Crown Court

Magistrates

Possession of articles for use in frauds/ Making or supplying articles for use in frauds

Fraud Act 2006, s.6, s.7

Effective from 1 October 2014

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Possession of articles for use in frauds Fraud Act 2006 (section 6)
Triable either way
Maximum: 5 years’ custody
Offence range: Band A fine – 3 years’ custody

Making or supplying articles for use in frauds Fraud Act 2006 (section 7)
Triable either way
Maximum: 10 years’ custody
Offence range: Band C fine – 7 years’ custody

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.

In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all individual offenders aged 18 and older who are sentenced on or after 1 October 2014, regardless of the date of the offence.*

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

“Every court –

must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and

must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.”

This guideline applies only to individual 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, Sentencing children and young people – overarching principles.

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 after the appropriate sentence has been identified.

*The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.

Step 1 - Determining the offence category

The court should determine the offence category with reference only to the factors in the tables below. In order to determine the category the court should assess culpability and harm.

Culpability

Where there are factors present from more than one category of culpability, the court should weigh those factors in order to decide which category most resembles the offender’s case.

A – High culpability

A leading role where offending is part of a group activity
Involvement of others through pressure, influence
Abuse of position of power or trust or responsibility
Sophisticated nature of offence/significant planning
Fraudulent activity conducted over sustained period of time
Articles deliberately designed to target victims on basis of vulnerability

B – Medium culpability

A significant role where offending is part of a group activity
Other cases that fall between categories A or C because:
- Factors are present in A and C which balance each other out and/or
- The offender’s culpability falls between the factors as described in A and C

C – Lesser culpability

Performed limited function under direction
Involved through coercion, intimidation or exploitation
Not motivated by personal gain
Opportunistic ‘one-off’ offence; very little or no planning
Limited awareness or understanding of extent of fraudulent activity

Harm

This guideline refers to preparatory offences where no substantive fraud has been committed. The level of harm is determined by weighing up all the factors of the case to determine the harm that would be caused if the article(s) were used to commit a substantive offence.

Greater harm

Large number of articles created/supplied/in possession
Article(s) have potential to facilitate fraudulent acts affecting large number of victims
Article(s) have potential to facilitate fraudulent acts involving significant sums
Use of third party identities
Offender making considerable gain as result of the offence

Lesser harm

All other offences

Step 2 - Starting point and category range

Having determined the category at step one, the court should use the corresponding starting point to reach a sentence within the category range in the table below. The starting point applies to all offenders irrespective of plea or previous convictions.

An adjustment from the starting point, upwards or downwards, may be necessary to reflect particular features of culpability and/or harm (for example, the presence of multiple factors within one category, the presence of factors from more than one category (where not already taken into account at step 1), or where a case falls close to a borderline between categories).

Table 1

Section 6 Fraud Act 2006: Possessing articles for use in fraud

Maximum: 5 years’ custody

	Culpability
Harm	A	B	C
Greater	Starting point 18 months’ custody	Starting point 36 weeks’ custody	Starting point High level community order
Greater	Category range 36 weeks’ custody – 3 years’ custody	Category range High level community order – 2 years’ custody	Category range Medium level community order– 26 weeks’ custody
Lesser	Starting point 26 weeks’ custody	Starting point Medium level community order	Starting point Band B fine
Lesser	Category range High level community order – 18 months’ custody	Category range Low level community order – 26 weeks’ custody	Category range Band A fine – Medium level community order

Table 2

Section 7 Fraud Act 2006: Making or adapting or supplying articles for use in fraud

Maximum: 10 years’ custody

	Culpability
Harm	A	B	C
Greater	Starting point 4 years 6 months’ custody	Starting point 2 years 6 months’ custody	Starting point 1 year’s custody
Greater	Category range 3 – 7 years’ custody	Category range 18 months’ – 5 years’ custody	Category range High level community order – 3 years’ custody
Lesser	Starting point 2 years’ custody	Starting point 36 weeks’ custody	Starting point Medium level community order
Lesser	Category range 26 weeks’ – 4 years’ custody	Category range Low level community order – 2 years’ custody	Category range Band C fine – 26 weeks’ custody

	Starting point	Range
Fine Band A	50% of relevant weekly income	25 – 75% of relevant weekly income
Fine Band B	100% of relevant weekly income	75 – 125% of relevant weekly income
Fine Band C	150% of relevant weekly income	125 – 175% of relevant weekly income
Fine Band D	250% of relevant weekly income	200 – 300% of relevant weekly income
Fine Band E	400% of relevant weekly income	300 – 500% of relevant weekly income
Fine Band F	600% of relevant weekly income	500 – 700% of relevant weekly income

