Aggravating and mitigating factors in sentencing guidelines and their expanded explanations – Research report: Annexes

Annex A: Aggravating and mitigating factors and their expanded explanations included in stage one of the research

Previous convictions, 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

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.

1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
2. 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.
3. Previous convictions are normally relevant to the current offence when they are of a similar type.
4. Previous convictions of a type different from the current offence may be relevant where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
5. 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.
6. 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.
7. 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.
8. 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.
9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
10. 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.
11. 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.
12. 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.
13. 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

Commission of offence whilst under the influence of alcohol or drugs

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.

A leading role where offending is part of a group activity

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, and where appropriate ask for this to be addressed in a PSR.

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.

Victim is targeted due to a vulnerability (or a perceived vulnerability)

• 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.

Offence committed in a domestic context

Refer to the Overarching Principles: Domestic Abuse Definitive Guideline

Sole or primary carer for dependent relatives

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.

When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the Probation Service to address these issues in a PSR.

Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 131 to 137)

Good character and/or exemplary conduct

This factor may apply whether or not the offender has previous convictions.  Evidence that an offender has demonstrated positive good character may reduce the sentence.

However, this factor is less likely to be relevant where the offending is very serious.  Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

Remorse

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 ways. A simple assertion of the fact may be insufficient, and the offender’s demeanour in court could be misleading, due to for example:

• nervousness
• a lack of understanding of the system
• learning disabilities
• communication difficulties
• cultural differences
• a belief that they have been or will be discriminated against
• peer pressure to behave in a certain way because of others present
• a lack of maturity etc.

If a PSR has been prepared it will provide valuable assistance in this regard.

Age and/or lack of maturity

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 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).

When considering a custodial or community sentence for a young adult the Probation Service should address these issues in a PSR.

Annex B: Stage one hypothetical base scenarios

Base ‘theft’ scenario (1A, 1B, 1C, 1D) and variations- magistrates’ courts

A, a 35-year-old woman, has pleaded guilty to theft from a shop.

She went into an electronics store and was noted acting suspiciously near a display of iPads. She left without buying anything. A member of staff alerted a security guard who stopped her just outside the store. An iPad valued at £499 was discovered in her bag.

The police were called and in interview she admitted going into the store with the intention of stealing. Her eldest child needed to use a computer for his schoolwork and the very old laptop that she owned had stopped working and she could not afford to buy him one.

There was an order in place (imposed three years ago) banning her from going into that store.

Step 1:

This is assessed as high culpability (there was some planning and she was banned from the store) and category 2 harm (value £200 to £1,000). Starting point: 12 weeks’ custody, category range: high level community order to 26 weeks’ custody.

Variation A

Annie McCreery has 20 previous convictions as an adult, mostly for shop theft. Two years ago she was sentenced to 4 months’ custody for 2 offences of theft. Since then she has had only one conviction (before today) when she received a 6 month conditional discharge for theft. She did not reoffend during the period of the discharge.

She works as an office cleaner on minimum wage.

She lives with her two children aged 8 and 12. Her boyfriend (not the children’s father) has recently moved in following his release from prison for an offence of GBH.

Variation B

Annie McCreery has 8 previous convictions as an adult mostly for shop theft. Two and a half years ago she was sentenced to a community order with 200 hours unpaid work for 2 offences of theft. She was subsequently breached for failing to attend on time and was given an extra 20 hours of unpaid work. She completed the order without further breaches.

She works as an office cleaner on minimum wage.

She presents a character reference from the organiser of a local netball team who says Annie has been a positive influence on younger members of that team.

Variation C

Adenike Edo has 20 previous convictions as an adult, mostly for shop theft. Two years ago she was sentenced to 4 months’ custody for 2 offences of theft. Since then she has had only one conviction (before today) when she received a 6 month conditional discharge for theft. She did not reoffend during the period of the discharge.

She works as an office cleaner on minimum wage.

