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.

Where an offender is convicted of any offence, the court may make a restraining order (Sentencing Code, s.360).

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.

A court before which a person is acquitted of an offence may make a restraining order if the court considers that it is necessary to protect a person from harassment by the defendant (Protection from Harassment Act 1997, s.5A). Consult your legal adviser for guidance.

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.

Sexual Harm Prevention Orders (SHPO) can be made in relation to a person who has been convicted of an offence listed in either Schedule 3 or Schedule 5 to the Sexual Offences Act 2003 either in the UK or overseas (further details below). This includes offenders whose convictions pre-date the commencement of the 2003 Act (Part 11 Chapter 2 of the Sentencing Code). A SHPO can also be made where a person is found not guilty by reason of insanity or found to be under a disability and to have done the act charged, or cautioned etc. for an offence listed in either Schedule 3 or Schedule 5 to the Sexual Offences Act 2003 (s. 103A SOA 2003)

No application is necessary for the court to make a SHPO at the point of sentence although the prosecutor may wish to invite the court to consider making an order in appropriate cases. The court may ask pre-sentence report writers to consider the suitability of a SHPO on a non-prejudicial basis.

In order to make a SHPO, the court must be satisfied that the offender presents a risk of sexual harm to the public (or particular members of the public) and that an order is necessary to protect against this risk. The details of the offence are likely to be a key factor in the court’s decision, together with the offender’s previous convictions and the assessment of risk presented by the Probation Service in any pre-sentence report. The court may take into consideration the range of other options available to it in respect of protecting the public. The court may want to consider:

1. Would an order minimise the risk of harm to the public or to any particular members of the public?
2. Is it proportionate?
3. Can it be policed effectively?

The only prohibitions which can be imposed by a SHPO are those which are necessary for the purpose of protecting the public from sexual harm from the defendant. These can, however, be wide ranging. An order may, for example, prohibit someone from undertaking certain forms of employment such as acting as a home tutor to children. It may also prohibit the offender from engaging in particular activities on the internet. The decision of the Court of Appeal in R v Smith and Others [2011] EWCA Crim 1772 reinforces the need for the terms of a SHPO to be tailored to the exact requirements of the case. SHPOs may be used to limit and manage internet use by an offender, where it is considered proportionate and necessary to do so. The behaviour prohibited by the order might well be considered unproblematic if exhibited by another member of the public – it is the offender’s previous offending behaviour and subsequent demonstration that they may pose a risk of further such behaviour, which will make them eligible for an order.

The order may have effect for a fixed period (not less than five years) or until further order, with the exception of a foreign travel prohibition which must be a fixed period of no more than five years (renewable). Different time periods may be specified for individual restrictions and requirements.

Where an SHPO is made in respect of an offender who is already subject to an SHPO, the earlier SHPO ceases to have effect. If the offender is already subject to a Sexual Offences Prevention Order or Foreign Travel Order made in Scotland or Northern Ireland, that order ceases to have effect unless the court orders otherwise.

Chapter 2 of Part 11 of the Sentencing Code sets out further matters related to making SHPOs.

Consult your legal adviser for guidance.

Availability of Sexual Harm Prevention Orders Available in respect of an offence listed in schedule 3 or 5 of the Sexual Offences Act 2003. These include:

• possession of indecent photograph of a child – Criminal Justice Act 1988, s.160;
• sexual assault – Sexual Offences Act 2003, s.3;
• exposure – Sexual Offences Act 2003, s.66;
• voyeurism – Sexual Offences Act 2003, s.67;
• threats to kill – Offences against the Person Act 1861, s.16;
• wounding/causing grievous bodily harm – Offences against the Person Act 1861, s.20;
• assault with intent to resist arrest – Offences against the Person Act 1861, s.38;
• assault occasioning actual bodily harm – Offences against the Person Act 1861, s.47;
• burglary with intent to inflict grievous bodily harm or to do unlawful damage to a building/anything within it – Theft Act 1968, s.9;
• arson – Criminal Damage Act 1971, s.1;
• violent disorder – Public Order Act 1986, s.2;
• affray – Public Order Act 1986, s.3;
• harassment – conduct causing fear of violence – Protection from Harassment Act 1994, s.4;
• racially or religiously aggravated wounding/causing grievous bodily harm – Crime and Disorder Act 1998, s.29;
• racially or religiously aggravated assault occasioning actual bodily harm – Crime and Disorder Act 1998, s.29;
• racially or religiously aggravated common assault – Crime and Disorder Act 1998, s.29;
• racially or religiously aggravated threatening behaviour – Crime and Disorder Act 1998, s.31(1)(a);
• racially or religiously aggravated disorderly behaviour with intent to cause harassment, alarm or distress – Crime and Disorder Act 1998, s.31(1)(b);
• exploitation of prostitution – Sexual Offences Act 2003, ss.52 and 53.

Section 344(2) of the Sentencing Code provides that any conditions in Sch. 3 SOA 2003 relating to the age of the offender or the victim, or the sentence imposed on the offender may be disregarded in making a Sexual Harm Prevention Order.

