Supplying or offering to supply a controlled drug/ Possession of a controlled drug with intent to supply it to another

Supplying or offering to supply a controlled drug, Misuse of Drugs Act 1971 (section 4(3))

Possession of a controlled drug with intent to supply it to another, Misuse of Drugs Act 1971 (section 5(3))

Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.

Class A
Maximum: Life imprisonment
Offence range: High level community order – 16 years’ custody

Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band B fine – 10 years’ custody

Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band A – 8 years’ custody

This offence is subject to statutory minimum sentencing provisions.

See Step 3 for further details.

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 59(1) of the Sentencing Code provides that:

“Every court –

must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and

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 – Determine the offence category

The court should determine the offender’s culpability (role) and the harm caused (quantity) with reference to the tables below.

In assessing culpability, the sentencer should weigh up all the factors of the case to determine role. Where there are characteristics present which fall under different role categories, or where the level of the offender’s role is affected by the scale of the operation, the court should balance these characteristics to reach a fair assessment of the offender’s culpability.

Culpability demonstrated by the offender’s role

One or more of these characteristics may demonstrate the offender’s role. These lists are not exhaustive.

Leading role:

Directing or organising buying and selling on a commercial scale
Substantial links to, and influence on, others in a chain
Close links to original source
Expectation of substantial financial or other advantage
Uses business as cover
Abuses a position of trust or responsibility

Significant role:

Operational or management function within a chain
Involves others in the operation whether by pressure, influence, intimidation or reward
Expectation of significant financial or other advantage (save where this advantage is limited to meeting the offender’s own habit), whether or not operating alone
Some awareness and understanding of scale of operation

Lesser role:

Performs a limited function under direction
Engaged by pressure, coercion, intimidation, grooming and/ or control
Involvement through naivety, immaturity or exploitation
No influence on those above in a chain
Very little, if any, awareness or understanding of the scale of operation
Expectation of limited, if any, financial or other advantage (including meeting the offender’s own habit)

Harm

In assessing harm, quantity is determined by the weight of the product. Where the offence is supply directly to users (including street dealing or supply in custodial institutions), the quantity of product is less indicative of the harm caused and therefore the starting point is not solely based on quantity. The court should consider all offences involving supplying directly to users as at least category 3 harm, and make an adjustment from the starting point within that category considering the quantity of drugs in the particular case.

Indicative quantities of the most common drugs, upon which the starting point is to be based) are given in the table below. Where a drug (such as fentanyl or its agonists) is not listed in the table below, sentencers should expect to be provided with expert evidence to assist in determining the potency of the particular drug and in equating the quantity in the case with the quantities set out in the guidelines in terms of the harm caused. There will often be no precise calculation possible, but courts are reminded that in cases of particularly potent drugs, even very small quantities may be held to be equivalent to large quantities of the drugs listed.

Category 1

Heroin, cocaine – 5kg
Ecstasy – 7,000 tablets*
MDMA – 5kg
LSD – 250,000 squares
Amphetamine – 20kg
Cannabis – 200kg
Ketamine – 5kg
Synthetic cannabinoid receptor agonists (for example ‘spice’) – very large quantity indicative of an industrial scale operation

Category 2

Heroin, cocaine – 1kg
Ecstasy – 1,300 tablets*
MDMA – 1kg
LSD – 25,000 squares
Amphetamine – 4kg
Cannabis – 40kg
Ketamine – 1kg
Synthetic cannabinoid receptor agonists (for example ‘spice’) – large quantity indicative of a commercial operation

Category 3

Selling directly to users

Supply of drugs in a custodial institution

Heroin, cocaine – 150g
Ecstasy – 200 tablets*
MDMA – 150g
LSD – 2,500 squares
Amphetamine – 750g
Cannabis – 6kg
Ketamine – 150g
Synthetic cannabinoid receptor agonists (for example ‘spice’) – smaller quantity between categories 2 and 4

Category 4

Heroin, cocaine – 5g
Ecstasy – 13 tablets*
MDMA – 5g
LSD – 170 squares
Amphetamine – 20g
Cannabis – 100g
Ketamine – 5g
Synthetic cannabinoid receptor agonists (for example ‘spice’) – very small quantity

Note – where the offence is selling directly to users or supply in a custodial institution the starting point is not based on quantity – go to category 3

*Ecstasy tablet quantities based on a typical quantity of 150mg MDMA per tablet[1]

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. A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below.

Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the offender’s role.

Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black, Asian and Other ethnicity offenders receive an immediate custodial sentence than White offenders and that for Asian offenders custodial sentence lengths have on average been longer than for White offenders. There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance at Chapter 8 of the Equal Treatment Bench Book.

CLASS A	LEADING ROLE	SIGNIFICANT ROLE	LESSER ROLE
Category 1	Starting point 14 years’ custody	Starting point 10 years’ custody	Starting point 7 years’ custody
Category 1	Category range 12 – 16 years’ custody	Category range 9 – 12 years’ custody	Category range 6 – 9 years’ custody
Category 2	Starting point 11 years’ custody	Starting point 8 years’ custody	Starting point 5 years’ custody
Category 2	Category range 9 – 13 years’ custody	Category range 6 years 6 months’ – 10 years’ custody	Category range 3 years 6 months’ – 7 years’ custody
Category 3	Starting point 8 years 6 months’ custody	Starting point 4 years 6 months’ custody	Starting point 3 years’ custody
Category 3	Category range 6 years 6 months’ – 10 years’ custody	Category range 3 years 6 months’ – 7 years’ custody	Category range 2 – 4 years 6 months’ custody
Category 4	Starting point 5 years 6 months’ custody	Starting point 3 years 6 months’ custody	Starting point 18 months’ custody
Category 4	Category range 4 years 6 months’ – 7 years 6 months’ custody	Category range 2 – 5 years’ custody	Category range High level community order – 3 years’ custody

