Threatening behaviour – fear or provocation of violence/ Racially or religiously aggravated threatening behaviour – fear or provocation of violence
Public Order Act 1986, s.4, Crime and Disorder Act 1998, s.31(1)(a)
Effective from 01 January 2020
Threatening behaviour – fear or provocation of violence, Public Order Act 1986, s.4
Triable only summarily
Maximum: 6 months’ custody
Offence range: Discharge – 26 weeks’ custody
Racially or religiously aggravated threatening behaviour – fear or provocation of violence, Crime and Disorder Act 1998 s.31(1)(a))
Triable either way
Maximum: 2 years’ custody
The racially or religiously aggravated offence 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.
Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.
In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after the effective date of this guideline, regardless of the date of the offence.*
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 offenders aged 18 and older. General principles to be considered in the sentencing of children and young people are in the Sentencing Council definitive guideline, Overarching Principles – Sentencing Children and Young People.
*The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.
For racially or religiously aggravated offences the category of the offence should be identified with reference to the factors below, and the sentence increased in accordance with the guidance at Step 3
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.
Culpability demonstrated by one or more of the following:
A - High culpability:
- Targeting of individual(s) by a group
- Intention to cause fear of serious violence
- Sustained incident
- Use of substantial force
- Production of weapon
- Missiles thrown
B – Lesser culpability
- All other cases
Harm
The court should consider the factors set out below to determine the level of harm that has been caused or was intended to be caused to the victim.
Category 1
- Victim feared serious violence
- Fear of violence caused to multiple persons present
- Incident escalated into violence
Category 2
- All other cases
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).
| Culpability | ||||
| Harm | A | B | ||
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Category 1 |
Starting point High level community order |
Starting point Medium level community order |
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| Category range Low level community order – 26 weeks’ custody |
Category range Band C fine – 12 weeks’ custody |
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Category 2 |
Starting point Medium level community order |
Starting point Low level community order |
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| Category range Band C fine – 12 weeks’ custody |
Category range Discharge – Medium level community order |
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| 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: | ||
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If order does not contain a requirement for the purpose of punishment, suggested fine levels are indicated below: |
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BAND A FINE |
BAND B FINE |
BAND C FINE |
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* 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. |
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Requirements
Community orders must consist of one or more requirements.
The court must ensure that requirements imposed are the most suitable for the offender. See more information at section 7 of the Imposition guideline.
Any requirement can be imposed for the purpose of punishment depending on the individual offender, though normally rehabilitation activity requirements (RARs) and treatment requirements should not be. One requirement can fulfil multiple purposes of sentencing.
Any requirement(s) imposed for the purpose of rehabilitation should be determined by, and align with, the offender’s needs.
The Imposition of community and custodial sentences guideline outlines the general approach to sentencing and provides guidance on how sentencers should address specific issues that may arise when they consider the most appropriate sentence.
A custodial sentence must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (section 230(2) of the Sentencing Code).
- Even where the seriousness of the offence indicates that the threshold for a custodial order has been passed, a custodial sentence should not be imposed if in all the circumstances of the case it is appropriate to impose a community order, for example, if a community order achieves the purposes of sentencing.
- Custody should not be imposed on an offender who is pregnant or within the postnatal period (within 12 months after giving birth) where the impact on the offender or dependants, including unborn children, would make a custodial sentence disproportionate to achieving the purposes of sentencing.
See further information on previous convictions in section 2 of the Imposition guideline.
Pre-sentence reports (PSR)
When considering a community or custodial sentence, the court must request and consider a pre-sentence report (PSR) before forming an opinion of the sentence, unless it considers that it is unnecessary (section 30 of the Sentencing Code). A pre-sentence report may also be requested by a defence legal representative as part of the before-plea protocol.
A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.
- PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.
- A pre-sentence report may be unnecessary if the court considers that it has enough information about the offence and the offender.
See more information on pre-sentence reports at section 3 of the Imposition guideline.
Magistrates: Consult your legal adviser before deciding to sentence to a community order or custodial sentence without a pre-sentence report.
Section 4 of the Imposition guideline contains important information on the suitability and effectiveness of a sentence.
Custodial sentences
If the custodial threshold has been passed the court should ask the following three questions in the following order:
Is it unavoidable that a custodial sentence be imposed?
