to ensure that it has sufficient information about a female offender’s background.
Courts should be aware that female offenders commonly offend for different reasons than male offenders and the impact of custodial sentences on female offenders will often be different. When sentencing a female offender, courts should consider that the available evidence suggests:
Female offending is commonly linked to mental ill health (including trauma), substance-misuse, being a victim of domestic abuse, or financial and homelessness issues. Female offenders are more likely than male offenders to have been in statutory care or to have experienced emotional, physical or sexual abuse. Female offenders sentenced to custody are more likely than male offenders to suffer from anxiety or depression, self-harm or attempt suicide. Some female offenders have multiple disadvantages or needs which can increase the complexity of their circumstances that will need to be taken into consideration during sentencing.
There are only a small number of prisons for female offenders. Therefore, female offenders are more likely than male offenders to be imprisoned some distance from support networks of friends and family. This will impact on their resettlement when they leave custody.
Female offenders are at greater risk than male offenders of leaving custody without accommodation and being unemployed after release, leaving them vulnerable to further abuse and exploitation. A greater proportion of female offenders are unemployed when released than male offenders.
The disadvantages female offenders face in the criminal justice system may be compounded for female offenders from an ethnic minority background. Some female offenders from ethnic minority backgrounds have distinct needs and experiences from both men from an ethnic minority background and white women. The legal process can be particularly confusing especially if English is not a first language; differences in cultural or religious beliefs may result in additional stigma and strain on family relationships from offending and the impact of custodial sentences can be particularly acute, especially in relation to the care of children and elderly relatives. See chapter 8 of the Equal Treatment Bench Book, for further information. For some offences, there is some evidence of disparity in sentence outcomes for offenders from some ethnic minority backgrounds.
Sentencing mothers with dependent children, pregnant and post-natal offenders
The court should obtain detailed information before sentencing a mother with dependent children or a pregnant or post-natal offender or to ensure that a sentence is compatible with their support needs and childcare responsibilities, and so they can access routine healthcare and maternity appointments.
When sentencing a mother with dependent children, pregnant or post-natal offender, courts should consider that the available evidence suggests:
Female offenders are more likely to be sole or primary carers than male offenders. When mothers with dependent children are sentenced to custody, only a very small percentage of those children remain in their own home. Dependent children may be at risk of going into care or being separated from siblings, and can be adversely impacted by having to adjust to new homes, new carers, and new educational establishments. There is an emotional impact for those children that may result in shame, stigma, anger, grief and behavioural changes. Those children consequently have an increased likelihood of committing criminal offences, mental health problems, substance misuse and other social issues.
Prison is a high-risk environment for pregnant offenders. The impact of custody on a pregnant or postnatal offender (has given birth in the previous 12 months) is likely to be harmful to the physical and mental health of both the mother and the child, including by separation, especially in the first two years of life. Operational constraints interact with the needs of pregnant and postnatal offenders and unborn and newly born babies and pose inherent barriers to accessing medical assistance, items necessary for care and specialist maternity care. Female offenders in custody are likely to have complex health needs, including a need for specialist trauma services, which may increase the risks associated with pregnancy for both the offender and the child.
Womenfrom an ethnic minority background suffer from greater risks during pregnancy, childbirth and to their postnatal health than white women. These risks should be taken into account when deciding whether to impose a custodial sentence for a pregnant or post-natal offender.
A custodial sentence may become disproportionate to achieving the purposes of sentencing where there would be an impact on an offender’s pregnancy or dependent children, including an unborn child. Courts should avoid the possibility of an offender navigating the risks associated with pregnancy, birth and the postnatal period (up to 12 months after birth) in custody unless the imposition of a custodial sentence is unavoidable (see below: Imposition of custodial sentences (section 8)).
For offences that carry a mandatory minimum custodial sentence, pregnancy and the postnatal period may contribute to ‘exceptional circumstances’ that could justify not imposing the statutory minimum sentence.
