About this consultation
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To: |
This consultation is open to everyone including members of the judiciary, legal practitioners and any individuals who work in or have an interest in criminal justice. |
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Duration: |
From 22 January 2025 to 25 April 2025 |
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Enquiries (including requests for the paper in an alternative format) to: |
Office of the Sentencing Council Tel: 020 7071 5793 |
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How to respond: |
Please send your response by 25 April to: Ollie Simpson Email: consultation@sentencingcouncil.gov.uk or by using the online consultation at: https://consult.justice.gov.uk/ |
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Information to help you respond: |
This consultation exercise is accompanied by a resource assessment, and a statistical bulletin which can be found at: www.sentencingcouncil.org.uk] |
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Response paper: |
Following the conclusion of this consultation exercise, a response will be published at: www.sentencingcouncil.org.uk |
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Freedom of information: |
We will treat all responses as public documents in accordance with the Freedom of Information Act and we may attribute comments and include a list of all respondents’ names in any final report we publish. If you wish to submit a confidential response, you should contact us before sending the response. PLEASE NOTE – We will disregard automatic confidentiality statements generated by an IT system. In addition, responses may be shared with the Justice Committee of the House of Commons. Our privacy notice sets out the standards that you can expect from the Sentencing Council when we request or hold personal information (personal data) about you; how you can get access to a copy of your personal data; and what you can do if you think the standards are not being met. It is published on our website at: www.sentencingcouncil.org.uk/privacy. |
Introduction
What is the Sentencing Council?
The Sentencing Council is the independent body responsible for developing sentencing guidelines which courts in England and Wales must follow when passing a sentence. The Council consults on its proposed guidelines before they come into force and on any proposed changes to existing guidelines.
What is this consultation about?
This consultation seeks views on a proposed sentencing guideline for various offences related to hare coursing, namely:
- section 1 of the Night Poaching Act 1828 (Taking or destroying game by night)
- section 30 of the Game Act 1831 (Trespass in the daytime in search of game)
- section 63 of the Police, Crime, Sentencing and Courts Act 2022 (Trespass with intent to search for or to pursue hares with dogs etc)
- section 64 of the Police, Crime, Sentencing and Courts Act 2022 (Being equipped for searching for or pursuing hares with dogs etc)
The proposed guideline does not apply to hare coursing or hunting offences committed under sections 1 or 5 of the Hunting Act 2004.
Why hare coursing offences?
The maximum penalties for offences committed under section 1 of the Night Poaching Act 1828 and section 30 of the Game Act 1831 were increased from a fine to six months’ custody under the Police, Crime, Sentencing and Courts Act 2022. The 2022 Act also introduced the latter two offences mentioned above (Trespass with intent to search for or to pursue hares with dogs and Being equipped for searching for or pursuing hares with dogs etc).
Beyond the harm done to animals, hare coursing activities often involve aggressive and threatening behaviour towards local residents, some of whom may live in isolated locations. Criminal damage is also very common. The increase in maximum penalties was a response to a longstanding view that a fine was not a sufficient deterrent to those who committed hare coursing offences. The courts now have a fuller suite of sentencing powers, including new ancillary orders, to deal with hare coursing offences. In recent years, Operation Galileo has seen police forces co-operate across the country to share intelligence and tackle this offending.
As there are no existing sentencing guidelines for these offences, the Council believes it would be helpful to the courts to provide consistency of approach in sentencing them.
Broader wildlife offences
The Council is aware of various calls for sentencing guidelines on wildlife offences in general, and has considered carefully whether to draft such guidelines. The Council notes the Law Commission’s view, set out in its 2015 report on wildlife offences (Law Com 362) that “the current legislation governing the control, exploitation, welfare and conservation of wild animals and plants in England and Wales has become unnecessarily complex and inconsistent…The natural environment is a complex system and the law concerning it needs to apply in a range of different situations and reflect a range of (potentially competing) interests. In many cases, however, there appears to be little obvious rationale for the existing complexity”.
