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. *This guideline does not apply to offenders being sentenced for offences committed prior to 4 April 2005. The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.
1. Thresholds
The circumstances of the offence and the factors assessed by offence-specific guidelines will determine whether the community or custody threshold may be passed. Where no offence specific guideline is available to determine seriousness of the offence, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment, alongside consideration of the General Guideline.
A community order must not be imposed unless the offence is serious enough to warrant the making of such an order. There is no power to make a community order for a non-imprisonable offence.
- Even where the threshold for a community order has been passed, sentencers must consider all available disposals at the time of sentence as a fine or discharge may still be an appropriate penalty. A Band D fine may be an appropriate alternative to a community order in some cases and can achieve the purposes of sentencing.
- If the offender received a non-custodial disposal for the previous offence, the court should not necessarily move to a custodial sentence for the fresh offence.
- Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions).
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As set out in certain offence-specific guidelines, where there is a sufficient prospect of rehabilitation, a community order with a specific requirement can be a proper alternative to a short or moderate length custodial sentence. Short or moderate sentences are not defined, but are not necessarily limited to two years’ imprisonment.
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. Prison must only be a punishment for the most serious offences.
- Even where the threshold for a custodial sentence has been passed, a custodial sentence should not be imposed where sentencers consider that a community order achieves the purposes of sentencing. Imprisonment should not be imposed where there would be an impact on dependants, including on unborn children where the offender is pregnant, which would make a custodial sentence disproportionate to achieving the purposes of sentencing.
- Relevant previous convictions will be an aggravating factor increasing the seriousness of the offence. They will affect the intensity and length of a community sentence and the length of a custodial sentence. Great caution must be exercised before the existence of relevant previous convictions is used as the sole basis to justify the case passing the custody threshold.
- Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively through a community order with relevant requirements and will not necessarily indicate that a custodial sentence is necessary.
2. Pre-sentence reports
When considering a community or custodial sentence, the court must request and consider a pre-sentence report (PSR) before forming an opinion of the sentence unless it considers that it is unnecessary. A pre-sentence report may also be requested by a defence solicitor as part of the before-plea protocol.
- A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.
- PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.
- A pre-sentence report may be unnecessary if a discharge or fine is the most likely sentencing outcome.
A pre-sentence report may be particularly important if the offender is:
- at risk of a custodial sentence of 2 years or less
- a young adult (18-25 years)
- female (see further information below at section 3)
- pregnant (see further information below at section 3)
- 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)
- from an ethnic minority, cultural minority, and/or faith minority community
- has disclosed they are transgender
- has any drug or alcohol addiction issues
- has a learning disability or mental disorder
- or; the court considers there to be a risk that the offender may have been the victim of domestic abuse, trafficking, modern slavery, or been subject to coercion, intimidation or exploitation.
Please refer to the Equal Treatment Bench Book for more guidance on how to ensure fair treatment and avoid disparity of outcomes for different groups.
A report will also be mandatory or particularly important for a variety of requirements (please see requirements list below.)
Indication to Probation
When ordering a PSR, the court must make clear to the offender that it may impose any sentence that the law allows including a custodial sentence, and the court retains its power of committal for sentence to the Crown Court.
Subject to the above, it may be helpful for the court to indicate to Probation the preliminary level of harm and culpability it has found for the offence.
The court may also indicate to Probation any specific requirements that Probation should consider the defendant’s suitability for; and/or any issues or concerns the court would specifically like to be addressed, including when a dangerousness assessment is required.
Adjournments and on committal
Pre-sentence reports can be verbal or written, and may require an adjournment to allow time for the necessary information to be collected by Probation. Please liaise with Probation on whether a quality report can be delivered on the day and adjourn the case if it cannot. The need for an adjournment may be reliant on the availability of third parties to gather necessary information.
Where a case is being committed to the Crown Court, a PSR should be requested on committal to allow Probation as much time as possible to prepare a quality report, minimise any delay and reduce the risk of the need to adjourn at the first hearing.
Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.
Deferred sentencing
The court may consider whether it would be appropriate for sentencing to be deferred for up to six months, and may attach conditions to that deferment.
Deferred sentencing will be appropriate only in very limited circumstances. Sentencing should only be deferred where at the point of the first sentencing hearing there is no basis for imposing a non-custodial sentence forthwith but there is a real prospect that a period of deferment will allow the imposition of a non-custodial sentence. When the court considers it appropriate, deferring sentence can be a valuable tool to allow a sentencer to assess whether, in light of post-conviction conduct and/or a change in circumstances, a suspended custodial or non-custodial sentence can properly be given to an offender who would otherwise receive a sentence of immediate custody, including the extent to which the offender has complied with any requirements imposed by the court.
Deferred sentencing may be particularly appropriate for young adults (18-25 years of age) or those who are in transitional life circumstances.
If the court is considering deferring sentencing, the following conditions must be satisfied before sentence can be deferred:
- the offender must consent (and in the case of any restorative justice requirements, the other participants must consent);
- the offender must undertake to comply with all requirements imposed by the court; and
- the court must be satisfied that deferment is in the interests of justice.
Requirements and/or conditions attached to a period of deferment should be specific and measurable, and should not involve a serious restriction on the offender’s liberty.
When deferring a sentence, the court should specify:
- what type of sentence will be imposed if the offender complies with all the requirements and/or conditions attached to the period of deferment;
- what type of sentence will be imposed if the offender does not comply with all the requirements and/or conditions attached to the period of deferment.