She lives with her two children aged 6 and 8. Her boyfriend (not the children’s father) has recently moved in following his release from prison for an offence of GBH.

Variation D

Adenike Edo has 8 previous convictions as an adult mostly for shop theft. Two and a half years ago she was sentenced to a community order with 200 hours unpaid work for 2 offences of theft. She was subsequently breached for failing to attend on time and was given an extra 20 hours of unpaid work. She completed the order without further breaches.

She works as an office cleaner on minimum wage.

She presents a character reference from the organiser of a local netball team who says Adenike has been a positive influence on younger members of that team.

Base ‘assault’ scenario (2A and 2D) and variations– magistrates’ courts

J and V were observed in a cafe together by several witnesses. J was seen to remonstrate with V over a coffee that was spilt and was heard to say; “It’s always the same with you, you’re a fucking useless girlfriend, you can’t do anything right. I don’t know why I put up with you. Nobody else would want you.”

V seemed upset but she said very little. When they left the cafe they were captured on CCTV walking across the car park. J appeared animated and then was seen to push V, who stumbled and fell to the ground. J stood over V, landed two kicks to V’s back and walked out of shot. V stood up and J reappeared and punched V twice in the abdomen. V doubled up and sank to the ground. J kicked V one further time and then left.

A customer from the cafe who had observed the earlier incident then came to V’s aid and called the police, who took statements from witnesses.

V visited the GP the next day. She had extensive bruising to the abdomen and back but no broken bones.

V has moved out of the accommodation shared with J and is staying with friends. V gave an initial statement but later says she does not want to prosecute.

J was arrested and made no comment when interviewed.

J pleads guilty to ABH.

Step 1:

This is assessed as high culpability and category 2 harm. Starting point: 1 year six months’ custody, category range: 36 weeks’ custody to 2 years six months’ custody.

Variation A

Jack Clarke is 32 years old, he works as a bricklayer. He has one previous conviction for careless driving 3 years ago. He says he was shocked when he saw the CCTV, he isn’t proud of what he did and he knows that he needs to change because he ‘has a short fuse’.  He wants to get back with the victim.

Variation D

Jimmy Lee is 32 years old, he works on a travelling fair. He has one previous conviction for careless driving 3 years ago. He says he was shocked when he saw the CCTV, he isn’t proud of what he did and he knows that he needs to change because he ‘has a short fuse’.  He wants to get back with the victim.

Base ‘assault’ scenario (2B and 2C) and variations– magistrates’ courts

J was seen with a group of friends in a bar. He had consumed a large amount of alcohol and was becoming loud and argumentative.

J left with his friend Ben and Ben’s girlfriend Lucy. They were seen on CCTV walking across the car park. J appeared animated and was seen to confront Ben, Lucy intervened and J pushed Lucy who stumbled and fell to the ground. J stood over Lucy, landed two kicks to Lucy’s back and walked out of shot. Lucy got to her feet with Ben’s help and Ben went to get his car. J reappeared and punched Lucy twice in the abdomen. Lucy doubled up and sank to the ground. J kicked Lucy one further time and then left.

Ben then came to Lucy’s aid and called the police, who took statements from witnesses.

Lucy was taken to A&E as a precaution. She had extensive bruising to the abdomen and back but no broken bones.

J was arrested and made no comment when interviewed.

J pleads guilty to ABH.

Step 1:

This is assessed as high culpability and category 2 harm. Starting point: 1 year six months’ custody, category range: 36 weeks’ custody to 2 years six months’ custody.

Variation B

Jack Clarke is 22 years old, he is employed as a bricklayer. He has one previous conviction for drink driving 3 years ago. He says wouldn’t normally behave like that, it was because he had drunk too much on an empty stomach.

Variation C

Jimmy Lee is 22 years old, he works on a travelling fair. He has one previous conviction for drink driving 3 years ago. He says wouldn’t normally behave like that, it was because he had drunk too much on an empty stomach.

