Triable only on indictment
Maximum: Life imprisonment
Offence range: 3 years’ custody – Life Imprisonment (minimum term 40 years)
This is a Schedule 19 offences 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.
This is an offence listed in Schedule 13 for the purposes of sections 265 and 278 (required special sentence for certain offenders of particular concern) of the Sentencing Code.
For offences committed on or after 29 June 2021, this is a serious terrorism offence listed in Part 2 of Schedule 17A for the purposes of sections 268B and 282B (serious terrorism sentence), section 323 (minimum term order: other life sentences), and section 268(4)(b)(iii) and 281(4)(b)(iii) (increase in extension period for serious terrorism offenders) of the Sentencing Code.
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. The guidelines apply to all offenders aged 18 and older, who are sentenced on or after 27 April 2018, regardless of the date of the offence.*
must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice to do so.”
This guideline applies only to offenders aged 18 and older. General principles to be considered in the sentencing of children and young people are in the Sentencing Council definitive guideline, 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 in the decision making process, 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 listed in the tables below. In order to determine the category the court should assess culpability and harm.
Notes for culpability and harm
In some cases, law enforcement authorities or intelligence organisations (LEA) may be involved, either posing as terrorists jointly involved in the preparations for terrorist activity, or in keeping the offender under surveillance. Their involvement is likely to ensure that the terrorist activity could never be successfully completed. In such cases, the court should approach the assessment of the offender’s culpability and harm as follows:
Culpability
Where an undercover LEA is involved in the preparations for the terrorist activity, the culpability of the offender is not affected by the LEA’s involvement. Culpability is to be assessed as if the LEA was a genuine conspirator.
Where the LEA is surveilling the offender and prevents the offender from proceeding further, this should be treated as apprehension of the offender.
Harm
In any case that involves LEA, the court should identify the category of harm on the basis of the harm that the offender intended and the viability of the plan (disregarding the involvement of the LEA), and then apply a downward adjustment at step two.
The extent of this adjustment will be specific to the facts of the case. In cases where, but for the fact that a co-conspirator was an LEA or the offender was under surveillance, the offender would have carried out the intended terrorist act, a small reduction within the category range will usually be appropriate.
Where, for instance, an offender voluntarily desisted at an early stage a larger reduction is likely to be appropriate, potentially going outside the category range.
In either instance, it may be that a more severe sentence is imposed where very serious terrorist activity was intended but did not take place than would be imposed where relatively less serious terrorist activity did take place.
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
Acting alone, or in a leading role, in terrorist activity where preparations were complete or were so close to completion that, but for apprehension, the activity was very likely to have been carried out
B
Acting alone, or in a leading role, in terrorist activity where preparations were advanced and, but for apprehension, the activity was likely to have been carried out
Significant role in terrorist activity where preparations were complete or were so close to completion that, but for apprehension, the activity was very likely to have been carried out
Offender has coordinated others to take part in terrorist activity, whether in the UK or abroad (where not falling within A)
C
Leading role in terrorist activity where preparations were not far advanced
Significant role in terrorist activity where preparations were advanced and, but for apprehension, the activity was likely to have been carried out
Lesser role in terrorist activity where preparations were complete or were so close to completion that, but for apprehension, the activity was very likely to have been carried out
Offender acquires training or skills for purpose of terrorist activity (where not falling within A or B)
Acts of significant assistance or encouragement of other(s) (where not falling within A or B)
D
Offender has engaged in very limited preparation for terrorist activity
Act(s) of lesser assistance or encouragement of other(s)
Other cases not falling within A, B or C
Harm
Harm is assessed based on the type of harm risked and the likelihood of that harm being caused. When considering the likelihood of harm, the court should consider the viability of any plan.
See the notes for culpability and harm at the start of this section before proceeding
Where there are factors present from more than one category of harm, the court should weigh those factors in order to decide which category most resembles the offender’s case.
