New sentencing guidelines are now in force

On 1 April 2024, a number of new and amended sentencing guidelines came into effect, following publication of the results of a consultation by the Sentencing Council which ran during Autumn 2023.

One of the main changes, relevant to both the Magistrates and Crown Court, is the amendment of existing and introduction of new mitigating factors, and their associated expanded explanations to address equality and diversity in sentencing. These changes were made in order to address areas in which guidelines were out-of-date.

The mitigating factors that have been amended under this category are:

Remorse

When considering remorse as a mitigating factor, the court need to be satisfied the offender is genuinely remorseful for the offending behaviour, in order to reduce the sentence. However, remorse can present itself in different ways. The amended guidelines now state the court should be aware that a mental disorder, learning disabilities, communication difficulties (including where English is not their first language) and age, may affect the offender’s demeanour in court or the way they articulate their feelings of remorse.

Positive character and/or exemplary conduct (regardless of previous convictions)

This mitigating factor was previously known as “good character”. It is now referred to as “positive character” to make clear this factor focuses on positive aspects of the defendant’s character, notwithstanding the fact they may have previous convictions (which the guidelines deal with separately).

Determination and/or demonstration of steps having been taken to address addiction or offending behaviour

This mitigating factor is considered by the court when offending is driven by, or is closely associated with, drug or alcohol abuse. Where the offender can show a commitment to address the underlying issue, this may reduce the sentence. The recent amendment means this factor will be considered where the offender can show they have actively sought support to address the underlying issues, but, for reasons outside their control, support has not been received.

Age and/or lack of maturity (which may be applicable to offenders aged 18-25)

This mitigating factor now states that, where a person has committed an offence under the age of 18, regard should be had to the overarching guideline for sentencing children and young people and, that guideline may also be relevant to offending by young adults.

This factor also now states that, where the offender is care experienced (not just a care leaver), the court should enquire as to both the impact of their experience in care and any effect a sentence may have on the offender’s ability to make use of support for the local authority.  During the consultation period, it was noted that many young adults are care experienced but have been passed over or not provided with appropriate support and, if they have been in care at any point, they are more likely to have experienced trauma, rejection and criminalisation that would not have occurred to a child in the family home.

(We previously wrote about research conducted in March 2023 which revealed overwhelmingly negative experiences of the care system for victims and perpetrators of youth violence.)

The new mitigating factors that have been introduced are:

Difficult and/or deprived background or personal circumstances

This factor (which attracted considerable commentary in the national media during the consultation) states the court may be assisted by a pre-sentence report to assess whether there are factors in the offender’s background or current personal circumstances which may be relevant to sentencing.

However, this factor also provides a non-exhaustive list of specific disadvantages that different groups within the criminal justice system may have faced, which could have a bearing on their offending. The list includes, but is not limited to:

• experience of discrimination
• negative experiences of authority
• early experience of loss, neglect or abuse
• early experience of offending by family members
• being care experienced or a care leaver
• negative influences from peers
• difficulties relating to the misuse of drugs and/or alcohol (but being voluntarily intoxicated at the time of the offence is an aggravating factor)
• low educational attainment
• insecure housing
• mental health difficulties
• poverty
• direct or indirect victim of domestic abuse

Prospects of or in work, training or education

This factor explains that, where an offender is in, or has a realistic prospect of starting work, education or training, this may indicate a willingness to rehabilitate and desist from future offending. Similarly, the loss of employment, education or training opportunities may have a negative impact on the likelihood of an offender being rehabilitated or desisting from future offending.

This mitigating factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. However, for more serious offences where a substantial period of custody is appropriate, this factor will carry less (if any) weight.

Pregnancy, childbirth and post-natal care

The NHS classifies all pregnancies in prison as high risk. Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy and there may be difficulties accessing medical assistance or specialist maternity services in custody.

This factor recognises how harmful custody can be, both on the offender who is pregnant or postnatal (12 months following birth) and the child, especially in the first two years after birth.

The factor states, when sentencing a pregnant or postnatal woman, relevant considerations may include:

• the medical needs of the offender including her mental health needs
• any effect of the sentence on the physical and mental health of the offender
• any effect of the sentence on the child

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. However, where immediate custody is unavoidable, all of the factors above may be relevant to the length of the sentence. Regardless, the Probation Service should be asked to address the relevant considerations in a pre-sentence report, but it a pre-sentence report is not available, sentencing should normally be adjourned until one is available.

Sentencing in the Crown Court

The other fundamental change to the sentencing guidelines, which is relevant to the Crown Court only, concerns the offence of manslaughter. The changes include:

1. Adding strangulation, suffocation and asphyxiation as an aggravating factor to the loss of control and diminished responsibility guidelines; and
2. Incorporating coercive or controlling behaviour within the aggravating and mitigating factors relating to a history of violence or abuse.

For example, the court will consider a history of violence or abuse (which may now include coercive or controlling behaviour) towards the victim by the offender, as an aggravating factor. Similarly, the court will consider a history of significant violence or abuse (which may include coercive or controlling behaviour) towards the offender by the victim, as a mitigating factor.

Other amendments

Other recent changes made by the Sentencing Council include amendments to the Fraud guideline (to give more recognition to the impact on victims even where there is no or very little financial loss) and amendments to the guideline for sentencing individuals for fly-tipping and other environmental offences to give greater emphasis to community orders over fines.

More details on these changes can be found here. The most up-to-date sentencing guidelines for the magistrates’ courts are here, and those for the Crown Court are here.

More Information 

For more information on any of the issues mentioned in this blog, please contact a member of our criminal litigation team.