- A custodial sentence (whether immediate or suspended) must not be imposed unless the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified (s.230(2) Sentencing Act 2020).
- Passing the custody threshold does not mean that a custodial sentence (whether immediate or suspended) is inevitable. Custody should not be imposed where the purposes of sentencing could be achieved by a community order or where circumstances exist which may make a custodial sentence disproportionate to achieving the purposes of sentencing (for example, where there would be an impact on dependants, including on unborn children where the offender is pregnant.)
- Community orders are often punitive and last longer than shorter custodial sentences. Community orders can restrict an offender’s day to day liberties, especially when imposed on an offender who may find regular attendance at a specific place or time challenging. Breach can result in custody.
- If the purposes of sentencing can be achieved by a community order, or any personal mitigation means that a community order may be a more suitable sentence, see the Community orders dropdown above.
What is the shortest term commensurate with the seriousness of the offence?
- If the court is considering an immediate custodial sentence of up to 12 months, it should take into account that research suggests that custodial sentences of up to 12 months are less effective than other disposals at reducing reoffending and can lead to negative outcomes. Any custodial sentence may disrupt factors which can discourage further offending, such as employment, education or accommodation, and may affect support networks by interfering with relationships with friends and family.
- While courts are encouraged to consider a community order in lieu of a custodial sentence where appropriate, there will be cases where a short custodial sentence is unavoidable.
- In considering the shortest term, the court must NOT consider any licence or post sentence supervision requirements or any other administrative or statutory consequences of the potential sentence imposed.
Can the sentence be suspended?
Cases where the offender was convicted before 22 March 2026
If the shortest term commensurate with the seriousness of the offence is 2 years or less, the court should consider whether it is appropriate to suspend that sentence so that the offender serves their sentence in the community under the supervision of the Probation Service.
Cases where the offender was convicted on or after 22 March 2026
If the shortest term commensurate with the seriousness of the offending is 12 months or less, the court must suspend the sentence under the statutory presumption of suspension, unless any of the following apply:
- The offender is in custody (whether serving a sentence, on remand for another offence, or detained under a hospital order)
- There is significant risk of physical or psychological harm to an individual
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:
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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 |
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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:
- , 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
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.
- 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 of relevance 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
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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.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
See below for the statutory provisions.
- Note the requirement for the court to state that the offence has been aggravated by the relevant hostility.
- Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role.
Section 66 of the Sentencing Code states:
Hostility (1) This section applies where a court is considering the seriousness of an offence which is aggravated by—
(a) racial hostility,
(b) religious hostility,
(c) hostility related to disability,
(d) hostility related to sexual orientation, or
(e) hostility related to transgender identity.
This is subject to subsection (3). (2) The court—
(a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and
(b) must state in open court that the offence is so aggravated.
(3) So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). (4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
(i) the victim’s membership (or presumed membership) of a racial group,
(ii) the victim’s membership (or presumed membership) of a religious group,
(iii) a disability (or presumed disability) of the victim,
(iv) the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)
(v) the victim being (or being presumed to be) transgender, or
(b) the offence was motivated (wholly or partly) by—
(i) hostility towards members of a racial group based on their membership of that group,
(ii) hostility towards members of a religious group based on their membership of that group,
(iii) hostility towards persons who have a disability or a particular disability,
(iv) hostility towards persons who are of a particular sexual orientation, or (as the case may be)
(v) hostility towards persons who are transgender.
(5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (6) In this section—
(a) references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins;
(b) references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief;
(c) “membership” in relation to a racial or religious group, includes association with members of that group;
(d) “disability” means any physical or mental impairment;
(e) references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment;
(f) “presumed” means presumed by the offender.
Other aggravating factors:
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- Evidence of planning normally indicates a higher level of intention and pre-meditation which increases the level of culpability.
- Planning may be inferred from the scale and sophistication of the offending and/or the role of the offender.
- The greater the degree of planning the greater the culpability
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
This reflects:
- the fact that people in public facing roles are more exposed to the possibility of harm and consequently more vulnerable and/or
- the fact that someone is working in the public interest merits the additional protection of the courts.
This applies whether the victim is a public or private employee or acting in a voluntary capacity.