Category 1
Multiple deaths risked and very likely to be caused
Category 2
Multiple deaths risked but not very likely to be caused
Any death risked and very likely to be caused
Category 3
Any death risked but not very likely to be caused
Risk of widespread or serious damage to property or economic interests
Risk of a substantial impact upon civic infrastructure
Any other cases
Step two - 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).
Offenders committing the most serious offences are likely to be found dangerous and so the table below includes options for life sentences. However, the court should consider the dangerousness provisions in all cases, having regard to the criteria contained in section 308 of the Sentencing Code to make the appropriate determination. (See Step 6 below).
The court must also consider the provisions set out in s323(3) of the Sentencing Code (minimum term order for serious terrorism offenders). (See Step 3 below).
Where the dangerousness provisions are met but a life sentence is not justified, the court should consider whether the provisions for the imposition of a serious terrorism sentence have been met, having regard to the criteria contained in s268B (adult offenders aged under 21) or s282B (offenders aged 21 and over) of the Sentencing Code. If the criteria are met, a minimum custodial sentence of 14 years applies. (see Step 3 below).
Where the dangerousness provisions are not met the court must consider the provisions set out in sections 265 and 278 of the Sentencing Code (required special sentence for certain offenders of particular concern). (See Step 7 below).
Culpability
Harm
A
B
C
D
Category 1
Starting point
Life imprisonment – minimum term 35 years' custody
Starting point
Life imprisonment – minimum term 25 years' custody
Starting point Life imprisonment – minimum term 15 years' custody
Starting point
15 years’ custody
Category range Life imprisonment – minimum term 30 – 40 years' custody
Category range Life imprisonment – minimum term 20 – 30 years' custody
Category range Life imprisonment – minimum term 10 – 20 years' custody
Category range 10 – 20 years' custody*
Category 2
Starting point
Life imprisonment – minimum term 25 years' custody
Starting point
Life imprisonment – minimum term 15 years' custody
Starting point 15 years’ custody
Starting point
8 years’ custody
Category range Life imprisonment – minimum term 20 – 30 years' custody
Category range Life imprisonment – minimum term 10 – 20 years' custody
The Imposition of community and custodial sentences guideline outlines the general approach to sentencing and provides guidance on how sentencers should address specific issues that may arise when they consider the most appropriate sentence.
A custodial sentence must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (section 230(2) of the Sentencing Code).
Even where the seriousness of the offence indicates that the threshold for a custodial order has been passed, a custodial sentence should not be imposed if in all the circumstances of the case it is appropriate to impose a community order, for example, if a community order achieves the purposes of sentencing.
Custody should not be imposed on an offender who is pregnant or within the postnatal period (within 12 months after giving birth) where the impact on the offender or dependants, including unborn children, would make a custodial sentence disproportionate to achieving the purposes of sentencing.
See further information on previous convictions in section 2 of the Imposition guideline.
Pre-sentence reports (PSR)
When considering a community or custodial sentence, the court must request and consider a pre-sentence report (PSR) before forming an opinion of the sentence, unless it considers that it is unnecessary (section 30 of the Sentencing Code). A pre-sentence report may also be requested by a defence legal representative as part of the before-plea protocol.
A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.
PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.
A pre-sentence report may be unnecessary if the court considers that it has enough information about the offence and the offender.
See more information on pre-sentence reports at section 3 of the Imposition guideline.
Magistrates: Consult your legal adviser before deciding to sentence to a community order or custodial sentence without a pre-sentence report.
Section 4 of the Imposition guideline contains important information on the suitability and effectiveness of a sentence.
Custodial sentences
If the custodial threshold has been passed the court should ask the following three questions in the following order:
Is it unavoidable that a custodial sentence be imposed?
A custodial sentence (whether immediate or suspended) must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (s.230(2) Sentencing Act 2020).
Passing the custody threshold does not mean that a custodial sentence (whether immediate or suspended) is inevitable. Custody should not be imposed where the purposes of sentencing could be achieved by a community order or where circumstances exist which may make a custodial sentence disproportionate to achieving the purposes of sentencing (for example, where there would be an impact on dependants, including on unborn children where the offender is pregnant.)
