Causing grievous bodily harm with intent to do grievous bodily harm / Wounding with intent to do GBH – for consultation only

Offences against the Person Act 1861, s.18
Effective from: to be confirmed (draft for consultation only)

Triable only on indictment
Maximum: Life imprisonment
Offence range: 2 – 16 years’ custody

This is a serious specified offence for the purposes of sections 224 and 225(2) (life sentences for serious offences) of the Criminal Justice Act 2003.

This is an offence listed in Part 1 of Schedule 15B for the purposes of section 224A (life sentence for a second listed offence) and section 226A (extended sentence for certain violent, sexual or terrorism offences) of the Criminal Justice Act 2003.

User guide for this offence


Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Applicability

In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after the effective date of this guideline, regardless of the date of the offence.*

Section 125(1) of the Coroners and Justice Act 2009 provides that when sentencing offences committed after 6 April 2010:

“Every court –

  1. must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
  2. must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.”

This guideline applies only to offenders aged 18 and older. General principles to be considered in the sentencing of children and young people are in the Sentencing Council definitive guideline, Overarching Principles – Sentencing Children and Young People.

*The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.

Step 1 – Determining the offence category

The court should determine the offence category with reference only to the factors listed in the tables below. In order to determine the category the court should assess culpability and harm.

 

Culpability demonstrated by one or more of the following:

The level of culpability is determined by weighing up all the factors of the case. Where there are characteristics present which fall under different levels of culpability, the court should balance these characteristics giving appropriate weight to relevant factors to reach a fair assessment of the offender’s culpability.

A – High culpability

  • Significant degree of planning or premeditation
  • Victim obviously vulnerable due to age, personal characteristics or circumstances
  • Use of a highly dangerous weapon or weapon equivalent*
  • Strangulation
  • Leading role in group activity
  • Prolonged assault
  • Revenge

B – Medium culpability

  • Use of a weapon or weapon equivalent which does not fall within category A
  • Lesser role in group activity
  • Cases falling between category high and low culpability because:
    • Factors in both high and lesser categories are present which balance each other out; and/or
    • The offender’s culpability falls between the factors as described in high and lesser culpability

C – Lesser culpability

  • No weapon used
  • Excessive self defence
  • Offender acted in response to prolonged or extreme violence or abuse by victim
  • Mental disorder or learning disability, where linked to the commission of the offence

 

* A highly dangerous weapon includes weapons such as knives and firearms. Weapon equivalents can include corrosive substances (such as acid), whose dangerous nature must be substantially above and beyond the legislative definition of an offensive weapon which is; ‘any article made or adapted for use for causing injury, or is intended by the person having it with him for such use’.  The court must determine whether the weapon or weapon equivalent is highly dangerous on the facts and circumstances of the case. Non-highly dangerous weapon equivalents may include but are not limited to a shod foot, headbutting, use of animal in commission of offence.

Harm

All cases will involve ‘really serious harm’, which can be physical or psychological, or wounding. The court should assess the level of harm caused with reference to the impact on the victim

Category 1

  • Particularly grave or life-threatening injury caused
  • Injury results in physical or psychological harm resulting in lifelong dependency on third party care or medical treatment
  • Offence results in a permanent, irreversible injury or psychological condition which has a substantial and long term effect on the victim’s ability to carry out normal day to day activities or on their ability to work

Category 2

  • Grave injury
  • Offence results in a permanent, irreversible injury or condition not falling within category 1

Category 3

  • All other cases of really serious harm
  • All other cases of wounding

Step 2 – Starting point and category range

Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. A case of particular gravity, reflected by multiple features of culpability in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below. For category A1 offences the extreme nature of one or more high culpability factors or the extreme impact caused by a combination of high culpability factors may attract a sentence higher than the category range.

Harm   Culpability  
  A B C
Harm 1

Starting point
12 years’ custody

Starting point
7 years’ custody

Starting point
5 years’ custody

Category range
10 – 16 years’ custody

Category range
6 – 10 years’ custody

Category range
4 – 7 years’ custody

Harm 2

Starting point
7 years’ custody

Starting point
5 years’ custody

Starting point
4 years’ custody

Category range
6 – 10 years’ custody

Category range
4 – 7 years’ custody

Category range
3 – 6 years’ custody

Harm 3

Starting point
5 years’ custody

Starting point
4 years’ custody

Starting point
3 years’ custody

Category range
4 – 7 years’ custody

Category range
3 – 6 years’ custody

Category range
2 – 4 years’ custody

Custodial sentences

Sentencing flowcharts are available at Imposition of Community and Custodial Sentences definitive guideline.


The approach to the imposition of a custodial sentence should be as follows:

1) Has the custody threshold been passed?

  • A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
  • There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
  • The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

2) Is it unavoidable that a sentence of imprisonment be imposed?

  • Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
  • 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.

3) What is the shortest term commensurate with the seriousness of the offence?

  • In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.

4) Can the sentence be suspended?

  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.

The following factors should be weighed in considering whether it is possible to suspend the sentence:

Factors indicating that it would not be appropriate to suspend a custodial sentence

Factors indicating that it may be appropriate to suspend a custodial sentence

Offender presents a risk/danger to the public

Realistic prospect of rehabilitation

Appropriate punishment can only be achieved by immediate custody

Strong personal mitigation

History of poor compliance with court orders

Immediate custody will result in significant harmful impact upon others

The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.

Pre-sentence report

Whenever the court reaches the provisional view that:

  • the custody threshold has been passed; and, if so
  • the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;

the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.

Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.

Suspended Sentences: General Guidance

i) The guidance regarding pre-sentence reports applies if suspending custody.

ii) If the court imposes a term of imprisonment of between 14 days and 2 years (subject to magistrates’ courts sentencing powers), it may suspend the sentence for between 6 months and 2 years (the ‘operational period’). The time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months.

iii) Where the court imposes two or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the terms is between 14 days and 2 years (subject to magistrates’ courts sentencing powers).

iv) When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. The requirements are identical to those available for community orders, see the guideline on Imposition of Community and Custodial Sentences.

v) A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.

Factors increasing seriousness

Statutory aggravating factors:

  • Previous convictions,

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Guidance on the use of previous convictions

    The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:

    Section 143 of the Criminal Justice Act 2003 states that:

    In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it 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.

    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 less relevant 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
    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
  • Offence committed whilst on bail

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    S143 (3) Criminal Justice Act 2003 states:

    In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.

  • Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: race, religion, disability, sexual orientation or transgender identity

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    See below for the statutory provisions. 

    • Note the requirement for the court to state that the offence has been aggravated by the relevant hostility.
    • Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role.

    Increase in sentences for racial or religious aggravation

    s145(2) of the Criminal Justice Act 2003 states:

    If the offence was racially or religiously aggravated, the court—

    (a) must treat that fact as an aggravating factor, and

    (b) must state in open court that the offence was so aggravated.

    An offence is racially or religiously aggravated for these purposes if—

    • at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence, hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
    • the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

    “membership”, in relation to a racial or religious group, includes association with members of that group;

    “presumed” means presumed by the offender.

    It is immaterial whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned above.

    “racial group” means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.

    “religious group” means a group of persons defined by reference to religious belief or lack of religious belief.

    Increase in sentences for aggravation related to disability, sexual orientation or transgender identity

    s146 of the Criminal Justice Act 2003 states:

    (1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).

    (2) Those circumstances are—

    (a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

    (i) the sexual orientation (or presumed sexual orientation) of the victim,

    (ii) a disability (or presumed disability) of the victim, or

    (iii) the victim being (or being presumed to be) transgender, or

    (b) that the offence is motivated (wholly or partly)—

    (i) by hostility towards persons who are of a particular sexual orientation,

    (ii) by hostility towards persons who have a disability or a particular disability or

    (iii) by hostility towards persons who are transgender.

    (3) The court—

    (a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and

    (b) must state in open court that the offence was committed in such circumstances.

    (4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph.

    (5) In this section “disability” means any physical or mental impairment.

    (6) In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.

  • Offence was committed against an emergency worker acting in the exercise of functions as such a worker

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    See below for the statutory provisions. 

    • Note the requirement for the court to state that the offence has been so aggravated.
    • Note this statutory factor only applies to certain violent or sexual offences as listed below which were committed on or after 13 November 2018. 
    • For other offences the factor ‘Victim was providing a public service or performing a public duty at the time of the offence’ can be applied where relevant.

    The Assaults on Emergency Worker (Offences) Act 2018 states:

    2          Aggravating factor

    (1) This section applies where—

    (a) the court is considering for the purposes of sentencing the seriousness of an offence listed in subsection (3), and

    (b) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.

    (2) The court—

    (a) must treat the fact mentioned in subsection (1)(b) as an aggravating factor (that is to say, a factor that increases the seriousness of the offence), and

    (b) must state in open court that the offence is so aggravated.

    (3) The offences referred to in subsection (1)(a) are—

    (a) an offence under any of the following provisions of the Offences against the Person Act 1861—

    (i) section 16 (threats to kill);

    (ii) section 18 (wounding with intent to cause grievous bodily harm);

    (iii) section 20 (malicious wounding);

    (iv) section 23 (administering poison etc);

    (v) section 28 (causing bodily injury by gunpowder etc);

    (vi) section 29 (using explosive substances etc with intent to cause grievous bodily harm);

    (vii) section 47 (assault occasioning actual bodily harm);

    (b) an offence under section 3 of the Sexual Offences Act 2003 (sexual assault);

    (c) manslaughter;

    (d) kidnapping;

    (e) an ancillary offence in relation to any of the preceding offences.