If the offender does not comply with the requirements and/or conditions of the deferment, they can be brought back to court before the end of the deferment period, and the court may impose any sentence that could have been imposed on the date of deferment, which would ordinarily be an immediate custodial sentence. The magistrates’ court also retains the power to commit the offender to the Crown Court, if relevant.
It is possible to defer sentencing with a view to imposing a community or suspended custodial sentence in cases in which a minimum term applies, so long as the court is able to say that exceptional circumstances apply either at the date of deferment or will apply should the offender meet the requirements and/or conditions of the deferment.
Magistrates: Always consult your legal adviser if you are considering deferring a sentence.
For the statutory provisions on deferment, please see sections 3-13 of the Sentencing Code 2020.
3. Purposes and effectiveness of sentencing
The court must have regard to the five purposes of sentencing when determining sentence. The weighting each purpose should be given will vary from case to case. Both community and custodial sentences can achieve all the purposes of sentencing.
- The punishment of offenders
- The reduction of crime (including its reduction by deterrence)
- The reform and rehabilitation of offenders
- The protection of the public
- The making of reparation by offenders to persons affected by their offences
The court must ensure that any restriction on the offender’s liberty is commensurate with the seriousness of the offence. A restriction on liberty can be achieved by a community or a custodial sentence.
Effectiveness
The court should ‘step back’, and review whether the sentence it has preliminarily arrived at fulfils the purposes of sentencing.
Where relevant, the court should ensure that a rehabilitative sentence has been fully considered, which research has shown can reduce the risk of reoffending when compared to a short custodial sentence, therefore fulfilling other purposes of sentencing, such as reduction of crime and protection of the public, through its sentencing.
The effectiveness of a sentence will be based on the individual offender. The Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. The Council has issued overarching guidelines for consideration in the sentencing of offenders with mental disorders, developmental disorders, or neurological impairments. Courts should review this guideline if it applies to the case.
When sentencing young adult offenders (18-25 years), courts should be aware that age and/or lack of maturity can affect the offender’s responsibility for the offence and the effect of the sentence on the offender. When considering a custodial or community sentence for a young adult, the court should ask Probation for a pre-sentence report. In particular young adults are still developing neurologically and consequently may be less able to:
- evaluate the consequences of their actions;
- limit impulsivity; and
- 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. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development.
When considering sentencing options for young adult offenders, courts should be aware that an immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody, and that an immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support. However, there is a greater capacity for change in immature offenders and they may be more receptive to opportunities to address their offending behaviour and change their conduct.
Courts should be aware that the emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater).
When sentencing female offenders, courts should be aware that female offenders offend for different reasons than men and the impact of custodial sentences on female offenders is different. It is important for the court to ensure that it has sufficient information about a female offender’s background. As such, when considering a community or custodial sentence for a female offender, the court should ask Probation for a pre-sentence report. Courts should be aware of the following considerations when sentencing a female offender:
- Female offending is commonly linked to mental health, substance-misuse, or financial and homelessness issues, and female offenders are more likely than male offenders to be victims of domestic abuse or have experienced emotional, physical or sexual abuse as a child. Female offenders sentenced to custody are much more likely than male prisoners to suffer from anxiety or depression or attempt suicide. Women (typically aged 45 to 55) may suffer from the symptoms of perimenopause or menopause, which can affect their mood, mental health and behaviour.
- Women from an ethnic minority background in particular have distinct needs from both men from an ethnic minority background, and white women, and these should be considered before the imposition of a community or custodial sentence.
- Female offenders are more likely to be primary carers than male offenders. When mothers are sentenced to custody, only a very small percentage of children remain in their own home. Those dependent children are adversely impacted by having to adjust to new homes, new carers, and new educational establishments and are often separated from siblings. There is an emotional impact for those children resulting in shame, stigma, anger, grief and behavioural changes. Those dependent children consequently have an increased likelihood of committing criminal offences, mental health problems, substance misuse and other social issues.
- The impact of custody on pregnant offenders can be harmful for both the offender and the child. 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. There may also be difficulties accessing medical assistance or specialist maternity services in custody.
- There are only a small number of prisons for female offenders. Therefore, female offenders are more likely than male offenders to be imprisoned some distance from support networks of friends and family. This will impact on resettlement when they leave custody.
- Female offenders are at greater risk than male offenders of leaving custody without accommodation and being unemployed after release, leaving them vulnerable to further abuse and exploitation. A greater proportion of female offenders are unemployed when released than male offenders.
Courts should consider the research referenced in this guideline that short custodial sentences are generally less effective at reducing reoffending than community sentences, which can seek to better address the underlying causes of offending.
4. Imposition of community orders
A community order can only be imposed if the offence committed is punishable by imprisonment. The maximum term that a community order can be imposed is 3 years.
Community orders can fulfil all the purposes of sentencing. They can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities.
The court must ensure that the restriction on the offender’s liberty is commensurate with the seriousness of the offence and that the requirements imposed are the most suitable for the offender.
In general, courts should impose the shortest term commensurate with the seriousness of the offence. The court imposing a community order must specify the length of that order by specifying the end date by which all requirements in it must have been complied with. This end date must not be more than 3 years after the date of the order.