Base ‘robbery’ scenario (3A, 3B, 3C, 3D) and variations– Crown Court

V was walking in the local park using a mobile phone. D approached unnoticed from behind on foot and pushed V hard to the ground causing the phone to fly out of V’s hand. D then grabbed the phone and ran off. V has a broken wrist from the fall, is very shaken by the incident and upset at the loss of the phone which in addition to the financial loss (about £800) contained personal information and items of sentimental value not backed up elsewhere. V reports having nightmares, is reluctant to go out alone and has not returned to the local park.

D was identified from CCTV in the area and arrested the next day. The phone is not recovered.

D has pleaded guilty at the first hearing.

Step 1:

This is assessed as medium culpability (the level of force used falls between high and lesser) and category 2 harm (the physical and psychological harm falls between 1 and 3). Starting point: 4 years’ custody, category range: 3 to 6 years’ custody.

Variation A

V is a 20-year-old male. CCTV shows that D handed the phone to an accomplice who has not been identified.

David O’Malley is aged 19. He lives with his parents. He is unemployed and has no qualifications. He told the police that he was promised £50 if he took the phone but he didn’t get the money. He is from an Irish Catholic family and his parents are very upset about him getting into trouble with the police.

Variation B

V is a 14-year-old girl who was in school uniform.

Duwane Brathwaite is aged 28. He lives with his parents. He is unemployed, has no qualifications and is dyslexic. He is from a Jamaican evangelical Christian family and his parents are very upset about him getting into trouble with the police.

He presents a character reference from a tutor for a literacy programme he has recently enrolled in which praises how hard he is working to improve his core skills.

Variation C

V is a 14-year-old girl who was in school uniform.

David O’Malley is aged 28. He lives with his parents. He is unemployed, has no qualifications and is dyslexic. He is from an Irish Catholic family and his parents are very upset about him getting into trouble with the police.

He presents a character reference from a tutor for a literacy programme he has recently enrolled in which praises how hard he is working to improve his core skills.

Variation D

V is a 20 year old male. CCTV shows that D handed the phone to an accomplice.

Duwane Brathwaite is aged 19. He lives with his parents. He is unemployed and has no qualifications. He told police that he was promised £50 if he took the phone but he didn’t get the money. He is from a Jamaican evangelical Christian family and his parents are very upset about him getting into trouble with the police.

Base ‘supplying drugs’ scenario (4A, 4B, 4C, 4D) and variations– Crown Court

K was observed at a music festival by undercover police officers providing small packets to others in exchange for money. K was arrested and searched and found to be in possession of 60 bags – each bag containing 15 tablets, and £150 in cash. Upon analysis the tablets have been found to contain MDMA (ecstasy).

K pleads guilty to possession of a class A drug with intent to supply on the basis that they were performing a lesser role, having been provided with the drugs and told where to sell them and for how much. The proceeds were to be given to the supplier who would then pay K in drugs for personal use and a small amount of cash. The prosecution accepts that this amounted to performing a limited function under direction.

K is an occasional recreational drug user – there is no suggestion of a drug habit.

Step 1:

This is assessed as lesser culpability and category 3 harm (selling directly to users). Starting point: 3 years’ custody, category range: 2 to 4 years six months’ custody.

Variation A

Asif Khan is aged 26. He has previous convictions for possession of cannabis, theft, common assault and driving without insurance.

He lives with his mother and 17-year-old brother. The brother has learning difficulties and K looks after his brother while his mother works four evenings a week and helps her to care for him at other times. In a letter to the court his mother says that she would not be able to cope without his help.

Variation B

Arthur King is aged 26. He has previous convictions for possession of cannabis, theft, common assault and driving without insurance.

He lives with his mother and 17-year-old brother. He is dyslexic and has diagnosed ADHD. He left school without any qualifications.

In court he appears to be distracted, often looking at his family in the public gallery. When asked, he says that he understands what is happening. Through his representative he expresses remorse.