The court should determine the appropriate level of fine in accordance with this guideline and section 125 of the Sentencing Code, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender.
Where possible, if a financial penalty is imposed, it should remove any economic benefit the offender has derived through the commission of the offence including:
- avoided costs;
- operating savings;
- any gain made as a direct result of the offence.
The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to comply with the law.
In considering economic benefit, the court should avoid double recovery.
Where the means of the offender are limited, priority should be given to compensation (where applicable) over payment of any other financial penalty.
Where it is not possible to calculate or estimate the economic benefit, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law.
When sentencing organisations the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with the law. The court should ensure that the effect of the fine (particularly if it will result in closure of the business) is proportionate to the gravity of the offence.
Obtaining financial information: It is for the offender to disclose to the court such data relevant to their financial position as will enable it to assess what they can reasonably afford to pay. If necessary, the court may compel the disclosure of an individual offender’s financial circumstances pursuant to section 35 of the Sentencing Code. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case. In setting a fine, the court may conclude that the offender is able to pay any fine imposed unless the offender has supplied financial information to the contrary.

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

A community order must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) is serious enough to warrant the making of such an order (section 204(2) of the Sentencing Code). There is no power to make a community order for a non-imprisonable offence (section 202(1)(b) of the Sentencing Code).

Even where the seriousness of the offence indicates that the threshold for a community order has been passed, sentencers must consider all available disposals at the time of sentence. A fine or discharge can achieve the purposes of sentencing (with, if relevant, any appropriate ancillary orders).
If the offender received a non-custodial disposal for a previous offence, the court should not necessarily move to a custodial sentence for the fresh offence.
Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions).
As set out in certain offence specific guidelines, where there is a sufficient prospect of rehabilitation, a community order with a specific requirement can be a proper alternative to a short or moderate length custodial sentence. Short or moderate sentences are not defined, and may exceed two years’ custody.

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

Pre-sentence reports (PSR)

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

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

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

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

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

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

Community orders

Community orders can fulfil all of the purposes of sentencing. They can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities.

If, in all the circumstances of the case, a fine can achieve the purposes of sentencing, it may be imposed as an alternative to a community order. See more information at section 5 of the Imposition guideline.

Community order levels

Any requirement/s imposed for the purpose of rehabilitation should be determined by and aligned with the offender’s needs. The court may benefit from the Probation Service’s assessment of the offender’s needs and suggestion of appropriate rehabilitative interventions.

The levels table below offers non-exhaustive examples of the ranges of requirements imposed for the purpose of punishment that might be appropriate in each level of community order.

Low	Medium	High
Offences only just cross the community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate.	Offences where the community order threshold has been passed but the custody threshold has not been passed.	Offences only just below the custody threshold, or where the custody threshold is crossed but a community order is more appropriate in the circumstances.
*When imposing for the purpose of punishment, non-exhaustive examples of suitable ranges for one requirement might include:**
40 – 80 hours of unpaid work Curfew of up to 16 hours in any day for up to 4 weeks** Exclusion requirement lasting in the region of a few months	80 – 150 hours of unpaid work Curfew of up to 16 hours in any day for up to 6 months** Exclusion requirement lasting in the region of 6 months	150 – 300 hours of unpaid work Curfew of up to 20 hours in any day for up to 24 months** Exclusion requirement lasting in the region of 12 months
If order does not contain a requirement for the purpose of punishment, suggested fine levels are indicated below:
BAND A FINE	BAND B FINE	BAND C FINE
* When imposing more than one requirement, the court should moderate the intensity, volume or length of the requirements to ensure they are not disproportionate to the level of the order. ** Maximum of 112 hours in any period of 7 days. The court may vary the number of hours on different days if appropriate according to the circumstances of the offender.

Requirements

Community orders must consist of one or more requirements.

The court must ensure that requirements imposed are the most suitable for the offender. See more information at section 7 of the Imposition guideline.

Any requirement can be imposed for the purpose of punishment depending on the individual offender, though normally rehabilitation activity requirements (RARs) and treatment requirements should not be. One requirement can fulfil multiple purposes of sentencing.

Any requirement(s) imposed for the purpose of rehabilitation should be determined by, and align with, the offender’s needs.

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)

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

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

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

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

Custodial sentences

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

Is it unavoidable that a custodial sentence be imposed?