The court should specify a length of an order which reflects both the seriousness of the offence and the length of time the requirements being imposed necessitate (within which a consideration of the offender’s individual circumstances will be necessary).
The court imposing a community order may take any time spent in custody on remand or on a qualifying curfew into account when determining any restrictions on liberty as part of the community order.
The court may make a community order where the offender has been remanded in custody (or subject to a qualifying curfew) for a period equal to, or in excess of, the time that they would have served commensurate with the seriousness of the offence. The rehabilitative, or any other purpose of sentencing, may still justify a community order, which takes the period of custody or curfew into account by reducing the punitive element. Time spent in custody or on a curfew may amount to exceptional circumstances which would make it unjust to impose a requirement for the purposes of punishment.
5. Requirements
Community orders must consist of one or more requirements.
The court must ensure that requirements imposed are the most suitable for the offender. This means that requirements should be suitable according to:
- the purpose(s) of the sentence;
- the risk of re-offending;
- the needs and rehabilitation of the offender, including any mental health or addiction issues,
- the ability of the offender to comply taking into account the offender’s accommodation, employment and family situation including any dependants, including on unborn children where the offender is pregnant;
- the availability of the requirements in the local area.
At least one requirement must be imposed for the purpose of punishment and/or a fine must be imposed, unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so.
It is a matter for the court to decide which requirements amount to a punishment in each case.
The court must ensure that where two or more requirements are included, they are compatible with one another and are not excessive when taken together. So far as practicable, any requirements imposed should not conflict or interfere with:
- an offender’s religious beliefs;
- the requirements of any other court order to which they may be subject;
- an offender’s attendance at work or educational establishment.
An unpaid work requirement requires offenders to undertake work projects in their local community. In some regions, a small proportion of these hours can be spent on education, training or employment activities for eligible offenders.
“Community Payback” is a term used to describe the delivery of an Unpaid Work requirement.
Volume/length range: Between 40 – 300 hours to be completed within 12 months.
Work as part of an unpaid work requirement must be suitable for an offender to perform; and if necessary, this suitability should be assessed by Probation. Probation will also be able to advise what type of projects are available in the region. The court must consider whether the offender is in employment, has any disabilities or limitations, has any dependants, or whether there are any other circumstances that may make an unpaid work requirement unsuitable.
If unpaid work hours are not completed within 12 months (unless extended or revoked by the court), the requirement remains ‘live’ and will need to be returned to the court for the operational period to be extended so the remaining hours can be worked. Sentencers should consider this when considering any other requirements to ensure that it is realistic for an offender to complete all unpaid work hours within the operational period.
A rehabilitation activity requirement (RAR) requires the offender to participate in rehabilitative activities designed to address the behaviours and needs that contributed to the offence, and attend supervision appointments with Probation.
The court will specify the maximum number of rehabilitative activity days the offender must complete. Post-sentence, Probation will assess the offender and produce a tailored activity plan based on their needs. Activities can include probation-led toolkits or group structured interventions, or referral to external organisations providing rehabilitative services.
Volume/length range: Minimum of 1 RAR day; no maximum, to be completed within the length of the order.
A rehabilitation activity requirement should be imposed when the offender has rehabilitative needs that cannot be addressed by other requirements.
The specific type of activities that the offender will be required to participate in will be determined post-sentence by an assessment of these rehabilitative needs, and as such sentencers should consider the number of RAR days recommended by Probation to ensure this number is suitable and proportionate to the level of need and any eligibility requirements for commissioned rehabilitative services that may be relevant.
Structured rehabilitative activity appointments are complemented by supervision appointments with Probation which ensure contact is maintained, Probation can track the offender’s progress in completing activities and offer support where necessary.
The court needs only to specify the number of ‘RAR’ or rehabilitative activity days, and Probation will manage supervision appointments alongside these days.
A programme requirement requires an offender to complete an offending behaviour programme or intervention. These are intensive structured programmes, designed to tackle the attitudes, thinking and behaviours of certain criminogenic needs. Programmes are usually delivered in groups by a trained facilitator.
Volume/length range: The court must specify the number of days on which the offender must participate in the programme up to the length of the order.
An accredited programme must be recommended by Probation, as each programme has specific eligibility criteria that must be met and different regions have different programmes.
Probation will specify to the court how many days are required to complete a suitable programme to ensure a suitable programme can be completed.
A prohibited activity requirement prohibits the offender from participating in any activity specified by the court.
Volume/length range: Duration set by the court, up to the length of the order.
The court must consult Probation before imposing this requirement.
Electronic monitoring may be considered to monitor compliance with the prohibited activity if it is suitable (see electronic monitoring below).
A curfew requirement requires an offender to remain at a particular place (or places) for a specified period (or periods) of time.
Different places or different curfew periods may be specified for different days. The curfew period should be targeted to reflect the punishment intended, support rehabilitation where relevant, and protect victims and the public.
Volume/length range: For an offence of which the offender was convicted on or after 28 June 2022: 2 – 20 hours in any 24 hours; maximum 112 hours in any period of 7 days beginning with the day of the week on which the requirement first takes effect; and maximum term 2 years; - or - For an offence of which the offender was convicted before 28 June 2022: 2 – 16 hours in any 24 hours; maximum term 12 months.
Where the court imposes a curfew requirement, it must also impose an electronic monitoring requirement to monitor compliance, unless in the circumstances of the case, it considers it inappropriate to do so.