Whether a pregnancy is planned or not can be of no concern to a sentencing judge whose focus must be on the risks to mother and baby of pregnancy and birth in custody.
Courts should be aware that access to a place in a prison Mother & Baby Unit (MBU) is not automatic. Even if a place is available, the duration of the placement cannot be guaranteed.
5. Imposition of 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.
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). The maximum length of a community order is 3 years.
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. Generally:
a Band D fine may be a suitable alternative to a low level community order
a Band E fine may be a suitable alternative to a medium level community order, and
a Band F fine may be a suitable alternative to a high level community order.
Before imposing a fine, the court should consider the financial situation of the offender and ensure that the imposition of a fine is proportionate to their financial circumstances (sections 124 and 125 of the Sentencing Code). It is important that a fine is not imposed on an offender without sufficient means to pay.
In general, courts should impose the shortest length of a community order commensurate with the seriousness of the offence. The court imposing a community order must specify the length of that order by specifying the end date by which all requirements in it must have been complied with. This end date must not be more than 3 years after the date of the order (section 209 of the Sentencing Code).
The court should specify a length of an order which reflects both the seriousness of the offence (within which a consideration of the offender’s individual circumstances will be necessary) and the length of time the requirements being imposed necessitate.
The court imposing a community order may take any time spent remanded in custody or on a qualifying curfew into account when determining any restrictions on liberty to be imposed by a community order. Qualifying curfew is a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day.
A community order may still be appropriate even where the period of time spent remanded in custody or on qualifying curfew is comparable to or exceeds the shortest term of custody commensurate with the seriousness of the offence(s).
Time spent remanded in custody or on a qualifying curfew may reduce a requirement imposed for the purpose of punishment or may amount to exceptional circumstances which would make it unjust to impose a requirement for the purposes of punishment.
Magistrates: Consult your legal adviser when considering how to take into account time spent remanded in custody or on qualifying curfew when imposing a community order.
6. Community order levels
Offence specific guidelines refer to three levels of community order based on offence seriousness (low, medium and high). The culpability and harm present in the offence(s) should be considered to identify which of the three sentencing levels is appropriate.
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.
Important considerations for courts when considering what requirements to impose are contained in the next section on Requirements (section 7).
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.
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.
7. Requirements
Community orders must consist of one or more requirements.
Suspended sentence orders (see below Suspended sentence orders section (section 9)) may contain one or more requirements.
Suitability
The court must ensure that requirements imposed are the most suitable for the offender. This means that requirements should be suitable according to:
the purpose(s) of the sentence
the risk of reoffending
the needs and rehabilitation of the offender, including their age, any mental health issues or addiction issues
the ability of the offender to comply taking into account their accommodation, education, training or employment, financial and family situation including any dependants, including unborn children where the offender is pregnant
consideration of any previous non-compliance of particular requirements
the availability of the appropriate requirements in the local area.
The court must ensure that where two or more requirements are included, they are compatible with one another, not excessive when taken together and realistic for the individual to fulfil. So far as practicable, any requirements imposed should not conflict or interfere with:
an offender’s religious beliefs
the requirements of any other court order to which they may be subject
an offender’s attendance at work or educational establishment (particularly when imposing curfew hours).
Requirements imposed for the purpose of punishment or rehabilitation
It is a statutory requirement for at least one requirement on a community order to be imposed for the purpose of punishment, unless a fine is imposed or there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so (section 208(10) of the Sentencing code).
It is a matter for the court to decide which requirements amount to a punishment in each case. 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.
The seriousness of the offence should be the initial factor in determining the requirement imposed for the purpose of punishment and its corresponding intensity.
A fine may be imposed in lieu of a requirement for the purpose of punishment unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to impose a fine. Before imposing a fine, the court should consider the financial situation of the offender and ensure that the imposition of a fine is proportionate to their financial circumstances (sections 124 and 125 of the Sentencing Code). It is important that a fine is not imposed on an offender without sufficient means to pay. Generally, a fine imposed in lieu of a requirement for the purposes of punishment should be in the range of a Band A to Band C fine. Further information on fines can be found in the relevant supplementary information.