Care should be taken to avoid double counting where the statutory aggravating factor relating to emergency workers or to those providing a public service, performing a public duty or providing services to the public applies.
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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 mere membership of a group (two or more persons) should not be used to increase the sentence, but where the offence was committed as part of a group this will normally make it more serious because:
- the harm caused (both physical or psychological) or the potential for harm may be greater and/or
- the culpability of the offender may be higher (the role of the offender within the group will be a relevant consideration).
Culpability based on role in group offending could range from:
- Higher culpability indicated by a leading role in the group and/or the involvement by the offender of others through coercion, intimidation or exploitation, to
- Lower culpability indicated by a lesser or subordinate role under direction and/or involvement of the offender through coercion, intimidation or exploitation.
Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation (including as a result of domestic abuse, trafficking or modern slavery) which the offender may find difficult to articulate.
Where the offending is part of an organised criminal network, this will make it more serious, and the role of the offender in the organisation will also be relevant.
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 group offending.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- Where there is risk of harm to other(s) not taken in account at step one and not subject to a separate charge, this makes the offence more serious.
- Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.
Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- An offence is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence).
- Other factors such as the victim being isolated, incapacitated through drink or being in an unfamiliar situation may lead to a court considering that the offence is more serious.
- The extent to which any vulnerability may impact on the sentence is a matter for the court to weigh up in each case.
- Culpability will be increased if the offender targeted a victim because of an actual or perceived vulnerability.
- Culpability will be increased if the victim is made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender).
- Culpability is increased if an offender persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim).
- The level of harm (physical, psychological or financial) is likely to be increased if the victim is vulnerable.
- History of antagonising the victim
- Victim(s) had no opportunity to escape situation (eg: offence occurred on public transport)
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Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.
This applies regardless of whether the offender is under the influence of legal or illegal substance(s).
In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.
An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.
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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.
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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.
Factors reducing seriousness or reflecting personal mitigation
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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
Whereas acting as part of a group may make an offence more serious, if the offender’s role was minor this may indicate lower culpability and justify a reduction in sentence.
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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.
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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.
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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.
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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).
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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.
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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)
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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.
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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.
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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 – Aggravated offences
Racially or religiously aggravated offences only
Having determined the category of the basic offence to identify the sentence of a non-aggravated offence, the court should now consider the level of racial or religious aggravation involved and apply an appropriate uplift to the sentence in accordance with the guidance below. The following is a list of factors which the court should consider to determine the level of aggravation. Where there are characteristics present which fall under different levels of aggravation, the court should balance these to reach a fair assessment of the level of aggravation present in the offence.
Maximum sentence for the aggravated offence is 2 years’ custody
Care should be taken to avoid double counting factors already taken into account in assessing the level of harm at step one
High level of racial or religious aggravation |
Sentence uplift |
| Racial or religious aggravation was the predominant motivation for the offence.
Offender was a member of, or was associated with, a group promoting hostility based on race or religion. Aggravated nature of the offence caused severe distress to the victim or the victim’s family (over and above the distress already considered at step one). Aggravated nature of the offence caused serious fear and distress throughout local community or more widely. |
Increase the length of custodial sentence if already considered for the basic offence or consider a custodial sentence, if not already considered for the basic offence. |
Medium level of racial or religious aggravation |
Sentence uplift |
| Racial or religious aggravation formed a significant proportion of the offence as a whole.
Aggravated nature of the offence caused some distress to the victim or the victim’s family (over and above the distress already considered at step one). Aggravated nature of the offence caused some fear and distress throughout local community or more widely. |
Consider a significantly more onerous penalty of the same type or consider a more severe type of sentence than for the basic offence. |
Low level of racial or religious aggravation |
Sentence uplift |
| Aggravated element formed a minimal part of the offence as a whole.
Aggravated nature of the offence caused minimal or no distress to the victim or the victim’s family (over and above the distress already considered at step one). |
Consider a more onerous penalty of the same type identified for the basic offence. |
Magistrates may find that, although the appropriate sentence for the basic offence would be within their powers, the appropriate increase for the aggravated offence would result in a sentence in excess of their powers. If so, they must commit for sentence to the Crown Court.
The sentencer should state in open court that the offence was aggravated by reason of race or religion, and should also state what the sentence would have been without that element of aggravation.
