Crown Court

Manslaughter by reason of diminished responsibility

Common law, Homicide Act 1957, s.2

Effective from 01 November 2018

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Triable only on indictment
Maximum: Life imprisonment
Offence range: 3 – 40 years’ custody

This is a Schedule 19 offence for the purposes of sections 274 and 285 (required life sentence for offence carrying life sentence) of the Sentencing Code.

For offences committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15 for the purposes of sections 273 and 283 (life sentence for second listed offence) of the Sentencing Code. This is a specified offence for the purposes of sections 266 and 279 (extended sentence for certain violent, sexual or terrorism offences) of the Sentencing Code.

The type of manslaughter (and thereby the appropriate guideline) should have been identified prior to sentence. If there is any dispute or uncertainty about the type of manslaughter that applies the judge should give clear reasons for the basis of sentence.

User guide for this offence

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

The Sentencing Council issues this definitive guideline in accordance with section 120 of the Coroners and Justice Act 2009. It applies to all offenders aged 18 and older, who are sentenced on or after 1 November 2018, regardless of the date of the offence.

Section 59(1) of the Sentencing Code provides that:

“Every court – (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and (b) 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 individual offenders aged 18 and older. When sentencing those under 18 refer to the general principles in the Sentencing Council definitive guideline: Sentencing Children and Young People, Overarching Principles. When sentencing organisations for the offence of corporate manslaughter refer to the Sentencing Council Corporate Manslaughter definitive guideline.

Structure, ranges and starting points

For the purposes of section 60 of the Sentencing Code, the guideline specifies offence ranges – the range of sentences appropriate for each type of offence. Within each offence, the Council has specified a number of categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness. The Council has also identified a starting point within each category. Starting points define the position within a category range from which to start calculating the provisional sentence.

The court should consider further features of the offence or the offender that warrant adjustment of the sentence within the range, including the aggravating and mitigating factors set out at step two. Starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial.

Credit for a guilty plea is taken into consideration only at step four (step seven for manslaughter by reason of diminished responsibility) in the decision making process, after the appropriate sentence has been identified.

Step 1 – Assessing the degree of responsibility retained: high, medium or lower

A conviction for manslaughter by reason of diminished responsibility necessarily means that the offender’s ability to understand the nature of the conduct, form a rational judgment and/or exercise self-control was substantially impaired.
The court should determine what level of responsibility the offender retained:
- High;
- Medium; or
- Lower
The court should consider the extent to which the offender’s responsibility was diminished by the mental disorder at the time of the offence with reference to the medical evidence and all the relevant information available to the court.
The degree to which the offender’s actions or omissions contributed to the seriousness of the mental disorder at the time of the offence may be a relevant consideration. For example:
- where an offender exacerbates the mental disorder by voluntarily abusing drugs or alcohol or by voluntarily failing to seek or follow medical advice this may increase responsibility. In considering the extent to which the offender’s behaviour was voluntary, the extent to which a mental disorder has an impact on the offender’s ability to exercise self-control or to engage with medical services will be relevant.
The degree to which the mental disorder was undiagnosed and/or untreated may be a relevant consideration. For example:
- where an offender has sought help but not received appropriate treatment this may reduce responsibility.

Harm

For all cases of manslaughter the harm caused will inevitably be of the utmost seriousness. The loss of life is taken into account in the sentencing levels at step two.

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 the case (for example where a case falls close to a borderline between categories).

Level of responsibility retained
High	Medium	Lower
Starting point 24 years’ custody	Starting point 15 years’ custody	Starting point 7 year’s custody
Category range 15 – 40 years’ custody	Category range 10 – 25 years’ custody	Category range 3 – 12 years’ custody

The Imposition of community and custodial sentences guideline outlines the general approach to sentencing and provides guidance on how sentencers should address specific issues that may arise when they consider the most appropriate sentence.

A custodial sentence must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (section 230(2) of the Sentencing Code).

Even where the seriousness of the offence indicates that the threshold for a custodial order has been passed, a custodial sentence should not be imposed if in all the circumstances of the case it is appropriate to impose a community order, for example, if a community order achieves the purposes of sentencing.
Custody should not be imposed on an offender who is pregnant or within the postnatal period (within 12 months after giving birth) where the impact on the offender or dependants, including unborn children, would make a custodial sentence disproportionate to achieving the purposes of sentencing.