In all cases, the court must consider those likely to be affected, such as any dependants.
The court must ensure safeguarding and domestic abuse enquiries are carried out on any proposed curfew address to ensure the accommodation is suitable, others will not be put at risk and the homeowner agrees to the curfew, particularly where vulnerable adults and children are involved. Ordinarily this is a function performed by Probation.
An exclusion requirement prohibits an offender from going into a particular place or area.
The exclusion zone can include more than one prohibited place/area, more than one exclusion period and different prohibited places/areas for different exclusion periods or different days.
Volume/length range: Up to 2 years. May either be continuous or only during specified periods.
Where the court imposes an exclusion requirement, it must also impose an electronic monitoring requirement to monitor compliance, unless in the particular circumstances of the case, it considers it inappropriate to do so (see note on electronic monitoring below).
A residence requirement provides that the offender must reside at a particular place (i.e. a private address or HMPPS provided temporary accommodation, including an approved premises or Bail accommodation Support Services) for a specified period.
Volume/length range: Duration set by the court, up to the length of the order. The maximum placement length of an approved premises is 12 weeks.
The court must consider the home surroundings of the offender before imposing this requirement.
The court is encouraged to engage with Probation to understand what type of HMPPS provided temporary accommodation is available in their region to support these orders.
Where a residence requirement provides that the offender reside at a private address, there is no requirement that the offender to be at the address at a specific time. A curfew requirement would be necessary for this. However, where a residence requirement is for an approved premises (AP), an offender is bound by the rules of the AP, which may include an overnight curfew and drug and/or alcohol testing.
An offender is prohibited from travelling to a country (or countries) or territory (or territories) outside the British Islands (that is the United Kingdom, the Channel Islands and the Isle of Man).
Volume/length range: Duration set by the court, up to a maximum of 12 months.
Unlikely to be suitable for an offender who does not have a passport, rarely travels, or has no apparent international connections.
A mental health treatment requirement provides treatment to an offender with a mental health condition. Treatment may be residential or non-residential and must be provided by or under the direction of a registered medical practitioner or chartered psychologist.
Volume/length range: Duration set by the court, up to the length of the order.
The court must be satisfied: (a) that the mental condition of the offender is such as requires and may be susceptible to treatment but is not such as to warrant the making of a hospital or guardianship order; (b) that arrangements for treatment have been or can be made; (c) that the offender has expressed willingness to comply. Probation should be consulted to ensure these factors are met, and to assess the offender to ensure that any eligibility requirements for the treatment are satisfied before imposing this requirement.
MHTRs can be used in combination with other treatment requirements (for example drug and alcohol rehabilitation requirements) for eligible offenders with multiple needs.
A drug rehabilitation requirement (DRR) provides treatment to an offender who is dependent on drugs or has a propensity to misuse drugs. Treatment can be residential or non-residential, and the offender must participate in court reviews of the order, as directed by the court.
Volume/length range: Duration set by the court, up to the length of the order.
A drug rehabilitation requirement may be imposed on an offender for whom the court is satisfied that the offender is dependent on or has a propensity to misuse drugs (as defined by s.2 of the Misuse of Drugs Act 1971) where the dependency or propensity requires and may be susceptible to treatment.
The court must ensure that necessary arrangements have been or can be made for the proposed treatment, and the offender must express willingness to comply with the treatment.
Probation should be consulted to ensure these factors are met, and to assess the offender to ensure that any eligibility requirements for the treatment are satisfied before imposing this requirement.
DRRs can be used in combination with other treatment requirements (for example, mental health treatment requirement) for offenders with multiple needs.
An alcohol treatment requirement may be imposed on an offender who is dependent on alcohol, where that dependency requires and may be susceptible to treatment. The treatment may be residential or non-residential.
Volume/length range: Duration set by the court, up to the length of the order.
An alcohol treatment requirement (ATR) may be imposed on an offender for whom the court is satisfied is dependent on alcohol and this dependency is such that it requires and is susceptible to treatment.
The court must ensure that necessary arrangements have been or can be made for the proposed treatment, and the offender must express willingness to comply with the treatment.
Probation should be consulted to ensure these factors are met, and to assess the offender to ensure that any eligibility requirements for the treatment are satisfied before imposing this requirement.
ATRs can be used in combination with other treatment requirements (for example, mental health treatment requirement) for offenders with multiple needs. However, an ATR cannot be imposed alongside an alcohol abstinence and monitoring requirement (AAMR).
An alcohol abstinence and monitoring requirement imposes a total ban on alcohol consumption and requires the offender to have their compliance with the requirement electronically monitored.
Volume/length range: Up to 120 days.
It is generally recommended that an alcohol abstinence and monitoring requirement (AAMR) is not a standalone requirement and sits alongside other measures that support rehabilitation.
The court must be satisfied that the offender is not alcohol dependant. If the offender is alcohol dependant, an ATR may be more appropriate. Probation should be consulted to assess the rehabilitative need and advise on the most relevant and available treatment.
An AAMR cannot be imposed alongside an ATR alcohol treatment requirement.
The electronic whereabouts monitoring requirement is a requirement for the offender to submit to electronic monitoring of their whereabouts (other than for the purpose of monitoring compliance with any other requirement included in the order) during a period specified in the order. The electronic compliance monitoring requirement is imposed to monitor compliance with another requirement on an order.
