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Nominal Penalty - cases where this is likely

Updated: 14 November 2018; 04 April 2024|Legal Guidance, Sexual offences


Prosecutors will sometimes have to decide whether to charge an offence, or continue with a prosecution, where a nominal penalty is likely. If there is sufficient evidence for a realistic prospect of conviction, they will consider whether a prosecution is required in the public interest. That decision is reached by applying the public interest factors in the Code for Crown Prosecutors (the Code). This guidance recognises that the prospect of a nominal penalty is on occasion the trigger for a review of the public interest in prosecuting. The likely penalty is addressed under the heading “is prosecution a proportionate response?” As the Code makes clear, this is a relevant consideration, but there are other relevant considerations to be taken into account at the public interest stage of the Code. This guidance seeks to assist prosecutors to apply the Code and the relevant public interest considerations in the specific circumstances where a nominal penalty is likely.

A nominal penalty may be likely where:

  • the offence is very minor
  • the strength of the mitigation available to the defendant substantially outweighs the seriousness of the offence and suggests only a nominal penalty would be an appropriate sanction
  • the defendant has been convicted of several serious offences and the prosecution need to decide whether to proceed to a trial on the remaining counts, or a re-trial, and conviction on those further counts would not materially add to the sentence imposed/to be imposed
  • the offence is non-recent and if it had been dealt with at the time the defendant was convicted of other similar, serious offences, it would not have resulted in a materially different sentence
  • the defendant is unfit to plead and is likely to receive an absolute discharge (which is not strictly speaking a penalty, but a nominal disposal – for ease of expression, a single term, “nominal penalty”, will be used in this guidance).

Assessing the likely penalty

A nominal penalty for the purposes of this guidance is an absolute discharge or a sentence expressed in such a way that will have no material effect on the offender (for instance, it will be ordered to run concurrently to another sentence, or it will be deemed to have been served). It is not, therefore, a conditional discharge, fine, community sentence, suspended or immediate custodial sentence, unless in the light of another sentence it would have no material effect. Prosecutors apply the Code and assess the public interest in prosecuting when considering whether a prosecution for an offence likely to result in a minimal (as distinct from nominal) penalty is required in the public interest. This guidance however is focused on the distinct question of the penalty being of no material effect on the offender.

Care is required when assessing the likely penalty. In some cases a nominal penalty is not the only possible sentencing outcome: it is one within a range, and it can only be said that a nominal penalty is possible rather than likely. That mere possibility may be insufficient to be a relevant public interest factor. In some cases, an important ancillary order may be available upon conviction and that is an important element of the public interest in prosecuting. See further, the Sentencing - Ancillary Orders prosecution guidance.

The Code for Crown Prosecutors

The starting point is the framework for making public interest decisions in the Code. It bears repeating:

  • it has never been the rule that a prosecution will automatically take place once the evidential stage is met
  • a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour
  • when deciding the public interest, prosecutors should consider each of the questions set out in paragraphs 4.14 a) to g) of the Code.

In nominal penalty cases the following are of particular importance:

  • 4.14a): seriousness. The more serious the offence, the more likely it is that a prosecution is required. This includes where a nominal penalty may follow.
  • 4.14c): circumstances and harm caused to the victim. The views of the victim should be sought, informed by the likely nominal penalty. However, other matters may inform the victim’s opinion, regardless of the likely penalty, such as the importance of determining to the criminal standard in open court what the defendant is alleged to have done. The views of the victim are not determinative, but they are important. It is important that not just their views, but that the circumstances and harm caused to them is weighed into the balance.
  • 4.14f): proportionality. The cost to the CPS and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty. Prosecutors should not decide the public interest on the basis of this factor alone. It is essential that regard is also given to the public interest factors identified when considering the other questions in paragraphs 4.14 a) to g), but cost can be a relevant factor when making an overall assessment of the public interest. In assessing this, “cost" means resource implications in general for the CPS and criminal justice system.