CLASS B	LEADING ROLE	SIGNIFICANT ROLE	LESSER ROLE
Category 1	Starting point 8 years’ custody	Starting point 5 years 6 months’ custody	Starting point 3 years’ custody
Category 1	Category range 7 – 10 years’ custody	Category range 5 – 7 years’ custody	Category range 2 years 6 months’ – 5 years’ custody
Category 2	Starting point 6 years’ custody	Starting point 4 years’ custody	Starting point 1 year’s custody
Category 2	Category range 4 years 6 months’ – 8 years’ custody	Category range 2 years 6 months’ – 5 years’ custody	Category range 26 weeks’ – 3 years’ custody
Category 3	Starting point 4 years’ custody	Starting point 1 year’s custody	Starting point High level community order
Category 3	Category range 2 years 6 months’ – 5 years’ custody	Category range 26 weeks’ – 3 years’ custody	Category range Low level community order – 26 weeks’ custody
Category 4	Starting point 18 months’ custody	Starting point High level community order	Starting point Low level community order
Category 4	Category range 26 weeks’ – 3 years’ custody	Category range Medium level community order – 26 weeks’ custody	Category range Band B fine – Medium level community order

CLASS C	LEADING ROLE	SIGNIFICANT ROLE	LESSER ROLE
Category 1	Starting point 5 years’ custody	Starting point 3 years’ custody	Starting point 18 months’ custody
Category 1	Category range 4 – 8 years’ custody	Category range 2 – 5 years’ custody	Category range 1 – 3 years’ custody
Category 2	Starting point 3 years 6 months’ custody	Starting point 18 months’ custody	Starting point 26 weeks’ custody
Category 2	Category range 2 – 5 years’ custody	Category range 1 – 3 years’ custody	Category range 12 weeks’ – 18 months’ custody
Category 3	Starting point 18 months’ custody	Starting point 26 weeks’ custody	Starting point High level community order
Category 3	Category range 1 – 3 years’ custody	Category range 12 weeks’ – 18 months’ custody	Category range Low level community order – 12 weeks’ custody
Category 4	Starting point 26 weeks’ custody	Starting point High level community order	Starting point Low level community order
Category 4	Category range High level community order – 18 months’ custody	Category range Low level community order – 12 weeks’ custody	Category range Band A fine – Medium level community order

Fines

	Starting point	Range
Fine Band A	50% of relevant weekly income	25 – 75% of relevant weekly income
Fine Band B	100% of relevant weekly income	75 – 125% of relevant weekly income
Fine Band C	150% of relevant weekly income	125 – 175% of relevant weekly income
Fine Band D	250% of relevant weekly income	200 – 300% of relevant weekly income
Fine Band E	400% of relevant weekly income	300 – 500% of relevant weekly income
Fine Band F	600% of relevant weekly income	500 – 700% of relevant weekly income

The court should determine the appropriate level of fine in accordance with this guideline and section 125 of the Sentencing Code, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender.
Where possible, if a financial penalty is imposed, it should remove any economic benefit the offender has derived through the commission of the offence including:
- avoided costs;
- operating savings;
- any gain made as a direct result of the offence.
The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to comply with the law.
In considering economic benefit, the court should avoid double recovery.
Where the means of the offender are limited, priority should be given to compensation (where applicable) over payment of any other financial penalty.
Where it is not possible to calculate or estimate the economic benefit, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law.
When sentencing organisations the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with the law. The court should ensure that the effect of the fine (particularly if it will result in closure of the business) is proportionate to the gravity of the offence.
Obtaining financial information: It is for the offender to disclose to the court such data relevant to their financial position as will enable it to assess what they can reasonably afford to pay. If necessary, the court may compel the disclosure of an individual offender’s financial circumstances pursuant to section 35 of the Sentencing Code. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case. In setting a fine, the court may conclude that the offender is able to pay any fine imposed unless the offender has supplied financial information to the contrary.

Community orders

For further information see Imposition of community and custodial sentences.

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). The culpability and harm present in the offence(s) should be considered to identify which of the three sentencing levels within the community order band is appropriate. 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.
A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.
Community orders can fulfil all of the purposes of sentencing. In particular, they can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities.
A community order must not be imposed unless the offence is ‘serious enough to warrant such a sentence’. Where an offender is being sentenced for a non-imprisonable offence, there is no power to make a community order.
Sentencers must consider all available disposals at the time of sentence; even where the threshold for a community sentence has been passed, a fine or discharge may be an appropriate penalty. In particular, a Band D fine may be an appropriate alternative to a community order.
The court must ensure that the restriction on the offender’s liberty is commensurate with the seriousness of the offence and that the requirements imposed are the most suitable for the offender.
Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions).
In many cases, a pre-sentence report will be pivotal in helping the court decide whether to impose a community order and, if so, whether particular requirements or combinations of requirements are suitable for an individual offender. Whenever the court reaches the provisional view that a community order may be appropriate, it should request a pre-sentence report (whether written or verbal) unless the court is of the opinion that a report is unnecessary in all the circumstances of the case.
It may be helpful to indicate to the Probation Service the court’s preliminary opinion as to which of the three sentencing ranges is relevant and the purpose(s) of sentencing that the package of requirements is expected to fulfil. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case. If an adjournment cannot be avoided, the information should be provided to the Probation Service in written form and a copy retained on the court file for the benefit of the sentencing court. However, the court must make clear to the offender that all sentencing options remain open including, in appropriate cases, committal for sentence to the Crown Court.