Volume/length range: Up to 2 years.
The electronic whereabouts monitoring requirement may be imposed without the imposition of another requirement and involves monitoring an offender’s whereabouts with the imposition of a GPS tag, save for circumstances in which the consent of a person whose co-operation is required is withheld.
Where the court makes a relevant order imposing a curfew requirement or exclusion requirement it must also impose an electronic compliance monitoring requirement for monitoring compliance with it, save where:
- there is a person (other than the offender) without whose co-operation it will not be practicable to secure the monitoring and that person does not consent; and/or
- electronic monitoring is unavailable and/or impractical; and/or
- in the particular circumstances of the case, the court considers it inappropriate to do so.
The court must ensure safeguarding and domestic abuse enquiries are carried out on any proposed curfew address to ensure the accommodation is suitable, others will not be put at risk and the homeowner agrees to the curfew, particularly where vulnerable adults and children are involved. Ordinarily this is a function performed by Probation.
6. Community order levels
Offence-specific guidelines refer to three levels of community order based on offence seriousness (low, medium and high). The culpability and harm present in the offence(s) should be considered to identify which of the three sentencing levels is appropriate.
The seriousness of the offence should be the initial factor in determining the requirement imposed for the purpose of punishment and its corresponding intensity. Any requirement(s) imposed for the purpose of rehabilitation should be determined by, and align with, the offender’s needs.
Courts should consider any relevant circumstances of the offender, including their needs and risks, in determining the final requirement or package of requirements. This includes whether these circumstances:
- make a punitive requirement unjust;
- affect the assessment or intensity of the appropriate punitive requirement;
- make any other requirements appropriate to fulfil any of the other purposes of sentencing.
Courts should tailor community orders for each offender according to their specific circumstances.
In determining the requirement or combination of requirements, consideration should be given to the broad variety of sentences a community order can offer to be most effective for a particular offender, including different lengths of an order. Guidance on determining the length of a community order is given in the imposition of community orders section above.
The levels table below offers non-exhaustive examples of the intensity of requirements that might be appropriate in each level of community order. For the curfew requirement, the court may vary the number of hours on different days if appropriate according to the circumstances of the offender.
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Low |
Medium |
High |
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Offences only just cross the community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate. |
Offences that obviously fall within a sentence of a community order. |
Offences only just below the custody threshold, or where the custody threshold is crossed but a community order is more appropriate in the circumstances. |
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If imposing for the purposes of punishment, suitable requirement ranges might include: |
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*Maximum of 112 hours in any period of 7 days. |
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Any requirement/s imposed for the purpose of rehabilitation should be determined by and aligned with the offender’s needs. The court may benefit from Probation’s assessment of the offender’s needs and suggestion of appropriate rehabilitative interventions. |
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If order does not contain a punitive requirement, suggested fine levels are indicated below: |
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BAND A FINE |
BAND B FINE |
BAND C FINE |
| Starting point | Range | |
|---|---|---|
| Fine Band A | 50% of relevant weekly income | 25 – 75% of relevant weekly income |
| Fine Band B | 100% of relevant weekly income | 75 – 125% of relevant weekly income |
| Fine Band C | 150% of relevant weekly income | 125 – 175% of relevant weekly income |
| Fine Band D | 250% of relevant weekly income | 200 – 300% of relevant weekly income |
| Fine Band E | 400% of relevant weekly income | 300 – 500% of relevant weekly income |
| Fine Band F | 600% of relevant weekly income | 500 – 700% of relevant weekly income |
- The court should determine the appropriate level of fine in accordance with this guideline and section 125 of the Sentencing Code, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender.
- Where possible, if a financial penalty is imposed, it should remove any economic benefit the offender has derived through the commission of the offence including:
- avoided costs;
- operating savings;
- any gain made as a direct result of the offence.
- The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to comply with the law.
- In considering economic benefit, the court should avoid double recovery.
- Where the means of the offender are limited, priority should be given to compensation (where applicable) over payment of any other financial penalty.
- Where it is not possible to calculate or estimate the economic benefit, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law.
- When sentencing organisations the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with the law. The court should ensure that the effect of the fine (particularly if it will result in closure of the business) is proportionate to the gravity of the offence.
- Obtaining financial information: It is for the offender to disclose to the court such data relevant to their financial position as will enable it to assess what they can reasonably afford to pay. If necessary, the court may compel the disclosure of an individual offender’s financial circumstances pursuant to section 35 of the Sentencing Code. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case. In setting a fine, the court may conclude that the offender is able to pay any fine imposed unless the offender has supplied financial information to the contrary.
7. Imposition of custodial sentences
A custodial sentence (whether immediate or suspended) can only be considered where the court is satisfied that the seriousness of an offence and all circumstances of the offence and the offender mean that no other sentence is suitable.
The court should ask the following three questions in the following order:
Is it unavoidable that a custodial sentence be imposed?
- Passing the custody threshold does not mean that a custodial sentence is inevitable. Custody should not be imposed where the purposes of sentencing could be achieved by a community order (for example, a community order may provide sufficient restriction on an offender’s liberty, by way of punishment, while allowing rehabilitation to take place to prevent future crime.)
- Community orders can be highly punitive. They last longer than shorter custodial sentences. Community orders can restrict an offender’s day to day liberties, especially imposed on an offender who may find regular attendance at a specific place or time challenging. Breach can result in significant adverse consequences.
