Where no offence-specific guideline exists, refer to General guideline: overarching principles
Triable only on indictment
Maximum: Life imprisonment
Offence range: 3 years’ custody – Life Imprisonment (minimum term 40 years)
This is a Schedule 19 offence for the purposes of sections 274 and 285 (required life sentence for offence carrying life sentence) of the Sentencing Code.
For offences committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15 for the purposes of sections 273 and 283 (life sentence for second listed offence) of the Sentencing Code.
This is a specified offence for the purposes of sections 266 and 279 (extended sentence for certain violent, sexual or terrorism offences) of the Sentencing Code.
This is an offence listed in Schedule 13 for the purposes of sections 265 and 278 (required special sentence for certain offenders of particular concern) of the Sentencing Code.
For offences committed on or after 29 June 2021, this is a serious terrorism offence listed in Part 1 of Schedule 17A for the purposes of sections 268B and 282B (serious terrorism sentence), section 323 (minimum term order: other life sentences), and section 268(4)(b)(iii) and 281(4)(b)(iii) (increase in extension period for serious terrorism offenders) of the Sentencing Code.
This guideline applies only to offenders aged 18 and older.
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.
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 – Determining the offence category
The court should determine the offence category with reference only to the factors listed in the tables below. In order to determine the category the court should assess culpability and harm.
The court should weigh all the factors set out below in determining the offender’s culpability.
Where there are characteristics present which fall under different levels of culpability, the court should balance these characteristics to reach a fair assessment of the offender’s culpability.
Notes for culpability and harm
In some cases, Law Enforcement Authorities (LEA) may be involved, either posing as terrorists jointly involved in the preparations for terrorist activity, or in keeping the offender under surveillance. Their involvement is likely to ensure that the terrorist activity could never be successfully completed. Irrespective of this, the court should approach the assessment of the offender’s culpability and harm as follows:
Culpability
Where an undercover LEA is involved in the preparations for the terrorist activity, the culpability of the offender is not affected by the LEA’s involvement. Culpability is to be assessed as if the LEA was a genuine conspirator.
Where the LEA is surveilling the offender and prevents the offender from proceeding further, this should be treated as apprehension of the offender.
Harm
In any case that involves LEA, the court should identify the category of harm on the basis of the harm that the offender intended and the viability of the plan, and then apply a downward adjustment at step two.
The extent of this adjustment will be specific to the facts of the case. In cases where, but for the LEA involvement, the offender would have carried out the intended terrorist act, a small reduction within the category range will usually be appropriate.
Where, for instance, an offender voluntarily desisted at an early stage a larger reduction is likely to be appropriate, potentially going outside the category range.
In either instance, it may be that a more severe sentence is imposed where very serious terrorist activity was intended but did not take place than would be imposed where relatively less serious terrorist activity did take place.
Culpability demonstrated by one or more of the following:
A
- Acting alone, or in a leading role, in terrorist activity where preparations were complete or were so close to completion that, but for apprehension, the activity was very likely to have been carried out
B
- Acting alone, or in a leading role, in terrorist activity where preparations were advanced and, but for apprehension, the activity was likely to have been carried out
- Significant role in terrorist activity where preparations were complete or were so close to completion that, but for apprehension, the activity was very likely to have been carried out
- Offender has coordinated others to take part in terrorist activity, whether in the UK or abroad (where not falling within A)
C
- Leading role in terrorist activity where preparations were not far advanced
- Significant role in terrorist activity where preparations were advanced and, but for apprehension, the activity was likely to have been carried out
- Lesser role in terrorist activity where preparations were complete or were so close to completion that, but for apprehension, the activity was very likely to have been carried out
- Offender acquires training or skills for purpose of terrorist activity (where not falling within A or B)
- Acts of significant assistance or encouragement of other(s) (where not falling within A or B)
D
- Offender has engaged in very limited preparation for terrorist activity
- Act(s) of lesser assistance or encouragement of other(s)
- Other cases not falling within A, B or C
Harm
Harm is assessed based on the type of harm risked and the likelihood of that harm being caused. When considering the likelihood of harm, the court should consider the viability of any plan.