The Law Commission’s recommendation to consolidate this body of criminal law has not been taken up. Indeed, further standalone pieces of legislation have been added in recent years, such as the Ivory Act 2018, the Glue Traps (Offences) Act 2022, and the Shark Fins Act 2023. Meanwhile, whilst the maximum penalty for cruelty towards domestic animals has been increased to five years, the maximum penalty for cruelty towards wild animals under the Wild Mammals (Protection) Act 1996 remains at six months.
The Council has concluded that this is not a promising landscape for the production of sentencing guidelines. Wildlife offences are too disparate, with a fine being the maximum penalty available in many cases, and very low volumes seen by the courts. The Court of Appeal has provided clear guidance over the years on the sorts of sentence levels appropriate in cases of import and export of animals and animal products, and the Council believes this is sufficient to assist the courts when they do sentence offenders in such cases.
Responding to the consultation
Through this consultation process, the Council is seeking views on:
- the principal factors that make any of the offences included within the draft guidelines more or less serious
- the additional factors that should influence the sentence
- the types and lengths of sentence that should be passed, and
- whether there are any issues relating to disparity of sentencing and/or broader matters relating to equality and diversity that the guidelines could and should address.
We would like to hear from anyone who uses sentencing guidelines in their work or who has an interest in sentencing. We would also like to hear from individuals and organisations representing anyone who could be affected by the proposals including:
- victims and their families
- defendants and their families
- those under probation supervision or youth offending teams/supervision
- those with protected characteristics: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
In the following sections the proposals are outlined in detail and you will be asked to give your views. You can give your views by answering some or all of the questions below either by email to consultation@sentencingcouncil.gov.uk or by using the online consultation at https://consult.justice.gov.uk/. A summary of the consultation questions can be found at Annex A.
What else is happening as part of the consultation process?
This is a 12 week public consultation. The Council has already drawn on the expertise of the Police, rural magistrates and others involved in investigating, prosecuting and sentencing hare coursing cases in preparing the draft guidelines. As part of the consultation process, the Council is now planning on engaging further with magistrates and others with an interest to explore some of the issues raised in this paper in more depth. Once the results of the consultation have been considered, the updated guidelines will be published and used by all courts.
Applicability of guidelines
When issued as definitive guidelines following consultation the guideline will apply only to offenders aged 18 and older. General principles to be considered in the sentencing of children and young people are set out in the Sentencing Council’s definitive guideline, Sentencing children and young people.
Question 1: What is your name?
Question 2: What is your email address?
Question 3: Are you answering as an individual? If so, are you happy for your name to be included in the consultation response document?
Question 4: If you are answering on behalf of an organisation, group or bench, please provide the name of the organisation, group or bench.
Equality and diversity
The Sentencing Council considers matters relating to equality and diversity to be important in its work. The Council is always concerned if it appears that the guidelines have different outcomes for different groups. The Council published the report ‘Equality and diversity in the work of the Sentencing Council’ in January 2023, designed to identify and analyse any potential for the Council’s work to cause disparity in sentencing outcomes across demographic groups.
In addition, the available demographic data, (sex, age group and ethnicity of offenders) is examined as part of the work on each guideline, to see if there are any concerns around potential disparities within sentencing. For some offences it may not be possible to draw any conclusions on whether there are any issues of disparity of sentence outcomes between different groups caused by the guidelines, for example because of a lack of available data or because volumes of data are too low. However, the Council takes care to ensure that the guidelines operate fairly and includes reference to the Equal Treatment Bench Book in all guidelines:
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 Council has had regard to its duty under the Equality Act 2010 in drafting these proposals, specifically with respect to any potential effect of the proposals on victims and offenders with protected characteristics.
The demographic data on sex, age and ethnicity have been presented for the period 2019 to 2023 for the offences of taking or destroying game by night (section 1 of the Night Poaching Act 1828) and trespassing in the daytime in search of game (section 30 of the Game Act 1831). For the newer offences of trespassing with intent to search for or to pursue hares with dogs etc (section 63 of the Police, Crime, Sentencing and Courts Act 2022), and being equipped for searching for or pursuing hares with dogs etc (section 64 of the same act) data for 2023 are presented. The statistics discussed below can be found within the data tables published on the Council’s website.
Sex
Across the offences covered by this guideline, the majority of offenders were male, and remaining offenders had a sex not recorded or not known.