Further relevant considerations where a nominal penalty is likely

The assessment of proportionality addresses “likely penalty”. It is particularly important to address this consideration and to consider the weight to attach to it, where the likely penalty is not only minimal, but nominal.

However, there are other reasons why prosecutions are brought which may justify a prosecution even if only a nominal penalty is likely on conviction. Such reasons include:

  • deterrence, particularly where offending of the type under consideration is prevalent or serious
  • justice for victims, including offenders’ wrongdoing being formally recognised by a court
  • justice being seen to be done, so as to encourage victims to come forward and report offences – and not automatically dismissing those who have come forward with the response that a nominal penalty is likely
  • safeguarding, where a finding of fact being made to the criminal standard enables relevant authorities to have regard to it when considering appropriate measures to put in place
  • public confidence in the administration of justice being upheld, recognising publicly that a criminal offence was committed, especially if the offending is serious
  • rehabilitation of the offender.

Prosecutors should consider whether each of these considerations apply. Some may require an inquiry to be made, for instance about the safeguarding implications of a prosecution. Prosecutors then need to decide what weight to attach to these factors in cases where a likely nominal penalty is part of the public interest decision-making process.

A prosecution may be more likely to be required in the public interest where an offence is serious, notwithstanding a nominal penalty is likely. A prosecution may in particular be more likely to be required in the public interest where the decision to prosecute involves more than one victim. In these cases, where the offending is serious, particular care should be taken if not prosecuting means that some victims’ allegations will result in conviction and others not.

Where a prosecutor has concluded that there is sufficient evidence for a realistic prospect of conviction and then, having gone on to consider the public interest factors in the Code, has concluded that the offence or offending is serious, they may consider that concerns about the cost and resource implications on the criminal justice system of the proceedings can be addressed in one of two ways. Either the defendant enters a guilty plea, thereby accepting that they have committed a serious offence and reducing the impact on the cost and resources of bringing a prosecution. Or, the defendant can plead not guilty. This means that they deny a serious allegation for which the prosecutor considers there is sufficient evidence for a realistic prospect of conviction. The cost and resource implications of a prosecution are therefore likely to be justified: it is the role of the court to determine to the criminal standard of proof whether or not the defendant is in fact guilty or not. There is an important public interest served by a court of law doing so, irrespective of the penalty.

However, it remains important to consider whether a prosecution is required where a defendant has recently received a substantial custodial sentence because a prosecution will not automatically be required in the public interest even when consideration of seriousness and the victim tends in favour of prosecution. For example, where the broad extent of the defendant’s criminality has been fully and publicly exposed, a prosecutor may quite properly conclude that pursuing further charges is not appropriate, having regard to the above factors. What is important in such cases is that the prosecutor sets out clearly the specific facts and circumstances which apply to the case, addressing its seriousness, the victims and the sentence to which the offender has been sentenced within the overall assessment of whether or not a prosecution is required in the public interest. Successive sets of proceedings may be necessary and appropriate although with each new set, it becomes increasingly important to consider whether further proceedings are in fact required in the public interest.

Prosecutors should also consider whether the defendant was responsible for the circumstances leading to a nominal penalty, for instance, whether they contributed to a delay in reporting. That may be the case if, for instance, they threatened the victim, or indeed if they plainly had an opportunity to account for their offending (through offences taken into consideration) and did not do so. If so, a prosecution is more likely to be required in the public interest.

As to offences taken into consideration, this is one method of disposal for offences which might otherwise receive a nominal penalty. As to whether it is appropriate or not to do so, prosecutors should apply the prosecution guidance on Offences to be taken into Consideration (TICs).

As to the public interest where an offender is unfit to plead, these principles apply but further relevant considerations can be found in the prosecution guidance on Mental Health: Suspects and Defendants.

As to reconsidering a prosecution decision (a case which was previously not prosecuted but would be now, but where a nominal penalty is likely) see also part 10 of the Code for Crown Prosecutors and the prosecution guidance on Reconsidering a Prosecution Decision.

Further reading

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