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Sentencing – Overview, General Principles and Mandatory Custodial Sentences

Updated: 12 July 2022|Legal Guidance

The role of the prosecutor in sentencing

The prosecutor has an important responsibility to ensure fairness both to the defendant and the victim regarding the acceptability of pleas and assistance to the court at sentence.  

The Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise paragraph B:4 provides:

“…The prosecution advocate represents the public interest, and should be ready to assist the court to reach its decision as to the appropriate sentence. This will include drawing the court’s attention to:  

  • any victim personal statement or other information available to the prosecution advocate as to the impact of the offence on the victim; 
  • where appropriate, to any evidence of the impact of the offending on a community; 
  • any statutory provisions relevant to the offender and the offences under consideration; 
  • any relevant sentencing guidelines and guideline cases; and 
  • the aggravating and mitigating factors of the offence under consideration.”

The role of the Prosecutor is also covered by the Criminal Procedure Rules: Rule 24.11 and 25.11 respectively for the Magistrates’ Court and the Crown Court.

In Qayum [2010] EWCA Crim 2237, the Court of Appeal explained the importance of advocates being alert to the maximum sentencing powers available to judges, as it is the duty of both prosecution and defence advocates to check the court’s sentencing powers and alert the court accordingly. It is the prosecution advocate’s duty to apply for or to remind the court of its powers in respect of appropriate ancillary orders, for example, compensation orders, criminal behaviour orders or confiscation orders. When considering which ancillary orders to apply for, prosecution advocate must always have regard to the victim’s needs, including the question of their future protection.

The Basis of Plea

The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise (see earlier) require that when the defendant indicates an acceptable plea, the defence advocate should reduce the basis of the plea to writing. This must be done in all cases, except for those in which the defendant has indicated that the guilty plea has been, or will be tendered on the basis of the prosecution case.

The written basis of plea must be considered with great care, taking account of the position of any other relevant defendant where appropriate. The prosecutor is under no obligation to accept a basis of plea offered by the defence, and the prosecution should not lend itself to any agreement whereby a case is presented to the sentencing judge on a misleading or untrue set of facts, or on a basis that is detrimental to the victim’s interests. Prosecuting advocates should not accept a basis of plea which is different from the case originally advanced by the prosecution without considering the impact on the likely sentence.

The written basis of plea agreed between the defence and the prosecution can have a significant impact on the range of sentences that is available; therefore it is very important that the basis of plea provides a clear articulation of the facts on which the sentence has been passed. Where the basis of plea is unclear or significantly different from the known facts, this can impact on whether it is realistic or possible to challenge the sentence that has been passed.

Where a basis of plea is acceptable, both the defence and the prosecuting advocate should sign it, and it should be handed into the court. The prosecution should retain a copy.

Some issues raised by the defence may be outside the knowledge of the prosecution. In such cases, the Crown should not agree the defendant's account unless supported by other material, and if the advanced basis cannot be agreed, the prosecution advocate should make it clear to the court that this is the case. It is not sufficient to indicate merely that the prosecution cannot contradict the defence account:R v H and Others [2009] EWCA Crim 2485, per Lord Judge LCJ.

If a defendant wishes to be sentenced on a basis which is not agreed, the prosecution advocate should invite the judge not to accept the defendant's version unless they gives evidence on oath to be tested in cross-examination. In such circumstances the defence advocate should be prepared to call the defendant and, if the defendant is not willing to testify, subject to any explanation that may be given, the judge may draw such inferences as appear appropriate.

The basis of plea principles apply equally to cases prosecuted in the magistrates' court. Care should be taken not to accept guilty pleas on the basis of expediency and cost.

Where a defendant pleads guilty but wants to be sentenced on a different basis to that disclosed by the prosecution case:

  • The defendant must set out that basis in writing, identifying what is in dispute;
  • The court may invite the parties to make representations about whether the dispute is material to sentence; and
  • If the court decides that it is a material dispute, the court will:
    • invite such further representations or evidence as it may require; and
    • rule on the dispute.

Sentencing notes

A Note on Sentence is not required in every case, but should be provided, either before the Crown Court or the magistrates' Court, where it is likely to assist the court because the case issues are complex or unfamiliar, including serious, complex and high profile cases such as those handled by the Central Casework Divisions and Complex Casework Units.

A Note on Sentence should address the following matters:

  • any relevant statutory limitations on sentence; 
  • the names of any relevant sentencing authorities or guidelines; 
  • the scope for any ancillary orders (for example, concerning anti-social behaviour, confiscation or that deportation will need to be considered); 
  • the age of the defendant; and 
  • Information regarding any outstanding offences known at the time: this information is most likely to need to be updated by the trial advocate at the actual sentencing hearing.  

It remains open to the prosecutor to provide further written information (for example to supplement and update the analysis at later stages of the case), if it is considered likely to assist the court, or if the court requested it.

In preparing the Sentencing Note, prosecutors should have regard to the fact that the Court of Appeal has disapproved of excessive citation of authorities. Once relevant guidelines have been issued by the Sentencing Council (see below), it should be the exception rather than the rule for advocates to cite previous cases: R v Tongue and Doyle[2007] EWCA Crim 561 at paragraph 13. Additionally, advocates should not cite authorities unless they establish a principle. Cases which merely restate an existing principle, or are illustrations of its application should not be cited: R v Erskine; R v Williams [2009] EWCA Crim 1425. The Court of Appeal has indicated that this approach will be rigidly applied.

The Sentencing Note should be prepared by the reviewing prosecutor, served on the defence, and lodged with the Crown Court in good time ahead of any hearing at which it is anticipated the defendant may be sentenced, which may include hearings where a guilty plea is anticipated and the court will seek to proceed to sentence. Counsel may be asked to draft the Sentencing Note or otherwise to assist with it, but ultimately the prosecutor must ensure it presents the prosecution case fairly and accurately, and assists the court as to the relevant sentencing framework.