Step 4 – Consider any factors which indicate a reduction for assistance to the prosecution
The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Case law has established that there are no inflexible rules as to the method by which any reduction should be assessed nor the amount of the reduction. It will be a fact specific decision in each case. The rationale for making a reduction is the same whether the statutory procedure or the common law “text” procedure has been engaged. In principle, there is no reason to distinguish between the two procedures in terms of the extent of the reduction which is made. See also the relevant Criminal Procedure Rules: CPR 28.11 (statutory procedure) CPR 28.12 (text procedure).
The following sequence of matters for a sentencing court to consider reflects case law:
- The court should assess the seriousness of the offences being sentenced following any relevant sentencing guidelines.
- The court should then consider the quality and quantity of the material provided by the offender in the investigation and subsequent prosecution of crime. The court should take into account the period of time over which the information was provided and the seriousness of the offending to which it relates. Particular value should be attached to those cases where the offender provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, especially where the information either produces convictions for the most serious offences, or prevents them, or which leads to disruption of major criminal networks. In cases where it is too early to say what impact the information will have, the Court should take into account the potential value of the information provided.
- This consideration should be made in the context of the nature and extent of the personal risks to, and potential consequences faced by, the offender and members of the offender’s family.
- A guilty plea is not an essential prerequisite of the making of a reduction for information and assistance provided, but contesting guilt may be one of the factors relevant to the extent of the reduction made for that assistance. The extent to which an offender has been prepared to admit the full extent of their criminality is relevant to the level of the reduction.
- Any reduction for a guilty plea is separate from and additional to the appropriate reduction for assistance provided by the offender. The reduction for the assistance provided by the offender should be assessed first to arrive at a notional sentence and any guilty plea reduction applied to that notional sentence.
- A mathematical approach to determining the level of reduction for assistance to the authorities is liable to produce an inappropriate answer – the totality principle is fundamental.
- Where the statutory procedure applies, the court should take into account that this requires offenders to reveal the whole of their previous criminal activities which will often entail pleading guilty to offences which the offender would never otherwise have faced.
- An informer can generally only expect to receive credit once for past information or assistance, and for that reason the court should be notified whether particular information and assistance has been taken into account in imposing a previous sentence or when making an application to the Parole Board.
- The court should enquire whether an offender has received payment for assistance provided and if so, how much. Financial reward and a reduction in sentence are complementary means of incentivising the disclosure of the criminal activities of others and therefore a financial reward, unless exceptionally generous, should play only a small, if any, part in the sentencer’s decision.
- The totality principle is critical in the context of an offender who is already serving a sentence, and who enters into an agreement to provide information which discloses previous criminal activities and comes before the court to be sentenced for the new crimes, as well as for a review of the original sentence (under section 388 of the Sentencing Code).
- Where an offender has committed serious crimes, neither the statutory nor common law process provide immunity from punishment, and, subject to appropriate reductions, an appropriate sentence should be passed. By providing assistance to the authorities the offender is entitled to a reduction from the sentence which would otherwise be appropriate to reflect the assistance provided to the administration of justice, and to encourage others to do the same.
- It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed. The normal level for the provision of valuable information will be a reduction of somewhere between one half and two thirds of that sentence.
- In cases where the information provided was of limited value, the reduction may be less than one half and where the information given is unreliable, vague, lacking in practical utility or already known to the authorities, any reduction made will be minimal.
- The risk to an offender who provides information, and the importance of the public interest in encouraging criminals to inform on other criminals, will often mean that the court will not be able to make any explicit reference to the provision of information or the reduction of the sentence on that ground. The duty to give reasons for the sentence will be discharged in such cases by the judge stating that the court has considered all the matters of mitigation which have been brought to its attention. See also CPR 28.12(4).
Step 5 – 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 6 (RACIALLY OR RELIGOUSLY AGGRAVATED OFFENCES ONLY) – Dangerousness
The court should consider whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose an extended sentence (sections 266 and 279).
Step 7 – 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 8 – 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:
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. |
| 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. |
Suggested starting points for lower level physical and mental injuries
| May be made by: | A magistrates’ court or the Crown Court | |
| Relevant legislation | Sentencing Act 2020, Part 11, Chapter 1 | |
| Nature of the order | A CBO is an order which is made for the purpose of preventing the offender from engaging in behaviour that is likely to cause harassment, alarm or distress to any person in the future.