See further information on previous convictions in section 2 of the Imposition guideline.

Pre-sentence reports (PSR)

When considering a community or custodial sentence, the court must request and consider a pre-sentence report (PSR) before forming an opinion of the sentence, unless it considers that it is unnecessary (section 30 of the Sentencing Code). A pre-sentence report may also be requested by a defence legal representative as part of the before-plea protocol.

A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.

PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.
A pre-sentence report may be unnecessary if the court considers that it has enough information about the offence and the offender.

See more information on pre-sentence reports at section 3 of the Imposition guideline.

Magistrates: Consult your legal adviser before deciding to sentence to a community order or custodial sentence without a pre-sentence report.

Section 4 of the Imposition guideline contains important information on the suitability and effectiveness of a sentence.

Custodial sentences

If the custodial threshold has been passed the court should ask the following three questions in the following order:

Is it unavoidable that a custodial sentence be imposed?

A custodial sentence (whether immediate or suspended) must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (s.230(2) Sentencing Act 2020).
Passing the custody threshold does not mean that a custodial sentence (whether immediate or suspended) is inevitable. Custody should not be imposed where the purposes of sentencing could be achieved by a community order or where circumstances exist which may make a custodial sentence disproportionate to achieving the purposes of sentencing (for example, where there would be an impact on dependants, including on unborn children where the offender is pregnant.)
Community orders are often punitive and last longer than shorter custodial sentences. Community orders can restrict an offender’s day to day liberties, especially when imposed on an offender who may find regular attendance at a specific place or time challenging. Breach can result in custody.
If the purposes of sentencing can be achieved by a community order, or any personal mitigation means that a community order may be a more suitable sentence, see the Community orders dropdown above.

What is the shortest term commensurate with the seriousness of the offence?

If the court is considering an immediate custodial sentence of up to 12 months, it should take into account that research suggests that custodial sentences of up to 12 months are less effective than other disposals at reducing reoffending and can lead to negative outcomes. Any custodial sentence may disrupt factors which can discourage further offending, such as employment, education or accommodation, and may affect support networks by interfering with relationships with friends and family.
While courts are encouraged to consider a community order in lieu of a custodial sentence where appropriate, there will be cases where a short custodial sentence is unavoidable.
In considering the shortest term, the court must NOT consider any licence or post sentence supervision requirements or any other administrative or statutory consequences of the potential sentence imposed.

Can the sentence be suspended?

Cases where the offender was convicted before 22 March 2026
If the shortest term commensurate with the seriousness of the offence is 2 years or less, the court should consider whether it is appropriate to suspend that sentence so that the offender serves their sentence in the community under the supervision of the Probation Service.

Cases where the offender was convicted on or after 22 March 2026
If the shortest term commensurate with the seriousness of the offending is 12 months or less, the court must suspend the sentence under the statutory presumption of suspension, unless any of the following apply:

The offender is in custody (whether serving a sentence, on remand for another offence, or detained under a hospital order)
The offender is being resentenced for breaching a community or suspended sentence order
The offence was committed while the offender was subject to a community or suspended sentence order
Committing the offence, or an associated offence, was a breach of a court order or was closely connected with a breach of a court order (whether or not that breach was a criminal offence)
There is significant risk of physical or psychological harm to an individual
Exceptional circumstances relate to the offence or the offender which justify not suspending the sentence

If the sentence is not to be suspended applying the presumption OR if the shortest term commensurate with the seriousness of the offending is more than 12 months and no more than 3 years, the court should consider whether it is appropriate to suspend that sentence so that the offender serves their sentence in the community under the supervision of the Probation Service.

The court should weigh the relevant factors below to consider whether it is possible to suspend the sentence:

Factors indicating that it may be appropriate to suspend a custodial sentence	Factors indicating that it may not be appropriate to suspend a custodial sentence
Realistic prospect of rehabilitation in the community Offender does not present high risk of reoffending or harm Strong personal mitigation Immediate custody will result in significant harmful impact upon others, including any dependent children or where the offender is pregnant or postnatal (has given birth in the previous 12 months)	Offender presents a risk to any person The seriousness of the offence means that appropriate punishment can only be achieved by immediate custody History of poor compliance with court orders AND unlikely to comply in the future

Suspending a sentence

If the offender reoffends during the operational period or fails to comply with any requirements during the supervision period of the suspended sentence order, the custodial term will be activated and the offender will be required to serve some or all of the sentence in custody, unless it is unjust to do so, as set out in the Breach of suspended sentence orders guideline).
A suspended sentence is a custodial sentence. A suspended sentence MUST NOT be imposed as a more severe form of community order. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence, such as a community order, should be imposed.
In weighing any of the following non-exhaustive factors indicating whether to suspend a custodial sentence, the court will usually benefit from Probation’s assessment of any relevant circumstances (such as dependants) and whether the offender can be safely managed in the community (including safeguarding of the victim/s and/or public).