Community orders are often punitive and last longer than shorter custodial sentences. Community orders can restrict an offender’s day to day liberties, especially when imposed on an offender who may find regular attendance at a specific place or time challenging. Breach can result in custody.
If the purposes of sentencing can be achieved by a community order, or any personal mitigation means that a community order may be a more suitable sentence, see the Community orders dropdown above.
What is the shortest term commensurate with the seriousness of the offence?
If the court is considering an immediate custodial sentence of up to 12 months, it should take into account that research suggests that custodial sentences of up to 12 months are less effective than other disposals at reducing reoffending and can lead to negative outcomes. Any custodial sentence may disrupt factors which can discourage further offending, such as employment, education or accommodation, and may affect support networks by interfering with relationships with friends and family.
While courts are encouraged to consider a community order in lieu of a custodial sentence where appropriate, there will be cases where a short custodial sentence is unavoidable.
In considering the shortest term, the court must NOT consider any licence or post sentence supervision requirements or any other administrative or statutory consequences of the potential sentence imposed.
Can the sentence be suspended?
Cases where the offender was convicted before 22 March 2026 If the shortest term commensurate with the seriousness of the offence is 2 years or less, the court should consider whether it is appropriate to suspend that sentence so that the offender serves their sentence in the community under the supervision of the Probation Service.
Cases where the offender was convicted on or after 22 March 2026 If the shortest term commensurate with the seriousness of the offending is 12 months or less, the court must suspend the sentence under the statutory presumption of suspension, unless any of the following apply:
The offender is in custody (whether serving a sentence, on remand for another offence, or detained under a hospital order)
The offender is being resentenced for breaching a community or suspended sentence order
The offence was committed while the offender was subject to a community or suspended sentence order
Committing the offence, or an associated offence, was a breach of a court order or was closely connected with a breach of a court order (whether or not that breach was a criminal offence)
There is significant risk of physical or psychological harm to an individual
Exceptional circumstances relate to the offence or the offender which justify not suspending the sentence
If the sentence is not to be suspended applying the presumption OR if the shortest term commensurate with the seriousness of the offending is more than 12 months and no more than 3 years, the court should consider whether it is appropriate to suspend that sentence so that the offender serves their sentence in the community under the supervision of the Probation Service.
The court should weigh the relevant factors below to consider whether it is possible to suspend the sentence:
Factors indicating that it may be appropriate to suspend a custodial sentence
Factors indicating that it may not be appropriate to suspend a custodial sentence
Realistic prospect of rehabilitation in the community
Offender does not present high risk of reoffending or harm
Strong personal mitigation
Immediate custody will result in significant harmful impact upon others, including any dependent children or where the offender is pregnant or postnatal (has given birth in the previous 12 months)
Offender presents a risk to any person
The seriousness of the offence means that appropriate punishment can only be achieved by immediate custody
History of poor compliance with court orders AND unlikely to comply in the future
Suspending a sentence
If the offender reoffends during the operational period or fails to comply with any requirements during the supervision period of the suspended sentence order, the custodial term will be activated and the offender will be required to serve some or all of the sentence in custody, unless it is unjust to do so, as set out in the Breach of suspended sentence orders guideline).
A suspended sentence is a custodial sentence. A suspended sentence MUST NOT be imposed as a more severe form of community order. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence, such as a community order, should be imposed.
In weighing any of the following non-exhaustive factors indicating whether to suspend a custodial sentence, the court will usually benefit from Probation’s assessment of any relevant circumstances (such as dependants) and whether the offender can be safely managed in the community (including safeguarding of the victim/s and/or public).
A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately. See more information on the operational and supervision periods in section 9 of the Imposition guideline.
Requirements on a suspended sentence order
When the court imposes a suspended sentence order, it may impose one or more requirements on the order for the offender to undertake in the community (section 286(2) of the Sentencing Code).