The order
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| Notice | The prosecutor must serve a notice of intention to apply for a CBO as soon as practicable (Criminal Procedure Rule 31.3) | |
| Availability | The court can only consider whether to make a CBO if all of the following pre-conditions are met:
(Sentencing Code, s331(1) - (3)) For special considerations where the application for a CBO is made against an offender aged under 18, see below. For the power to adjourn an application for a CBO until after the offender has been sentenced for the offence (and to make an interim order during the adjournment), see below. |
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| Test to be applied | The court may make a CBO against the offender if it
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| General considerations
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A CBO is an order designed to tackle the most serious and persistent anti-social individuals where their behaviour has brought them before a criminal court.
The behaviour to be addressed does not need to be connected to the criminal behaviour, or activity which led to the conviction. However, if there is no link the court will need to reflect on the reasons for making the order. A CBO can deal with a wide range of anti-social behaviour following the offender’s conviction, for example threatening violence against others in the community, or persistently being drunk and aggressive in public. However, the order should not be designed to stop reasonable, trivial or benign behaviours that have not caused, or are not likely to cause anti-social behaviour. |
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| Deciding whether the offender has engaged in the relevant behaviour
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The court must decide whether the offender has engaged in the behaviour alleged and also whether that behaviour caused or was likely to cause harassment, alarm or distress to any person.
The standard of proof is the criminal standard. For this purpose, evidence may be led by the prosecution and/or the offender. The strict rules of evidence do not apply. It does not matter whether the evidence would have been admissible in the proceedings in which the offender was convicted. But the evidence must be relevant to the test to be applied to the making of the order. This evidence could include hearsay or bad character. Special measures are available for witnesses who are vulnerable and intimidated witnesses in accordance with the Youth Justice and Criminal Evidence Act 1999 (Sentencing Code, s340). |
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| Content of the order | A CBO may include prohibitions and/or requirements, which must be:
A CBO should not prohibit particular conduct which itself constitutes a criminal offence where the purpose of the order is to provide for an increased penalty in the event of repetition in breach of the order. Prohibitions and requirements in a CBO must, so far as practicable, be such as to avoid—
There is no power to make any prohibition or requirement in a CBO subject to electronic monitoring. |
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| Requirements in a CBO | A criminal behaviour order that includes a requirement must specify the person (individual or organisation) who is to be responsible for supervising compliance with the requirement.
The court must also receive evidence about its suitability and enforceability from that individual or an individual representing the organisation. If the criminal behaviour order includes two or more requirements, the court must consider their compatibility with each other. |
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| Length of the order
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The CBO must specify the period for which it has effect.
Where the offender is an adult (when the order is made), the order must be for either a fixed period of not less than 2 years, or an indefinite period (so that the order has effect until further order). See below as to the duration of a CBO made against a child. The order may specify periods for which particular prohibitions or requirements have effect. |
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| Special considerations for offenders who are children aged under 18 | See Section 1 (sentencing principles and welfare) and Section 3 (parental responsibilities) of the Sentencing Children and Young People guideline.
Duty to obtain views of Youth Justice Services The prosecution must find out the views of the local youth offending team before applying for a criminal behaviour order. (Sentencing Act 2020, s.331(5)). Length of the CBO The order must be for a fixed period of length between 1 and 3 years. (Sentencing Act 2020, s.334(4)). Parenting order on making of CBO Where the court has made a CBO against an offender aged under 16, it must make a parenting order if doing so would be desirable in the interests of preventing any repetition of the kind of behaviour which led to the CBO being made. The court may make a parenting order in the case of an offender aged 16 or 17 where that condition is fulfilled. |
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| Effect on earlier orders | The CBO takes effect on the day it is made unless the offender is already subject to a criminal behaviour order in which case the new order may be made so as to take effect on the day on which the previous order ceases to have effect. | |
| Explaining the order | The CBO must be explained to the offender, and the exact terms of the order pronounced in open court. | |
| Adjournments and Interim CBOs | The court may adjourn hearing the application for a CBO until after the offender has been sentenced for the offence.