All offenders sentenced between 2019 and 2023 for taking or destroying game by night (section 1 of the Night Poaching Act 1828) were male, and almost all offenders (93 per cent) over the same period sentenced for trespassing in the daytime in search of game (section 30 of the Game Act 1831) were male; the sex of the remaining 7 per cent was not recorded or not known.
For the newer offences of trespassing with intent to search for or to pursue hares with dogs etc and being equipped for searching for or pursuing hares with dogs etc (sections 63 and 64 of the Police, Crime, Sentencing and Courts Act 2022 respectively) offenders were only sentenced for the first time in 2023. Almost all offenders sentenced for the section 63 offence were male (93 per cent), with the sex of the remaining 7 per cent not recorded or known. All offenders sentenced for the section 64 offence were male.
Age group
The data from 2019 to 2023 (for the section 1 and 30 offences) and 2023 (for the section 63 and 64 offences), indicate the majority of offenders are under 40 (ranging from 79 to 89 per cent of offenders across each offence).
For the section 1 and section 30 offences, the vast majority of offenders between 2019 and 2023 received a fine, and there were no observable differences in sentence outcomes for different age groups.
Due to the low volume of offenders sentenced for the section 63 and 64 offences, it is not possible to make a robust comparison of sentence outcomes received by different age groups.
Ethnicity
The ethnicity was not recorded or not known for a substantial proportion of offenders sentenced for these offences. Between 2019 and 2023, around 46 per cent of offenders who were sentenced for taking or destroying game by night (section 1) had an ethnicity not recorded or not known; this was 42 per cent for the same period for offenders sentenced for trespassing in the daytime in search of game. This was nearly 80 per cent of offenders sentenced in 2023 for trespassing with intent to search for or to pursue hares (section 63), and 71 per cent of offenders sentenced for being equipped for searching for or pursuing hares with dogs etc (section 64). Where ethnicity was known, nearly all offenders across these offences were white.
In combination with either no or a very low volume of Asian, black, mixed or other ethnicity offenders sentenced, and the high percentage of not recorded or not known ethnicities reported across these offences, no robust comparisons between groups was possible.
The guideline and its factors are intended to apply equally to all offenders aged 18 or over. Throughout this document your views will be sought on whether there are any disparity issues with proposals, such as whether there are any factors or aspects of the guideline which may disadvantage one group over another.
Culpability
The first step of the guideline requires the sentencer to assess the culpability of the offender and the harm caused by the offence. These factors establish the overall seriousness of the offence and will help provide the starting point sentence, before aggravating and mitigating factors are taken into account at Step Two.
The proposed culpability factors largely focus on the scale of the operation and its sophistication. The Council understands that it can be difficult to gather robust evidence about the role of individual offenders within a group, so this is not a determinant of culpability unless it is clear that someone has been coerced, intimidated or exploited into offending. The Council has also heard that children can often be involved in the offending, including holding large sums of money, and believes that this behaviour merits being considered as high culpability.
Culpability
Where there are factors present from more than one category of culpability, the court should weigh those factors in order to decide which category most resembles the offender’s case.
A – Higher culpability
- Large group activity
- Significant planning
- Activity involved intimidation or the use or threat of force
- Expectation of significant financial gain
- Children involved in activity
B – Lesser culpability
- Lone, or small group activity
- Involved through coercion, intimidation or exploitation
- Little or no planning
The Council has taken the views of the Police, magistrates and others involved in the investigation and prosecution of hare coursing offences. However, it was not entirely clear how scale would best be described in considering culpability. Some suggested that by their very nature, hare coursing cases that came before the courts were organised and large-scale. Other suggested that a useful distinction could be drawn between large groups who often travel long distances to participate in organised hare coursing events, and small, informal gatherings of (for example) local youths who were curious about the activity. Others said, that it was highly unlikely that a lone hare courser would be detected, prosecuted and sentenced.
Without becoming too prescriptive on the sorts of numbers of offenders involved, the Council is tentatively proposing distinguishing scale with the descriptors “Large group activity” and “Lone, or small group activity” but would particularly welcome views on whether this is a sensible and workable split.