A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately. See more information on the operational and supervision periods in section 9 of the Imposition guideline.

Requirements on a suspended sentence order

When the court imposes a suspended sentence order, it may impose one or more requirements on the order for the offender to undertake in the community (section 286(2) of the Sentencing Code).

A suspended sentence order is a custodial sentence; as such, the imposition of a suspended sentence order is itself a punishment, with or without requirements. Any requirements that are imposed as part of a suspended sentence order are, therefore, more likely to be predominantly rehabilitative in purpose. The court should moderate the intensity, volume or length of any requirement imposed for the purpose of additional punishment so it is not disproportionate to the seriousness of the offending.

The requirements that may be imposed on a suspended sentence order are identical to those for community orders. The court must follow the guidance in section 7 of the Imposition guideline, including ensuring that any requirements imposed are the most suitable for the offender, realistic to fulfil, and where multiple requirements are imposed, they are compatible with each other and not excessive.

To ensure that the requirements of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. The court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.

Note: The table is for a single offence of manslaughter resulting in a single fatality. Where another offence or offences arise out of the same incident or facts concurrent sentences reflecting the overall criminality of offending will ordinarily be appropriate: please refer to the Totality guideline and step eight of this guideline.

The tables below contain a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in a further upward or downward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.

Care should be taken to avoid double counting factors already taken into account in assessing the level of responsibility retained

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:

Section 65 of the Sentencing Code states that:

(1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions.

(2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to— (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.

(3) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated.
1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
2. 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.
3. Previous convictions are normally of relevance to the current offence when they are of a similar type.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
10. 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.
11. 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.
12. 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.
13. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction (See step three for a consideration of dangerousness)
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

Section 64 of the Sentencing Code states:

In considering the seriousness of any offence committed while the offender was on bail, the court must - (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

See below for the statutory provisions.
- Note the requirement for the court to state that the offence has been aggravated by the relevant hostility.
- Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role.
Section 66 of the Sentencing Code states:

Hostility (1) This section applies where a court is considering the seriousness of an offence which is aggravated by—

(a) racial hostility,

(b) religious hostility,

(c) hostility related to disability,

(d) hostility related to sexual orientation, or

(e) hostility related to transgender identity.

This is subject to subsection (3). (2) The court—

(a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and

(b) must state in open court that the offence is so aggravated.

(3) So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). (4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if—

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

(i) the victim’s membership (or presumed membership) of a racial group,

(ii) the victim’s membership (or presumed membership) of a religious group,

(iii) a disability (or presumed disability) of the victim,

(iv) the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)

(v) the victim being (or being presumed to be) transgender, or

(b) the offence was motivated (wholly or partly) by—

(i) hostility towards members of a racial group based on their membership of that group,

(ii) hostility towards members of a religious group based on their membership of that group,

(iii) hostility towards persons who have a disability or a particular disability,

(iv) hostility towards persons who are of a particular sexual orientation, or (as the case may be)

(v) hostility towards persons who are transgender.

(5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (6) In this section—

(a) references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins;

(b) references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief;

(c) “membership” in relation to a racial or religious group, includes association with members of that group;

(d) “disability” means any physical or mental impairment;

(e) references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment;

(f) “presumed” means presumed by the offender.
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

See below for the statutory provisions.
- Note the requirement for the court to state that the offence has been so aggravated.
- Note this statutory factor only applies to certain violent or sexual offences as listed below.
- For other offences the factor ‘Victim was providing a public service or performing a public duty at the time of the offence’ can be applied where relevant.
The Sentencing Code states:

67 Assaults on emergency workers

(1) This section applies where a court is considering the seriousness of an offence listed in subsection (3).

(2) If the offence was committed against an emergency worker acting in the exercise of functions as such a worker, the court—

(a) must treat that fact as an aggravating factor, and

(b) must state in open court that the offence is so aggravated.