- A custodial sentence may become disproportionate to achieving the purposes of sentencing where there would be an impact on dependants, including on unborn children where the offender is pregnant. Courts should avoid the possibility of an offender giving birth in prison unless the imposition of a custodial sentence is unavoidable.
- If the purposes of sentencing can be achieved by a community order, or any personal mitigation means that a community order may be a more suitable sentence, please see the Imposition of Community orders (section 4) above.
What is the shortest term commensurate with the seriousness of the offence?
- If the court is considering an immediate custodial sentence of up to 12 months, it should take into account that research suggests that custodial sentences of up to 12 months are less effective than other disposals at reducing reoffending and can lead to negative outcomes. Any custodial sentence can disrupt employment, education or accommodation and affect support networks by interfering with relationships with friends and family. Factors supporting desistance also can be adversely impacted by custody.
- In considering the shortest term, the court must NOT consider any licence or post sentence supervision requirements or any other administrative or statutory consequences of the potential sentence imposed.
Can the sentence be suspended?
- If the shortest term commensurate with the seriousness of the offence is less than 2 years, the court may consider whether it is appropriate to suspend that sentence, so that the offender serves their sentence in the community under the supervision of Probation. If the offender reoffends during the operational period or fails to comply with any requirements during the supervision period of the suspended sentence order, the custodial term will be activated and the offender will be required to serve some or all of the sentence in custody, unless it is unjust to do so, as set out in the Breach of Suspended Sentence Orders guideline).
- A suspended sentence is a custodial sentence. A suspended sentence MUST NOT be imposed as a more severe form of community order. 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, such as a community order, should be imposed.
- In weighing any of the following non-exhaustive factors indicating whether to suspend a custodial sentence, the court will usually benefit from Probation’s assessment of any relevant circumstances (such as dependents) and whether the offender can be safely managed in the community.
Note: Where a statutory minimum term for an offence is 2 years or less, the court may lawfully impose a suspended sentence order, but in practice this will only rarely be appropriate.
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Factors indicating that it may be appropriate to suspend a custodial sentence |
Factors indicating that it may not be appropriate to suspend a custodial sentence |
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Realistic prospect of rehabilitation |
Offender presents a risk/danger to the public |
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Offender does not present high risk of reoffending or harm |
The seriousness of the offence means that appropriate punishment can only be achieved by immediate custody |
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Strong personal mitigation |
History of poor compliance with court orders AND unlikely to comply in the future |
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Immediate custody will result in significant harmful impact upon others |
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8. Suspended sentence orders
A custodial sentence between 14 days and 2 years (also applicable for the aggregate of the terms where the court imposes two or more sentences to be served consecutively) may be suspended for between 6 months and 2 years.
In determining the length of suspension (the operational period), the court should consider whether the time for which a sentence is suspended should reflect the total length of the sentence, and the duration needed for any requirements imposed (the supervision period). A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately. Guidance on defining the operational and supervision periods can be found below.
Requirements on a suspended sentence order
When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. The requirements that may be available are identical to those available for community orders. The court must follow the guidance in the requirements section of this guideline (section 5), including ensuring that any requirements imposed are the most suitable for the offender, and where multiple requirements are imposed, they are compatible with each other and not excessive.
Requirements imposed as part of a suspended sentence order are more likely to be predominantly rehabilitative in purpose, as the imposition of a custodial sentence, even if suspended, is itself both a punishment and a deterrent. Any punitive requirements should not be disproportionate to the length of custodial sentence being suspended. To ensure that the requirements of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. The court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.
The court making a suspended sentence order must specify the operational period and supervision period of the order.
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Operational period |
The length of time for which a sentence is suspended, during which the offender will be liable to go to custody to serve the suspended custodial term if they commit another offence. This period begins on the day on which the order is made and must be at least 6 months and not more than two years. The length of the operational period should be tailored to the particular circumstances of the case. Non-exhaustive factors which may be relevant when determining length of the operational period are: · the length of the custodial term to be suspended; · the nature and duration of any requirements of the order and resulting supervision period; · the risks of reoffending or harm. |
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Supervision period |
The length of time for an offender to complete any requirements of the suspended sentence order, during which the offender will be liable to go to custody to serve the suspended custodial term if they fail to comply with any of the requirements. This period begins with the day on which the order is made and must be at least 6 months and not more than two years, or the operational period if this is less than two years. Non-exhaustive factors which may be relevant when determining the supervision period include: · the length of time required to complete any requirements; · the length of time required for rehabilitative requirements to be most effective (please consult Probation if necessary). If the suspended sentence includes an unpaid work requirement, the supervision period for this requirement continues until the offender has completed the number of hours in the requirement but does not continue beyond the operational period. |
The court imposing a suspended sentence order should determine the length of the suspended custodial term without reference to any time spent in custody on remand or on a qualifying curfew. When explaining the effect of the sentence, the court should indicate that the time remanded in custody or on a qualifying curfew would be deducted in the event of breach and activation of that sentence.
If an offender has spent a significant proportion of the custodial term to be suspended on remand or on a qualifying curfew, the court must consider whether it would be appropriate to impose a suspended sentence order at all, as there would be limited effect of the custodial term in the case of activation. Depending upon the circumstances of the case, immediate custody (which may result in immediate release due to time served) or a community order or discharge may be more appropriate, particularly where there is a good prospect of rehabilitation.