Advance indication of sentence

The procedure by which a defendant can obtain an indication as to the sentence to be imposed upon a plea of guilty is governed by the decision in R v Goodyear[2005] EWCA Crim 888. At the defendant’s request, the court can indicate the maximum sentence it would impose were the defendant to plead guilty at that stage of the proceedings. Proceedings should be held in open court.

In its judgement in Goodyear, the Court of Appeal stated that Defence counsel is personally responsible for ensuring that their client is advised that, “any sentence indication given by the judge remains subject to the entitlement of the Attorney-General (where it arises) to refer an unduly lenient sentence to the Court of Appeal”.

Prosecution counsel’s duties include, firstly, a duty to remind the Court that it should not provide an indication in the absence of an agreed basis of plea or a finding by the Court that a Newton hearing is not required; secondly, a duty to enquire whether the Court is in possession of all the relevant evidence and the offender’s antecedents; thirdly, the Court stated –

“If the process has been properly followed, it should not normally be necessary for counsel for the prosecution, before the judge gives any indication, to do more than, first, draw the judge's attention to any minimum or mandatory statutory sentencing requirements, and where [they] would be expected to offer the judge assistance with relevant guideline cases, or the views of the Sentencing Guidelines Council, to invite the judge to allow him to do so, and second, where it applies, to remind the judge that the position of the Attorney-General to refer any eventual sentencing decision as unduly lenient is not affected”.

It is clear from the authorities that the conduct of Prosecution counsel is highly relevant to whether the Court of Appeal is likely to interfere with a sentence referred to it as unduly lenient.

The Court of Appeal will scrutinise the circumstances in which the indication was given and, where prosecution counsel has encouraged the plea and the offender has not been warned as to the Attorney’s powers, giving rise to a legitimate expectation that the case will not be referred, and subsequently acts to their detriment by pleading guilty, it may decline to interfere.

The procedural provision in relation to the making of an application for an advance indication as to sentence is found in rule 3.23 of the Criminal Procedure Rules 2015 as amended.

R v Omole (Kunle) [2011] EWCA Crim 1428 held that where the Defence request an indication of the bracket of the Definitive Guidelines into which the case falls a judge should treat it as a request for an indication of the maximum sentence in relation to all offences before the court. Any deviation from the recommended formula can cause misunderstanding.

Newton Hearings

Where there is a dispute as to the factual basis on which sentencing should proceed, the prosecutor should consider whether to call evidence in support of the Crown's case (see R v Newton (1982) 77 CA 13). Such a hearing should only be held if the defence, in mitigation, depart from the facts as opened by the prosecution in a manner which is material to the central issue and which is capable of belief, i.e. it is not so manifestly absurd or implausible that it would be a waste of the court's time to hear evidence (see R v Hawkins (1985) 7 Cr. App. R. (S) 351), and the departure is substantial and if accepted, is likely to affect sentence.

The case of R v Underwood(2004) EWCA Crim 2256 provides further guidance on the subject. For more detailed guidance see Newton hearings elsewhere in the Legal Guidance.

Victim Personal Statement

The Victim Personal Statement (VPS) is intended to give the victims of crime an opportunity to describe the wider impacts of the crime upon them and express their concerns. See Legal Guidance on Victim Personal Statements.

Evidence of Character and Antecedents: Previous Convictions

It is vital that the court has all the relevant previous conviction history of a convicted person prior to sentencing.

On conviction, it is the responsibility of the prosecution to adduce evidence about the defendant's antecedents and previous convictions. This is usually done by the submission to the court of copies of antecedents and previous convictions prepared by the police in the prescribed manner.

The provision of information on antecedents in the Crown Court and magistrates' courts is dealt with in Criminal Practice Directions II (Preliminary proceedings), paras. 8A.1 to 8A.8.

The defendant’s previous convictions and sentences are relevant to the sentencing exercise in the following ways:

  • They may go to the seriousness of the instant offences (Section 143 (2) (4) and (5) Criminal justice Act 2003); 
  • They may be indicative of the dangerousness of the offender, and the need for the public to be protected from him; 
  • They may provide evidence of the effectiveness of a particular method of disposal adopted previously in the case of the offender; or alternatively a particular measure was unsuccessful;
  • They may provide an insight into the individual’s criminal career, and, in particular, that they have made a real effort over a period of years to put a previous pattern of offending behind them.  

If the antecedents are challenged the disputed material should either be omitted, or proved by admissible evidence.

Section 143(4) of the Criminal Justice Act 2003 makes it clear that 'previous conviction' in this context means a previous conviction by a court in the UK or a previous conviction of a service offence within the meaning of the Armed Forces Act 2006 or a previous conviction in another EU Member State of a 'relevant offence'. Section 143(5), allows the court to treat a previous conviction by a court outside the UK as an aggravating factor in any case where the court considers it appropriate to do so.

It is, therefore, important that the prosecution file contains all relevant foreign antecedent history at the earliest possible stage in proceedings in all appropriate cases. In relation to sentencing this is likely to include persons:

  • To be sentenced at the Crown Court, where an assessment of 'dangerousness' may be made; and
  • Charged with a class A drug trafficking or domestic burglary offence, where prior convictions could lead to the imposition of a mandatory minimum sentence. (Sections 110 & 111 of the PCC(S)A 2000 were amended to provide for the treatment of previous convictions elsewhere in the UK or in another EU Member State. The amendment took effect from 15 August 2010. A previous drug trafficking conviction or domestic burglary conviction which took place outside England and Wales is a relevant offence for the purposes of those sections only if it was committed after that date.)