    (4) For the purposes of subsection (1)(b), the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.

    (5) In this section—

    “ancillary offence”, in relation to an offence, means any of the following—

    (a) aiding, abetting, counselling or procuring the commission of the offence;

    (b) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to the offence;

    (c) attempting or conspiring to commit the offence;

    “emergency worker” has the meaning given by section 3.

    (6) Nothing in this section prevents a court from treating the fact mentioned in subsection (1)(b) as an aggravating factor in relation to offences not listed in subsection (3).

    (7) This section applies only in relation to offences committed on or after the day it comes into force.

    3          Meaning of “emergency worker”

    (1) In sections 1 and 2, “emergency worker” means—

    (a) a constable;

    (b) a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;

    (c) a National Crime Agency officer;

    (d) a prison officer;

    (e) a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;

    (f) a prisoner custody officer, so far as relating to the exercise of escort functions;

    (g) a custody officer, so far as relating to the exercise of escort functions;

    (h) a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services;

    (i) a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);

    (j) a person employed for the purposes of providing, or engaged to provide—

    (i) NHS health services, or

    (ii) services in the support of the provision of NHS health services, and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public.

    (2) It is immaterial for the purposes of subsection (1) whether the employment or engagement is paid or unpaid.

    (3) In this section—

    “custodial institution” means any of the following—

    (a) a prison;

    (b) a young offender institution, secure training centre, secure college or remand centre;

    (c) a removal centre, a short-term holding facility or pre-departure accommodation, as defined by section 147 of the Immigration and Asylum Act 1999;

    (d) services custody premises, as defined by section 300(7) of the Armed Forces Act 2006;

    “custody officer” has the meaning given by section 12(3) of the Criminal Justice and Public Order Act 1994;

    “escort functions”—

    (a) in the case of a prisoner custody officer, means the functions specified in section 80(1) of the Criminal Justice Act 1991;

    (b) in the case of a custody officer, means the functions specified in paragraph 1 of Schedule 1 to the Criminal Justice and Public Order Act 1994;

    “NHS health services” means any kind of health services provided as part of the health service continued under section 1(1) of the National Health Service Act 2006 and under section 1(1) of the National Health Service (Wales) Act 2006;

    “prisoner custody officer” has the meaning given by section 89(1) of the Criminal Justice Act 1991.

     

Other aggravating factors:

  • Offence committed against those working in the public sector or providing a service to the public

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    This reflects:

    • the fact that people in public facing roles are more exposed to the possibility of harm and consequently more vulnerable and/or
    • the fact that someone is working in the public interest merits the additional protection of the courts.

    This applies whether the victim is a public or private employee or acting in a voluntary capacity.

    Care should be taken to avoid double counting where the statutory aggravating factor relating to emergency workers applies.

  • Offence committed in prison

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • Offences committed in custody are more serious because they undermine the fundamental need for control and order which is necessary for the running of prisons and maintaining safety.
    • Generally the sentence for the new offence will be consecutive to the sentence being served as it will have arisen out of an unrelated incident. The court must have regard to the totality of the offender’s criminality when passing the second sentence, to ensure that the total sentence to be served is just and proportionate. Refer to the Totality guideline for detailed guidance.
    • Care should be taken to avoid double counting matters taken into account when considering previous convictions.
  • History of violence or abuse towards victim by offender (where not taken into account at step one)
  • Offence committed in a domestic context

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Refer to the Overarching Principles: Domestic Abuse Definitive Guideline

  • Presence of children

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • This reflects the psychological harm that may be caused to those who witnessed the offence.
    • The presence of one or more children may in some situations make the primary victim more vulnerable – for example an adult may be less able to resist the offender if concerned about the safety or welfare of children present.
    • When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
  • Gratuitous degradation of victim

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Where an offender deliberately causes additional harm to a victim over and above that which is an essential element of the offence - this will increase seriousness. Examples may include, but are not limited to, posts of images on social media designed to cause additional distress to the victim.

    Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

  • Abuse of power and/or position of trust

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • A close examination of the facts is necessary and a clear justification should be given if abuse of trust is to be found.
    • In order for an abuse of trust to make an offence more serious the relationship between the offender and victim(s) must be one that would give rise to the offender having a significant level of responsibility towards the victim(s) on which the victim(s) would be entitled to rely.
    • Abuse of trust may occur in many factual situations. Examples may include relationships such as teacher and pupil, parent and child, employer and employee, professional adviser and client, or carer (whether paid or unpaid) and dependant.  It may also include ad hoc situations such as a late-night taxi driver and a lone passenger.  These examples are not exhaustive and do not necessarily indicate that abuse of trust is present.
    • Additionally an offence may be made more serious where an offender has abused their position to facilitate and/or conceal offending.
    • Where an offender has been given an inappropriate level of responsibility, abuse of trust is unlikely to apply.
  • Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.