(3) The offences referred to in subsection (1) are—

(a) an offence under any of the following provisions of the Offences against the Person Act 1861—

(i) section 16 (threats to kill);

(ii) section 18 (wounding with intent to cause grievous bodily harm);

(iii) section 20 (malicious wounding);

(iv) section 23 (administering poison etc);

(v) section 28 (causing bodily injury by explosives);

(vi) section 29 (using explosives etc with intent to do grievous bodily harm);

(vii) section 47 (assault occasioning actual bodily harm);

(b) an offence under section 3 of the Sexual Offences Act 2003 (sexual assault);

(c) manslaughter;

(d) kidnapping;

(e) an inchoate offence in relation to any of the preceding offences.

(4) For the purposes of subsection (2) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker. (5) In this section, “emergency worker” has the meaning given by section 68. (6) Nothing in this section prevents a court from treating the fact that an offence was committed against an emergency worker acting in the exercise of functions as such as an aggravating factor in relation to offences not listed in subsection (3). 68 Emergency workers for the purposes of section 67 (1) In section 67, “emergency worker” means—

(a) a constable;

(b) a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;

(c) a National Crime Agency officer;

(d) a prison officer;

(e) a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;

(f) a prisoner custody officer, so far as relating to the exercise of escort functions;

(g) a custody officer, so far as relating to the exercise of escort functions;

(h) a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services;

(i) a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);

(j) a person employed for the purposes of providing, or engaged to provide—

(i) NHS health services, or

(ii) services in the support of the provision of NHS health services,

and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public. (2) It is immaterial for the purposes of subsection (1) whether the employment or engagement is paid or unpaid. (3) In this section— “custodial institution” means any of the following—

(a) a prison; (b) a young offender institution, secure training centre or secure college; (c) a removal centre, a short-term holding facility or pre-departure accommodation, as defined by section 147 of the Immigration and Asylum Act 1999; (d) services custody premises, as defined by section 300(7) of the Armed Forces Act 2006;

“custody officer” has the meaning given by section 12(3) of the Criminal Justice and Public Order Act 1994; “escort functions”—

(a) in the case of a prisoner custody officer, means the functions specified in section 80(1) of the Criminal Justice Act 1991; (b) in the case of a custody officer, means the functions specified in paragraph 1 of Schedule 1 to the Criminal Justice and Public Order Act 1994;

“NHS health services” means any kind of health services provided as part of the health service continued under section 1(1) of the National Health Service Act 2006 and under section 1(1) of the National Health Service (Wales) Act 2006; “prisoner custody officer” has the meaning given by section 89(1) of the Criminal Justice Act 1991.

Other aggravating factors:

History of violence or abuse towards victim by offender (which may include coercive or controlling behaviour)
Use of strangulation, suffocation or asphyxiation
Involvement of other(s) through coercion, intimidation or exploitation
Significant mental or physical suffering caused to the deceased
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- An offence is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence).
- Other factors such as the victim being isolated, incapacitated through drink or being in an unfamiliar situation may lead to a court considering that the offence is more serious.
- The extent to which any vulnerability may impact on the sentence is a matter for the court to weigh up in each case.
- Culpability will be increased if the offender targeted a victim because of an actual or perceived vulnerability.
- Culpability will be increased if the victim is made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender).
- Culpability is increased if an offender persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim).
- The level of harm (physical, psychological or financial) is likely to be increased if the victim is vulnerable.
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

This reflects:
- the fact that people in public facing roles are more exposed to the possibility of harm and consequently more vulnerable and/or
- the fact that someone is working in the public interest merits the additional protection of the courts.
This applies whether the victim is a public or private employee or acting in a voluntary capacity.

Care should be taken to avoid double counting where the statutory aggravating factor relating to emergency workers or to those providing a public service, performing a public duty or providing services to the public applies.
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.

This applies regardless of whether the offender is under the influence of legal or illegal substance(s).

In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.