For further details on where foreign antecedent data is likely to be of most relevance, and where a failure to request this information could have the most negative repercussions, see elsewhere in Legal Guidance under the heading International Enquiries

The Rehabilitation of Offenders Act 1974

Under the Rehabilitation of Offenders Act 1974 (the Act), an offender who is sentenced to a period of thirty months imprisonment or less, becomes 'rehabilitated' once a certain period of time specified by the Act has passed. This means that the offender is treated for all purposes in law as though they had not committed, or been charged or prosecuted or convicted of the offence.

Prosecutors should refer to the Act to ascertain whether offences on the record of a defendant come within its provisions. Since 8 December 2008, cautions, conditional cautions, reprimands and warnings are all subject to the provisions of the Act.

By virtue of Section 7(2)(a) of the 1974 Act rehabilitated or "spent" convictions are admissible in criminal proceedings where they are relevant to "the determination of any issue". This exception allows a sentencing court to have regard to all previous convictions including spent convictions in determining the appropriate sentence.

Rules about how spent convictions should be presented can be found in Criminal Procedure Rules Part 21 and CPD V Evidence 21A:

  • The record supplied should contain all previous convictions, but those which are spent should, so far as practicable, be marked as such;
  • No one should refer in open court to a spent conviction without the authority of the judge, which authority should not be given unless the interests of justice so require;
  • When passing sentence the judge should make no reference to a spent conviction unless it is necessary to do so for the purpose of explaining the sentence to be passed.

Ancillary Orders

In all cases it is the prosecution advocates’ duty to apply for appropriate ancillary orders, such as compensation, restraining orders, criminal behaviour orders and confiscation orders. When considering which ancillary orders to apply for, prosecution advocates must always have regard to the victims’ needs, including their future protection. See Sentencing - Ancillary Orders.

Taking offences into consideration (TICs)

For complete guidance on the operation and applicability of these, please see the standalone legal guidance chapter on TICs.

Mitigation

The prosecution advocate should also challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory. Prosecuting advocates should be proactive in ensuring that derogatory or defamatory statements in mitigation are handled robustly.

The duties and responsibilities of advocates relating to derogatory or defamatory mitigation are contained in Paragraph E of the Attorney General’s Guidelines on Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise [revised 2009] and Section 58 of the of the Criminal Procedure and Investigation Act 1996 (CPIA) introduces an additional safeguard by providing for orders to be made by the court preventing the media from reporting derogatory or defamatory mitigation.

Costs

Under Section 18 of the Prosecution of Offences Act 1985, the Court can order the payment of costs by a convicted defendant or in the Crown Court an unsuccessful appellant and a person committed for sentence or in breach of a Court order.

The Court can order the defendant to pay such costs as it thinks “just and reasonable”. An order should be made where the defendant has the means to pay.

The prosecution application should be made before mitigation and sentence. Often the full background of the defendant will only come to light during mitigation and then the Court can make its decision. See elsewhere in the Legal Guidance under Costs.

Victims Surcharge

Section 161A (1) of the Criminal Justice Act 2003 requires a court, when dealing with a person for one or more offences, to order the person to pay a surcharge. The amount of surcharge paid by a Defendant upon conviction will vary depending on the sentence imposed and whether the defendant was under 18 years or 18 years or over at the time the relevant offence was committed. The schedule can be found here. If sentenced to custody, the Crown Court cannot permit the surcharge to be served as additional time in custody. R v Stone [2013] EWCA Crim 723 held that on an appeal where no victim surcharge order had been imposed as it should have been, the appeal court will have no power to make such an order if the effect would be to increase the ultimate overall penalty. Therefore, it is important to remind the Crown Court that care needs to be taken to impose the appropriate victim surcharge order.

The court has discretion not to order the parent or guardian of a youth to pay the surcharge on behalf of the child. The Ministry of Justice Circular - "Victim Surcharge - Approach to Ordering Payment from Offenders under 18" published on 18 January 2013 states that the court may conclude it is appropriate to exercise that discretion where the parent is a victim of the child's offending. Whilst the surcharge would still need to be ordered, its payment could be deferred until the child would be likely to be able to pay the surcharge themselves e.g. after turning 18.

Parity of sentence

In R v Berry, 7 Cr. App.R (S) 392 CA, the Court reiterated that when there is a joint offence, the offenders should be tried and sentenced by the same Court to avoid the problem of perceived disparity as in this case. In this case, twelve months' youth custody for burglary was reduced to six, where the appellant's accomplice had been ordered to perform community service as an exceptional measure. A difference in the sentence imposed may be justified by the different roles of the offenders in the offence (R v Belton and Petrow [1997] 1 Cr. App. R (S) 215, CA) or if the offence by one of them represents a breach of trust. It is appropriate for the court to distinguish between offenders by reason of age, especially where one is much younger.

Totality

The principle of totality requires the Court, when sentencing an offender for more than one offence, to impose a total sentence which reflects the overall criminality and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole.

The Sentencing Council has published definitive Guidelines on three overarching aspects of sentencing: allocation, offences taken into consideration (TICs) and totality. The totality guideline reflects existing sentencing principles and can be accessed at:

https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/totality/

The Sentencing Council

The primary role of the Sentencing Council (SC) is to issue guidelines on sentencing which the courts must follow unless it is in the interests of justice not to do so. (Section 125, Coroners and Justice Act 2009). Prosecuting advocates must therefore be familiar with the guidelines, whether issued by the SC or its predecessor body, the Sentencing Guidelines Council.

The Definitive Guidelines specify the range of sentences appropriate for each type of offence. Within each offence, the Council has specified categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness.  The Council has also identified a starting point within each category.

Starting points define the position within a category range from which to start calculating the provisional sentence. Starting points apply to all offences within the corresponding category and are applicable to all offenders, in all cases. Once the starting point is established, the court should consider further aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range. Starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only at step four in the decision making process, after the appropriate sentence has been identified.

