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Non-Recent Cases and Nominal Penalties

Updated: 14 November 2018|Legal Guidance, Sexual offences


Prosecutors will sometimes have to decide whether to charge an offence, which has been committed some time ago. There are referred to as "non-recent" offences. If there is sufficient evidence for a realistic prospect of conviction, the prosecutor will have to consider whether it is in the public interest to prosecute, even where the facts and circumstances of the case mean it is likely that only a nominal penalty will result on conviction.

These prosecutions include non-recent offences where the alleged offender has already been convicted and sentenced to a significant period of imprisonment for similar offending in the past, but the specific allegations made by the victim(s) were:

  • Not brought to the attention of the police and prosecuting authorities in the earlier investigation and prosecution of the offender; or
  • Brought to the attention of the police and prosecuting authorities previously but the decision to take no action was made or the case was discontinued.

Prosecuting an offence for which there will be a nominal penalty

Punishment of an offender through a court-imposed penalty is just one reason for prosecuting an offence. There are other reasons why prosecutions are brought and any of these reasons 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.
  • Public confidence in the administration of justice being upheld, especially if the offending is serious.
  • Rehabilitation of the offender, including through restorative justice measures.

When is a nominal penalty likely?

There may be a number of reasons why a non-recent offence will attract only a nominal penalty. For example:

  • The offence is relatively minor;
  • The passage of time since the offence was committed, the age of the suspect and the mitigating factors militate against anything other than a nominal penalty. (However, note that in many cases, such as those involving sexual offences, the court may decide to impose a custodial sentence on conviction, even if the offender is elderly and the offence took place decades earlier.)
  • The offence is relatively serious and would otherwise merit a sentence of imprisonment, but the offender has already been made the subject of a prison sentence, or served such a sentence, and a conviction would be unlikely to result in the imposition of an additional prison sentence or other order. Having regard to the totality principle, any further penalty would create an excessive overall sentence. The Sentencing Council Guideline on Offences Taken into Consideration and Totality states that "the overriding principle is that the overall sentence must be just and proportionate". See section on "Totality and offences taken into consideration" below.
  • The defendant is unfit to plead and there is a finding that he did the act or made the omission charged against him, but there is no suitable mental health disposal available. The only available sentence will be an absolute discharge (see section on "Fitness to plead" below).

In considering whether a penalty is likely to be nominal, prosecutors should bear in mind that a court has a number of sentencing options. In cases where a conviction is not likely to result in a prison term, a community sentence or a fine, but where an ancillary order may be imposed, a sentence should not necessarily be considered nominal. Ancillary orders available to a court include:

  • Compensation orders to victims.
  • Restitution orders.
  • Confiscation orders (Crown Court only).
  • Deprivation orders.
  • Forfeiture orders.
  • Sexual offences prevention orders. Notification requirements also apply to relevant sexual offences. These are fixed by statute and do not require a court order.
  • Disqualification from working with children.
  • Disqualification from being a company director.
  • Financial reporting orders.
  • Deportation order.
  • Hospital orders and supervision orders in relation to fitness to plead cases.

Some ancillary orders may not be available in respect of non-recent offences, as they may not apply to offences committed prior to the date that the statutory provision creating the order came into force.

The CPS legal guidance on Sentencing - Ancillary Orders and the Ancillary Orders Toolkit contain more detailed information on ancillary orders.

When is it in the public interest to prosecute?

Each case will require a careful assessment of its particular facts and merits and prosecutors should determine the relevant public interest factors for and against prosecution.

Prosecutors should have regard to the relevant public interest factors contained within the Code for Crown Prosecutors (The Code), including the possibility of offering the offender an out-of-court disposal rather than bringing a prosecution. But when considering whether it is in the public interest to prosecute a non-recent case where a nominal penalty is likely they should also consider the following questions:

How serious is the non-recent offence committed?

The more serious the offence, the more likely it is that a prosecution is required.

Some offences, such as murder and rape, are so serious that a prosecution will nearly always be in the public interest. However, minor non-recent offences would not usually merit prosecution.

Other offences that might have been viewed less seriously in the past might be viewed more seriously now, due to a change in social attitudes since the commission of the offence. Such offences include those motivated by discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity.

Offender's culpability in hiding the offending?

Past offending for which the offender has been sentenced may have included offences to be taken into consideration (TICs). These are intended to reflect the offender's overall criminality and allow the offender to "wipe the slate clean", by giving the offender an opportunity to admit any other offences of a similar nature before the court passes sentence. If the offender has failed to admit any linked offences, the omission from the list of TICs is likely to mean a prosecution is more likely.