Sentencing flowchart and requirements table
Sentencing decision flowchart – download/open pdf (recommended for iPad)
Requirements table
Requirements Table – download/open pdf (recommended for iPad)
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Requirement |
Requirement overview |
Volume / Length range |
Considerations / Factors to consider |
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1 |
Unpaid work requirement (UPW) |
An unpaid work requirement requires offenders to undertake work projects in their local community. In some regions, a small proportion of these hours can be spent on education, training or employment activities for eligible offenders. “Community Payback” is a term used to describe the delivery of an Unpaid Work requirement.
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Between 40 – 300 hours to be completed within 12 months. |
Work as part of an unpaid work requirement must be suitable for an offender to perform; and if necessary, this suitability should be assessed by Probation. Probation will also be able to advise what type of projects are available in the region. The court must consider whether the offender is in employment, has any disabilities or limitations, has any dependants, or whether there are any other circumstances that may make an unpaid work requirement unsuitable. If unpaid work hours are not completed within 12 months (unless extended or revoked by the court), the requirement remains ‘live’ and will need to be returned to the court for the operational period to be extended so the remaining hours can be worked. Sentencers should consider this when considering any other requirements to ensure that it is realistic for an offender to complete all unpaid work hours within the operational period. |
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2 |
Rehabilitation activity requirement (RAR) |
A rehabilitation activity requirement (RAR) requires the offender to participate in rehabilitative activities designed to address the behaviours and needs that contributed to the offence, and attend supervision appointments with Probation. The court will specify the maximum number rehabilitative activity days the offender must complete. Post-sentence, Probation will assess the offender and produce a tailored activity plan based on their needs. Activities can include probation-led toolkits or group structured interventions, or referral to external organisations providing rehabilitative services. |
Minimum of 1 RAR day; no maximum, to be completed within the length of the order.
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A rehabilitation activity requirement should be imposed when the offender has rehabilitative needs that cannot be addressed by other requirements. The specific type of activities that the offender will be required to participate in will be determined post-sentence by an assessment of these rehabilitative needs, and as such sentencers should consider the number of RAR days recommended by Probation to ensure this number is suitable and proportionate to the level of need and any eligibility requirements for commissioned rehabilitative services that may be relevant. Structured rehabilitative activity appointments are complemented by supervision appointments with Probation which ensure contact is maintained, Probation can track the offender’s progress in completing activities and offer support where necessary. The court needs only to specify the number of ‘RAR’ or rehabilitative activity days, and Probation will manage supervision appointments alongside these days. |
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3 |
Programme requirement |
A programme requirement requires an offender to complete an offending behaviour programme or intervention. These are intensive structured programmes, designed to tackle the attitudes, thinking and behaviours of certain criminogenic needs. Programmes are usually delivered in groups by a trained facilitator. |
The court must specify the number of days on which the offender must participate in the programme up to the length of the order. |
An accredited programme must be recommended by Probation, as each programme has specific eligibility criteria that must be met and different regions have different programmes. Probation will specify to the court how many days are required to complete a suitable programme to ensure a suitable programme can be completed.
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4 |
Prohibited activity requirement
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A prohibited activity requirement prohibits the offender from participating in any activity specified by the court. |
Duration set by the court, up to the length of the order. |
The court must consult Probation before imposing this requirement. Electronic monitoring may be considered to monitor compliance with the prohibited activity if it is suitable (see electronic monitoring below). |
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5 |
Curfew requirement
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A curfew requirement requires an offender to remain at a particular place (or places) for a specified period (or periods) of time. Different places or different curfew periods may be specified for different days. The curfew period should be targeted to reflect the punishment intended, support rehabilitation where relevant, and protect victims and the public.
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For an offence of which the offender was convicted on or after 28 June 2022: 2 – 20 hours in any 24 hours; maximum 112 hours in any period of 7 days beginning with the day of the week on which the requirement first takes effect; and maximum term 2 years; |
Where the court imposes a curfew requirement, it must also impose an electronic monitoring requirement to monitor compliance, unless in the circumstances of the case, it considers it inappropriate to do so.
In all cases, the court must consider those likely to be affected, such as any dependants.
The court must ensure safeguarding and domestic abuse enquiries are carried out on any proposed curfew address to ensure the accommodation is suitable, others will not be put at risk and the homeowner agrees to the curfew, particularly where vulnerable adults and children are involved. Ordinarily this is a function performed by Probation.
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6 |
Exclusion requirement
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An exclusion requirement prohibits an offender from going into a particular place or area. The exclusion zone can include more than one prohibited place/area, more than one exclusion period and different prohibited places/areas for different exclusion periods or different days. |
Up to 2 years. May either be continuous or only during specified periods. |
Where the court imposes an exclusion requirement, it must also impose an electronic monitoring requirement to monitor compliance, unless in the particular circumstances of the case, it considers it inappropriate to do so (see note on electronic monitoring below).