The structure of the guideline is specifically designed not as a rigid framework with mutually exclusive characterisations of behaviour, but rather as providing a range of identifying characteristics to assist the judge to place a particular offence within the range of such offences and thereby to facilitate consistency of approach to sentencing. 

If the court is of that opinion that the interests of justice require it to depart from a sentencing guideline, it is required by virtue of Section 174(2) of the Criminal Justice Act 2003, as amended, to state its reasons for so doing. The specific wording of Section 125(3) of the 2009 Act should be noted. The effect of that section is that the court’s duty is to sentence within the range of sentences for the offence as a whole (as opposed to the range specified for the particular level). This means that where the guideline separates the offence into different levels of seriousness, the acceptable range of sentences runs from the sentence applicable to the lowest end of the least serious category to the top end of the most serious category. The duty to give reasons under section 174 of the 2003 Act applies only when the court imposes a sentence which falls outside that extended range.

The duty to follow sentencing guidelines is subject to various statutory provisions. For example, those which place restrictions on imposing community sentences and imposing discretionary custodial sentences; the requirement that custodial sentences should be for the shortest term commensurate with the seriousness of an offence and the requirements for minimum sentences in certain cases, such as "three-strike" domestic burglaries. The duty to impose a sentence within the identified range is also subject to the requirements to take into account an early guilty plea, the reduction in sentence for providing assistance, and any rule of law as to reducing sentences under the totality principle.

All current guidelines are available on the Sentencing Council website at:

www.sentencingcouncil.org.uk

In R v Bao [2008] 2 Cr. App. R (S) 10, the Court of Appeal indicated that as long as the sentencing regime or maximum sentence had not changed, a judge would be obliged to follow the most recent guidelines if made publicly known before sentencing. This would be so, even when the new guideline had been made publicly known after the offence or conviction or guilty plea, and even if it had increased the "tariff" for the particular offence.

In R v Smythe & Osbourne, [2019] EWCA Crim 90 (25 January 2019) the defendants had been sentenced with reference to draft guidelines which had been cited in the sentencing note agreed by prosecution and defence advocates. The Court of Appeal held that the sentences were wrong in principle because they were imposed by reference to categorisation in guidelines that were not in force (and they were also manifestly excessive).

Magistrates' Court Sentencing Guidelines (MCSG)

The Magistrates' Court Sentencing Guidelines – Definitive Guideline (MCSG) is published online on the SC website. It is the most extensive guideline produced by the SC and covers most of the offences regularly coming before a magistrates' Court which require decisions on allocation or on sentence. The guideline also contains explanatory material that sets out a common approach to more general issues. There is a statutory obligation on every court to have regard to this guideline in a relevant case and to give reasons when imposing a sentence outside the range identified. https://www.sentencingcouncil.org.uk/the-magistrates-court-sentencing-guidelines/

Reduction in Sentence for a Guilty Plea

As a general principle (rather than a matter of law) an offender who pleads guilty may expect some credit in the form of a discount in sentence. Section 144 CJA 2003 does not confer a statutory right to a discount which remains a matter for the court’s discretion.

Where a judge takes a plea of guilty into account, it is important that they say they have done so (R  v Fearon [1996] 2 Cr. App.R. (S) 25, CA). In 2017 the Sentencing Council published a definitive guideline for reduction in sentence for a guilty plea. 

Mandatory Custodial Sentences

Section 399 of the Sentencing Act 2020 provides that mandatory sentences are those where:

  • the offence is one for which the sentence is fixed by law (ie. murder, for which the sentence is fixed as life);
  • the court is obliged to pass a life sentence under section 258, 274 or 285 (life sentence for certain dangerous offenders);
  • The court is obliged to impose a life sentence under section 273 or 283 (life sentence for second listed offence);
  • the court is obliged to impose a serious terrorism sentence under section 268B or 282B; or
  • the court is obliged to impose a minimum sentence under section 311, 312, 313, 314 or 315 (which relate to particular offences).

Murder

See the legal guidance Sentencing - Mandatory Life Sentences in Murder Cases.

Life sentences for certain dangerous offenders

See the legal guidance Sentencing - Dangerous Offenders.

Life sentences for second listed offences

Where a court is dealing with an offender for an offence listed in Part 1 of Schedule 15 to the Sentencing Act 2020, the court may be required to impose a life sentence under section 273 or 283. In respect of convictions before 1 December 2020, see section 224A of the Criminal Justice Act 2003.

The provisions of sections 273 and 283 are similar, but section 283 deals with offenders aged 21 or over when convicted, who may receive a sentence of life imprisonment, while section 273 deals with offenders aged at least 18 but under 21 when convicted, who may receive a sentence of custody for life.

For full details of where section 273 or 283 applies, see that section; however, the requirements can be briefly stated as follows:

  • the offender is being dealt with for an offence listed in Part 1 of Schedule 15 and the offence was committed on or after the date listed against the offence in that Schedule;
  • but for section 273 or 283, the court would impose a sentence of 10 years or more, disregarding any extension period;
  • when the offence was committed, the offender had been convicted of an offence listed in Schedule 15 (ignoring any offence in Part 1 if it was committed before the dated listed against that offence in that Schedule); and,
  • for the previous offence, the sentence imposed was either a life sentence (including, in respect of section 283, a sentence of imprisonment or detention for public protection) with a minimum period of at least 5 years or a determinate sentence of 10 years or more (or an extended sentence with a custodial term of 10 years or more).

Where section 273 or 283 applies the court must impose a life sentence unless the court is of the opinion that there are particular circumstances which relate to the current or previous offence or the offender and which would make it unjust to do so in all the circumstances.