Variation C

Sunita Khan is aged 26. She has previous convictions for possession of cannabis, theft, common assault and driving without insurance.

She lives with her mother and 17-year-old brother. The brother has learning difficulties and K looks after her brother while her mother works four evenings a week and helps her to care for him at other times. In a letter to the court her mother says that she would not be able to cope without her help.

Variation D

Abby King is aged 26. She has previous convictions for possession of cannabis, theft, common assault and driving without insurance.

She lives with her mother and 17-year-old brother. She is dyslexic and has diagnosed ADHD. She left school without any qualifications.

In court she appears to be distracted, often looking at her family in the public gallery. When asked, she says that he understands what is happening. Through her representative she expresses remorse.

Annex C: Summary tables of offender characteristics and identifiable factors in the hypothetical scenarios

Table 1: Scenario 1 variations for magistrates, using the Theft from a shop or stall guideline

Scenario 1	Offender race (identifier)	Offender sex (stated)	Aggravating factor	Mitigating factor
A	White	Female	Previous convictions	Sole or primary carer for dependent relatives
B	White	Female	Previous convictions	Good character and or/exemplary conduct [with proposed change]
C	Black	Female	Previous convictions	Sole or primary carer for dependent relatives
D	Black	Female	Previous convictions	Good character and or/exemplary conduct [with proposed change]

Table 2: Scenario 2 variations for magistrates, using the Assault occasioning actual bodily harm/racially or religiously aggravated ABH guideline

Scenario 2	Offender race (identifier)	Offender sex (stated)	Aggravating factor	Mitigating factor
A	White	Male	Offence committed in a domestic context	Remorse [with proposed change]
B	White	Male	Commission of offence whilst under the influence of alcohol/drugs	Age and/or lack of maturity
C	Gypsy, Roma or Irish traveller	Male	Commission of offence whilst under the influence of alcohol/drugs	Age and/or lack of maturity
D	Gypsy, Roma or Irish traveller	Male	Offence committed in a domestic context	Remorse [with proposed change]

Table 3: Scenario 3 variations for judges, using the Robbery- street and less sophisticated commercial guideline

Scenario 3	Offender race (identifier)	Offender sex (stated)	Aggravating factor	Mitigating factor
A	White	Male	A leading role where offending is part of a group activity	Age and/or lack of maturity
B	Black	Male	Victim is targeted due to a vulnerability (or a perceived vulnerability)	Good character and/or exemplary conduct [with proposed change]
C	White	Male	Victim is targeted due to a vulnerability (or a perceived vulnerability)	Good character and/or exemplary conduct [with proposed change]
D	Black	Male	A leading role where offending is part of a group activity	Age and/or lack of maturity

Table 4: Scenario 4 variations for judges, using the Supplying or offering to supply a controlled drug/Possession of a controlled drug with intent to supply it to another guideline

Scenario 4	Offender race (identifier)	Offender sex (stated)	Aggravating factor	Mitigating factor
A	Asian	Male	Previous convictions	Sole or primary carer for dependent relatives
B	White	Male	Previous convictions	Remorse [with  proposed change]
C	Asian	Female	Previous convictions	Sole or primary carer for dependent relatives
D	White	Female	Previous convictions	Remorse [with proposed change]