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.

The court may disqualify any person convicted of an offence from driving for such period as it thinks fit (Sentencing Code, s.163). This may be instead of or in addition to dealing with the offender in any other way.

The section does not require the offence to be connected to the use of a vehicle. The Court of Appeal has held that the power is available as part of the overall punitive element of a sentence, and the only restrictions on the exercise of the power are those in the statutory provision (R v Cliff [2004] EWCA Crim 3139).

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.

A fine and a custodial sentence may be imposed for the same offence although there will be few circumstances in which this is appropriate, particularly where the custodial sentence is to be served immediately. One example might be where an offender has profited financially from an offence but there is no obvious victim to whom compensation can be awarded. Combining these sentences is most likely to be appropriate only where the custodial sentence is short and/or the offender clearly has, or will have, the means to pay.

Care must be taken to ensure that the overall sentence is proportionate to the seriousness of the offence and that better off offenders are not able to ‘buy themselves out of custody’.

Consult your legal adviser if considering lodging fines or costs on the imposition of a custodial sentence.

Consult your legal adviser in any case in which you are considering combining a fine with a custodial sentence.

The Criminal Courts Charge has changed – 24 December 2015

From 24 December 2015, the Criminal Courts Charge no longer applies following the announcement made by the Lord Chancellor and Secretary of State for Justice, Michael Gove.

This site has been updated in line with that announcement.

 

When sentencing for offences committed on or after 1 October 2012 a magistrates’ court must order the surcharge in the following ways (Criminal Justice Act 2003, s.161A; CJA 2003 (Surcharge) Order 2012; CJA 2003 (Surcharge) (Amendment) Order 2016, CJA 2003 (Surcharge) (Amendment) Order 2019 and CJA 2003 (Surcharge) (Amendment) Order 2020). This is a mandatory requirement set out in section 42 of the Sentencing Code. Courts can reduce the amount of the surcharge (if necessary to nil) if – and only if – an offender cannot pay both the surcharge and one or more of the following orders:

• compensation order,
• unlawful profit order,
• slavery and trafficking reparation order.

If a defendant can afford to make payment in addition to one or more of those orders, the court must impose a surcharge, rather than another financial order such as costs.

Offenders aged 18 and older at the date of the offence

Disposal type	One or more offence(s) committed before 8 April 2016	One or more offence(s) committed before 28 June 2019	One or more offence(s) committed before 14 April 2020	One or more offence(s) committed before 16 June 2022	All offence(s) committed on or after 16 June 2022
Conditional discharge	£15	£20	£21	£22	£26
Fine	10 per cent of the total fine value (rounded up or down to the nearest pound)				40 per cent of the total fine value (rounded up or down to the nearest pound) £2,000 maximum
	£20 minimum and £120 maximum	£30 minimum and £170 maximum	£32 minimum and £181 maximum	£34 minimum and £190 maximum
Community sentence	£60	£85	£90	£95	£114
Suspended sentence order	£80 (six months or less) £100 (over six months)	£115 (six months or less) £140 (over six months)	£122 (six months or less) £149 (over six months)	£128 (six months or less) £156 (over six months)	£154 (six months or less) £187 (over six months)
Immediate custody	*£80 (six months or less) £100 (over six months)	£115 (six months or less) £140 (over six months)	£122 (six months or less) £149 (over six months)	£128 (six months or less) £156 (over six months)	£154 (six months or less) £187 (over six months)

Offenders aged under 18 at the date of the offence

Disposal type	One or more offence(s) committed before 8 April 2016	One or more offence(s) committed before 28 June 2019	One or more offence(s) committed before 14 April 2020	One or more offence(s) committed before 16 June 2022	All offence(s) committed on or after 16 June 2022
Conditional discharge	£10	£15	£16	£17	£20
Fine, Youth Rehabilitation Order, Community Order, Referral Order	£15	£20	£21	£22	£26
Suspended sentence order	£20	£30	£32	£34	£41
Immediate custody	*£20	£30	£32	£34	£41

* When sentencing an offender to immediate custody for a single offence committed before 1 September 2014 or more than one offence, at least one of which was committed before 1 September 2014, no surcharge is payable.

Person who is not an individual (for example, a company or other legal person)

Disposal type	One or more offence(s) committed before 8 April 2016	One or more offence(s) committed before 28 June 2019	One or more offence(s) committed before 14 April 2020	One or more offence(s) committed before 16 June 2022	All offence(s) committed on or after 16 June 2022
Conditional discharge	£15	£20	£21	£22	£26
Fine	10 per cent of the total fine value (rounded up or down to the nearest pound)				40 per cent of the total fine value (rounded up or down to the nearest pound) £2,000 maximum
	£20 minimum and £120 maximum	£30 minimum and £170 maximum	£32 minimum and £181 maximum	£34 minimum and £190 maximum

Where an offender is dealt with in different ways only one surcharge (whichever attracts the higher sum) will be paid. Where there is more than one fine ordered, then the surcharge is assessed with reference to the total fine. Where a custodial sentence is imposed the surcharge is based upon the aggregate term imposed.