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

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

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

Can the sentence be suspended?

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

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

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

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

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

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

Suspending a sentence

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

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

Requirements on a suspended sentence order

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

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

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

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

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

Consecutive sentences for multiple offences may be appropriate where large sums are involved.

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
Effective from: 01 October 2019

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

Section 64 of the Sentencing Code states:

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

Other aggravating factors

Effective from: 01 October 2019

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

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

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

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

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

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

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

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

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- This factor should increase the sentence only where there is clear evidence of wider harm not already taken into account elsewhere. A community impact statement will assist the court in assessing the level of impact.
- For issues of prevalence see the separate guidance below:
Prevalence
- Sentencing levels in offence specific guidelines take account of collective social harm. Accordingly offenders should normally be sentenced by straightforward application of the guidelines without aggravation for the fact that their activity contributed to a harmful social effect upon a neighbourhood or community.
- It is not open to a sentencer to increase a sentence for prevalence in ordinary circumstances or in response to a personal view that there is 'too much of this sort of thing going on in this area'.
- First, there must be evidence provided to the court by a responsible body or by a senior police officer.
- Secondly, that evidence must be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations about that material can be made.
- Even if such material is provided, a sentencer will only be entitled to treat prevalence as an aggravating factor if satisfied
  - that the level of harm caused in a particular locality is significantly higher than that caused elsewhere (and thus already inherent in the guideline levels);
  - that the circumstances can properly be described as exceptional; and
  - that it is just and proportionate to increase the sentence for such a factor in the particular case being sentenced.
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- Commission of an offence while subject to a relevant court order makes the offence more serious.
- The extent to which the offender has complied with the conditions of an order (including the time that has elapsed since its commencement) will be a relevant consideration.
- Where the offender is dealt with separately for a breach of an order regard should be had to totality
- Care should be taken to avoid double counting matters taken into account when considering previous convictions.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
Effective from: 01 October 2019

Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
- The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
- Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality.
- Care should be taken to avoid double counting matters taken into account when considering previous convictions.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
Effective from: 01 October 2019

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

Taken from the Offences Taken into Consideration Definitive Guideline: General principles When sentencing an offender who requests offences to be taken into consideration (TICs), courts should pass a total sentence which reflects all the offending behaviour. The sentence must be just and proportionate and must not exceed the statutory maximum for the conviction offence. Offences to be Taken into Consideration The court has discretion as to whether or not to take TICs into account. In exercising its discretion the court should take into account that TICs are capable of reflecting the offender's overall criminality. The court is likely to consider that the fact that the offender has assisted the police (particularly if the offences would not otherwise have been detected) and avoided the need for further proceedings demonstrates a genuine determination by the offender to ‘wipe the slate clean’. It is generally undesirable for TICs to be accepted in the following circumstances:
- where the TIC is likely to attract a greater sentence than the conviction offence;
- where it is in the public interest that the TIC should be the subject of a separate charge;
- where the offender would avoid a prohibition, ancillary order or similar consequence which it would have been desirable to impose on conviction. For example:
  - where the TIC attracts mandatory disqualification or endorsement and the offence(s) for which the defendant is to be sentenced do not;
- where the TIC constitutes a breach of an earlier sentence;
- where the TIC is a specified offence for the purposes of section 306 of the Sentencing Code, but the conviction offence is non-specified; or
- where the TIC is not founded on the same facts or evidence or part of a series of offences of the same or similar character (unless the court is satisfied that it is in the interests of justice to do so).
Jurisdiction The magistrates' court cannot take into consideration an indictable only offence. The Crown Court can take into account summary only offences provided the TICs are founded on the same facts or evidence as the indictable charge, or are part of a series of offences of the same or similar character as the indictable conviction offence Procedural safeguards A court should generally only take offences into consideration if the following procedural provisions have been satisfied:
- the police or prosecuting authorities have prepared a schedule of offences (TIC schedule) that they consider suitable to be taken into consideration. The TIC schedule should set out the nature of each offence, the date of the offence(s), relevant detail about the offence(s) (including, for example, monetary values of items) and any other brief details that the court should be aware of;
- a copy of the TIC schedule must be provided to the defendant and his representative (if he has one) before the sentence hearing. The defendant should sign the TIC schedule to provisionally admit the offences;
- at the sentence hearing, the court should ask the defendant in open court whether he admits each of the offences on the TIC schedule and whether he wishes to have them taken into consideration;
- if there is any doubt about the admission of a particular offence, it should not be accepted as a TIC. Special care should be taken with vulnerable and/or unrepresented defendants;
- if the defendant is committed to the Crown Court for sentence, this procedure must take place again at the Crown Court even if the defendant has agreed to the schedule in the magistrates' court.
Application The sentence imposed on an offender should, in most circumstances, be increased to reflect the fact that other offences have been taken into consideration. The court should:
1. Determine the sentencing starting point for the conviction offence, referring to the relevant definitive sentencing guidelines. No regard should be had to the presence of TICs at this stage.
2. Consider whether there are any aggravating or mitigating factors that justify an upward or downward adjustment from the starting point.
The presence of TlCs should generally be treated as an aggravating feature that justifies an adjustment from the starting point. Where there is a large number of TICs, it may be appropriate to move outside the category range, although this must be considered in the context of the case and subject to the principle of totality. The court is limited to the statutory maximum for the conviction offence.
1. Continue through the sentencing process including:
- consider whether the frank admission of a number of offences is an indication of a defendant's remorse or determination and/ or demonstration of steps taken to address addiction or offending behaviour;
- any reduction for a guilty plea should be applied to the overall sentence;
- the principle of totality;
- when considering ancillary orders these can be considered in relation to any or all of the TICs, specifically:
  - compensation orders;
  - restitution orders
Effective from: 01 October 2019