An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.
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
- Evidence of planning normally indicates a higher level of intention and pre-meditation which increases the level of culpability.
- Planning may be inferred from the scale and sophistication of the offending and/or the role of the offender.
- The greater the degree of planning the greater the culpability
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
- A ‘weapon’ can take many forms
- The use or production of a weapon has relevance
  - to the culpability of the offender where it indicates planning or intention to cause harm; and
  - to the harm caused (both physical or psychological) or the potential for harm.
- Relevant considerations will include:
  - the dangerousness of the weapon;
  - whether the offender brought the weapon to the scene, or just used what was available on impulse;
  - whether the offender made or adapted something for use as a weapon;
  - the context in which the weapon was threatened, used or produced.
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 assessing the relevance of this factor to culpability.
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- Where there is risk of harm to other(s) not taken in account at step one and not subject to a separate charge, this makes the offence more serious.
- Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.
Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality.

When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.

When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.
Concealment, destruction, defilement or dismemberment of the body
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- Where the investigation has been hindered and/or other(s) have suffered as a result of being wrongly blamed by the offender, this will make the offence more serious.
- This factor will not be engaged where an offender has simply exercised his or her right not to assist the investigation or accept responsibility for the offending.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.
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.
- 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 a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
- Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality
- Care should be taken to avoid double counting matters taken into account when considering previous convictions.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

Factors reducing seriousness or reflecting personal mitigation

Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
- First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
- Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
- When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it.
- Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). In general the more serious the previous offending the longer it will retain relevance.
Effective from: 01 October 2019 (revised 1 April 2024)

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

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.
Intention to cause serious bodily harm rather than to kill
History of significant violence or abuse towards the offender by the victim (which may include coercive or controlling behaviour)
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

Where an offender has committed the offence with little or no prior thought, this is likely to indicate a lower level of culpability and therefore justify a reduction in sentence.

However, impulsive acts of unprovoked violence or other types of offending may indicate a propensity to behave in a manner that would not normally justify a reduction in sentence.
The offender acted in self-defence or in fear of violence (where not amounting to a defence)
The offender made genuine and sustained attempts to seek help for the mental disorder
Belief by the offender that the killing was an act of mercy
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

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 2019 (revised 1 April 2024)

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline.

For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.

For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.

When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.

The court should ensure that it has all relevant information about dependent children before deciding on sentence.

When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.

Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 119 to 125)
Effective from: 01 April 2024

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

When considering a custodial or community sentence for a pregnant or postnatal offender (someone who has given birth in the previous 12 months) the court should ensure it has all the necessary information before sentencing and adjourn the sentencing if necessary.

When sentencing a pregnant or postnatal woman, relevant considerations may include:
- the medical needs of the offender including her mental health needs
- any effect of the sentence on the physical and mental health of the offender
- any effect of the sentence on the child
The impact of custody on an offender who is pregnant or postnatal can be harmful for both the offender and the child including by separation, especially in the first two years of life.

Access to a place in a prison Mother & Baby Unit is not automatic and when available, the court may wish to enquire for how long the place will be available.

Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and the child. The NHS classifies all pregnancies in prison as high risk.

There may be difficulties accessing medical assistance or specialist maternity services in custody.

This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline.

For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

Where immediate custody is unavoidable, all of the factors above may be relevant to the length of the sentence.

The court should address the issues above when giving reasons for the sentence.
Effective from: 01 April 2024

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

The court should consider whether there are factors in the offender’s background or current personal circumstances which may be relevant to sentencing. Such factors may be relevant to:
- the offender’s responsibility for the offence and/or
- the effect of the sentence on the offender.
Courts should consider that different groups within the criminal justice system have faced multiple disadvantages which may have a bearing on their offending. Such disadvantages include but are not limited to:
- experience of discrimination
- negative experiences of authority
- early experience of loss, neglect or abuse
- early experience of offending by family members
- being care experienced or a care leaver
- negative influences from peers
- difficulties relating to the misuse of drugs and/or alcohol (but note: being voluntarily intoxicated at the time of the offence is an aggravating factor)
- low educational attainment
- insecure housing
- mental health difficulties
- poverty
- direct or indirect victim of domestic abuse
There are a wide range of personal experiences or circumstances that may be relevant to offending behaviour. The Equal Treatment Bench Book contains useful information on social exclusion and poverty (see in particular Chapter 11, paragraphs 58 to 71). The Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline may also be of relevance.

Step 3 – Consideration of dangerousness

The court should consider:1) whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose a life sentence (sections 274 and 285)2) whether having regard to sections 273 and 283 of the Sentencing Code it would be appropriate to impose a life sentence.3) whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose an extended sentence (sections 266 and 279)

When sentencing to a life sentence the notional determinate term (identified at step two above) should be used as the basis for setting the minimum term.