Question 5: Do you have any comments on the proposed culpability factors?
Question 6: Do you have any comments on how best to describe the scale of different hare coursing activity in culpability?
Question 7: Are there any culpability factors you consider could unfairly impact certain groups in respect of (for example) sex, age or ethnicity?
Harm
The second aspect that sentencers should consider in determining seriousness at step one is the harm caused by the offence.
The Council believes that the principal harm caused by hare coursing is to the rural communities who find themselves the victims of physical and verbal abuse, as well as damage to their property. This can have a particularly acute impact on those who are isolated. In some cases, these may be the subject of separate criminal charges but the Council still believes the harm caused should be captured in determining the seriousness of hare coursing offending.
The harm model proposed places particularly harmful cases involving injury, fear or distress, extensive damage and serious disruption or inconvenience in a higher category of harm, with all other cases in a lower category.
The Council believes that the harm to hares themselves, whilst important to note, is a secondary factor and may be difficult to evidence. It is therefore reflected at step two of the draft guideline in the aggravating factor ‘Significant number of hares killed or injured’.
Harm
Category 1
- Conduct causes injury, fear or distress to others
- Extensive damage caused to property, land, or livestock
- Serious disruption/inconvenience caused to others
Category 2
- All other cases
Question 8: Do you have any comments on the proposed harm factors?
Question 9: are there any harm factors you consider could unfairly impact certain groups in respect of (for example) sex, age or ethnicity?
Sentence levels
At step two of the guideline, the assessment made of harm and culpability results in sentencers selecting a starting point in a sentence table.
The Police, Crime, Sentencing and Courts Act 2022 increased the maximum penalty available for the offences used to prosecute hare coursing under the Night Poaching Act 1828 the Game Act 1831 from a fine to six months’ imprisonment. The maximum penalties for the new offences of trespass and being equipped created by that Act were also set at six months.
The change in the law followed a longstanding concern that those convicted of hare coursing were subject only to a fine, which might well be low as offenders could claim limited means. This was not viewed as a sufficient deterrent. It was argued the previous penalties did not reflect the full harms of hare coursing (as set out above). The increase in the maximum penalty to a custodial sentence means that community orders are also now available for these offences.
The Council proposes sentencing levels that will make full use of the range of disposals now available to the courts, with custody available in the top three categories, and community orders available in all categories.
| Harm | Culpability | |
|---|---|---|
| A | B | |
| Category 1 |
Starting point |
Starting point |
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Category range |
Category range |
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| Category 2 |
Starting point |
Starting point |
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Category range |
Category range |
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Alongside the increase in maximum penalties, the 2022 Act provided for recovery orders in hare coursing, requiring an offender to pay the costs of seizure and detention of dogs involved in the offence. Under section 66, offenders may also be subject to orders disqualifying them from owning and/or keeping dogs, breach of which is an offence, with a maximum penalty of a level 3 fine.
The Council understands that the possibility of losing their dogs, which may represent a considerable investment of time and money, is a real punishment and deterrent for offenders alongside any principal disposal they may receive. The draft guideline therefore signposts at step two the possibility of these ancillary orders, as well as others that may be relevant in hare coursing cases:
- a deprivation order under section 152 of the Sentencing Code (in relation both to dogs and any vehicles used in the commission of the offence)
- a recovery order under section 65 of the Police, Crime Sentencing and Courts Act 2022, requiring the offender to pay the expenses incurred by a dog’s seizure and detention
- a disqualification order under section 66 of the Police, Crime Sentencing and Courts Act 2022 preventing the offender from owning and/or keeping dogs; and, in appropriate cases,
- a driving disqualification order under section 163 of the Sentencing Code
As in other offence-specific guidelines, step six of the guideline directs the court to consider what ancillary orders may be relevant and appropriate.
The Council recently consulted on standardised guidance on ancillary orders which, subject to the consultation responses received, will be published in definitive form in the coming months. In relation to hare coursing offences, two new pieces of guidance are proposed for recovery orders [LINK] and dog disqualification orders [LINK]. These contain factual information about matters like the availability of orders, their duration and the consequences of breach. Views are sought on these.
Question 10: Do you have any comments on the proposed sentence levels?