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

Where an offender has had the benefit of warnings or advice about their conduct but has failed to heed it, this would make the offender more blameworthy.

This may particularly be the case when:
- such warning(s) or advice were of an official nature or from a professional source and/or
- the warning(s) were made at the time of or shortly before the commission of the offence.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
Offences committed across borders
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.

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.
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.
Little or no prospect of success
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

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

Where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, the court may take this into account by reducing the sentence if this has had a detrimental effect on the offender.

Note: No fault should attach to an offender for not admitting an offence and/or putting the prosecution to proof of its case.
Effective from: 01 October 2020

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

Refer to the Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline.

Note in particular paragraph 5 for Black, Asian and Minority Ethnic offenders.
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 October 2019

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

Assisting or cooperating with the investigation and /or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction).
Effective from: 01 October 2019 (revised 1 April 2024)

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

Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify a reduction in sentence. This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.

Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify the imposition of a sentence that focusses on rehabilitation.
Effective from: 01 October 2019

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

Where the offending arose from an activity which was originally legitimate, but became unlawful (for example because of a change in the offender’s circumstances or a change in regulations), this may indicate lower culpability and thereby a reduction in sentence.

This factor will not apply where the offender has used a legitimate activity to mask a criminal activity.
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.
Effective from: 01 April 2024

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

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

Where an offender is in, or has a realistic prospect of starting, work, education or training this may indicate a willingness to rehabilitate and desist from future offending.

Similarly, the loss of employment, education or training opportunities may have a negative impact on the likelihood of an offender being rehabilitated or desisting from future offending.

The absence of work, training or education should never be treated as an aggravating factor.

The court may ask for evidence of employment, training etc or the prospects of such, but should bear in mind any reasonable practical difficulties an offender may have in providing this.

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

Step 3 - Consider any factors which indicate a reduction, such as assistance to the prosecution

The court should take into account section 74 of the Sentencing Code (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 4 - 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.

Step 5 - 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. See Totality guideline.