A suspended sentence order is a custodial sentence; as such, the imposition of a suspended sentence order is itself a punishment, with or without requirements. Any requirements that are imposed as part of a suspended sentence order are, therefore, more likely to be predominantly rehabilitative in purpose. The court should moderate the intensity, volume or length of any requirement imposed for the purpose of additional punishment so it is not disproportionate to the seriousness of the offending.
The requirements that may be imposed on a suspended sentence order are identical to those for community orders. The court must follow the guidance in section 7 of the Imposition guideline, including ensuring that any requirements imposed are the most suitable for the offender, realistic to fulfil, and where multiple requirements are imposed, they are compatible with each other and not excessive.
To ensure that the requirements of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. The court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.
The tables below contain a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in a further upward or downward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.
Factors increasing seriousness
Statutory aggravating factors
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
Guidance on the use of previous convictions
The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:
(1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions.
(2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to— (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.
(3) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated.
Previous convictions are considered at step two in the Council’s offence-specific guidelines.
The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
Previous convictions are normally ofrelevance to the current offence when they are of a similar type.
Previous convictions of a type different from the current offence may be of relevance where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are of less relevance to the offender’s culpability for the current offence and less likely to be predictive of future offending.
Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
In considering the seriousness of any offence committed while the offender was on bail, the court must - (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.
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 thecourt 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.
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.
(When considering this factor, sentencers should bear in mind the statutory definition of terrorism in section 1 of the Terrorism Act 2000, and should be careful to avoid double counting)
Other aggravating factors
Recent and/or repeated possession or accessing of extremist material
Communication with other extremists
Deliberate use of encrypted communications or similar technologies to facilitate the commission of the offence and/or avoid or impede detection
Offender attempted to disguise their identity to prevent detection
Indoctrinated or encouraged others
Preparation was with a view to engage in combat with UK armed forces
Conduct in preparation includes the actual or planned commission of other offences, where not taken into account in Step 1
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.
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
Offences committed in custody are more serious because they undermine the fundamental need for control and order which is necessary for the running of prisons and maintaining safety.
Generally the sentence for the new offence will be consecutive to the sentence being served as it will have arisen out of an unrelated incident. The court must have regard to the totality of the offender’s criminality when passing the second sentence, to ensure that the total sentence to be served is just and proportionate. Refer to the Totality guideline for detailed guidance.
Care should be taken to avoid double counting matters taken into account when considering previous convictions.
Factors reducing seriousness or reflecting personal mitigation
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it.
Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). In general the more serious the previous offending the longer it will retain relevance.
Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Evidence that an offender has demonstrated a positive side to their character may reduce the sentence.
This factor may apply whether or not the offender has previous convictions.
However:
This factor is less likely to be relevant where the offending is very serious
Where an offender has used their positive character or status to facilitate or conceal the offending it could be treated as an aggravating factor.
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 this applies it will reduce the culpability of the offender.
This factor may be of particular relevance where the offender has been the victim of domestic abuse, trafficking or modern slavery, but may also apply in other contexts.
Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation which the offender may find difficult to articulate.
This factor may indicate that the offender is vulnerable and would find it more difficult to cope with custody or to complete a community order.
Clear evidence of a change of mind set prior to arrest
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
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
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
For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.
For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.
When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.
The court should ensure that it has all relevant information about dependent children before deciding on sentence.
When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.
Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 119 to 125)
Effective from: 01 April 2024
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
When considering a custodial or community sentence for a pregnant or postnatal offender (someone who has given birth in the previous 12 months) the court should ensure it has all the necessary information before sentencing and adjourn the sentencing if necessary.
When sentencing a pregnant or postnatal woman, relevant considerations may include:
the medical needs of the offender including her mental health needs
any effect of the sentence on the physical and mental health of the offender
any effect of the sentence on the child
The impact of custody on an offender who is pregnant or postnatal can be harmful for both the offender and the child including by separation, especially in the first two years of life.