Where the court dealing with an offender for more than one offence and at least one offence was committed when the offender was under 18, the surcharge should be ordered at the rate for under 18s (Criminal Justice Act 2003 (Surcharge) Order 2012 art.5(3)).

There is no surcharge payable when compensation is ordered as a sentence (as opposed to an ancillary order).

The surcharge is not payable where the court is dealing with breach of a community order or breach of a suspended sentence or breach of a conditional discharge.

However, where the court deals with an offender for an offence and at the same time deals with one or more of the following:

• breach of a community order (whether by re-sentencing for the original offence or imposing a fine or more onerous requirements),
• breach of a suspended sentence (whether by activating the sentence in full or part or imposing a fine or amending the order), or
• re-sentence following breach of a conditional discharge (but not when simply allowing a conditional discharge to continue)

The surcharge for the new offence must be calculated by reference to the date that the earliest offence (including any offence for which the sentence has been breached) was committed. Where the offender has the means to pay the financial impositions of the court, there should be no reduction in compensation or fines whenever the surcharge is ordered. However, when the court:

• orders the offender to pay both a surcharge and compensation, but the offender is unable to pay both, the court must reduce the amount of the surcharge (if necessary to nil) (Sentencing Code, s.42(3)); or
• orders the offender to pay both a fine and a surcharge, the court may only reduce the fine to the extent that the offender is unable to pay both (Sentencing Code, s.125(4)).

Where the offender does not have sufficient means to pay the total financial penalty considered appropriate by the court, the order of priority is:

• compensation
• surcharge
• fine
• costs.

When sentencing for one or more offences any one of which was committed after 1 April 2007 but before 1 October 2012, a surcharge is payable only if the offender is dealt with by way of a fine, at a flat rate of £15 (Criminal Justice Act 2003 (Surcharge) Order 2012 art.7(2)).

Where a guilty plea has been entered, the amount of the fine should be reduced by the appropriate proportion. Courts should refer to the Guilty Plea guideline applicable where the first hearing is on or after 1 June 2017 or before 1 June 2017.

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.

While the initial consideration for the assessment of a fine is the offender’s relevant weekly income, the court is required to take account of the offender’s financial circumstances including assets more broadly. Guidance on important parts of this assessment is set out below.

An offender’s financial circumstances may have the effect of increasing or reducing the amount of the fine; however, they are not relevant to the assessment of offence seriousness. They should be considered separately from the selection of the appropriate fine band and the court’s assessment of the position of the offence within the range for that band.

Out of the ordinary expenses

In deciding the proportions of relevant weekly income that are the starting points and ranges for each fine band, account has been taken of reasonable living expenses. Accordingly, no further allowance should normally be made for these. In addition, no allowance should normally be made where the offender has dependants.

Outgoings will be relevant to the amount of the fine only where the expenditure is out of the ordinary and substantially reduces the ability to pay a financial penalty so that the requirement to pay a fine based on the standard approach would lead to undue hardship.

Unusually low outgoings

Where the offender’s living expenses are substantially lower than would normally be expected, it may be appropriate to adjust the amount of the fine to reflect this. This may apply, for example, where an offender does not make any financial contribution towards his or her living costs.

Savings

Where an offender has savings these will not normally be relevant to the assessment of the amount of a fine although they may influence the decision on time to pay.

However, where an offender has little or no income but has substantial savings, the court may consider it appropriate to adjust the amount of the fine to reflect this.

Household has more than one source of income

Where the household of which the offender is a part has more than one source of income, the fine should normally be based on the income of the offender alone.

However, where the offender’s part of the income is very small (or the offender is wholly dependent on the income of another), the court may have regard to the extent of the household’s income and assets which will be available to meet any fine imposed on the offender (R v Engen [2004] EWCA Crim 1536 (CA)).

Potential earning capacity

Where there is reason to believe that an offender’s potential earning capacity is greater than his or her current income, the court may wish to adjust the amount of the fine to reflect this (R v Little (unreported) 14 April 1976 (CA)). This may apply, for example, where an unemployed offender states an expectation to gain paid employment within a short time. The basis for the calculation of fine should be recorded in order to ensure that there is a clear record for use in variation or enforcement proceedings.

High income offenders

The court should ensure that any fine does not exceed the statutory maximum for the offence.

A fine must not exceed the statutory limit. Where this is expressed in terms of a ‘level’, the maxima are:

Level 1	£200
Level 2	£500
Level 3	£1,000
Level 4	£2,500
Level 5	Unlimited (for offences committed after 13 March 2015)*

*For offences committed before 13 March 2015 the level 5 maximum is £5,000

See the Criminal Practice Directions 5.16 for directions on dealing with cases involving very large fines in the magistrates’ court.

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.

Where an offender is to be fined for two or more offences that arose out of the same incident, it will often be appropriate to impose on the most serious offence a fine which reflects the totality of the offending where this can be achieved within the maximum penalty for that offence. ‘No separate penalty’ should be imposed for the other offences.

Where compensation is being ordered, that will need to be attributed to the relevant offence as will any necessary ancillary orders.