Step 6 - Confiscation, compensation and ancillary orders

May be made by:	A magistrates’ court or the Crown Court
Relevant legislation	Chapter 2 of Part 7 of the Sentencing Code
Availability	1. The court must consider making a compensation order in any case where personal injury, loss or damage has resulted from the offence. It can either be an ancillary order, or, a sentence in its own right (which does not attract a surcharge). The court must give reasons if it decides not to order compensation (Sentencing Code, s.55). 2. There is no statutory limit on the amount of compensation that may be imposed in respect of offences for an offender aged 18 or over. Compensation may also be ordered in respect of offences taken into consideration (Sentencing Code, s.139). 3. If there are multiple victims who are to receive compensation, a separate compensation order must be made in relation to each offence. Where there are multiple offences against the same victim, one order for compensation can be made and attached to the most serious of those offences. The duty to give reasons also applies where compensation is awarded in respect of some offences but not all. 4. Where the personal injury, loss or damage arises from a road accident, a compensation order may be made only if there is a conviction for an offence under the Theft Act 1968, or the offender is uninsured and the Motor Insurers’ Bureau will not cover the loss (Sentencing Code s. 136). Compensation can include loss of all or part of a victim’s no claims bonus.
Considerations	5. Subject to consideration of the victim’s views (see paragraph 7 below), the court must order compensation wherever possible and should not have regard to the availability of other sources such as civil litigation or the Criminal Injuries Compensation Scheme. Any amount paid by an offender under a compensation order will generally be deducted from a subsequent civil award or payment under the Scheme to avoid double compensation. Victims who suffer minor injuries will usually not be eligible to claim under the Criminal Injuries Compensation Scheme. It is therefore of greater importance that appropriate applications for compensation are made during criminal sentencing exercises. A guide to suggested amounts for specific injuries commonly seen in magistrates’ courts is provided below. 6. Compensation may be ordered for such amount as the court considers appropriate having regard to any evidence and any representations made by the offender or prosecutor. The court must also take into account the offender’s means (see also paragraphs 10 -12 below). 7. Compensation should benefit, not inflict further harm on, the victim. Any financial recompense from the offender may cause distress. A victim may or may not want compensation from the offender and assumptions should not be made either way. The victim’s views are properly obtained through sensitive discussion by the police or witness care unit, when it can be explained that the offender’s ability to pay will ultimately determine whether, and how much, compensation is ordered and whether the compensation will be paid in one lump sum or by instalments. If the victim does not want compensation, this should be made known to the court and respected. 8. In cases where it is difficult to ascertain the full amount of the loss suffered by the victim, consideration should be given to making a compensation order for an amount representing the agreed or likely loss. Where relevant information is not immediately available, it may be appropriate to grant an adjournment if it would enable it to be obtained. However, compensation orders are for straightforward cases and a court should not embark on a detailed inquiry as to the extent of any injury, loss or damage – that is better left to civil proceedings, but the making of a compensation order does not preclude a victim from making a civil claim at a later date, subject to the Limitation Act 1980. 9. The court should consider two types of loss: financial loss sustained as a result of the offence such as the cost of repairing damage or, in case of injury, any loss of earnings or medical expenses; pain and suffering caused (whether physical or psychological) and any interference with day to day activities. This should be assessed in light of all factors that appear to the court to be relevant, including any medical evidence, the victim’s age and personal circumstances. 10. Once the court has formed a preliminary view of the appropriate level of compensation, it must have regard to the means of the offender so far as they are known. Where the offender has little money, the order may have to be scaled down or additional time allowed to pay; the court may allow compensation to be paid over a period of up to three years in appropriate cases.
Combining compensation with a custodial sentence	11. The fact that a custodial sentence is imposed does not, in itself, make it inappropriate to order compensation; however, it may be relevant to whether the offender has the means to satisfy the order. Magistrates should consult their legal adviser in any case where they are considering combining compensation with a custodial sentence.
Effect on other financial orders	12. Where the court considers that it would be appropriate to impose a fine and a compensation order but the offender has insufficient means to pay both, priority should be given to compensation. Compensation also takes priority over the surcharge where the offender’s means are an issue.
Collection order	13. The court must make an order (“a collection order”) relating to the payment of the sum due, unless it appears to the court that it is impracticable or inappropriate to make the order. The collection order must state: (a) the amount of the sum due, including the amount of any fine, compensation order or other sum (b) whether the court considers the offender to be an existing defaulter and if so whether the existing default (or defaults) can be disregarded (c) whether the court has made an attachment of earnings order or an application for benefit deductions (d) if the court has not made an attachment of earnings order or application for benefit deductions, the payment terms (e) if an attachment of earnings order or application for benefit deductions has been made, the reserve terms (in other words, the payment terms that will apply if the AEO or ABD fails). It will often be appropriate to set a reserve term of payment in full within 14 days. Schedule 5 to the Courts Act 2003
Consequences of non-payment	14. Failure to pay a compensation order is a criminal matter and carries a penal sanction.
Crown Court only	15. No sentence in default can be imposed unless the compensation order is for £20,000 or more, in which case it is enforceable as a fine of such an amount.

Note:

The guidance provided here is only a very brief overview of confiscation orders

May be made by:

The Crown Court (see below for magistrates’ powers of committal)

Relevant legislation

Part 2 of the Proceeds of Crime Act 2002

Availability

1. Confiscation orders under the Proceeds of Crime Act 2002 may only be made by the Crown Court. The order is not a sentence in its own right, it may only be made in addition to a sentence. The Crown Court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the Crown Court believes it is appropriate for it to do so. See section 6 of POCA.