Access to a place in a prison Mother & Baby Unit is not automatic and when available, the court may wish to enquire for how long the place will be available.
Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and the child. The NHS classifies all pregnancies in prison as high risk.
There may be difficulties accessing medical assistance or specialist maternity services in custody.
For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
Where immediate custody is unavoidable, all of the factors above may be relevant to the length of the sentence.
The court should address the issues above when giving reasons for the sentence.
Effective from: 01 April 2024
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
The court should consider whether there are factors in the offender’s background or current personal circumstances which may be relevant to sentencing. Such factors may be relevant to:
the offender’s responsibility for the offence and/or
the effect of the sentence on the offender.
Courts should consider that different groups within the criminal justice system have faced multiple disadvantages which may have a bearing on their offending. Such disadvantages include but are not limited to:
experience of discrimination
negative experiences of authority
early experience of loss, neglect or abuse
early experience of offending by family members
being care experienced or a care leaver
negative influences from peers
difficulties relating to the misuse of drugs and/or alcohol (but note: being voluntarily intoxicated at the time of the offence is an aggravating factor)
For serious terrorism cases the life sentence minimum term must be at least 14 years (section 323(3) of the Sentencing Code) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify a lesser period.
A “serious terrorism case” is a case where, but for the fact that the court passes a life sentence, the court would be required by section 268B(2) or 282B(2) of the Sentencing Code to impose a serious terrorism sentence.
The minimum term cannot be reduced below 80 per cent of 14 years for a guilty plea (see Step 5 – Reduction for guilty pleas).
Where the criteria for a serious terrorism sentence are met, as set out in s268B (adult offenders aged under 21) or s282B (offenders aged 21 and over) of the Sentencing Code, then the court must impose the serious terrorism sentence unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify not doing so.
Where a serious terrorism sentence is imposed, the appropriate custodial term is a minimum of 14 years’ custody and an extension period to be served on licence of at least 7 and no more than 25 years. (Sections 268C and 282C of the Sentencing Code). Where a serious terrorism sentence is imposed, the custodial term cannot be reduced below 80 per cent of 14 years for a guilty plea (see Step 5 – Reduction for guilty pleas).
Exceptional circumstances
In considering whether there are exceptional circumstances that would justify not imposing the minimum term (in the case of a life sentence), or not imposing the serious terrorism sentence where the other tests are met, the court must have regard to:
the particular circumstances of the offence and
the particular circumstances of the offender.
either of which may give rise to exceptional circumstances
Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.
It is for the offender to establish that the exceptional circumstances exist.
Where the issue of exceptional circumstances has been raised the court should give a clear explanation as to why those circumstances have or have not been found.
Principles
The circumstances must truly be exceptional. Circumstances are exceptional if the imposition of the minimum term (in the case of a life sentence), or imposing the serious terrorism sentence would result in an arbitrary and disproportionate sentence.
It is important that courts adhere to the statutory requirement and do not too readily accept exceptional circumstances.
The court should look at all of the circumstances of the case taken together. A single striking factor may amount to exceptional circumstances, or it may be the collective impact of all of the relevant circumstances.
The mere presence of one or more of the following should not in itself be regarded as exceptional:
One or more lower culpability factors
One or more mitigating factors
A plea of guilty
Where exceptional circumstances are found
If there are exceptional circumstances that justify not imposing the minimum term (in the case of a life sentence) then the court must impose a shorter minimum.
If there are exceptional circumstances that justify not imposing a serious terrorism sentence, then the court must impose an alternative sentence.
Note: a guilty plea reduction applies in the normal way if a serious terrorism sentence is not imposed (see Step 5 – Reduction for guilty pleas).
Step 4 - Consider any factors which indicate a reduction, such as assistance to the prosecution
The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Case law has established that there are no inflexible rules as to the method by which any reduction should be assessed nor the amount of the reduction. It will be a fact specific decision in each case. The rationale for making a reduction is the same whether the statutory procedure or the common law “text” procedure has been engaged. In principle, there is no reason to distinguish between the two procedures in terms of the extent of the reduction which is made. See also the relevant Criminal Procedure Rules: CPR 28.11 (statutory procedure) CPR 28.12 (text procedure).