Serious terrorism sentences

Where a court is dealing with an offender for a serious terrorism offence committed on or after 29 June 2021, the court may be required to impose a serious terrorism sentence under section 268B or 282B of the Sentencing Act 2020. A ‘serious terrorism offence’ is an offence specified in Part 1 of Schedule 17A, or an offence specified in Part 2 of that Schedule which has been determined to have a terrorist connection under section 69.

The provisions of sections 268B and 282B are similar, but section 282B deals with offenders aged 21 or over when convicted, who may receive a serious terrorism sentence of imprisonment, and section 268B deals with offenders aged under 21 when convicted, who may receive a serious terrorism sentence of detention in a young offender institution.

Section 268B or 282B applies where:

  • the offender is being dealt with for a serious terrorism offence committed on or after 29 June 2021;
  • the offender was aged 18 or over when the offence was committed;
  • when convicted of the offence, the offender was aged 21 or over for section 282B or under 21 for section 268B;
  • the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further serious terrorism offences or other specified offences (see section 308 in respect of the assessment of this risk);
  • the court does not impose a sentence of imprisonment for life; and
  • The court is of the opinion that the serious terrorism offence, or the combination of the offence and one or more offences associated with it, was very likely to result in or directly or indirectly contribute to the deaths of at least two people as a result of an act of terrorism (within the meaning of section 1 of the Terrorism Act 2000), and the offender was, or ought to have been, aware of that likelihood. It is irrelevant for this purpose whether or not any death actually occurred.

Where section 268B or 282B applies, the court must impose a serious terrorism sentence of detention or imprisonment unless the court is of the opinion that there are exceptional circumstances which relate to the offence or to the offender and which justify not doing so.

A serious terrorism sentence is comprised of a custodial term of at least 14 years and an extension period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further serious terrorism offences or other specified offences, which must be at least 7 years but not more than 25 years  (sections 268A and 268C, or 282A and 282C).

Minimum Term Custodial Sentences

Firearms offences – section 311 of the Sentencing Act 2020

This section applies where a person is convicted on or after 1 December 2020 of an offence listed in Schedule 20 to the Sentencing Act 2020 (certain offences involving firearms that are prohibited weapons) and the offender was aged 16 or over when the offence was committed. In respect of offences for which the offender was convicted before 1 December 2020, see section 51A of the Firearms Act 1968 and section 29 of the Violent Crime Reduction Act 2006, as they were in force at that time.

Where section 311 applies, the court must impose a sentence of at least 5 years if the offender was aged 18 or over when the offence was committed or 3 years if the offender was aged under 18 when the offence was committed, unless the court is of the opinion that there are exceptional circumstances which relate to the offence or to the offender, and which justify not doing so.

Where section 311 applies to a youth, section 51A of the Crime and Disorder Act 1998 requires that they are sent to the Crown Court for trial; the case may not be kept in the youth court.

Drug Trafficking - section 313 of the Sentencing Act 2020

This section may apply where a person is convicted on or after 1 December 2020 of a third class A drug trafficking offence. In respect of offences for which the offender was convicted before 1 December 2020, see section 110 of the Powers of Criminal Courts (Sentencing) Act 2000, as it was in force at that time.

‘Drug trafficking offences’ are defined in section 313 and paragraphs 1 and 10 of Schedule 2 to the Proceeds of Crime Act 2002. They include the production and supply of controlled drugs, possession of controlled drugs with intent to supply, offences relating to the importation or exportation of prohibited drugs, and inchoate versions of such offences eg. attempt or conspiracy.

Section 313 only applies in respect of such offences if:

  • the offence was committed on or after 1 October 1997;
  • the offender was aged 18 or over when they committed the offence;
  • the offender had previously been convicted of two other class A drug trafficking offences; and
  • one of those offences was committed after the offender had been convicted of the other.

Where section 313 applies, the court must impose a minimum sentence of 7 years unless:

  • where the offence was committed before the day on which section 124 of the Police, Crime, Sentencing and Courts Act 2022 came into force (28 June 2022), the court is of the opinion that there are particular circumstances which relate to any of the offences or to the offender and which would make it unjust to do so in all the circumstances; or
  • where the offence was committed on or after the day on which section 124 of the Police, Crime, Sentencing and Courts Act 2022 came into force (28 June 2022), the court is of the opinion that there are exceptional circumstances which relate to any of the offences or to the offender and which justify not doing so.

Where section 313 applies to an offence that would otherwise be either way, that offence is triable only on indictment.

Domestic burglary - Section 314 of the Sentencing Act 2020

This section may apply where a person is convicted on or after 1 December 2020 of a third domestic burglary. In respect of offences for which the offender was convicted before 1 December 2020, see section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, as it was in force at that time.

A ‘domestic burglary’ is defined in section 314(5) as a burglary committed in respect of a building or part of a building which is a dwelling. There is no provision in respect of inchoate offences relating to burglary eg. attempt or conspiracy. Note that aggravated burglary involves the commission of a burglary. In order for a burglary to be treated as a ‘domestic burglary’ for sentencing purposes, it is important for the word "dwelling" to appear in the indictment particulars (R v Miller (Gary) [2010] EWCA Crim 809). For further guidance as to what constitutes a dwelling, see the legal guidance Theft Act Offences.

Section 314 applies where:

  • the offence was committed on or after 1 December 1999;
  • the offender was aged 18 or over when they committed the offence;
  • the offender had previously been convicted of two other domestic burglary offences committed on or after 1 December 1999; and
  • one of those offences was committed after the offender had been convicted of the other.

​​​​Where section 314 applies, the court must impose a minimum sentence of 3 years unless:

  • where the offence was committed before the day on which section 124 of the Police, Crime, Sentencing and Courts Act 2022 came into force (28 June 2022), the court is of the opinion that there are particular circumstances which relate to any of the offences or to the offender and which would make it unjust to do so in all the circumstances; or
  • where the offence was committed on or after the day on which section 124 of the Police, Crime, Sentencing and Courts Act 2022 came into force (28 June 2022), the court is of the opinion that there are exceptional circumstances which relate to any of the offences or to the offender and which justify not doing so.