2. Where, following conviction in a magistrates’ court, the prosecutor applies for the offender to be committed to the Crown Court with a view to a confiscation order being considered, the magistrates’ court must commit the offender to the Crown Court to be sentenced there (section 70 POCA).

3. Where, but for the prosecutor’s application under s.70, the magistrates’ court would have committed the offender for sentence to the Crown Court anyway it must say so. Otherwise, the powers of sentence of the Crown Court will be limited to those of the magistrates’ court.

4. If postponing confiscation, the court must adjourn all other financial orders, including compensation, costs and a fine (see section 15 of POCA). Confiscation must be dealt with before, and taken into account when assessing, any other fine or financial order (except compensation and trafficking reparation order (STRO) or unlawful profit order (UPO)). If the court makes both a confiscation order and an order for compensation (or STRO or UPO) and the court believes the offender will not have sufficient means to satisfy both orders in full, the court must direct that the compensation be paid out of sums recovered under the confiscation order. (See section 13 of POCA)

Considerations

5. Although often the parties agree some or all of the figures in such cases, ultimately it is for the Judge to make a proportionate order following his/her assessment of the facts.

6. Where an order is made following an agreement by the parties this should be recorded in the order and it is prudent to ensure that the offender signs the schedule of available or realisable assets. Where an order is made after a contested hearing, it will follow the court’s findings of fact.

Payment

7. The full amount ordered to be paid under a confiscation order must be paid on the day on which the order is made unless the court is satisfied that the offender is unable to pay the full amount on that day in which case the court may make an order requiring whatever cannot be paid on that day to be paid in a specified period, or specified periods each of which relates to a specified amount. Any specified period must not exceed three months from the date of the order. If within any specified period D applies to the court for that period to be extended the court may, on being satisfied that D has made all reasonable efforts to comply, make an order extending the period for up to six months from the date of the order.

Sentences in default

Amount	Period
£10,000 or less	6 months
More than £10,000 but no more than £500,000	5 years
More than £500,000 but no more than £1,000,000	7 years
More than £1,000,000	14 years

May be made by	The Crown Court
Relevant legislation	Serious Crime Act 2007, part 1 (section 19 - 21)
Availability	Can be made by the Crown Court if the offender has: been convicted of a serious offence and there are reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. A serious offence is one which is specified in Part 1 of Schedule 1 or is one which the court considers to be sufficiently serious to be treated for the purposes of the application as if it were so specified.
Content of the order	An order may contain prohibitions, restrictions or requirements and any other terms that the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the offender in serious crime in England and Wales. The SCPO can contain prohibitions, restrictions or requirements. For example the SCPO may include: Prohibitions, restrictions, or requirements in relation to: an individual's financial, property or business dealings or holdings an individual's working arrangements the means by which an individual communicates or associates with others, or the persons with whom the individual communicates or associates the premises to which an individual has access the use of any premises or item by an individual an individual's travel (whether within the United Kingdom, between the United Kingdom and other places or otherwise) Requirement(s) to answer questions, or provide information, specified or described in an order: at a time, within a period or at a frequency at a place in a form and manner, and to a law enforcement officer or description of law enforcement officer notified to the person by a law enforcement officer specified or described in the order Requirement(s) to produce documents specified or described in an order: at a time, within a period or at a frequency at a place in a manner, and to a law enforcement officer or description of law enforcement officer notified to the person by a law enforcement officer specified or described in the order. The order may include prohibitions, restrictions or requirements in relation to an individual's private dwelling (such as where an individual may reside).
Length of the order	The order must specify when it comes into force and when it will end. The order cannot exceed 5 years. The order may specify different times for different provisions but must be clear about when each starts and ends.
Effect on earlier orders	Where an offender is already the subject of a serious crime prevention order that existing order must be discharged.
Powers of Crown Court to vary orders on conviction	Where the Crown Court is dealing with a person who has been convicted of having committed a serious offence in England and Wales and is the subject of a SCPO: · The Court may, in addition to dealing with the person in relation to the offence, vary the order if the court has reasonable grounds to believe that the terms of the order as varied, would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. Such a variation may only be made on an application by the relevant applicant authority. A variation can only be made in addition to a sentence imposed in respect of the offence concerned (including conditional discharge). A variation may include an extension of the period during which the order, or any provision of it, is in force)
Consequences of breach	Breach of a SCPO is a criminal offence, maximum penalty five years’ custody.

Step 7 - Reasons

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

Step 8 - 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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