Any requirement(s) imposed for the purpose of rehabilitation should be determined by, and align with, the offender’s needs.
Effectiveness of requirements
Courts should tailor community orders for each offender according to their specific circumstances, and ensure the final package of requirements imposed is not excessive, either in the number of requirements or in the length or volume of those requirements. An excessive package of requirements is less likely to be successfully completed and risks the offender returning to court in breach.
When considering the effectiveness of particular requirements, courts should take into account any underlying or systemic issues (for example, housing issues) that may present a barrier in engagement.
In determining the requirement or combination of requirements, consideration should be given to what would be most effective for a particular offender, including different lengths of an order. Guidance on determining the length of a community order is given above in Imposition of Community orders section (section 5).
List of Requirements
The following requirements are available on both a community order and a suspended sentence order:
An unpaid work requirement requires offenders to undertake work projects in their local community. In some regions, a proportion of these hours can be spent on education, training or employment activities for eligible offenders. “Community Payback” is a term used to describe the delivery of an Unpaid Work requirement.
Volume/length range: Between 40 – 300 hours to be completed within 12 months.
Work as part of an unpaid work requirement must be suitable for an offender to perform; and if necessary, this suitability should be assessed by the Probation Service. Probation will also be able to advise what type of projects are available in the region. The court must consider whether the offender is in employment during hours that may make an unpaid work requirement unsuitable, or whether the offender has any disabilities or limitations, has any dependants, or whether there are any other circumstances that may make an unpaid work requirement unsuitable.
If unpaid work hours are not completed within 12 months (unless extended or revoked by the court), the requirement remains ‘live’ and will need to be returned to the court for the requirement period to be extended so the remaining hours can be worked. Sentencers should keep this in mind when considering any other requirements to ensure that it is realistic for an offender to complete all unpaid work hours within the 12 month period.
Where an offender is already subject to an unpaid work requirement, new unpaid work hours imposed on an unpaid work requirement are additional, and separate, to the existing hours. The total number of unpaid work hours from two or more unpaid work requirements should not significantly exceed 300 hours. For further information, see the guidance on Totality.
A rehabilitation activity requirement (RAR) requires the offender to participate in rehabilitative activities designed to address the behaviours and needs that contributed to the offence, and to attend supervision appointments with the Probation Service.
The court will specify the maximum number of days on which the offender will be instructed to participate in rehabilitative activities. Post-sentence, the Probation Service will assess the offender and produce a tailored activity plan based on their needs. Activities can include probation-led toolkits or group structured interventions, or referral to external organisations providing rehabilitative services.
Volume/length range: Minimum of 1 RAR day; no maximum, to be completed within the length of the order.
The specific type of activities that the offender will be required to participate in will be determined post-sentence by an assessment of these rehabilitative needs, and as such sentencers should consider the number of RAR activity days recommended by the Probation Service to ensure this number is suitable and proportionate to the level of need and any eligibility requirements for commissioned rehabilitative services that may be relevant.
Structured rehabilitative activities are complemented by supervision appointments with the Probation Service which ensure contact is maintained. Probation can track the offender’s progress in completing activities and offer support where necessary.
The court needs only to specify the number of ‘RAR’ or rehabilitative activity days, and the Probation Service will manage supervision appointments alongside these days.
A programme requirement requires an offender to complete an offending behaviour programme or intervention. An accredited programme is intensive and structured, designed to tackle the attitudes, thinking and behaviours which may lead people to reoffend. It is usually delivered in groups by a trained facilitator.
Volume/length range: The court must specify the number of days on which the offender must participate in the programme up to the length of the order.
An accredited programme must be recommended by the Probation Service, as it has specific eligibility criteria for which the offender must be assessed before it is proposed as an appropriate disposal.
The Probation Service will specify to the court how many days are required to complete an accredited programme to ensure it can be completed which will include pre and post programme work. The court should liaise with the Probation Service to ensure the community order duration is sufficient.