Question 11: Do you have any comments on the signposting to certain ancillary orders?
Question 12: Do you have any comments on the guidance for recovery orders and dog disqualification orders?
Aggravating and mitigating factors
Having established a starting point, sentencers are asked to consider whether there are any aggravating factors present which may increase the seriousness of the offence, or any mitigating factors relating to the offence or the offender which would reduce the sentence within the range set out in the grid.
Of particular note for this guideline, failure to comply with a community protection notice reflects the fact that the authorities have already placed requirements or restrictions on an offender which have been breached. Community protection notices are measures which the Police can apply for under section 43 of the Anti-Social Behaviour, Crime and Policing Act 2014. A community protection notice imposes requirements on the individual requiring them to do or stop doing specified things. For example it might, prohibit an individual from entering specified areas. These are increasingly used as a way of disrupting hare coursing activity.
As mentioned above, the harm to hares is captured here with “Significant number of hares killed or injured”. “Use of technology, including circulating details/photographs/videos etc of the offence on social media, to record, publicise or promote activity” is included as this is an aspect of the offending which is common, and reflects similar wording in the revised animal cruelty guideline produced by the Council in 2023. Most offending carried out in front of children will be aggravated, but a caveat is added here not to double-count where children were involved in the offending (a higher culpability factor at step one).
The mitigating factors proposed are standard personal mitigating factors as set out in most sentencing guidelines.
Factors increasing seriousness
Statutory aggravating factors:
- Previous convictions,having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
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.
- Previous convictions are considered at step two in the Council’s offence-specific guidelines.
- 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.
- Previous convictions are normally of relevance to the current offence when they are of a similar type.
- 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.
- 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.
- 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.
- 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.
- 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.
- Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
- 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.
- 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.
- 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.
- 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
- Offence committed whilst on bail
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
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:
- Commission of offence whilst under the influence of alcohol or drugs
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.
This applies regardless of whether the offender is under the influence of legal or illegal substance(s).
In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.
An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.
- Offence committed on licence or post sentence supervision or while subject to court order(s)
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm 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.
- 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 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.
- Breach of a community protection notice
- Significant number of hares killed or injured
- Use of technology, including circulating details/photographs/videos etc of the offence on social media, to record, publicise or promote activity
- Offence committed in the presence of children (where not already taken into account at step 1)
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- This reflects the psychological harm that may be caused to those who witnessed the offence.
- The presence of one or more children may in some situations make the primary victim more vulnerable – for example an adult may be less able to resist the offender if concerned about the safety or welfare of children present.
- When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
- Attempts to conceal/dispose of evidence
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.
- Established evidence of community/wider impact (where not already taken into account at step 1)
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.
- Offences taken into consideration
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
Taken from the Offences Taken into Consideration Definitive Guideline: General principles When sentencing an offender who requests offences to be taken into consideration (TICs), courts should pass a total sentence which reflects all the offending behaviour. The sentence must be just and proportionate and must not exceed the statutory maximum for the conviction offence. Offences to be Taken into Consideration The court has discretion as to whether or not to take TICs into account. In exercising its discretion the court should take into account that TICs are capable of reflecting the offender's overall criminality. The court is likely to consider that the fact that the offender has assisted the police (particularly if the offences would not otherwise have been detected) and avoided the need for further proceedings demonstrates a genuine determination by the offender to ‘wipe the slate clean’. It is generally undesirable for TICs to be accepted in the following circumstances:
- where the TIC is likely to attract a greater sentence than the conviction offence;
- where it is in the public interest that the TIC should be the subject of a separate charge;
- where the offender would avoid a prohibition, ancillary order or similar consequence which it would have been desirable to impose on conviction. For example:
- where the TIC attracts mandatory disqualification or endorsement and the offence(s) for which the defendant is to be sentenced do not;
- where the TIC constitutes a breach of an earlier sentence;
- where the TIC is a specified offence for the purposes of section 306 of the Sentencing Code, but the conviction offence is non-specified; or
- where the TIC is not founded on the same facts or evidence or part of a series of offences of the same or similar character (unless the court is satisfied that it is in the interests of justice to do so).