The following sequence of matters for a sentencing court to consider reflects case law:
The court should assess the seriousness of the offences being sentenced following any relevant sentencing guidelines.
The court should then consider the quality and quantity of the material provided by the offender in the investigation and subsequent prosecution of crime. The court should take into account the period of time over which the information was provided and the seriousness of the offending to which it relates. Particular value should be attached to those cases where the offender provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, especially where the information either produces convictions for the most serious offences, or prevents them, or which leads to disruption of major criminal networks. In cases where it is too early to say what impact the information will have, the Court should take into account the potential value of the information provided.
This consideration should be made in the context of the nature and extent of the personal risks to, and potential consequences faced by, the offender and members of the offender’s family.
A guilty plea is not an essential prerequisite of the making of a reduction for information and assistance provided, but contesting guilt may be one of the factors relevant to the extent of the reduction made for that assistance. The extent to which an offender has been prepared to admit the full extent of their criminality is relevant to the level of the reduction.
Any reduction for a guilty plea is separate from and additional to the appropriate reduction for assistance provided by the offender. The reduction for the assistance provided by the offender should be assessed first to arrive at a notional sentence and any guilty plea reduction applied to that notional sentence.
A mathematical approach to determining the level of reduction for assistance to the authorities is liable to produce an inappropriate answer – the totality principle is fundamental.
Where the statutory procedure applies, the court should take into account that this requires offenders to reveal the whole of their previous criminal activities which will often entail pleading guilty to offences which the offender would never otherwise have faced.
An informer can generally only expect to receive credit once for past information or assistance, and for that reason the court should be notified whether particular information and assistance has been taken into account in imposing a previous sentence or when making an application to the Parole Board.
The court should enquire whether an offender has received payment for assistance provided and if so, how much. Financial reward and a reduction in sentence are complementary means of incentivising the disclosure of the criminal activities of others and therefore a financial reward, unless exceptionally generous, should play only a small, if any, part in the sentencer’s decision.
The totality principle is critical in the context of an offender who is already serving a sentence, and who enters into an agreement to provide information which discloses previous criminal activities and comes before the court to be sentenced for the new crimes, as well as for a review of the original sentence (under section 388 of the Sentencing Code).
Where an offender has committed serious crimes, neither the statutory nor common law process provide immunity from punishment, and, subject to appropriate reductions, an appropriate sentence should be passed. By providing assistance to the authorities the offender is entitled to a reduction from the sentence which would otherwise be appropriate to reflect the assistance provided to the administration of justice, and to encourage others to do the same.
It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed. The normal level for the provision of valuable information will be a reduction of somewhere between one half and two thirds of that sentence.
In cases where the information provided was of limited value, the reduction may be less than one half and where the information given is unreliable, vague, lacking in practical utility or already known to the authorities, any reduction made will be minimal.
The risk to an offender who provides information, and the importance of the public interest in encouraging criminals to inform on other criminals, will often mean that the court will not be able to make any explicit reference to the provision of information or the reduction of the sentence on that ground. The duty to give reasons for the sentence will be discharged in such cases by the judge stating that the court has considered all the matters of mitigation which have been brought to its attention. See also CPR 28.12(4).
Where a serious terrorism sentence has been imposed, the court must ensure that any reduction for a guilty plea does not reduce the sentence to less than 80 per cent of the statutory minimum.
When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term.
Step 7 – Required special sentence for certain offenders of particular concern
Where the court does not impose a sentence of imprisonment for life, a serious terrorism sentence or an extended sentence (for this offence or an offence associated with it) but does impose a period of imprisonment, the term of the sentence must be equal to the aggregate of the appropriate custodial term and a further period of 1 year for which the offender is to be subject to a licence (sections 265 and 278 of the Sentencing Code).