Where section 314 applies to an offence that would otherwise be either way, that offence is triable only on indictment.

Offensive weapons, articles with a blade or point, and corrosive substances – sections 312 and 315 of the Sentencing Act 2020

These sections require that the court must generally impose an “appropriate custodial sentence” in respect of certain offences for which a person was convicted on or after 1 December 2020 relating to offensive weapons, articles with a blade or point, and corrosive substances. See also the Legal Guidance for Offensive Weapons, Knives and Blades.

An "appropriate custodial sentence" means: 

  • in the case of a person who is aged 16 or over but under 18 when convicted, a detention and training order of at least 4 months;
  • in the case of a person who is aged 18 or over but under 21 when convicted, a sentence of detention in a young offender institution for a term of at least 6 months; or
  • in the case of a person who is aged 21 or over when convicted, a sentence of imprisonment for a term of at least 6 months.

Under section 312, this applies to offences contrary to section 1A of the Prevention of Crime Act 1953 (offence of threatening with offensive weapon in public) and section 139AA of the Criminal Justice Act 1988 (offence of threatening with article with blade or point or offensive weapon). 

Under section 315, this also applies to certain ‘second strike’ offenders; specifically, this applies where:

  • a person is convicted of an offence committed on or after 17 July 2015 under section 1 of the Prevention of Crime Act 1953 (carrying offensive weapon without lawful authority or reasonable excuse), section 139 of the Criminal Justice Act 1988 (having article with blade or point in public place) or section 139A of that Act (having article with blade or point or offensive weapon on education premises), or an offence committed on or after 6 April 2022 under section 6 of the Offensive Weapons Act 2019 (offence of having a corrosive substance in a public place);
  • when the offence was committed, the offender was aged a least 16; and
  • when the offence was committed, the offender had at least one previous conviction under section 1 or 1A of the Prevention of Crime Act 1953, section 139, 139A or 139AA of the Criminal Justice Act 1988, or section 6 of the Offensive Weapons Act 2019.

Where section 312 or 315 applies, the court must impose an “appropriate custodial sentence” unless:

  • where the offence was committed before the day on which section 124 of the Police, Crime, Sentencing and Courts Act 2022 came into force (28 June 2022), the court is of the opinion that there are particular circumstances which relate to the offence or to the offender or, for ‘second strike’ offences, which relate to the previous offence, and which would make it unjust to do so in all the circumstances; or
  • where the offence was committed on or after the day on which section 124 of the Police, Crime, Sentencing and Courts Act 2022 came into force (28 June 2022), the court is of the opinion that there are exceptional circumstances which relate to the offence or to the offender or, for ‘second strike’ offences, which relate to the previous offence, and which justify not doing so.

In respect of offences for which a person was convicted before 1 December 2020, the corresponding provisions are found in the sections creating those offences as they were in force prior to that day: 

Reduction in sentence for guilty pleas for minimum term offences

Where section 312, 313, 314 or 315 of the Sentencing Act 2020 applies and the offender pleads guilty, section 73 of the Sentencing Act 2020 provides that the court may, as usual, take into account the stage in the proceedings for the offence at which the offender indicated the intention to plead guilty, and the circumstances in which the indication was given, and:

  • If the offender was aged 18 or over when convicted, the court may impose any sentence which is at least 80% of the minimum sentence which would otherwise be required;
  • If the offender was aged 16 or 17 when convicted, the court may impose any sentence it considers appropriate, notwithstanding the minimum sentence which would otherwise be required.

Note that section 73 does not cover section 311 of the Sentencing Act (minimum sentence for certain firearms offences), so a guilty plea may not reduce such a sentence below the minimum required, although the court may still find exceptional circumstances relating to the offence or the offender that justify this.

In respect of offences for which the offender was convicted before 1 December 2020 and to which section 110 or 111 of the Powers of Criminal Courts (Sentencing) Act 2000 are applicable, see section 144 of the Criminal Justice Act 2003, as it was in force at that time.

Determining whether there are particular circumstances which would make a sentence unjust or exceptional circumstances which justify reducing a sentence

Guidance was given in Wooff [2019] EWCA Crim 2249 (in the context of section 110 of the Powers of Criminal Courts (Sentencing) Act 2000) on determining whether there are particular circumstances which would make it unjust to impose a minimum:

“(4)  The question of whether particular circumstances would make it unjust to impose the minimum sentence is inherently fact-sensitive. For that reason the authorities suggest that in cases where the burden lies on the defendant to persuade the court that particular circumstances would make it unjust to apply the minimum sentence provisions, a pre-sentence report should usually be obtained […]. The failure to obtain a report is not, however, of itself a fatal flaw in the sentencing exercise […].

(5)   One way of testing whether or not a sentence would be unjust in the particular circumstances of the case is to ask whether or not the sentence […] is markedly more severe than the sentence that would have been passed, applying the Sentencing Council guidelines for the offence. This, however, has to be measured against the deterrent element which underlies [the section].

(6)   The court must loyally apply the law that Parliament has enacted. It must not circumvent or dilute the effect of the statute by taking too liberal an approach to the notion of what is "unjust" as, for instance, by treating perfectly normal circumstances as "particular circumstances" […] in order to circumvent the operation of those provisions […]”

In respect of determining whether there are exceptional circumstances which justify reducing a sentence, guidance was given in Rehman [2005] EWCA Crim 2056 in the context of firearms offences. It was necessary to look at the case as a whole. Sometimes there would be a single isolated factor that would amount to an exceptional circumstance, but in other cases it would be the collective impact of all the relevant circumstances. Circumstances would be ‘exceptional’ if it would mean that to impose the minimum sentence would result in an arbitrary and disproportionate sentence.