Jurisdiction The magistrates' court cannot take into consideration an indictable only offence. The Crown Court can take into account summary only offences provided the TICs are founded on the same facts or evidence as the indictable charge, or are part of a series of offences of the same or similar character as the indictable conviction offence Procedural safeguards A court should generally only take offences into consideration if the following procedural provisions have been satisfied:
- the police or prosecuting authorities have prepared a schedule of offences (TIC schedule) that they consider suitable to be taken into consideration. The TIC schedule should set out the nature of each offence, the date of the offence(s), relevant detail about the offence(s) (including, for example, monetary values of items) and any other brief details that the court should be aware of;
- a copy of the TIC schedule must be provided to the defendant and his representative (if he has one) before the sentence hearing. The defendant should sign the TIC schedule to provisionally admit the offences;
- at the sentence hearing, the court should ask the defendant in open court whether he admits each of the offences on the TIC schedule and whether he wishes to have them taken into consideration;
- if there is any doubt about the admission of a particular offence, it should not be accepted as a TIC. Special care should be taken with vulnerable and/or unrepresented defendants;
- if the defendant is committed to the Crown Court for sentence, this procedure must take place again at the Crown Court even if the defendant has agreed to the schedule in the magistrates' court.
Application The sentence imposed on an offender should, in most circumstances, be increased to reflect the fact that other offences have been taken into consideration. The court should:
- Determine the sentencing starting point for the conviction offence, referring to the relevant definitive sentencing guidelines. No regard should be had to the presence of TICs at this stage.
- Consider whether there are any aggravating or mitigating factors that justify an upward or downward adjustment from the starting point.
The presence of TlCs should generally be treated as an aggravating feature that justifies an adjustment from the starting point. Where there is a large number of TICs, it may be appropriate to move outside the category range, although this must be considered in the context of the case and subject to the principle of totality. The court is limited to the statutory maximum for the conviction offence.
- Continue through the sentencing process including:
- consider whether the frank admission of a number of offences is an indication of a defendant's remorse or determination and/ or demonstration of steps taken to address addiction or offending behaviour;
- any reduction for a guilty plea should be applied to the overall sentence;
- the principle of totality;
- when considering ancillary orders these can be considered in relation to any or all of the TICs, specifically:
- compensation orders;
- restitution orders
Factors reducing seriousness or reflecting personal mitigation
- No previous convictions or no relevant/recent convictions
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
- First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
- Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
- When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it.
- Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). In general the more serious the previous offending the longer it will retain relevance.
- Remorse
Effective from: 01 October 2019 (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.
If a PSR has been prepared it may provide valuable assistance in this regard.
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.
- Good character and/or exemplary conduct
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.
- 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.
- Mental disorder, 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.
- Age and/or lack of maturity
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 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).
When considering a custodial or community sentence for a young adult the Probation Service should address these issues in a PSR.
- 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.
When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the Probation Service to address these issues in a PSR.
Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 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 Probation Service should be asked to address the issues below in a pre-sentence report. If a suitable pre-sentence report is not available, sentencing should normally be adjourned until one is available.
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.
- 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 may be assisted by a pre-sentence report in assessing whether there are factors in the offender’s background or current personal circumstances which may be relevant to sentencing. Such factors may be relevant to:
- the offender’s responsibility for the offence and/or
- the effect of the sentence on the offender.
Courts should consider that different groups within the criminal justice system have faced multiple disadvantages which may have a bearing on their offending. Such disadvantages include but are not limited to:
- experience of discrimination
- negative experiences of authority
- early experience of loss, neglect or abuse
- early experience of offending by family members
- 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 court may be assisted by a pre-sentence report in assessing the relevance of this factor to the individual offender.
The absence of work, training or education should never be treated as an aggravating factor.
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.
Question 13: Do you have any comments on the proposed aggravating and mitigating factors?
Question 14: Are there any aggravating or mitigating factors that you consider could unfairly impact certain groups in respect of (for example) sex, age or ethnicity?
The remaining steps set out in the proposed guideline are the same as those in all offence-specific guidelines. As at step 2, certain relevant ancillary orders are signposted at step 6.
Question 15: Do you have any further comments on the draft guideline?