Annex D: Stage one base interview schedule

Interview guide

Expanded Explanations stage one

March 2023

Introduction

• Thank you for agreeing to participate in this research.
• As part of its strategic objectives, the Sentencing Council is conducting research on the expanded explanations in the sentencing guidelines. This includes looking at the current wording of some of these, and several where the Council is considering making changes. The aim of our discussion is to explore how expanded explanations are being used and interpreted as part of sentencing practice.
• The interview today should take between 45 minutes and an hour. If the video link or sound fails, the interview will be rearranged at your convenience.
• I will ask you to carry out two sentencing exercises using hypothetical scenarios. We have sent you links to some mock guidelines that have been created solely for this research and are not in force. They contain proposed amendments to some expanded explanations.
• Given that the explanations we would like to discuss fall into step 2 of the guidelines, I will only be asking you to consider how you would sentence from step 2 onwards – the scenarios therefore give you the decision regarding step 1 of the guideline. I will also ask you some overarching questions about the expanded explanations and your views on possible changes.
• With your permission, I would like to record our discussion. The recording will provide a back up to my notes taken during the interview and will also help when writing up the discussion to feed into the research report.
• The findings of this research will be presented back to the Council and we may use verbatim quotes. Please note that anything said in this discussion will be held in the strictest confidence. Any comments made will be anonymised in any reporting, so nothing is attributable to you.
• Have you had an opportunity to read the scenarios and the accompanying mock guidelines that have been created for this research? If not, please take your time to read them now. Feel free to turn off your camera during this time and let me know when you are ready to begin.
• Are you happy to proceed? Do you have any questions before we start?

Screening questions

1. To begin, before volunteering to take part in this research, were you aware that sentencing guidelines contain expanded explanations for some aggravating and mitigating factors?

2. Have you referred to the expanded explanations in guidelines as part of your sentencing practice?
   1. How often do you typically refer to expanded explanations?
   2. Why would you typically look at expanded explanations?
   3. can you tell me why you don’t refer to them?

[scenario text- see Annex C]

Scenario-specific questions

As mentioned before, the information for step 1- culpability and harm- has already been provided, so please use this information as your starting point for sentencing the scenario.

3. To start with, which, if any, aggravating factors would you apply to this case?

[placeholder for expanded explanation text- see Annex A]

 [For those who apply the factor in interviewer note] You mentioned [e.g., previous convictions]. Can you talk me through your rationale for applying this?

1. Thinking about the accompanying expanded explanation for [xxx], are there any details or issues that you feel are of particular importance for this scenario?
2. [If more than one issue identified] Did you have to balance these issues? If so, how?

ii. the scenario says that [e.g. Annie has 20 previous convictions.] Can you tell me about why you felt this factor didn’t apply in this instance?

iii. You also mentioned xx was a factor. Can you talk me through your rationale for applying this?

iv. [If no aggravating factors at all are identified] Why do you feel no aggravating factors apply?

4. Moving on, which, if any, mitigating factors would you apply to this case?

[placeholder for expanded explanation text- see Annex A]

[For those who apply factor in interviewer note] You mentioned [e.g., sole or primary carer for dependent relatives]. Can you talk me through your rationale for applying this?

1. Thinking about the accompanying expanded explanation for [xxx], are there any details or issues that you feel are of particular importance for this scenario?
2. [If more than one issue identified] Did you have to balance these issues? If so, how?

v. the scenario says that [e.g., Annie has two young children.] Can you tell me about why you felt the factor of [e.g. sole or primary carer] didn’t apply in this instance?

vi. [If other mitigating factors were also identified]. You also mentioned xx. Can you talk me through your rationale for applying this?

vii. [If no mitigating factors at all are identified] Why do you feel no mitigating factors apply?

v.iii. The expanded explanation for [e.g. remorse] has a proposed change. This is [e.g. the addition of the wording ‘learning disabilities’, ‘communication difficulties’ and ‘cultural differences’ as part of considerations for how remorse can present itself]. What is your view on this proposed change?

5. For this scenario, would you order a PSR report? Why/Why not?

6. Based on the information you have for this case, can you explain what your final sentence would be and why?

Overarching questions

Now I am going to ask you some broader questions.

7. We’re interested in hearing your views on whether the sentencing guidelines could create any potential disparities in sentencing for different groups of people.

Do you think the sentencing of any groups may be particularly impacted by any aggravating or mitigating factors in the sentencing guidelines, thinking both of those with protected characteristics (e.g., race, age, sex) or others (e.g., socioeconomic status or other groups)?