A curfew requirement requires an offender to remain at a particular place (or places) for a specified period (or periods) of time.
Different places or different curfew periods may be specified for different days. The curfew period should be targeted to reflect the punishment intended, support rehabilitation where relevant, and protect victims and the public.
Volume/length range:
For an offence of which the offender was convicted on or after 28 June 2022
For an offence of which the offender was convicted before 28 June 2022
2 – 20 hours in any 24 hours; maximum 112 hours in any period of 7 days beginning with the day of the week on which the requirement first takes effect; and maximum term 2 years
2 – 16 hours in any 24 hours; maximum term 12 months.
Where the court imposes a curfew requirement, it must also impose an electronic monitoring requirement to monitor compliance, unless in the circumstances of the case, it considers it inappropriate to do so.
In all cases, the court must consider those likely to be affected, such as any dependants and the offender’s ability to care for them, and any impact on an offender’s attendance at work or educational establishment.
Before imposing a curfew requirement, the court must ensure safeguarding and domestic abuse enquiries are carried out on any proposed curfew address to ensure the accommodation is suitable, others will not be put at risk and the homeowner agrees to the curfew, particularly where vulnerable adults and children are involved. Ordinarily this is a function performed by the Probation Service.
An exclusion requirement prohibits an offender from going into a particular place or area.
The exclusion zone can include more than one prohibited place/area, more than one exclusion period and different prohibited places/areas for different exclusion periods or different days.
Volume/length range: Up to 2 years. May either be continuous or only during specified periods.
Where the court imposes an exclusion requirement, it must also impose an electronic monitoring requirement to monitor compliance, unless in the particular circumstances of the case, it considers it inappropriate to do so (see note on electronic monitoring below).
The court must ensure that a map of the exclusion zone is provided to the offender or that the exclusion zone is sufficiently described by reference to the roads which mark its boundaries.
The court should take into account any reasonable needs of an offender to travel through a proposed exclusion zone.
A residence requirement provides that the offender must reside at a particular place (i.e. a private address or HMPPS provided temporary accommodation, including an approved premises or bail or community accommodation services) for a specified period.
Volume/length range: Duration set by the court, up to the length of the order. The maximum placement length of an approved premises is 12 weeks.
The court must consider the home surroundings of the offender before imposing this requirement.
The court is encouraged to engage with the Probation Service to understand what type of HMPPS provided temporary accommodation is available in their region to support these orders.
Where a residence requirement provides that the offender reside at a private address, there is no requirement that the offender be at the address at a specific time. A curfew requirement would be necessary for this. However, where a residence requirement is for an approved premises (AP), an offender is bound by the rules of the AP, which may include an overnight curfew and drug and/or alcohol testing.
The court must ensure safeguarding and domestic abuse enquiries are carried out on a private address being used for a residence requirement to ensure the accommodation is suitable, others will not be put at risk and the homeowner agrees to the curfew, particularly where vulnerable adults and children are involved. Ordinarily this is a function performed by the Probation Service.
An offender is prohibited from travelling to a country (or countries) or territory (or territories) outside the British Islands (that is the United Kingdom, the Channel Islands and the Isle of Man).
Volume/length range: Duration set by the court, up to a maximum of 12 months.
Unlikely to be suitable for an offender who does not have a passport, rarely travels, or has no apparent international connections.
A mental health treatment requirement provides treatment to an offender with a mental health condition. Treatment may be residential or non-residential and must be provided by or under the direction of a registered medical practitioner or registered psychologist.
Volume/length range: Duration set by the court, up to the length of the order.
The court must be satisfied: (a) that the mental condition of the offender is such as requires and may be susceptible to treatment but is not such as to warrant the making of a hospital or guardianship order; (b) that arrangements for treatment have been or can be made; (c) that the offender has expressed willingness to comply. The court should consult the Probation Service to ensure these factors are met.
The court must also ensure that the offender is eligible for the treatment before imposing this requirement.