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7 |
Residence requirement
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A residence requirement provides that the offender must reside at a particular place (i.e. a private address or HMPPS provided temporary accommodation, including an approved premises or Bail accommodation Support Services) for a specified period. |
Duration set by the court, up to the length of the order. The maximum placement length of an approved premises is 12 weeks. |
The court must consider the home surroundings of the offender before imposing this requirement. The court is encouraged to engage with Probation to understand what type of HMPPS provided temporary accommodation is available in their region to support these orders. Where a residence requirement provides that the offender reside at a private address, there is no requirement that the offender to be at the address at a specific time. A curfew requirement would be necessary for this. However, where a residence requirement is for an approved premises (AP), an offender is bound by the rules of the AP, which may include an overnight curfew and drug and/or alcohol testing. |
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8 |
Foreign travel prohibition requirement
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An offender is prohibited from travelling to a country (or countries) or territory (or territories) outside the British Islands (that is the United Kingdom, the Channel Islands and the Isle of Man). |
Duration set by the court, up to a maximum of 12 months. |
Unlikely to be suitable for an offender who does not have a passport, rarely travels, or has no apparent international connections.
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9 |
Mental health treatment requirement
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A mental health treatment requirement provides treatment to an offender with a mental health condition. Treatment may be residential or non-residential and must be provided by or under the direction of a registered medical practitioner or chartered psychologist. |
Duration set by the court, up to the length of the order. |
The court must be satisfied: (a) that the mental condition of the offender is such as requires and may be susceptible to treatment but is not such as to warrant the making of a hospital or guardianship order; (b) that arrangements for treatment have been or can be made; (c) that the offender has expressed willingness to comply. Probation should be consulted to ensure these factors are met, and to assess the offender to ensure that any eligibility requirements for the treatment are satisfied before imposing this requirement. MHTRs can be used in combination with other treatment requirements (for example drug and alcohol rehabilitation requirements) for eligible offenders with multiple needs. |
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10 |
Drug rehabilitation requirement |
A drug rehabilitation requirement (DRR) provides treatment to an offender who is dependent on drugs or has a propensity to misuse drugs. Treatment can be residential or non-residential, and the offender must participate in court reviews of the order, as directed by the court.
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Duration set by the court, up to the length of the order. |
A drug rehabilitation requirement may be imposed on an offender for whom the court is satisfied that the offender is dependent on or has a propensity to misuse drugs (as defined by s.2 of the Misuse of Drugs Act 1971) where the dependency or propensity requires and may be susceptible to treatment. The court must ensure that necessary arrangements have been or can be made for the proposed treatment, and the offender must express willingness to comply with the treatment. Probation should be consulted to ensure these factors are met, and to assess the offender to ensure that any eligibility requirements for the treatment are satisfied before imposing this requirement. DRRs can be used in combination with other treatment requirements (for example, mental health treatment requirement) for offenders with multiple needs. |
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11 |
Alcohol treatment requirement
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An alcohol treatment requirement may be imposed on an offender who is dependent on alcohol, where that dependency requires and may be susceptible to treatment. The treatment may be residential or non-residential. |
Duration set by the court, up to the length of the order. |
An alcohol treatment requirement (ATR) may be imposed on an offender for whom the court is satisfied is dependent on alcohol and this dependency is such that it requires and is susceptible to treatment. The court must ensure that necessary arrangements have been or can be made for the proposed treatment, and the offender must express willingness to comply with the treatment. Probation should be consulted to ensure these factors are met, and to assess the offender to ensure that any eligibility requirements for the treatment are satisfied before imposing this requirement. ATRs can be used in combination with other treatment requirements (for example, mental health treatment requirement) for offenders with multiple needs. However, an ATR cannot be imposed alongside an alcohol abstinence and monitoring requirement (AAMR). |
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12 |
Alcohol abstinence and monitoring requirement (where available)
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An alcohol abstinence and monitoring requirement imposes a total ban on alcohol consumption and requires the offender to have their compliance with the requirement electronically monitored. |
Up to 120 days. |
It is generally recommended that an alcohol abstinence and monitoring requirement (AAMR) is not a standalone requirement and sits alongside other measures that support rehabilitation. The court must be satisfied that the offender is not alcohol dependant. If the offender is alcohol dependant, an ATR may be more appropriate. Probation should be consulted to assess the rehabilitative need and advise on the most relevant and available treatment. An AAMR cannot be imposed alongside an ATR alcohol treatment requirement. |
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13 |
Electronic monitoring: · electronic whereabouts monitoring requirement and · electronic compliance monitoring requirement
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The electronic whereabouts monitoring requirement is a requirement for the offender to submit to electronic monitoring of their whereabouts (other than for the purpose of monitoring compliance with any other requirement included in the order) during a period specified in the order. The electronic compliance monitoring requirement is imposed to monitor compliance with another requirement on an order.
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Up to 2 years. |
The electronic whereabouts monitoring requirement may be imposed without the imposition of another requirement and involves monitoring an offender’s whereabouts with the imposition of a GPS tag, save for circumstances in which the consent of a person whose co-operation is required is withheld. Where the court makes a relevant order imposing a curfew requirement or exclusion requirement it must also impose an electronic compliance monitoring requirement for monitoring compliance with it, save where: · there is a person (other than the offender) without whose co-operation it will not be practicable to secure the monitoring and that person does not consent; and/or · electronic monitoring is unavailable and/or impractical; and/or · in the particular circumstances of the case, the court considers it inappropriate to do so. The court must ensure safeguarding and domestic abuse enquiries are carried out on any proposed curfew address to ensure the accommodation is suitable, others will not be put at risk and the homeowner agrees to the curfew, particularly where vulnerable adults and children are involved. Ordinarily this is a function performed by Probation. |