• Why do you think they would be particularly impacted by these factors?
• Why don’t you think they would be impacted by any factors?

8. Generally speaking, how straightforward did you find it to interpret and apply the expanded explanations for the factors we’ve talked about in this interview?

9. As mentioned previously, there are some expanded explanations that have proposed changes. These are for [delete depending on factors in scenarios- remorse and good character]. What are your views on the proposed changes?

10. Do you have any further comments about any other expanded explanations that you haven’t discussed today?

i. Are there any expanded explanations (either discussed in this interview or that we haven’t mentioned) that you think can be more difficult to interpret or apply?

ii. Is there anything else you think it would be useful to have an expanded explanation for that doesn’t currently exist?

11. Is there anything else you would like to add?

Annex E: Stage two focus group discussion guide

Focus group discussion guide

Expanded explanations stage two

June 2023

Welcome and introductions (5m)

• Thank you very much for offering to take part in this focus group. My name is [insert] and I am a [insert] at the Office of the Sentencing Council. I will be facilitating this discussion today. [Insert] is also on the call. They will be taking notes in the background.
• The purpose of this focus group today is for you to share and discuss your views on the three new proposed mitigating factors and their accompanying expanded explanations that you received beforehand. If you have not had a chance to look at them before today, please do not worry as I will be sharing them on my screen as well.
• All information collected in this focus group will be confidential and your names and any direct quotations will not be disclosed in any reporting. I will be recording this discussion for my records- is everyone content to be recorded? I would ask that you treat any views shared in this group as confidential. We would like to hear your personal thoughts so please be assured that you can speak freely.
• Finally, this will be a bit different to the interviews you took part in for phase 1. Focus groups allow for open discussion and my role is to facilitate this. I will ask questions, but otherwise take a backseat as the intention is to allow you space to share your thoughts with each other. You do not need to use the hands-up function or the comments box today as these can affect the flow of conversation.
• As we only have around an hour, I may interject at times to move the discussion on, to make sure you all have a chance to share your views on everything we would like to cover today. If we have to move on while you still have views you would like to share, please do feel free to email these to me after this group ends. Is everyone happy to begin?

Warm-up (2m)

Difficult and/or deprived background or personal circumstances (10m)

The court will be assisted by a pre-sentence report in assessing 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
• experience of having been a looked after child (in care)
• negative influences from peers
• misuse of drugs and/or alcohol
• 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 101 to 114). The Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline may also be of relevance.

The first mitigating factor and expanded explanation I would like you to discuss is difficult and/or deprived background or personal circumstances.

1. What were your initial thoughts when you first looked at this factor and the content of the expanded explanation?
   1. 1. What are your views on the definition? Like/dislike?
      2. What comes to mind when you think of an offender having a difficult or deprived background or personal circumstances?
      3. What are your views on the presentation of the text?
         1. Prompts if needed: length, structure, use of bullets etc
   2. Do you feel this factor/expanded explanation would be useful?
      1. Do you already take this issue into account in your sentencing?
   3. Do you feel this would be relevant to any offences in particular?
      1. Prompts if needed: acquisitive, non-acquisitive
   4. Do you feel this would have an impact on sentencing for any demographic groups? g. race, age, sex

Prospects of or in work, training or education (10m)

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 the confirmed 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 court may be assisted by a pre-sentence report in assessing the relevance of this factor to the individual offender.

The absence of work, training or education should never be treated as an aggravating factor.

For more serious offences where a substantial period of custody is appropriate, this factor will carry less (if any) weight. The second mitigating factor and expanded explanation I would like you to discuss is titled prospects of or in work, training or education.