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 - Ancillary orders
In all cases the court should consider whether to make ancillary orders.
Where a person is convicted of an offence listed below, the court may order the forfeiture of any money or other property if the money or property was, at the time of the offence, in the possession or control of the person convicted and -
it had been used for the purposes of terrorism,
it was intended by that person that it should be used for the purposes of terrorism, or
the court believes that it will be used for the purposes of terrorism unless forfeited.
Offences
Terrorism Act 2000
section 54 (weapons training);
section 57, 58 or 58A (possessing things and collecting information for the purposes of terrorism);
section 58B (entering or remaining in a designated area)
o section 59, 60 or 61 (inciting terrorism outside the United Kingdom);
Terrorism Act 2006
section 2 (dissemination of terrorist publications);
section 5 (preparation of terrorist acts);
section 6 (training for terrorism);
sections 9 to 11 (offences involving radioactive devices or materials).
Any offence which has been determined to have a terrorist connection (in accordance with section 69 Sentencing Code).
Additional forfeiture powers (section 120A)
In addition to those powers set out above the court has the following powers of forfeiture:
Section 54 (weapons training)
Anything that the court considers to have been in the possession of the person for purposes connected with the offence.
Section 57 (possession for terrorist purposes)
Any article that is the subject matter of the offence.
Section 58 (collection of information)
Any document or record containing information of the kind mention in sub section (1)(a) of that section.
Section 58A (eliciting, publishing or communicating information about members of armed forces etc)
Any document or record containing information of the kind mentioned in subsection (1)(a) of that section.
Considerations
When considering the powers of forfeiture under section 23A the court shall have regard to—
the value of the property, and
the likely financial and other effects on the convicted person of the making of the order (taken together with any other order that the court contemplates making).
Before making a forfeiture order under s23A or s120A the court must give an opportunity to be heard to any person, (other than the offender), who claims to be the owner or otherwise interested in anything which can be forfeited under that section.
Implementing the order
Where the court makes a forfeiture order under section 23A or section 120A it may also make any other order it deems necessary to give effect to the forfeiture in particular it may:
require any of the forfeited property to be paid or handed over to the proper officer or to a constable designated for the purpose by the chief officer of police of a police force specified in the order;
direct any of the forfeited property other than money or land to be sold or otherwise disposed of in such manner as the court may direct and the proceeds (if any) to be paid to the proper officer;
appoint a receiver to take possession, subject to such conditions and exceptions as may be specified by the court, of any of the forfeited property, to realise it in such manner as the court may direct and to pay the proceeds to the proper officer;
direct a specified part of any forfeited money, or of the proceeds of the sale, disposal or realisation of any forfeited property, to be paid by the proper officer to a specified person who the court is satisfied is the owner, or an interested person.
In force
A forfeiture order under section 23A or section 120A does not come into force until there is no further possibility of it being varied, or set aside, on appeal (disregarding any power of a court to grant leave to appeal out of time).
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.
Ancillary order
Statutory reference
Confiscation
A confiscation order may be made by the Crown Court in circumstances in which the offender has obtained a financial benefit as a result of, or in connection with, his criminal conduct.
Section 6 and Schedule 2 of the Proceeds of Crime Act 2002
Forfeiture
When sentencing for a funding offence (sections 15 – 18 Terrorism Act 2000), the court may order the forfeiture of money or property which the offender had possession or control of at the time of the offence
Section 23 to 23B Terrorism Act 2000
Automatic orders on conviction
The following requirements or provisions are not part of the sentence imposed by the court but apply automatically by operation of law. The role of the court is to inform the offender of the applicable requirements and/or prohibition.
Ancillary order
Statutory reference
Notification requirements
A relevant offender automatically becomes subject to notification requirements, obliging him to notify the police of specified information for a specified period. The court should inform the offender accordingly. The operation of the notification requirement is not a relevant consideration in determining the sentence for the offence.
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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