Once this information is obtained by the Probation Service, the court must specify in the order the period or periods for the treatment, the place the treatment will be provided or the registered medical practitioner or registered psychologist by whom or under whose direction it is to be provided.
MHTRs can be used in combination with other treatment requirements (for example drug rehabilitation and alcohol treatment requirements) for eligible offenders with multiple needs.
A drug rehabilitation requirement (DRR) provides treatment to an offender who is dependent on drugs or has a propensity to misuse drugs. Treatment can be residential or non-residential, and the offender must participate in court reviews of the order, as directed by the court.
Volume/length range: Duration set by the court, up to the length of the order.
A drug rehabilitation requirement may be imposed on an offender for whom the court is satisfied that the offender is dependent on or has a propensity to misuse drugs (as defined by s.2 of the Misuse of Drugs Act 1971) where the dependency or propensity requires and may be susceptible to treatment.
The court must ensure that necessary arrangements have been or can be made for the proposed treatment, and the offender must express willingness to comply with the treatment.
The court must also ensure that the offender is eligible for the treatment before imposing this requirement.
Once this information is obtained by the Probation Service, the court must specify in the order the treatment director, whether the treatment will be residential, institution-based or practitioner-based, and if it is institution based, the institution or place and intervals at which it is to be provided.
DRRs can be used in combination with other treatment requirements (for example, mental health treatment requirement) for offenders with multiple needs.
An alcohol treatment requirement may be imposed on an offender who is dependent on alcohol, where that dependency requires and may be susceptible to treatment. The treatment may be residential or non-residential.
Volume/length range: Duration set by the court, up to the length of the order.
An alcohol treatment requirement (ATR) may be imposed on an offender for whom the court is satisfied is dependent on alcohol and this dependency is such that it requires and is susceptible to treatment.
The court must ensure that necessary arrangements have been or can be made for the proposed treatment, and the offender must express willingness to comply with the treatment.
The court must also ensure that the offender is eligible for the treatment before imposing this requirement.
Once this information is obtained by the Probation Service, the court must specify in the order the treatment director, whether the treatment will be residential, institution-based or practitioner-based, and if it is institution based, the institution or place and intervals at which it is to be provided.
An ATR can be used in combination with a mental health treatment requirement (MHTR) for offenders with multiple needs. However, for offenders with both drug and alcohol dependency, the court should impose only a DRR, as alcohol treatment needs can be managed as part of this requirement. An ATR cannot be imposed alongside an alcohol abstinence and monitoring requirement (AAMR) as an ATR will be unsuitable for an offender who is not dependent on alcohol.
An alcohol abstinence and monitoring requirement imposes a ban on alcohol consumption and requires the offender to have their compliance with the requirement electronically monitored.
Volume/length range: Up to 120 days.
It is generally recommended that an alcohol abstinence and monitoring requirement (AAMR) is not a standalone requirement and sits alongside other measures that support rehabilitation.
The court must be satisfied that the offender's consumption of alcohol is an element of the offence for which the order is to be imposed or of an associated offence, or that the offender's consumption of alcohol was a factor that contributed to the commission of that offence or to an associated offence.
The court must not impose an AAMR if the offender is alcohol dependent. If the offender is alcohol dependent, an ATR may be appropriate. The Probation Service should be consulted to assess the rehabilitative need and advise on the most relevant and available treatment.
An AAMR cannot be imposed alongside an alcohol treatment requirement (ATR); an AAMR may be too onerous, unsuitable and potentially dangerous for an offender who is dependent on alcohol.
The electronic whereabouts monitoring requirement is a requirement for the offender to submit to electronic monitoring of their whereabouts (other than for the purpose of monitoring compliance with any other requirement included in the order) during a period specified in the order.
Volume/length range: Up to 2 years.
The electronic whereabouts monitoring requirement may be imposed without the imposition of another requirement and involves monitoring an offender’s whereabouts with the imposition of a GPS tag, save for circumstances in which the consent of a person whose co-operation is required is withheld (other than the offender).