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	Suitable requirements might include: Any appropriate rehabilitative requirement(s) 80 – 150 hours of unpaid work Curfew requirement for example up to 16 hours per day 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

**Note: Changes to the curfew requirements brought in by the Police, Crime, Sentencing and Courts Act 2022 are set out in the Requirements section in the Overarching Guideline: Imposition of community and custodial sentences, but are not reflected in the ranges above.

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 and 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.

There may be exceptional local circumstances that arise which may lead a court to decide that prevalence of drug offending should influence sentencing levels. The pivotal issue in such cases will be the harm caused to the community.

It is essential that the court before taking account of prevalence:

• has supporting evidence from an external source, for example, Community Impact Statements, to justify claims that drug offending is prevalent in their area, and is causing particular harm in that community; and

• is satisfied that there is a compelling need to treat the offence more seriously than elsewhere.

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 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 of relevance to the current offence when they are of a similar type.
4. Previous convictions of a type different from the current offence may be of relevance 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
having regard to a) nature of the offence to which conviction relates and relevance to current offence; and b) time elapsed since conviction
Offender used or permitted a person under 18 to deliver a controlled drug to a third person
Offender 18 or over supplies or offers to supply a drug on, or in the vicinity of, school premises either when school in use as such or at a time between one hour before and one hour after they are to be used.
Offence committed 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

Section 64 of the Sentencing Code states:

In considering the seriousness of any offence committed while the offender was on bail, the court must - (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.

Other aggravating factors include:

Exploitation of children and/or vulnerable persons to assist in drug-related activity
Offender supplies or offers to supply a drug to a person under the age of 18
Exercising control over the home of another person for drug-related activity
Targeting of any premises where children or other vulnerable persons are likely to be present
Exposure of drug user to the risk of serious harm over and above that expected by the user, for example, through the method of production or subsequent adulteration of the drug
Exposure of those involved in drug dealing to the risk of serious harm, for example through method of transporting drugs
Exposure of third parties to the risk of serious harm, for example, through the location of the drug-related activity
Attempts to conceal or dispose of evidence, where not charged separately
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.
Presence of others, especially children and/or non-users
Presence of weapons, where not charged separately
Use of violence (where not charged as separate offence or taken into account at step one)
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.
Offending took place in prison (unless already taken into consideration at step 1)
Offender was supplying or involved in the supply of drugs into prison
Offence committed on licence or 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.
Established evidence of community impact
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 factor should increase the sentence only where there is clear evidence of wider harm not already taken into account elsewhere. A community impact statement will assist the court in assessing the level of impact.
- For issues of prevalence see the separate guidance.
Use of sophisticated methods or technologies in order to avoid or impede detection

Factors reducing seriousness or reflecting personal mitigation

Involvement due to pressure, intimidation or coercion falling short of duress, except where already taken into account at step one.
Supply only of drug to which offender addicted
Mistaken belief of the offender regarding the type of drug, taking into account the reasonableness of such belief in all the circumstances
Isolated incident
No previous convictions or no relevant or 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 (revised 1 April 2024)

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.

Remorse can present itself in many different ways. A simple assertion of the fact may be insufficient.

The court should be aware that the offender’s demeanour in court or the way they articulate their feelings of remorse may be affected by, for example:
- nervousness
- a lack of understanding of the system
- mental disorder
- learning disabilities
- communication difficulties (including where English is not their first language)
- a belief that they have been or will be discriminated against
- peer pressure to behave in a certain way because of others present
- age and/or a lack of maturity etc.
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.
Positive character and/or exemplary conduct (regardless of previous convictions)
Effective from: 01 October 2019 (revised 1 April 2024)

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

Evidence that an offender has demonstrated a positive side to their character may reduce the sentence.

This factor may apply whether or not the offender has previous convictions.

However:
- This factor is less likely to be relevant where the offending is very serious
- Where an offender has used their positive character or status to facilitate or conceal the offending it could be treated as an aggravating factor.
Determination and/or demonstration of steps having been taken to address addiction or offending behaviour
Effective from: 01 October 2019 (revised 1 April 2024)

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 (including where the offender has actively sought support but, for reasons outside their control, it has not been received) 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 (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify the imposition of a sentence that focusses on rehabilitation.
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.
Age and/or lack of maturity (which may be applicable to offenders aged 18-25)
Effective from: 01 October 2019 (revised 1 April 2024)

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

Where a person has committed the offence under the age of 18, regard should be had to the overarching guideline for sentencing children and young people. That guideline may also be relevant to offending by young adults.

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 care experienced or 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).
Mental disorder or learning disability
Effective from: 01 October 2020

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 Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline.

Note in particular paragraph 5 for Black, Asian and Minority Ethnic offenders.
Sole or primary carer for dependent relatives
Effective from: 01 October 2019 (revised 1 April 2024)

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.

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.

Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 119 to 125)
Pregnancy, childbirth and post-natal care
Effective from: 01 April 2024

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

When considering a custodial or community sentence for a pregnant or postnatal offender (someone who has given birth in the previous 12 months) the court should ensure it has all the necessary information before sentencing and adjourn the sentencing if necessary.