Guidance was given in Rogers [2016] EWCA Crim 801 (again in the context of firearms offences) as to the procedure to be followed where there are disputed facts which are said to give rise to exceptional circumstances:

“the procedure should follow that of a Newton hearing. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing. […] if a hearing takes place, then the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant's account of the circumstances in which he acquired the firearm. If the Crown fails to do so, the judge must proceed on the basis the defendant's version is correct. It does not, of course, follow that the judge, even if he accepts the defendant's version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains a high one.”

Guidance on what may constitute exceptional circumstances for firearms offences can now be found in the Sentencing Council’s definitive guidelines on firearms offences.

Prosecutors’ responsibilities

Prosecutors should identify where a mandatory sentence may apply and make the court aware of this.

Prosecutors should also identify and make the court aware of where an offence that would otherwise be either way is indictable only by virtue of section 313 or 314, and when section 311 requires a youth to be sent to the Crown Court for trial. The magistrates’/youth court should satisfy itself that the conditions set out in the relevant section are satisfied and rule on the point.

Where relevant, the defence should be invited to indicate whether it is accepted that the mandatory sentence provisions are applicable and, if not, why not. The defence should also be invited to indicate whether it is intended to argue that there are particular circumstances which would make it unjust to impose the minimum sentence or exceptional circumstances which justify not doing so.

Where there is a dispute as to whether a previous conviction qualifies (eg. the defendant claims a conviction was for a class B rather than a class A drug trafficking offence), it is the responsibility of the CPS to request the convicting court to supply a copy of the memorandum or certificate of conviction. The case may need to be adjourned for this purpose. In most cases, such a memorandum or certificate will be sufficient proof. Where in exceptional circumstances it is not capable of resolving the dispute, the court will be need to consider other available information.

In addition, under section 317 of the Sentencing Act 2020, a certificate by the convicting court that the offender was convicted of an offence on the date of the conviction and/or that an offence was committed on a particular day, over a particular period or at some time during a particular period is evidence for the purposes of sections 313 and 314 of the facts so certified.

Even if it is accepted that a relevant minimum sentence is applicable, there may be a dispute as to the facts of previous offences which may be relevant to whether there are particular circumstances which would make it unjust to impose the minimum sentence or exceptional circumstances which justify not doing so. In these circumstances, it may be appropriate to consider obtaining additional details of the previous convictions, such as a basis of plea or transcripts of the sentencing remarks.

A failure by the court to impose a statutory minimum may lead to the sentence being regarded as unduly lenient. A sentence above the statutory minimum may still be regarded as unduly lenient according to ordinary sentencing principles. See the legal guidance Unduly Lenient Sentences for further details.

If there has been a failure to impose a statutory minimum sentence due to oversight, prosecutors should seek to have the case re-listed under the 56-day slip-rule to correct the error (see below, under ‘Fifty-six Day "Slip Rule"’). However, this should be done well within 28 days of sentence to ensure that a ULS reference within the 28-day time limit remains open in the event that the court declines to alter the sentence under the slip rule.

Fifty-six Day "Slip Rule"

Under Section 155 Powers of Criminal Courts (Sentencing) Act 2000, the Crown Court has the power to vary or to rescind a sentence or other order imposed within 56 days of the date on which it was made. The usual reason for altering the sentence is that further information relevant to the sentence has become available to the court; or the court has overlooked some statutory provisions limiting its powers; or the sentence is found to take effect in an unexpected manner. R v Warren [2017] EWCA Crim 226; [2017] 2 Cr.App.R. (S.) 2, provides a summary of the current state of the law.

The Unduly Lenient Sentence (ULS) regime should not be used when it is more appropriate to apply the 56 day slip rule to correct an unlawful sentence. For example, when a mandatory order has been omitted or a mandatory minimum sentence or term has not been applied.

However, in such cases, CPS Areas should ensure that the court addresses the error under the slip rule well within 28 days of sentence. This is in order to ensure that the possibility of a ULS reference within the 28 day time limit remains open in the event that the court declines to alter the sentence under the slip rule. If the sentence is correct in law then the proper approach is to consider whether the criteria for referring the case as an unduly lenient sentence are met.

R v Hart [1983] 5 Cr. App. R. (S.) 25 approved in principle the exercise of this power where it was established that the offender had caused false information to be given in mitigation. In that case, the offender was given a suspended sentence on the basis they were going to live in Italy where they had a job. Later a newspaper reported that they had boasted that the story about Italy had been concocted. It was held that had application been brought within the time limit, then a variation to impose an immediate custodial sentence would have been proper.

Similarly, in R v McLean [1988] 10 Cr. App. R. (S.) 18, the sentencing judge accepted mitigation to the effect that the offender had seen the error of their ways and intended to turn over a new leaf and therefore imposed the minimum sentence of 3 years’ for an offence of robbery. When the Defendant almost immediately escaped it was held acceptable for the sentencing judge to vary the sentence by increasing it to 4 years’ on the basis that the escape gave the lie to the mitigation which had earlier been accepted. However, the judge should not decide that false information has been put before the court without a proper inquiry and allowing the offender to give evidence (see R v Tout 15 Cr. App. R. (S) 30 CA).

Misbehaviour in the dock immediately after the sentence is imposed, by shouting abuse or otherwise should be dealt with as a contempt of court (R v Powell 7 Cr. App. R. (S.) 247 CA).

While there is no power to extend the time limit under s.155, and therefore no power to list the case within the 56-day limit and then to adjourn it, it is open to the court to reconsider and rescind the original decision within 56 days but to then adjourn the re-sentencing of the offender to a point in time outside the 56-day limit: Att.-Gen.’s Ref. (R. v. Nguyen) [2016] EWCA Crim 448; [2016] 2 Cr.App.R.(S.) 18.