See the notes for culpability and harm at the start of this section before proceeding
Category 1
- Multiple deaths risked and very likely to be caused
Category 2
- Multiple deaths risked but not very likely to be caused
- Any death risked and very likely to be caused
Category 3
- Any death risked but not very likely to be caused
- Risk of widespread or serious damage to property or economic interests
- Risk of a substantial impact upon civic infrastructure
- Any other cases
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.
Offenders committing the most serious offences are likely to be found dangerous and so the table below includes options for life sentences. However, the court should consider the dangerousness provisions in all cases, having regard to the criteria contained in section 308 of the Sentencing Code to make the appropriate determination. (See STEP SIX below). The court must also consider the provisions set out in s323 (3) of the Sentencing Code (minimum term order for serious terrorism offenders).(See STEP THREE below).
Where the dangerousness provisions are met but a life sentence is not justified, the court should consider whether the provisions for the imposition of a serious terrorism sentence have been met, having regard to the criteria contained in s268B (adult offenders aged under 21) or s282B (offenders aged 21 and over) of the Sentencing Code. If the criteria are met, a minimum custodial sentence of 14 years applies. (see STEP THREE below).
Where the dangerousness provisions are not met the court must consider the provisions set out in sections 265 and 278 of the Sentencing Code (required special sentence for certain offenders of particular concern). (See STEP SEVEN below).
| Harm | Culpability | |||
|---|---|---|---|---|
| A | B | C | D | |
| Harm 1 |
Starting point |
Starting point |
Starting point |
Starting point |
|
Category range |
Category range |
Category range |
Category range |
|
| Harm 2 |
Starting point |
Starting point |
Starting point |
Starting point |
|
Category range |
Category range |
Category range |
Category range |
|
| Harm 3 |
Starting point |
Starting point |
Starting point |
Starting point |
|
Category range |
Category range |
Category range |
Category range 3 – 6 years’ custody |
|
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.
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.
- Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity(When considering this factor, sentencers should bear in mind the statutory definition of terrorism in section 1 of the Terrorism Act 2000, and should be careful to avoid double counting)
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
See below for the statutory provisions.
- Note the requirement for the court to state that the offence has been aggravated by the relevant hostility.
- Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role.
Section 66 of the Sentencing Code states:
Hostility (1) This section applies where a court is considering the seriousness of an offence which is aggravated by—
(a) racial hostility,
(b) religious hostility,
(c) hostility related to disability,
(d) hostility related to sexual orientation, or
(e) hostility related to transgender identity.
This is subject to subsection (3). (2) The court—
(a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and
(b) must state in open court that the offence is so aggravated.
(3) So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). (4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
(i) the victim’s membership (or presumed membership) of a racial group,
(ii) the victim’s membership (or presumed membership) of a religious group,
(iii) a disability (or presumed disability) of the victim,
(iv) the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)
(v) the victim being (or being presumed to be) transgender, or
(b) the offence was motivated (wholly or partly) by—
(i) hostility towards members of a racial group based on their membership of that group,
(ii) hostility towards members of a religious group based on their membership of that group,
(iii) hostility towards persons who have a disability or a particular disability,
(iv) hostility towards persons who are of a particular sexual orientation, or (as the case may be)
(v) hostility towards persons who are transgender.
(5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (6) In this section—
(a) references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins;
(b) references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief;
(c) “membership” in relation to a racial or religious group, includes association with members of that group;
(d) “disability” means any physical or mental impairment;
(e) references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment;
(f) “presumed” means presumed by the offender.
Other aggravating factors
- Recent and/or repeated possession or accessing of extremist material
- Communication with other extremists
- Deliberate use of encrypted communications or similar technologies to facilitate the commission of the offence and/or avoid or impede detection
- Offender attempted to disguise their identity to prevent detection
- Indoctrinated or encouraged others
- Preparation was with a view to engage in combat with UK armed forces
- Conduct in preparation includes the actual or planned commission of other offences, where not taken into account in step one
- Failure to respond to warnings
- 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.
- 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.
- Offence committed whilst in prison
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.
- Good character and/or exemplary conduct
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
This factor may apply whether or not the offender has previous convictions. Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence.
However, this factor is less likely to be relevant where the offending is very serious. Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.
- Offender involved through coercion, intimidation or exploitation
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
- Where this applies it will reduce the culpability of the offender.
- This factor may be of particular relevance where the offender has been the victim of domestic abuse, trafficking or modern slavery, but may also apply in other contexts.
- Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.
- This factor may indicate that the offender is vulnerable and would find it more difficult to cope with custody or to complete a community order.
- Clear evidence of a change of mind set prior to arrest
- Offender’s responsibility substantially reduced by 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.
- Age and/or lack of maturity where it affects the responsibility of the offender
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Age and/or lack of maturity can affect:
- the offender’s responsibility for the offence and
- the effect of the sentence on the offender.
Either or both of these considerations may justify a reduction in the sentence.
The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater).
In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:
- evaluate the consequences of their actions
- limit impulsivity
- limit risk taking
Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers.
Immaturity can also result from atypical brain development. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development.
An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody.
An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.
There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.
Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties. Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending.
Where the offender is a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17).
Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3).
When considering a custodial or community sentence for a young adult the Probation Service should address these issues in a PSR.
- Sole or primary carer for dependent relatives
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline.
For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.
For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.
When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.
In addition when sentencing an offender who is pregnant relevant considerations may include:
- any effect of the sentence on the health of the offender and
- any effect of the sentence on the unborn child
The court should ensure that it has all relevant information about dependent children before deciding on sentence.
When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.
When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the 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 131 to 137)
Step 3 – Minimum terms, Serious Terrorism Sentences and exceptional circumstances
Life Sentence Minimum Terms
For serious terrorism cases the life sentence minimum term must be at least 14 years’ unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify a lesser period.
A “serious terrorism case” is a case where, but for the fact that the court passes a life sentence, the court would be required by section 268B(2) or 282B(2) to impose a serious terrorism sentence (s323 (3) of the Sentencing Code).
Serious Terrorism Sentence – Minimum Custodial Sentence
Where the criteria for a serious terrorism sentence are met, as set out in s268B (adult offenders aged under 21) or s282B (offenders aged 21 and over) of the Sentencing Code, then the court must impose the serious terrorism sentence unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify not doing so.
Where a Serious Terrorism Sentence is imposed, the appropriate custodial term is a minimum of 14 years’ custody. (s282C Sentencing Code).
Exceptional circumstances
In considering whether there are exceptional circumstances that would justify not imposing the minimum term (in the case of a life sentence), or not imposing the Serious Terrorism Sentence where the other tests are met, the court must have regard to:
- the particular circumstances of the offence and
- the particular circumstances of the offender.
either of which may give rise to exceptional circumstances
Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions VII: Sentencing B.
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.
Principles
Circumstances are exceptional if the imposition of the minimum term (in the case of a life sentence), or not imposing the Serious Terrorism Sentence would result in an arbitrary and disproportionate sentence.
The circumstances must truly be exceptional. It is important that courts do not undermine the intention of Parliament and the deterrent purpose of the provisions by too readily accepting exceptional circumstances.
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 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 minimum term (in the case of a life sentence) then the court must impose a shorter minimum.
If there are exceptional circumstances that justify not imposing a Serious Terrorism Sentence, then the court must impose an alternative sentence.
Note: a guilty plea reduction applies in the normal way if a Serious Terrorism Sentence is not imposed (see step 5 – Reduction for guilty pleas).
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 (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Step 5 – Reduction for guilty plea
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.
Where a serious terrorism sentence has been imposed, the court must ensure that any reduction for a guilty plea does not reduce the sentence to less than 80 per cent of the statutory minimum.
Step 6 – Dangerousness
The court should consider:
1) whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose a life sentence (sections 274 and 285)
2) whether having regard to sections 273 and 283 of the Sentencing Code it would be appropriate to impose a life sentence.
3) whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose an extended sentence (sections 266 and 279)
Step 7 – Required special sentence for certain offenders of particular concern
Where the court does not impose a sentence of imprisonment for life or an extended sentence, or a Serious Terrorism Sentence but does impose a period of imprisonment, the term of the sentence must be equal to the aggregate of the appropriate custodial term and a further period of 1 year for which the offender is to be subject to a licence (sections 265 and 278 of the Sentencing Code).
Step 8 – Totality principle
If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour in accordance with the Totality guideline.
Step 9 – Ancillary orders
In all cases the court should consider whether to make ancillary orders.
Step 10 – Reasons
Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.
Step 11 – Consideration for time spent on bail (tagged curfew)
The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the Sentencing Code.