Step 4 – Consideration of mental health disposals (Mental Health Act 1983)

Where:

(i) the evidence of medical practitioners suggests that the offender is currently suffering from a mental disorder,

(ii) treatment is available, and

(iii) the court considers that a hospital order (with or without a restriction) may be an appropriate way of dealing with the case, the court should consider all sentencing options including a section 45A direction and consider the importance of a penal element in the sentence taking into account the level of responsibility assessed at step one.

Section 45A hospital and limitation direction

a. Before a hospital order is made under section 37 (with or without a restriction order under section 41), consider whether the mental disorder can appropriately be dealt with by custody with a hospital and limitation direction under section 45A. In deciding whether a section 45A direction is appropriate the court should bear in mind that the limitation direction will cease to have effect at the automatic release date of a determinate sentence.

b. If a penal element is appropriate and the mental disorder can appropriately be dealt with by a direction under section 45A, then the judge should make such a direction. (Not available for a person under the age of 21 at the time of conviction).

Section 37 hospital order and section 41 restriction order

c. If a section 45A direction is not appropriate the court must then consider (assuming the conditions in section 37(2)(a) are satisfied) whether the matters referred to in section 37(2)(b) would make a hospital order (with or without a restriction order under section 41) the most suitable disposal. The court should explain why a penal element is not appropriate.

Step 5 – IN ALL CASES consider factors that may warrant an adjustment to the sentence

Cases of manslaughter by reason of diminished responsibility vary considerably on the facts of the offence and on the circumstances of the offender.

The court should review whether the sentence as a whole meets the objectives of punishment, rehabilitation and protection of the public in a fair and proportionate way.
Relevant factors will include the psychiatric evidence and the regime on release.
An adjustment may require a departure from the sentence range identified at step two above.

Step 6 – Consider any factors which indicate a reduction for assistance to the prosecution

The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Case law has established that there are no inflexible rules as to the method by which any reduction should be assessed nor the amount of the reduction. It will be a fact specific decision in each case. The rationale for making a reduction is the same whether the statutory procedure or the common law “text” procedure has been engaged. In principle, there is no reason to distinguish between the two procedures in terms of the extent of the reduction which is made. See also the relevant Criminal Procedure Rules: CPR 28.11 (statutory procedure) CPR 28.12 (text procedure).

The following sequence of matters for a sentencing court to consider reflects case law:

The court should assess the seriousness of the offences being sentenced following any relevant sentencing guidelines.
The court should then consider the quality and quantity of the material provided by the offender in the investigation and subsequent prosecution of crime. The court should take into account the period of time over which the information was provided and the seriousness of the offending to which it relates. Particular value should be attached to those cases where the offender provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, especially where the information either produces convictions for the most serious offences, or prevents them, or which leads to disruption of major criminal networks. In cases where it is too early to say what impact the information will have, the Court should take into account the potential value of the information provided.
This consideration should be made in the context of the nature and extent of the personal risks to, and potential consequences faced by, the offender and members of the offender’s family.
A guilty plea is not an essential prerequisite of the making of a reduction for information and assistance provided, but contesting guilt may be one of the factors relevant to the extent of the reduction made for that assistance. The extent to which an offender has been prepared to admit the full extent of their criminality is relevant to the level of the reduction.
Any reduction for a guilty plea is separate from and additional to the appropriate reduction for assistance provided by the offender. The reduction for the assistance provided by the offender should be assessed first to arrive at a notional sentence and any guilty plea reduction applied to that notional sentence.
A mathematical approach to determining the level of reduction for assistance to the authorities is liable to produce an inappropriate answer – the totality principle is fundamental.
Where the statutory procedure applies, the court should take into account that this requires offenders to reveal the whole of their previous criminal activities which will often entail pleading guilty to offences which the offender would never otherwise have faced.
An informer can generally only expect to receive credit once for past information or assistance, and for that reason the court should be notified whether particular information and assistance has been taken into account in imposing a previous sentence or when making an application to the Parole Board.
The court should enquire whether an offender has received payment for assistance provided and if so, how much. Financial reward and a reduction in sentence are complementary means of incentivising the disclosure of the criminal activities of others and therefore a financial reward, unless exceptionally generous, should play only a small, if any, part in the sentencer’s decision.
The totality principle is critical in the context of an offender who is already serving a sentence, and who enters into an agreement to provide information which discloses previous criminal activities and comes before the court to be sentenced for the new crimes, as well as for a review of the original sentence (under section 388 of the Sentencing Code).
Where an offender has committed serious crimes, neither the statutory nor common law process provide immunity from punishment, and, subject to appropriate reductions, an appropriate sentence should be passed. By providing assistance to the authorities the offender is entitled to a reduction from the sentence which would otherwise be appropriate to reflect the assistance provided to the administration of justice, and to encourage others to do the same.
It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed. The normal level for the provision of valuable information will be a reduction of somewhere between one half and two thirds of that sentence.
In cases where the information provided was of limited value, the reduction may be less than one half and where the information given is unreliable, vague, lacking in practical utility or already known to the authorities, any reduction made will be minimal.
The risk to an offender who provides information, and the importance of the public interest in encouraging criminals to inform on other criminals, will often mean that the court will not be able to make any explicit reference to the provision of information or the reduction of the sentence on that ground. The duty to give reasons for the sentence will be discharged in such cases by the judge stating that the court has considered all the matters of mitigation which have been brought to its attention. See also CPR 28.12(4).