Referral of Unduly Lenient Sentences

Areas should contact the Unduly Lenient Sentences Team of the Appeals and Review Unit (ARU) in the Special Crime and Counter Terrorism Division and the Attorney General's Office at an early stage to discuss and agree the approach.  For more information please see the Unduly Lenient Sentence legal guidance.

Time spent on remand

Section 67 Criminal Justice Act 1967 applies to offences committed before 4 April 2005 and Sections 240ZA241 Criminal Justice Act 2003 applies to offences committed after 4 April 2005. Both provide that the length of the prison sentence should be reduced by the period spent on remand. Police detention does not fall within the ambit of a remand in custody under Section 242(2) of the 2003 Act.

Time spent in custody in connection with a fresh offence while the defendant is serving a sentence of imprisonment following their recall after release on licence, does not form part of the “relevant period” for the purposes of either section 39(6) of the Criminal Justice Act 1991 or s 254(6) of the 2003 Act, and therefore would not fall to be deducted from the sentence imposed for the fresh offence.

R v Jonsyn [2014] EWCA Crim 239 confirmed that the position is that from the beginning of December 2012, courts have not been required to, and ordinarily should not, give any indication as to credit for time spent on remand. The proper approach will be for the court to decide on sentence without reference to any possible effect of administrative crediting of time spent on remand. This case also held that consecutive sentences cannot both have credit for time spent on remand, otherwise this would be double counting in favour of the defendant and has been abolished by Section 240ZA (4) of the Criminal Justice Act 2003 which provides:

"If, on any day, on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served."

Although crediting remand time towards determinate sentences became an administrative task (except where there had already been a direction of the court) there is an exception whenever a life sentence, other than a whole life sentence, is imposed. In those cases the minimum term must be specifically adjusted by the judge to take into account time spent remanded into custody or subject to a qualifying curfew.

In relation to life sentences fixed by law in which the minimum term would be adjusted for the time spent on remand the provisions are contained in Section 269(3)(b) of the Criminal Justice Act 2003.

There is a requirement for the sentencing judge to take into account remand time when passing a life sentence that is not fixed by law (other than a whole life sentence) in accordance with Section 82A(3)(b) of the Powers of Criminal Courts (Sentencing) Act 2000.

Release and re-offending during periods of post release licence

As soon as a prisoner has served one half of a determinate sentence of 12 months’ or more, it is the duty of the Secretary of State to release him on licence - Section 244 Criminal Justice Act 2003. The release and licence provisions relating to prison sentences of less than 12 months’ are set out in Section 33 of the Criminal Justice Act 1991. A prisoner who is serving an extended sentence under Sections 227 or 228 of the Criminal Justice Act 2003 will also be released when they have served one half of the appropriate custodial sentence – Section 247 Criminal Justice Act 2003.

However, as these provisions came into effect on 4 April 2005, it is important to check the antecedents carefully to determine if the 1991 Act or 2003 Act applies. If a person who has been released on licence pursuant to Section 244 of the 2003 Act commits further offences during the licence period, they will be prosecuted in the usual way for the new offences. It is for the Secretary of State to decide what action is to be taken in respect of the breach of licence. Breach normally results in revocation of the licence and an “administrative” recall to prison under Section 254 of the Act. A person whose licence has been revoked is unlawfully at large until they surrender or are arrested: Section 254(6).

Breach proceedings

Breach of Community Penalty

Where an offender is brought before the court for breach of a community penalty, there is no power for a CPS prosecuting advocates to prosecute the breach. Breaches are prosecuted by the probation service or, in the case of curfew orders, the monitoring contractor (or lawyers instructed by them). However, once the breach has been proved and the court has determined that the offender falls to be re-sentenced for the original offence, prosecutors are under a duty to present the facts of the original offence and will take over conduct of proceedings.

In order to re-sentence, the prosecuting advocate must provide to the court sufficient information about the original offence and ensure its availability if required. What constitutes 'sufficient information' was outlined by Toulson J in R v David Clarke [1997] 2 Cr. App. R. 163. Not only should the prosecution be in a position to put before the court the breach but also the facts of the original offence - at least in outline - together with any relevant information about their co-defendants, their antecedent histories and the sentences passed on them.

The best way is for the CPS to obtain the original file in advance and have it available at court. This is only possible there is advance notice of the breach proceedings. Even then, it is not always easy or practical to locate the relevant file, particularly if the earlier offence is of some antiquity. As an alternative, the necessary information required for re-sentencing can often be found in the pre-sentence report (PSR) information package that the CPS sent to probation prior to the imposition of the community sentence that is the subject of the breach proceedings. Probation will also have the necessary evidence from its own sources to prove the actual breach. Alternatively, the CPS could wait until the breach is proved and then seek to obtain the file, but this would necessitate an adjournment in the case, which is undesirable.

Breach of Curfew Orders

Whereas with most breaches the probation service can provide details to the prosecuting advocate, where there is a breach of a curfew order, the breach is likely to be prosecuted by the monitoring contractor who will not have had access to the PSR package and so would not be in a position to make it available to the prosecuting advocate at court.

CPS Areas should negotiate their own arrangements with the local Probation Service to resolve the question of how and when the prosecuting advocate obtains the requisite information. This will depend on local conditions, such as the ease of access to original files, the local listing arrangements and the likely levels of co-operation between the organisations involved.

Breach of Attendance Centre Order

Under Powers of Criminal Courts (Sentencing) Act 2000, Schedule 5 breaches of these orders are dealt with by the person in charge of the order. The CPS prosecutor is simply required, on conviction, to alert the court to the existence of such an order.

The SC introduced guidelines for breaches in 2018 which can be found under the individual offences at https://www.sentencingcouncil.org.uk/publications/item/breach-offences-definitive-guideline/

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