The court must ensure safeguarding and domestic abuse enquiries are carried out on any proposed curfew address to ensure the accommodation is suitable, others will not be put at risk and the homeowner agrees to the curfew, particularly where vulnerable adults and children are involved. Ordinarily this is a function performed by the Probation Service.
The electronic compliance monitoring requirement is imposed to monitor compliance with another requirement on an order.
Volume/length range: Up to 2 years.
Where the court makes a relevant order imposing a curfew requirement or exclusion requirement it must also impose an electronic compliance monitoring requirement for monitoring compliance with it, save where:
there is a person (other than the offender) without whose co-operation it will not be practicable to secure the monitoring and that person does not consent; and/or
electronic monitoring is unavailable and/or impractical; and/or
in the particular circumstances of the case, the court considers it inappropriate to do so.
The court must ensure safeguarding and domestic abuse enquiries are carried out on any proposed curfew address to ensure the accommodation is suitable, others will not be put at risk and the homeowner agrees to the curfew, particularly where vulnerable adults and children are involved. Ordinarily this is a function performed by the Probation Service.
If the custodial threshold has been passed (see section on Thresholds (section 2)), the court should ask the following three questions in order:
1. 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 (Section 230(2) of the Sentencing Code).
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 Imposition of Community orders section (section 5) above.
2. 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.
3. Can the sentence be suspended?
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.
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
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 non-exhaustive factors above indicating whether to suspend a custodial sentence, the court will usually benefit from the Probation Service'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).
9. Suspended sentence orders
For offenders aged 21 and over, a custodial sentence between 14 days and 2 years may be suspended for between 6 months and 2 years (section 277 of the Sentencing Code).
For offenders aged 18-20, a custodial sentence between 21 days and 2 years may be suspended for between 6 months and 2 years (section 264 and of the Sentencing Code).
This is also applicable to two or more sentences to be served consecutively where the aggregate term does not exceed 2 years.
A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately. Guidance on defining the operational and supervision periods can be found below.
For offenders aged 21 and over:
a custodial sentence between 14 days and 2 years may be suspended for between 6 months and 2 years (section 277 of the Sentencing Code)
a custodial sentence of over 2 years and up to 3 years may be suspended for between 6 months and up to 3 years (section 277 of the Sentencing Code).
For offenders aged 18-20:
a custodial sentence between 21 days and 2 years may be suspended for between 6 months and 2 years (section 264 and of the Sentencing Code)
a custodial sentence of over 2 years and up to 3 years may be suspended for between 6 months and 3 years (section 264 and of the Sentencing Code).
Guidance on defining the operational and supervision periods can be found below.
This is also applicable to two or more sentences to be served consecutively where the aggregate term does not exceed 3 years.
Extended Determinate Sentences or Sentences for Offenders of Particular Concern cannot be suspended.
A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.
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 above in the Requirements section (section 7), 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 court making a suspended sentence order must specify the operational period and supervision period of the order (section 288 of the Sentencing Code).
Operational period
The length of time for which a sentence is suspended, during which if the offender commits another offence, they will be liable to go to custody to serve the suspended custodial term.
Where the term of the suspended sentence is two years or under, this period begins on the day on which the order is made and must be at least 6 months and not more than two years.
Where the term of the suspended sentence is more than two years, this period begins on the day on which the order is made and must be at least 6 months and not more than three years.
Subject to the above, the length of the operational period should be tailored to the particular circumstances of the case. Non-exhaustive factors which may be relevant when determining length of the operational period are:
· the length of the custodial term to be suspended
· the nature and duration of any requirements of the order and resulting supervision period
· the risks of reoffending or harm.
Supervision period
The length of time for an offender to complete any requirements of the suspended sentence order, during which if the offender fails to comply with any of the requirements, they will be liable to go to custody to serve the suspended custodial term.
This period begins with the day on which the order is made and must be at least 6 months and not more than two years, or the operational period if this is less than two years. The supervision period may not be longer than the operational period.