When sentencing a pregnant or postnatal woman, relevant considerations may include:
- the medical needs of the offender including her mental health needs
- any effect of the sentence on the physical and mental health of the offender
- any effect of the sentence on the child
The impact of custody on an offender who is pregnant or postnatal can be harmful for both the offender and the child including by separation, especially in the first two years of life.

Access to a place in a prison Mother & Baby Unit is not automatic and when available, the court may wish to enquire for how long the place will be available.

Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and the child. The NHS classifies all pregnancies in prison as high risk.

There may be difficulties accessing medical assistance or specialist maternity services in custody.

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 immediate custody is unavoidable, all of the factors above may be relevant to the length of the sentence.

The court should address the issues above when giving reasons for the sentence.
Offender’s vulnerability was exploited
Difficult and/or deprived background or personal circumstances
Effective from: 01 April 2024

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

The court should consider 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
- being care experienced or a care leaver
- negative influences from peers
- difficulties relating to the misuse of drugs and/or alcohol (but note: being voluntarily intoxicated at the time of the offence is an aggravating factor)
- 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 58 to 71). The Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline may also be of relevance.
Prospects of or in work, training or education
Effective from: 01 April 2024

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.

Where an offender is in, or has a realistic 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 absence of work, training or education should never be treated as an aggravating factor.

The court may ask for evidence of employment, training etc or the prospects of such, but should bear in mind any reasonable practical difficulties an offender may have in providing this.

For more serious offences where a substantial period of custody is appropriate, this factor will carry less (if any) weight.

Step 3 – Minimum Terms

For class A cases, section 313 of the Sentencing Code provides that a court should impose an appropriate custodial sentence of at least seven years for a third class A trafficking offence except:

(If the offence was committed on or after 28 June 2022) where the court is of the opinion that there are exceptional circumstances which (a) relate to any of the offences or to the offender; and (b) justify not doing so; or
(If the offence was committed before 28 June 2022) where the court is of the opinion that there are particular circumstances which (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances.

Exceptional circumstances (offence committed on or after 28 June 2022)

In considering whether there are exceptional circumstances that would justify not imposing the minimum term the court must have regard to:

the particular circumstances which relate to any of the offences and
the particular circumstances of the offender.

either of which may give rise to exceptional circumstances.

Where the issue of exceptional circumstances has been raised the court should give a clear explanation as to why those circumstances have or have not been found.

Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.

It is for the offender to establish that the exceptional circumstances exist.

Principles

The circumstances must truly be exceptional. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence.

It is important that courts adhere to the statutory requirement and do not too readily accept that the circumstances are exceptional. A factor is unlikely to be regarded as exceptional if it would apply to a significant number of cases.

The court should look at all of the circumstances of the case taken together. A single striking factor may amount to exceptional circumstances, or it may be the collective impact of all of the relevant circumstances. The seriousness of the previous offence(s) and the period of time that has elapsed between offences will be a relevant consideration.

The mere presence of one or more of the following should not in itself be regarded as exceptional:

One or more lower culpability factors
One or more mitigating factors
A plea of guilty

Where exceptional circumstances are found

If there are exceptional circumstances that justify not imposing the statutory minimum sentence then the court must impose either a shorter custodial sentence than the statutory minimum provides or an alternative sentence.

Unjust in all of the circumstances (offence committed before 28 June 2022)

In considering whether a statutory minimum sentence would be ‘unjust in all of the circumstances’ the court must have regard to the particular circumstances of the offence and the offender.

Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.

It is for the offender to establish that the exceptional circumstances exist.

If the circumstances of the offence, the previous offence or the offender make it unjust to impose the statutory minimum sentence then the court must impose either a shorter custodial sentence than the statutory minimum provides or an alternative sentence.

The offence

Having reached this stage of the guideline the court should have made a provisional assessment of the seriousness of the current offence. In addition, the court must consider the seriousness of the previous offence(s) and the period of time that has elapsed between offences. Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider it unjust to impose the statutory minimum sentence.

The offender

The court should consider the following factors to determine whether it would be unjust to impose the statutory minimum sentence;

any strong personal mitigation;
whether there is a realistic prospect of rehabilitation;
whether custody will result in significant impact on others.

Step 4 – Consider any factors which indicate a reduction, such as assistance to the prosecution

The court should take into account section 74 of the Sentencing Code (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.

Guidance on the effect of providing assistance to law enforcement authorities on sentencing

Case law has established that there are no inflexible rules as to the method by which any reduction should be assessed nor the amount of the reduction. It will be a fact specific decision in each case. The rationale for making a reduction is the same whether the statutory procedure or the common law “text” procedure has been engaged. In principle, there is no reason to distinguish between the two procedures in terms of the extent of the reduction which is made. See also the relevant Criminal Procedure Rules: CPR 28.11 (statutory procedure) CPR 28.12 (text procedure).