    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 lack of maturity when considering the significance of such conduct.

    Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

  • Commission of offence whilst under the influence of alcohol/drugs

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.

    This applies regardless of whether the offender is under the influence of legal or illegal substance(s).

    In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.

    An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.

     

  • Offence committed whilst on licence or subject to post sentence supervision

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
    • The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
    • Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality.
    • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

  • Failure to comply with current court orders

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • Commission of an offence while subject to a relevant court order makes the offence more serious.
    • The extent to which the offender has complied with the conditions of an order (including the time that has elapsed since its commencement) will be a relevant consideration.
    • Where the offender is dealt with separately for a breach of an order regard should be had to totality
    • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

Factors reducing seriousness or reflecting personal mitigation

  • No previous convictions or no relevant/recent convictions

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    • First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
    • Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
    • When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. 
    • Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders).  In general the more serious the previous offending the longer it will retain relevance.
  • Remorse

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    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.

  • Good character and/or exemplary conduct

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    This factor may apply whether or not the offender has previous convictions.  Evidence that an offender has demonstrated positive good character through, for example, charitable works 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.

  • Significant degree of provocation
  • History of significant violence or abuse towards the offender by the victim (where not taken into account at step one)
  • Age and/or lack of maturity

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    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 National Probation Service should address these issues in a PSR.

  • Mental disorder or learning disability, where not linked to the commission of the offence

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Mental disorders and learning disabilities are different things, although an individual may suffer from both.  A learning disability is a permanent condition developing in childhood, whereas mental illness (or a mental health problem) can develop at any time, and is not necessarily permanent; people can get better and resolve mental health problems with help and treatment.

    In the context of sentencing a broad interpretation of the terms ‘mental disorder’ and learning disabilities’ should be adopted to include:

    • Offenders with an intellectual impairment (low IQ);
    • Offenders with a cognitive impairment such as (but not limited to) dyslexia, attention deficit hyperactivity disorder (ADHD);
    • Offenders with an autistic spectrum disorder (ASD) including Asperger’s syndrome;
    • Offenders with a personality disorder;
    • Offenders with a mental illness.

    Offenders may have a combination of the above conditions.

    Sentencers should be alert to the fact that not all mental disorders or learning disabilities are visible or obvious.

    A mental disorder or learning disability can affect both:

    1. the offender’s responsibility for the offence and
    2. the impact of the sentence on the offender.

    The court will be assisted by a PSR and, where appropriate, medical reports (including from court mental health teams) in assessing:

    1. the degree to which a mental disorder or learning disability has reduced the offender’s responsibility for the offence. This may be because the condition had an impact on the offender’s ability to understand the consequences of their actions, to limit impulsivity and/or to exercise self-control.
      • a relevant factor will be the degree to which a mental disorder or learning disability has been exacerbated by the actions of the offender (for example by the voluntary abuse of drugs or alcohol or by voluntarily failing to follow medical advice);
      • in considering the extent to which the offender’s actions were voluntary, the extent to which a mental disorder or learning disability has an impact on the offender’s ability to exercise self-control or to engage with medical services will be a relevant consideration.
    1. any effect of the mental disorder or learning disability on the impact of the sentence on the offender; a mental disorder or learning disability may make it more difficult for the offender to cope with custody or comply with a community order.
  • Sole or primary carer for dependent relative(s)

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    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.

    In addition when sentencing an offender who is pregnant relevant considerations may include:

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

    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 National 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 94-100)

     

  • Determination and/or demonstration of steps taken to address addiction or offending behaviour

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue may justify a reduction in sentence.  This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.

    Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour may justify the imposition of a sentence that focusses on rehabilitation.

    The court will be assisted by a PSR in making this assessment.

  • Serious medical conditions requiring urgent, intensive or long-term treatment

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case.
    • However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate.
    • There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending.
    • A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG).
    • But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing judge when determining the sentence that it would be just to impose.

Step 3 – Consider any factors which indicate a reduction for assistance to the prosecution

The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 4 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the guideline for Reduction in Sentence for a Guilty Plea (where first hearing is on or after 1 June 2017, or first hearing before 1 June 2017).

Step 5 – Dangerousness

The court should consider whether having regard to the criteria contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003 it would be appropriate to impose a life sentence (section 224A or section 225) or an extended sentence (section 226A). When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term.

Step 6 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour in accordance with the Totality guideline.

Step 7 – Compensation and ancillary orders

In all cases, the court should consider whether to make compensation and/or other ancillary orders.

Step 8 – Reasons

Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 9 – Consideration for time spent on bail (tagged curfew)

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.