1. What were your initial thoughts when you first looked at this factor and expanded explanation?
   1. What are your views on the definition? Like/dislike?
      1. Prompt: would use of ‘Confirmed prospects’ in the title of the factor be more helpful than ‘prospects’?
   2. Do you think prospects of or being in work, training or education should be applied similarly or differently?
   3. What are your views on the presentation of the text?
      1. Prompts if needed: length, structure, use of bullets etc
2. Do you feel this factor/expanded explanation would be useful?
   1. Do you already take this issue into account in your sentencing?
3. Do you feel this would be relevant to any offences in particular?
   1. Prompts if needed: acquisitive, non-acquisitive
4. Do you feel this would have an impact on sentencing for any demographic groups? E.g., race, age, sex, socio-economic status

Pregnancy and maternity (10m)

When sentencing an offender who is pregnant relevant considerations may include:

• any effect of the sentence on the physical and mental health of the offender and
• any effect of the sentence on the unborn child

The impact of custody on pregnant women can be harmful for both the mother and the unborn child. Pregnant women in custody are more likely to have high risk pregnancies with reduced access to specialised maternity services. There may also be difficulties accessing medical assistance and with being transported to hospital when in labour and giving birth.   

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.

When considering a custodial or community sentence for a pregnant offender the Probation Service should be asked to address these issues in a pre-sentence report.

The last factor I would like you to discuss is pregnancy and maternity. This is slightly different to the other two factors in that not all of the content is new- some has been taken out of the current expanded explanation for sole or primary carer for dependent relatives and it has then been extended to provide a fuller explanation, with the intention that it will become a standalone factor.

1. What were your initial thoughts when you first looked at this factor and expanded explanation?
   1. What are your views on the definition? Like/dislike?
   2. What are your views on the presentation of the text?
      1. Prompts if needed: length, structure, use of bullets etc
2. Do you feel this factor/expanded explanation would be useful?
   1. 1. Do you already take this issue into account in your sentencing?
3. Do you feel this would be relevant to any offences in particular?
   1. 1. Prompts if needed: acquisitive, non-acquisitive

Stimulus (10m)

Thank you for sharing your thoughts. I would now like you to consider this discussion statement as a group.

[Share screen of statement- these are designed to provoke discussion and are not reflective of Council views]

For pregnancy and maternity:

An offender who is pregnant or has recently given birth should never receive an immediate custodial sentence.

For difficult and/or deprived background AND prospect of or in work, training or education:

Offenders with a more privileged background (in terms of career or education) generally benefit more from mitigation than those with deprived backgrounds.

To what extent do you agree or disagree with this statement and why?

Annex F: Expanded explanations with proposed changes

The expanded explanation for ‘Good character and/or exemplary conduct’ was amended by removing ‘charitable works’ as an example of positive good character for the research. The full text used in the research interviews is below:

Good character and/or exemplary conduct

This factor may apply whether or not the offender has previous convictions.  Evidence that an offender has demonstrated positive good character may reduce the sentence.

However, this factor is less likely to be relevant where the offending is very serious.  Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

The expanded explanation for ‘Remorse’ was amended by adding learning disabilities, communication difficulties and cultural differences to the examples of what may affect an offender’s demeanour in court. The full text used in the research interviews is below:

Remorse

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 ways. A simple assertion of the fact may be insufficient, and the offender’s demeanour in court could be misleading, due to for example:

• • nervousness
  • a lack of understanding of the system
  • learning disabilities
  • communication difficulties
  • cultural differences
  • a belief that they have been or will be discriminated against
  • peer pressure to behave in a certain way because of others present
  • a lack of maturity etc.

If a PSR has been prepared it will provide valuable assistance in this regard.

The expanded explanation for ‘Sole or primary carer for dependant relatives’ was amended by removing some lines on what to consider if an offender is pregnant, including the effect of the sentence on the health of the offender and the unborn child. This information has been developed further and presented in a proposed new factor, ‘Pregnancy and maternity’, which was explored in stage two of this research. The full text used for ‘Sole or primary carer for dependent relatives’ in the research interviews is below:

Sole or primary carer for dependent relatives

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.

When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the Probation Service to address these issues in a PSR.

Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 131 to 137).