The following sequence of matters for a sentencing court to consider reflects case law:

The court should assess the seriousness of the offences being sentenced following any relevant sentencing guidelines.
The court should then consider the quality and quantity of the material provided by the offender in the investigation and subsequent prosecution of crime. The court should take into account the period of time over which the information was provided and the seriousness of the offending to which it relates. Particular value should be attached to those cases where the offender provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, especially where the information either produces convictions for the most serious offences, or prevents them, or which leads to disruption of major criminal networks. In cases where it is too early to say what impact the information will have, the Court should take into account the potential value of the information provided.
This consideration should be made in the context of the nature and extent of the personal risks to, and potential consequences faced by, the offender and members of the offender’s family.
A guilty plea is not an essential prerequisite of the making of a reduction for information and assistance provided, but contesting guilt may be one of the factors relevant to the extent of the reduction made for that assistance. The extent to which an offender has been prepared to admit the full extent of their criminality is relevant to the level of the reduction.
Any reduction for a guilty plea is separate from and additional to the appropriate reduction for assistance provided by the offender. The reduction for the assistance provided by the offender should be assessed first to arrive at a notional sentence and any guilty plea reduction applied to that notional sentence.
A mathematical approach to determining the level of reduction for assistance to the authorities is liable to produce an inappropriate answer – the totality principle is fundamental.
Where the statutory procedure applies, the court should take into account that this requires offenders to reveal the whole of their previous criminal activities which will often entail pleading guilty to offences which the offender would never otherwise have faced.
An informer can generally only expect to receive credit once for past information or assistance, and for that reason the court should be notified whether particular information and assistance has been taken into account in imposing a previous sentence or when making an application to the Parole Board.
The court should enquire whether an offender has received payment for assistance provided and if so, how much. Financial reward and a reduction in sentence are complementary means of incentivising the disclosure of the criminal activities of others and therefore a financial reward, unless exceptionally generous, should play only a small, if any, part in the sentencer’s decision.
The totality principle is critical in the context of an offender who is already serving a sentence, and who enters into an agreement to provide information which discloses previous criminal activities and comes before the court to be sentenced for the new crimes, as well as for a review of the original sentence (under section 388 of the Sentencing Code).
Where an offender has committed serious crimes, neither the statutory nor common law process provide immunity from punishment, and, subject to appropriate reductions, an appropriate sentence should be passed. By providing assistance to the authorities the offender is entitled to a reduction from the sentence which would otherwise be appropriate to reflect the assistance provided to the administration of justice, and to encourage others to do the same.
It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed. The normal level for the provision of valuable information will be a reduction of somewhere between one half and two thirds of that sentence.
In cases where the information provided was of limited value, the reduction may be less than one half and where the information given is unreliable, vague, lacking in practical utility or already known to the authorities, any reduction made will be minimal.
The risk to an offender who provides information, and the importance of the public interest in encouraging criminals to inform on other criminals, will often mean that the court will not be able to make any explicit reference to the provision of information or the reduction of the sentence on that ground. The duty to give reasons for the sentence will be discharged in such cases by the judge stating that the court has considered all the matters of mitigation which have been brought to its attention. See also CPR 28.12(4).

Step 5 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and the Reduction in Sentence for a Guilty Plea guideline.

In circumstances where an appropriate custodial sentence of 7 years falls to be imposed under section 313 of the Sentencing Code (third Class A drug trafficking offences), the court may impose any sentence in accordance with this guideline which is not less than 80 per cent of the appropriate custodial period.

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 offending behaviour. See Totality guideline.

Step 7 – Confiscation and ancillary orders

Confiscation order

Note:

The guidance provided here is only a very brief overview of confiscation orders

May be made by:

The Crown Court (see below for magistrates’ powers of committal)

Relevant legislation

Part 2 of the Proceeds of Crime Act 2002

Availability

1. Confiscation orders under the Proceeds of Crime Act 2002 may only be made by the Crown Court. The order is not a sentence in its own right, it may only be made in addition to a sentence. The Crown Court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the Crown Court believes it is appropriate for it to do so. See section 6 of POCA.

2. Where, following conviction in a magistrates’ court, the prosecutor applies for the offender to be committed to the Crown Court with a view to a confiscation order being considered, the magistrates’ court must commit the offender to the Crown Court to be sentenced there (section 70 POCA).

3. Where, but for the prosecutor’s application under s.70, the magistrates’ court would have committed the offender for sentence to the Crown Court anyway it must say so. Otherwise, the powers of sentence of the Crown Court will be limited to those of the magistrates’ court.

4. If postponing confiscation, the court must adjourn all other financial orders, including compensation, costs and a fine (see section 15 of POCA). Confiscation must be dealt with before, and taken into account when assessing, any other fine or financial order (except compensation and trafficking reparation order (STRO) or unlawful profit order (UPO)). If the court makes both a confiscation order and an order for compensation (or STRO or UPO) and the court believes the offender will not have sufficient means to satisfy both orders in full, the court must direct that the compensation be paid out of sums recovered under the confiscation order. (See section 13 of POCA)

Considerations

5. Although often the parties agree some or all of the figures in such cases, ultimately it is for the Judge to make a proportionate order following his/her assessment of the facts.

6. Where an order is made following an agreement by the parties this should be recorded in the order and it is prudent to ensure that the offender signs the schedule of available or realisable assets. Where an order is made after a contested hearing, it will follow the court’s findings of fact.

Payment

7. The full amount ordered to be paid under a confiscation order must be paid on the day on which the order is made unless the court is satisfied that the offender is unable to pay the full amount on that day in which case the court may make an order requiring whatever cannot be paid on that day to be paid in a specified period, or specified periods each of which relates to a specified amount. Any specified period must not exceed three months from the date of the order. If within any specified period D applies to the court for that period to be extended the court may, on being satisfied that D has made all reasonable efforts to comply, make an order extending the period for up to six months from the date of the order.