Step 7 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and the Reduction in Sentence for a Guilty Plea guideline. Note: the limitations on reductions for murder do not apply to manslaughter.

Step 8 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour in accordance with the Totality guideline.

Step 9 – Compensation and ancillary orders

In all cases the court should consider whether to make compensation and/or other ancillary orders.

May be made by	A magistrates’ court or the Crown Court
Relevant legislation	Sentencing Act 2020, part 11, Chapter 2
Availability	Where a person is convicted of an offence listed in Schedule 3 or Schedule 5 to the Sexual Offences Act 2003 the court dealing with the offender in respect of the offence may make an SHPO if satisfied that it is necessary to do so for the purpose of— protecting the public or any particular members of the public from sexual harm from the offender, or protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the offender outside the United Kingdom. No application is necessary for the court to make a SHPO at the point of sentence although the prosecutor may wish to invite the court to consider making an order in appropriate cases. The court may ask pre-sentence report writers to consider the suitability of a SHPO on a non-prejudicial basis. Sentencing Act 2020, s344(2) provides that any conditions in Sch. 3 SOA 2003 relating to the age of the offender or the victim, or the sentence imposed on the offender may be disregarded in determining whether the offence is listed in schedule 3.
Considerations	The details of the offence are likely to be a key factor in the court’s decision, together with the offender’s previous convictions and the assessment of risk presented by the Probation Service in any pre-sentence report. The court may take into consideration the range of other options available to it in respect of protecting the public. The court may want to consider: Would an order minimise the risk of harm to the public or to any particular members of the public? Is it proportionate? Can it be policed effectively?
Content of the order	The order may prohibit the offender from doing anything described in the order or require the offender to do anything described in the order. The prohibitions or requirements which are imposed must, so far as practicable, be such as to avoid— any conflict with the offender’s religious beliefs, any interference with the times, if any, at which the offender normally works or attends any educational establishment, and any conflict with any other court order or injunction A SHPO that imposes a requirement (other than an electronic monitoring requirement) to do something must specify a person who is to be responsible for supervising compliance with the requirement. The person may be an individual or organisation. The court must receive evidence about the requirements suitability and enforceability from the individual who will enforce it or from an individual representing the organisation who will enforce it.
Length of the order	Within the SHPO the Court must specify the period for which each prohibition or requirement is to have effect (the specified period). The specified period must either be a fixed period of not less than 5 years or an indefinite period (so that the prohibition or requirement has effect until further order). The order may specify different periods for different prohibitions or requirements. As a guide, the specified period would normally be the same length as the statutory notification period. Where the specified period is longer than the statutory notification period, the offender will remain subject to the notification requirements for the full duration of the sexual harm prevention order.
Effect on earlier orders	Where an order is made in respect of an offender who is already subject to an SHPO, the earlier SHPO ceases to have effect. If the offender is already subject to a Sexual Offences Prevention Order or Foreign Travel Order made in Scotland or Northern Ireland, that order ceases to have effect unless the court orders otherwise.
Consequences of breach	Breach of a SHPO is a criminal offence, maximum penalty five years’ custody. Breach of a sexual harm prevention order guideline

Ancillary orders - Crown Court

Step 10 – Reasons

Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 11 – Consideration for time spent on bail (tagged curfew)

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the Sentencing Code.

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