Threats to kill - Effective from 1 October 2018

Offences against the Person Act 1861, s.16
Effective from: 01 October 2018

Triable either way
Maximum: 10 years’ custody
Offence range: Community order – 7 years’ custody

This is a specified offence for the purposes of section 226A (extended sentence for certain violent or sexual offences) of the Criminal Justice Act 2003

Where offence committed in a domestic context, also refer to the Overarching principles: Domestic abuse guideline

User guide for this offence


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 (subject to requirement(s) being applicable).

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 Guidelines Council’s definitive guideline, Overarching Principles – Sentencing Children and Young People.

Structure, ranges and starting points

For the purposes of section 125(3) – (4) of the Coroners and Justice Act 2009, the guideline specifies offence ranges – the range of sentences appropriate for each type of offence. Within each offence, the Council has specified three categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness. The Council has also identified a starting point within each category.

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

Step 1 – Determining the offence category

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

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 to reach a fair assessment of the offender’s culpability.

Culpability demonstrated by one or more of the following:

A – Higher culpability

  • Significant planning and/or sophisticated offence
  • Visible weapon
  • Threat(s) made in the presence of children
  • History of and/or campaign of violence towards the victim
  • Threat(s) with significant violence

B– Medium culpability

Cases that fall between categories A and C because:

  • Factors are present in A and C which balance each other out and/or
  • The offender’s culpability falls between the factors described in A and C

 

C – Lesser culpability

  • Offender’s responsibility substantially reduced by mental disorder or learning disability
  • Offence was limited in scope and duration

 

Harm

The level of harm is assessed by weighing up all the factors of the case.

Category 1

 

  • Very serious distress caused to the victim
  • Significant psychological harm caused to the victim
  • Offence has a considerable practical impact on the victim

 

Category 2

Harm that falls between categories 1 and 3, and in particular:

  • Some distress caused to the victim
  • Some psychological harm caused to the victim
  • Offence has some practical impact on the victim

 

Category 3

 

  • Little or no distress or harm caused to the victim

 

Step 2 – Starting point and category range

Having determined the category at step one, the court should use the corresponding starting point to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions.

Harm

Culpability

A

B

C

Category 1

Starting point

4 years’ custody

Starting point

2 years’ custody

Starting point

1 year’s custody

 

Category range

 2 – 7 years’ custody

Category range

1 – 4 years’ custody

Category range

26 weeks’ – 2 years 6 months’ custody

Category 2

Starting point

 2 years’ custody

Starting point

 1 year’s custody

Starting point

26 weeks’ custody

 

Category range

 1 – 4 years’ custody

Category range

 26 weeks’ – 2 years 6 months’ custody

Category range

High level community order – 1 year’s custody

Category 3

Starting point

1 year’s custody

Starting point

26 weeks’ custody

Starting point

Medium level community order

 

Category range

26 weeks’ – 2 years 6 months’ custody

Category range

High level community order – 1 year’s custody

Category range

Low level community order – High level community order

Community orders table

The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence-specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). See below for non-exhaustive examples of requirements that might be appropriate in each.

At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so. For further information see the Imposition guideline.

A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.

Low

Medium

High

Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate

In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary

Offences that obviously fall within the community order band

Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances

More intensive sentences which combine two or more requirements may be appropriate

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 40 – 80 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for a few weeks
  • Exclusion requirement, for a few months
  • Prohibited activity requirement
  • Attendance centre requirement (where available)

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  •  80 – 150 hours of unpaid work
  • Curfew requirement for example up to 16 hours for 2 – 3 months
  • Exclusion requirement lasting in the region of 6 months
  • Prohibited activity requirement

 

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 150 – 300 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for 4 – 12 months
  • Exclusion requirement lasting in the region of 12 months

* If order does not contain a punitive requirement, suggested fine levels are indicated below:

BAND A FINE

BAND B FINE

BAND C FINE

Custodial sentences

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.

For further information and sentencing flowcharts see the Imposition guideline.

The court should then consider any adjustment for any aggravating or mitigating factors. Below is 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.

Factors increasing seriousness

Statutory aggravating factors

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

Other aggravating factors

  • Offence committed against those working in the public sector or providing a service to the public
  • Impact of offence on others, particularly children
  • Victim is particularly vulnerable (not all vulnerabilities are immediately apparent)
  • Failure to comply with current court orders
  • Offence committed on licence or post sentence supervision
  • Offences taken into consideration

Factors reducing seriousness or reflecting personal mitigation

  • No previous convictions or no relevant/recent convictions
  • Remorse
  • Good character and/or exemplary conduct
  • Serious medical condition requiring urgent, intensive or long-term treatment
  • Age and/or lack of maturity
  • Mental disorder or learning disability (where not taken into account at step one)
  • Sole or primary carer for dependent relatives
  • Determination and/or demonstration of steps having been taken to address offending behaviour

Step 3 – Consider any factors which indicate a reduction, such as 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 Guilty Plea guideline.

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 an extended sentence (section 226A).

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 Offences Taken into Consideration and Totality guideline.

Step 7 – Compensation and ancillary orders

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

Compensation order

 The court should consider compensation orders in all cases where personal injury, loss or damage has resulted from the offence. The court must give reasons if it decides not to award compensation in such cases.

Other ancillary orders available include: Restraining order Where an offender is convicted of any offence, the court may make a restraining order (section 5 of the Protection from Harassment Act 1997).

The order may prohibit the offender from doing anything for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which amounts to harassment or will cause a fear of violence.

The order may have effect for a specified period or until further order.

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.