Sentences in default

Amount	Period
£10,000 or less	6 months
More than £10,000 but no more than £500,000	5 years
More than £500,000 but no more than £1,000,000	7 years
More than £1,000,000	14 years

Criminal behaviour order

May be made by:	A magistrates’ court or the Crown Court
Relevant legislation	Sentencing Act 2020, Part 11, Chapter 1
Nature of the order	A CBO is an order which is made for the purpose of preventing the offender from engaging in behaviour that is likely to cause harassment, alarm or distress to any person in the future. The order prohibits the offender from doing anything described in the order, and/or requires the offender to do anything described in the order.
Notice	The prosecutor must serve a notice of intention to apply for a CBO as soon as practicable (Criminal Procedure Rule 31.3)
Availability	The court can only consider whether to make a CBO if all of the following pre-conditions are met: the person has been convicted of an offence the prosecutor has made an application to the court for a CBO to be made against the offender the CBO would be made in addition to dealing with the offender for the offence, and the offender has not been absolutely discharged in respect of the offence. (Sentencing Code, s331(1) - (3)) For special considerations where the application for a CBO is made against an offender aged under 18, see below. For the power to adjourn an application for a CBO until after the offender has been sentenced for the offence (and to make an interim order during the adjournment), see below.
Test to be applied	The court may make a CBO against the offender if it is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, and considers that making the order will help in preventing the offender from engaging in such behaviour. (Sentencing Code, s331(2)).
General considerations	A CBO is an order designed to tackle the most serious and persistent anti-social individuals where their behaviour has brought them before a criminal court. The behaviour to be addressed does not need to be connected to the criminal behaviour, or activity which led to the conviction. However, if there is no link the court will need to reflect on the reasons for making the order. A CBO can deal with a wide range of anti-social behaviour following the offender’s conviction, for example threatening violence against others in the community, or persistently being drunk and aggressive in public. However, the order should not be designed to stop reasonable, trivial or benign behaviours that have not caused, or are not likely to cause anti-social behaviour.
Deciding whether the offender has engaged in the relevant behaviour	The court must decide whether the offender has engaged in the behaviour alleged and also whether that behaviour caused or was likely to cause harassment, alarm or distress to any person. The standard of proof is the criminal standard. For this purpose, evidence may be led by the prosecution and/or the offender. The strict rules of evidence do not apply. It does not matter whether the evidence would have been admissible in the proceedings in which the offender was convicted. But the evidence must be relevant to the test to be applied to the making of the order. This evidence could include hearsay or bad character. Special measures are available for witnesses who are vulnerable and intimidated witnesses in accordance with the Youth Justice and Criminal Evidence Act 1999 (Sentencing Code, s340).
Content of the order	A CBO may include prohibitions and/or requirements, which must be: proportionate, reasonable and tailored to the specific needs of each offender realistic, practical and precise capable of being understood by the offender, and sufficiently clear so that any breach can be prosecuted. A CBO should not prohibit particular conduct which itself constitutes a criminal offence where the purpose of the order is to provide for an increased penalty in the event of repetition in breach of the order. Prohibitions and requirements in a CBO must, so far as practicable, be such as to avoid— any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment, and any conflict with the requirements of any other court order to which the offender may be subject. There is no power to make any prohibition or requirement in a CBO subject to electronic monitoring.
Requirements in a CBO	A criminal behaviour order that includes a requirement must specify the person (individual or organisation) who is to be responsible for supervising compliance with the requirement. The court must also receive evidence about its suitability and enforceability from that individual or an individual representing the organisation. If the criminal behaviour order includes two or more requirements, the court must consider their compatibility with each other.
Length of the order	The CBO must specify the period for which it has effect. Where the offender is an adult (when the order is made), the order must be for either a fixed period of not less than 2 years, or an indefinite period (so that the order has effect until further order). See below as to the duration of a CBO made against a child. The order may specify periods for which particular prohibitions or requirements have effect.
Special considerations for offenders who are children aged under 18	See Section 1 (sentencing principles and welfare) and Section 3 (parental responsibilities) of the Sentencing Children and Young People guideline. Duty to obtain views of Youth Justice Services The prosecution must find out the views of the local youth offending team before applying for a criminal behaviour order. (Sentencing Act 2020, s.331(5)). Length of the CBO The order must be for a fixed period of length between 1 and 3 years. (Sentencing Act 2020, s.334(4)). Parenting order on making of CBO Where the court has made a CBO against an offender aged under 16, it must make a parenting order if doing so would be desirable in the interests of preventing any repetition of the kind of behaviour which led to the CBO being made. The court may make a parenting order in the case on offender aged 16 or 17 where that condition is fulfilled (Crime and Disorder Act 1998, ss.8 and 9).
Effect on earlier orders	The CBO takes effect on the day it is made unless the offender is already subject to a criminal behaviour order in which case the new order may be made so as to take effect on the day on which the previous order ceases to have effect.
Explaining the order	The CBO must be explained to the offender, and the exact terms of the order pronounced in open court.
Adjournments and Interim CBOs	The court may adjourn hearing the application for a CBO until after the offender has been sentenced for the offence. If the offender fails to appear on the adjourned date, the court has powers to issue a warrant or proceed in absence. The court can make an interim order if the it thinks it is just to do so. An interim order can be made until final hearing or further order. When making an interim CBO, the court has the same powers as if it were making a final order.
Consequences of breach	Breach of a criminal behaviour order is a criminal offence, with a maximum penalty of 5 years’ custody or an unlimited fine. Breach of a criminal behaviour order guideline.