If the offender fails to appear on the adjourned date, the court has powers to issue a warrant or proceed in absence. The court can make an interim order if the court thinks it is just to do so. An interim order can be made until final hearing or further order. When making an interim CBO, the court has the same powers as if it were making a final order. |
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| Consequences of breach | Breach of a criminal behaviour order is a criminal offence, with a maximum penalty of 5 years’ custody or an unlimited fine. | |
| May be made by | A magistrates’ court or the Crown Court |
| Relevant legislation | Football Spectators Act 1989, Part II |
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Availability
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Where a person is convicted of a relevant offence the court must make a banning order in respect of the offender unless the court considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so. |
| Relevant Offences | A “relevant offence” is one listed in Schedule 1.
Some offences become relevant if the offence is committed during a period ‘relevant’ to a football match. The following periods are ‘relevant’ to a football match (Football Spectators Act 1989, Sch.1 para.4): (a) the period beginning: i) 24 hours before the start of the match; or ii) 24 hours before the time at which it is advertised to start; whichever is the earliest, and ending 24 hours after the end of the match; (b) where a match advertised to start at a particular time on a particular day is postponed to a later day, or does not take place, the period in the advertised day beginning 24 hours before and ending 24 hours after that time. |
| Considerations | For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.
It is immaterial whether the evidence would have been admissible in the proceedings in which the offender was convicted. A banning order made on conviction must be made: (a) in addition to a sentence imposed in respect of the relevant offence, or (b) in addition to an order discharging the offender conditionally. |
| The Order | On making a banning order the court must, in ordinary language, explain its effect to the subject of the order. |
| Content of the order |
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| Notification | A banning order must require the person subject to the order to give notification of any of the following events (as set out in section 14E(2B):
(a) a change of any of his names (b) the first use by him after the making of the order of a name for himself that was not disclosed by him at the time of the making of the order (c) a change of his home address (d) his acquisition of a temporary address (e) a change of his temporary address or his ceasing to have one (f) his becoming aware of the loss of his passport (g) receipt by him of a new passport (h) an appeal made by him in relation to the order (i) an application made by him under section 14H(2) for termination of the order (j) an appeal made by him under section 23(3) against the making of a declaration of relevance in respect of an offence of which he has been convicted. A notification required by a banning order must be given before the end of the period of seven days beginning with the day on which the event in question occurs and
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| Length of the order
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Where the order is in addition to a sentence of imprisonment taking immediate effect, the maximum is ten years, and the minimum is six years. “Imprisonment” includes any form of detention.
In any other case, the maximum is five years, and the minimum is three years. |
| Adjournments | The court may adjourn hearing the application for a football banning order until after the offender has been sentenced for the offence.
If the offender fails to appear on the adjourned date, the court has the power to further adjourn or issue a warrant for the offender’s arrest. |
| Notice | The prosecutor must serve a notice of intention to apply for a football banning order as soon as practicable (Criminal Procedure Rule 31.3) |
| Reasons | The court is required to give reasons if it decides not to make an order. |
| Consequences of Breach | Breach of a football banning order is a criminal, maximum penalty six months custody, or a fine not exceeding level 5 on the standard scale, or both.
Breach offences (other) – Sentencing (sentencingcouncil.org.uk) |
| May be made by | A magistrates’ court or the Crown Court | |
| Relevant legislation | Licensed Premises (Exclusion of Certain Persons) Act 1980 | |
| Availability | A court may make an exclusion order Where an offender has been convicted of an offence committed on licensed premises* involving the use or threat of violence.
An exclusion order can be made in addition to any other sentence including an absolute or conditional discharge * premises licensed for the supply of alcohol for consumption on the premises |
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| Considerations | An exclusion order may specify one or more licensed premises. The name and address of each of the specified premises must be set out in the order and a copy of the order must be sent to the licensee of each of the premises (section 4).
The purpose of the order is to prevent the offender from creating a nuisance and possible danger to the licensee or customers of licensed premises. |
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| Effect of the order | The order prohibits the offender from entering specified licensed premises without the express consent of the licensee. | |
| Length of order | Minimum three months, maximum two years | |
| Consequences of breach | Breach of an exclusion order is a criminal offence, maximum penalty one month’s custody or a level 4 fine. | |
Step 9 – Reasons
Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.
Step 10 – 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.