Would a prosecution deliver justice to the victim, in view of the likely outcome?

Prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may include the views of the victim's family.

There may be a number of barriers to reporting an alleged offence at the time it occurred, which can explain the late disclosure of non-recent offences by victims. For example, a lack of confidence in the system delivering a just outcome; fear of not being believed; or the potential effect on domestic or family life. Persons with learning disabilities may in particular find it difficult to come forward and make an allegation. In cases of child sexual abuse, some victims only understand what has happened to them, or feel able to report it, later on in life.

A complaint made some time after the event should therefore be taken just as seriously as a complaint made shortly after the alleged offence was committed.

Although the offence might have been committed some time ago, in some cases the impact over time might have become greater and led to adverse effects on the victim's physical or mental health and their circumstances in general. A prosecution, especially for a more serious non-recent offence, may help the victim through the offender being brought to justice even if the courts are likely to only impose a nominal penalty. An admission or finding of guilt may help the victim comes to terms with the offence committed against them.

Prosecutors should clearly explain to the victim that only a nominal penalty is likely on conviction and explain the reasons for this when seeking the victim's views.

Is a prosecution required to uphold public confidence in the administration of justice?

Prosecutors should consider whether a prosecution is required to uphold public confidence in the administration of justice. The more serious the offending is, the more it is likely to undermine public confidence in the justice system if the offender is able to avoid prosecution because of the length of time since the offence was committed.

Fitness to plead

By their very nature, many non-recent cases may involve suspects who are elderly. As people are living longer, dementia is becoming more common amongst elderly persons. As a result, some non-recent cases may involve suspects suffering from a form of dementia, and who may not be fit to plead.

A defendant who is not fit to plead and is found to have "done the act or made the omission" can be subject to a hospital order (with or without a restriction order), a supervision order (with or without a treatment requirement), or an absolute discharge. Defendants suffering from dementia due to old age, and who are unfit to plead, are unlikely to be suitable for a mental health disposal, as there is no treatment to cure dementia. Such defendants would therefore be likely to receive an absolute discharge (a nominal penalty).

In such cases, where a mental health disposal is not available or not appropriate, in some circumstances this may mean that it is less likely that a prosecution is required. When considering the appropriate disposal, prosecutors should refer to the legal guidance on Mentally Disordered Offenders and to The Code, as well as the public interest factors listed above. In particular, the following factors will be relevant:

The seriousness of the disorder should be balanced with the seriousness of the offence and the risk of reoffending.

Criminal proceedings should be a proportionate response in all the circumstances of the case.

Reconsidering a prosecution decision

Some cases may involve the reconsideration of a prosecution decision not to prosecute a case, or to discontinue a prosecution. The legal guidance on Reconsidering a Prosecution Decision sets out the circumstances under which the CPS can reconsider these decisions.

Where a case is being reconsidered on the basis that the original decision not to prosecute may have been wrong, the review is twofold:

  1. Was the decision not to prosecute wrong?
  2. If so, does the case now meet the Full Code Test, including the requirement that a prosecution should now be brought in order to maintain confidence in the criminal justice system?

The CPS has set up specific procedures to facilitate victims' requests for a review of a decision not to prosecute a case. These include the Victims' Right to Review scheme (VRR), which applies to all alleged offences involving a victim; and the Child Sexual Abuse Review Panel, which looks again at cases where a previous allegation of a sexual offence was made in relation to a victim under the age of 18, and the police or CPS decided to take no action at the time.

Totality and offences taken into consideration

Please also see Prosecution guidance on TICs - Offences to be Taken Into Consideration.

When a defendant is sentenced for more than one offence the court should pass a sentence that reflects all the offending behaviour, and is just and proportionate. This principle applies whether the sentences are concurrent or consecutive.

Concurrent sentences will ordinarily be appropriate where offences arise out of the same incident or facts, or where there is a series of offences of the same or similar kind, especially when committed against the same person. Consecutive sentences will ordinarily be appropriate where offences arise out of unrelated facts or incidents, or where offences are of the same or similar kind but where the overall criminality will not sufficiently be reflected by concurrent sentences.

Where a court passing sentence takes into account TICs, the totality principle will apply: the court should pass a total sentence which reflects all the offending behaviour, and is just and proportionate. The court is likely to consider that the fact that the offender has assisted the police (particularly if the offences would not otherwise have been detected) and avoided the need for further proceedings, demonstrates a genuine determination by the defendant to "wipe the slate clean".

Further reading

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