Football banning order – on conviction

May be made by	A magistrates’ court or the Crown Court
Relevant legislation	Football Spectators Act 1989, Part II
Availability	Where a person is convicted of a relevant offence the court must make a banning order in respect of the offender unless the court considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so.
Relevant Offences	A “relevant offence” is one listed in Schedule 1. Some offences become relevant if the offence is committed during a period ‘relevant’ to a football match. The following periods are ‘relevant’ to a football match (Football Spectators Act 1989, Sch.1 para.4): (a) the period beginning: i) 24 hours before the start of the match; or ii) 24 hours before the time at which it is advertised to start; whichever is the earliest, and ending 24 hours after the end of the match; (b) where a match advertised to start at a particular time on a particular day is postponed to a later day, or does not take place, the period in the advertised day beginning 24 hours before and ending 24 hours after that time.
Considerations	For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence. It is immaterial whether the evidence would have been admissible in the proceedings in which the offender was convicted. A banning order made on conviction must be made: (a) in addition to a sentence imposed in respect of the relevant offence, or (b) in addition to an order discharging the offender conditionally.
The Order	On making a banning order the court must, in ordinary language, explain its effect to the subject of the order.
Content of the order	The order requires the offender to report to a police station within five days, may require the offender to surrender his or her passport, and may impose requirements on the offender in relation to any regulated football matches. The order may, if the court thinks fit, impose additional requirements on the person subject to the order in relation to any regulated football matches.
Notification	A banning order must require the person subject to the order to give notification of any of the following events (as set out in section 14E(2B): (a) a change of any of his names (b) the first use by him after the making of the order of a name for himself that was not disclosed by him at the time of the making of the order (c) a change of his home address (d) his acquisition of a temporary address (e) a change of his temporary address or his ceasing to have one (f) his becoming aware of the loss of his passport (g) receipt by him of a new passport (h) an appeal made by him in relation to the order (i) an application made by him under section 14H(2) for termination of the order (j) an appeal made by him under section 23(3) against the making of a declaration of relevance in respect of an offence of which he has been convicted. A notification required by a banning order must be given before the end of the period of seven days beginning with the day on which the event in question occurs and in the case of a change of a name or address or the acquisition of a temporary address, must specify the new name or address in the case of a first use of a previously undisclosed name, must specify that name, and in the case of a receipt of a new passport, must give details of that passport.
Length of the order	Where the order is in addition to a sentence of imprisonment taking immediate effect, the maximum is ten years, and the minimum is six years. “Imprisonment” includes any form of detention. In any other case, the maximum is five years, and the minimum is three years.
Adjournments	The court may adjourn hearing the application for a football banning order until after the offender has been sentenced for the offence. If the offender fails to appear on the adjourned date, the court has the power to further adjourn or issue a warrant for the offender’s arrest.
Notice	The prosecutor must serve a notice of intention to apply for a football banning order as soon as practicable (Criminal Procedure Rule 31.3)
Reasons	The court is required to give reasons if it decides not to make an order.
Consequences of Breach	Breach of a football banning order is a criminal, maximum penalty six months custody, or a fine not exceeding level 5 on the standard scale, or both. Breach offences (other) – Sentencing (sentencingcouncil.org.uk)

Forfeiture order – drug offences

May be made by	A magistrates’ court or the Crown Court
Relevant legislation	Misuse of Drugs Act 1971, section 27 Psychoactive Substances Act 2016, section 54
Availability – Misuse of Drugs Act offences	Where an offender has been convicted of an offence under: Misuse of Drugs Act 1971 Paragraph 1 of Schedule 2 to the Proceeds of Crime Act 2002 (drug trafficking offences) or Paragraph 10 of Schedule 2 to the Proceeds of Crime Act 2002 (inchoate offences) the court may order that anything shown to the satisfaction of the court to relate to the offence, be forfeited and either destroyed or dealt with in such other manner as the court may order. The court shall not order anything to be forfeited where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless they have been given an opportunity to show cause why the order should not be made.
Availability – Psychoactive Substances Act offences	Where an offender has been convicted of an offence under Psychoactive Substances Act 2016: Section 4 - Producing a psychoactive substance Section 5 - Supplying, or offering to supply, a psychoactive substance Section 6 - Aggravation of offence under section 5 Section 7 - Possession of psychoactive substance with intent to supply Section 8 - Importing or exporting a psychoactive substance Section 9 - Possession of a psychoactive substance in a custodial institution Section 26 – Offence of failing to comply with an access prohibition etc, or An ancillary offence as defined by section 54(11) the court must make an order for the forfeiture of any psychoactive substance in respect of which the offence was committed. The court may also make an order for the forfeiture of any other item that was used in the commission of the offence. Before making a forfeiture order, the court must give an opportunity to make representations to any person (in addition to the convicted person) who claims to be the owner of the item or otherwise to have an interest in it. Where the court makes a forfeiture order, it may also make such other provision as it considers to be necessary for giving effect to the forfeiture. This may include provision relating to the retention, handling, destruction or other disposal of the item.