Non-exhaustive factors which may be relevant when determining the supervision period include:
· the length of time required to complete any requirements
· the length of time required for rehabilitative requirements to be most effective (consult the Probation Service if necessary).
If the suspended sentence includes an unpaid work requirement, the supervision period for this requirement continues until the offender has completed the number of hours in the requirement but does not continue beyond the operational period.
The court imposing a suspended sentence order should determine the length of the suspended custodial term without reference to any time spent in custody on remand or on a qualifying curfew. When explaining the effect of the sentence, the court should indicate that the time remanded in custody or on a qualifying curfew would be deducted in the event of breach and activation of that sentence.
If an offender has spent a significant proportion of the custodial term to be suspended on remand or on a qualifying curfew, the court must consider whether it would be appropriate to impose a suspended sentence order at all, as there would be limited effect of the custodial term in the case of activation. Depending upon the circumstances of the case, immediate custody (which may result in immediate release due to time served) or a community order or discharge may be appropriate, particularly where there is a good prospect of rehabilitation.
10. Deferment orders
A deferment order is available to a magistrates’ court or the Crown Court. It delays the passing of a sentence until a date specified by the court which must be within:
6 months if the offender was convicted of any of the offences before 22 March 2026
12 months if the offender was convicted of all of the offences on or after 22 March 2026
The court may impose deferment requirements as to the offender’s conduct during the period of deferment (section 3 of the Sentencing Code).
Deferring sentencing may be particularly appropriate for young adults (typically 18-25 years of age) or those who are in transitional life circumstances.
The court may impose any conditions during the period of deferment that it considers appropriate. These could be specific requirements as set out in the provisions for community sentences, restorative justice activities or requirements that are drawn more widely. Requirements and/or conditions attached to a period of deferment should be specific and measurable and should not involve a serious restriction on the offender’s liberty.
The purpose of a deferment order is to enable the court to have regard to the offender’s conduct after conviction or any change in their circumstances, including the extent to which the offender has complied with any requirements imposed by the court.
The following conditions must be satisfied before sentencing can be deferred:
the offender must consent (and in the case of restorative justice activities the other participants must also consent);
the offender must undertake to comply with requirements imposed by the court; and
the court must be satisfied that deferment is in the interests of justice.
Deferring sentencing will be appropriate only in limited circumstances. A deferment order should only be made if the court considers that a specified period (which enables the court to have regard to the offender’s conduct or any change in the offender’s circumstances) will allow for a different sentence to that which would otherwise be imposed on that day. A deferment order is likely to be relevant predominantly in a small group of cases close to either the community or custodial sentence threshold.
When deferring a sentence, the court should specify to the offender what type of sentence will be imposed:
if the offender complies with all the requirements and/or conditions attached to the period of deferment; and
if the offender does not comply with all the requirements and/or conditions attached to the period of deferment.
If the offender does comply with the requirements and/or conditions of the deferment, the sentencing court should impose the sentence specified for successful compliance with the requirements and/or conditions of the deferment.
If the offender does not comply with the requirements and/or conditions of the deferment, they can be brought back to court before the end of the deferment period and the sentencing court can impose any sentence that could have been imposed on the date of deferment. The magistrates’ court also retains the power to commit the offender to the Crown Court after a period of deferment, if relevant.
Magistrates: Consult your legal adviser if you are considering deferring a sentence.
11. Sentencing Flow chart
This flow chart is a complementary tool to the Imposition of the community and custodial sentences guideline that supports sentencers to determine the right type of sentence. It should NOT be used without the guideline, as it focuses only on the questions pertaining to the type of potential sentence and does not include other pertinent guidance, such as the consideration of the purposes of sentencing, requesting a pre-sentence report, and the effectiveness of sentencing, among others. Please read the full Imposition of community and custodial sentences guideline before using this flow chart.
Please tell us if there is an issue with this guideline to do with the accuracy of the content, how easy the guideline is to understand and apply, or accessibility/broken links.