Serious crime prevention order on conviction

May be made by	The Crown Court
Relevant legislation	Serious Crime Act 2007, part 1 (section 19 - 21)
Availability	Can be made by the Crown Court if the offender has: been convicted of a serious offence and there are reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. A serious offence is one which is specified in Part 1 of Schedule 1 or is one which the court considers to be sufficiently serious to be treated for the purposes of the application as if it were so specified.
Content of the order	An order may contain prohibitions, restrictions or requirements and any other terms that the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the offender in serious crime in England and Wales. The SCPO can contain prohibitions, restrictions or requirements. For example the SCPO may include: Prohibitions, restrictions, or requirements in relation to: an individual's financial, property or business dealings or holdings an individual's working arrangements the means by which an individual communicates or associates with others, or the persons with whom the individual communicates or associates the premises to which an individual has access the use of any premises or item by an individual an individual's travel (whether within the United Kingdom, between the United Kingdom and other places or otherwise) Requirement(s) to answer questions, or provide information, specified or described in an order: at a time, within a period or at a frequency at a place in a form and manner, and to a law enforcement officer or description of law enforcement officer notified to the person by a law enforcement officer specified or described in the order Requirement(s) to produce documents specified or described in an order: at a time, within a period or at a frequency at a place in a manner, and to a law enforcement officer or description of law enforcement officer notified to the person by a law enforcement officer specified or described in the order. The order may include prohibitions, restrictions or requirements in relation to an individual's private dwelling (such as where an individual may reside).
Length of the order	The order must specify when it comes into force and when it will end. The order cannot exceed 5 years. The order may specify different times for different provisions but must be clear about when each starts and ends.
Effect on earlier orders	Where an offender is already the subject of a serious crime prevention order that existing order must be discharged.
Powers of Crown Court to vary orders on conviction	Where the Crown Court is dealing with a person who has been convicted of having committed a serious offence in England and Wales and is the subject of a SCPO: · The Court may, in addition to dealing with the person in relation to the offence, vary the order if the court has reasonable grounds to believe that the terms of the order as varied, would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. Such a variation may only be made on an application by the relevant applicant authority. A variation can only be made in addition to a sentence imposed in respect of the offence concerned (including conditional discharge). A variation may include an extension of the period during which the order, or any provision of it, is in force)
Consequences of breach	Breach of a SCPO is a criminal offence, maximum penalty five years’ custody.

Travel restriction order

May be made by	The Crown Court
Relevant legislation	Section 33 of the Criminal Justice and Police Act 2001
Availability	A travel restriction order may be made on conviction of a drug trafficking offence as defined in Section 34 of the Criminal Justice and Police Act 2001 which includes importation, production and supply of controlled drugs (but not possession with intent to supply or cultivation of cannabis plant) and where an offender is sentenced to a custodial sentence of four years or more.
Duty of the court	The court must consider making an order where it is available. It is appropriate to make an order where there is reason to believe that it will reduce the risk of re-offending on release from prison. If it does not make an order the court must give reasons.
Length of the order	The minimum length of an order is two years from the date of the offender’s release from custody. There is no maximum length. The length should be that which is required to protect the public in the light of the assessment of the degree of risk which is presented by the facts of the case and the circumstances of the offender. Relevant considerations may include (but are not limited to): the quantity and type of drug, the degree of sophistication of the offence(s), the offender’s role, the offender’s age, previous convictions, past and prospective employment, family and work connections abroad. The court should invite submissions on the relevant considerations before making the order.
Effect of the order	The effect of an order is to prohibit the offender from leaving the UK for the period of the order, commencing on the date of release from custody. The offender may be required to deliver up any passport, which is a pre-requisite to enforcing such an order

Forfeiture or suspension of personal licence (supply of alcohol) - Licensing Act 2003

May be made by	A magistrates’ court or the Crown Court
Relevant legislation	Licensing Act 2003, Part 6
Availability	A personal licence is a licence granted by a licensing authority to an individual which authorises them to supply alcohol, or authorise the supply of alcohol, in accordance with a premises licence. Where the holder of a personal licence is convicted of a relevant offence the court may: order the forfeiture of the licence or order its suspension for a period not exceeding 6 months. A relevant offence is one listed in Schedule 4.
Considerations	The court may take account of any previous conviction for a relevant offence.
Further Actions for the court	Where the holder of a personal licence is convicted of a relevant offence the court must (as soon as reasonably practicable) send the relevant licensing authority a notice specifying the name and address of the relevant person the nature and date of the conviction, and any sentence passed in respect of it, including whether an order was made to forfeit or suspend the licence, and send a copy of the notice to the relevant person.

Step 8 – Reasons

Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 9 – Consideration for time spent on bail

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the Sentencing Code.

[1] NB. In the earlier guidelines, published in 2012, ecstasy tablet quantities were based on a typical quantity of 100mg MDMA per tablet

Explanatory materials

Explanatory materials

Explanatory materials

Explanatory materials

Explanatory materials

Explanatory materials

Explanatory materials

Explanatory materials

Explanatory materials

Explanatory materials

Explanatory materials

Supplying or offering to supply a controlled drug/ Possession of a controlled drug with intent to supply it to another

Step 1 – Determine the offence category

Culpability demonstrated by the offender’s role

Leading role:

Significant role:

Lesser role:

Harm

Category 1

Category 2

Category 3

Category 4

Step 2 – Starting point and category range

Factors increasing seriousness

Statutory aggravating factors:

Guidance on the use of previous convictions

Other aggravating factors include:

Factors reducing seriousness or reflecting personal mitigation

Step 3 – Minimum Terms

Step 4 – Consider any factors which indicate a reduction, such as assistance to the prosecution

Step 5 – Reduction for guilty pleas

Step 6 – Totality principle

Step 7 – Confiscation and ancillary orders

Step 8 – Reasons

Step 9 – Consideration for time spent on bail

Give feedback about this page