Miscellaneous amendments to sentencing guidelines 2024
Totality
The issue
A revised Totality guideline came into force in July 2023. The Council has received suggestions for helpful additions to the guidance on imposing a sentence when there is an existing custodial sentence. Currently the guideline states:
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Existing determinate sentence, where determinate sentence to be passed |
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Circumstance |
Approach |
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Offender serving a determinate sentence (instant offences committed after offences sentenced earlier) |
Generally the sentence will be consecutive as it will have arisen out of an unrelated incident. The court must have regard to the totality of the offender’s criminality when passing the second sentence, to ensure that the total sentence to be served is just and proportionate. Where a prisoner commits acts of violence in prison custody, any reduction for totality is likely to be minimal. |
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Offender subject to licence, post sentence supervision or recall |
The new sentence should start on the day it is imposed: section 225 of the Sentencing Code prohibits a sentence of imprisonment running consecutively to a sentence from which a prisoner has been released. If the new offence was committed while subject to licence or post sentence supervision, the sentence for the new offence should take that into account as an aggravating feature. However, the sentence must be commensurate with the new offence and cannot be artificially inflated with a view to ensuring that the offender serves a period in custody additional to any recall period (which will be an unknown quantity in most cases); this is so even if the new sentence will in consequence add nothing to the period actually served. |
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Offender subject to an existing suspended sentence order |
Where an offender commits an additional offence during the operational period of a suspended sentence and the court orders the suspended sentence to be activated, the additional sentence will generally be consecutive to the activated suspended sentence, as it will arise out of unrelated facts. |
Also, the Justices’ Clerks’ Society has recently issued guidance to magistrates’ courts on the procedure to be followed when imposing unpaid work when an offender has an existing unpaid work requirement. It appears that although the preferred practice is to revoke the existing order and impose a single new order to take into account all offences, this does not always happen. One reason that it may be preferable to allow the existing order to continue is to avoid the delay that may occur before the new order starts which could disrupt any good progress that an offender is making on an existing order.
The dropdown on community orders includes the following:
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Community orders |
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Circumstance |
Approach |
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Offender convicted of an offence while serving a community order |
The power to deal with the offender depends on the offender being convicted while the order is still in force; it does not arise where the order has expired, even if the additional offence was committed while it was still current. (Paragraphs 22 and 25 of Schedule 10 to the Sentencing Code) Community order imposed by magistrates’ court If an offender, in respect of whom a community order made by a magistrates’ court is in force, is convicted by a magistrates’ court of an additional offence, the magistrates’ court should ordinarily revoke the previous community order and sentence afresh for both the original and the additional offence. Community order imposed by the Crown Court Where the magistrates’ court has no power to commit the new offence it should sentence the new offence and commit the offender to the Crown Court to be re-sentenced for the original offence. When sentencing both the original offence and the new offence the sentencing court should consider the overall seriousness of the offending behaviour taking into account the additional offence and the original offence. The court should consider whether the combination of associated offences is sufficiently serious to justify a custodial sentence. If the court does not consider that custody is necessary, it should impose a single community order that reflects the overall totality of criminality. The court must take into account the extent to which the offender complied with the requirements of the previous order. |
Finally, a user raised an issue using the feedback function on the website:
“It is not clear where the power to order consecutive sentences arises, which statute or rule of law, it would help to have this included.”
The proposed changes
In respect of the last of these suggestions, the Council proposes to add a reference to the legislative provision relating to the commencement of sentences to the General principles section of the guideline:
General principles
When sentencing for more than one offence, the overriding principle of totality is that the overall sentence should:
- reflect all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors relating to the offences and those personal to the offender; and
- be just and proportionate.
Sentences can be structured as concurrent (to be served at the same time) or consecutive (to be served one after the other) under section 384 of the Sentencing Code . There is no inflexible rule as to how the sentence should be structured.
- If consecutive, it is usually impossible to arrive at a just and proportionate sentence simply by adding together notional single sentences. Ordinarily some downward adjustment is required.
- If concurrent, it will often be the case that the notional sentence on any single offence will not adequately reflect the overall offending. Ordinarily some upward adjustment is required and may have the effect of going outside the category range appropriate for a single offence.
In respect of imposing a determinate sentence where there is an existing sentence, the Council proposes to amend the guidance as follows (note some of this guidance repeats guidance provided later in the guideline but it is proposed to include it for completeness):
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Existing sentence, where determinate sentence to be passed |
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Circumstance |
Approach |
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Offender subject to an existing community order imposed by a magistrates’ court |
If an offender, in respect of whom a community order made by a magistrates’ court is in force, is convicted by a magistrates’ court of an additional offence, the magistrates’ court should ordinarily revoke the previous community order and sentence afresh for both the original and the additional offence (see below under non-custodial sentences for further guidance). When sentencing both the original offence and the new offence the sentencing court should consider the overall seriousness of the offending behaviour taking into account the additional offence and the original offence. The court should consider whether the combination of associated offences is sufficiently serious to justify a custodial sentence. If the court does not consider that custody is necessary, it should impose a single community order that reflects the overall totality of criminality. The court must take into account the extent to which the offender complied with the requirements of the previous order. |
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Offender subject to an existing community order imposed by the Crown Court |
Where an offender, in respect of whom a community order made by the Crown Court is in force, is convicted by a magistrates’ court, the magistrates’ court may, and ordinarily should, commit the offender to the Crown Court, in order to allow the Crown Court to re-sentence for the original offence. The magistrates’ court may also commit the new offence to the Crown Court for sentence where there is a power to do so. Where the magistrates’ court has no power to commit the new offence it should sentence the new offence and commit the offender to the Crown Court to be re-sentenced for the original offence. When sentencing both the original offence and the new offence the sentencing court should consider the overall seriousness of the offending behaviour taking into account the additional offence and the original offence. The court should consider whether the combination of associated offences is sufficiently serious to justify a custodial sentence. If the court does not consider that custody is necessary, it should impose a single community order that reflects the overall totality of criminality. The court must take into account the extent to which the offender complied with the requirements of the previous order. |
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Offender serving a determinate sentence (instant offences committed after offences sentenced earlier) |
Generally the sentence will be consecutive as it will have arisen out of an unrelated incident. The court must have regard to the totality of the offender’s criminality when passing the second sentence, to ensure that the total sentence to be served is just and proportionate. Where a prisoner commits acts of violence in custody, any reduction for totality is likely to be minimal. |
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Offender subject to licence, post sentence supervision or recall |
The new sentence should start on the day it is imposed: section 225 of the Sentencing Code prohibits a sentence of imprisonment running consecutively to a sentence from which a prisoner has been released. If the new offence was committed while subject to licence or post sentence supervision, the sentence for the new offence should take that into account as an aggravating feature. However, the sentence must be commensurate with the new offence and cannot be artificially inflated with a view to ensuring that the offender serves a period in custody additional to any recall period (which will be an unknown quantity in most cases); this is so even if the new sentence will in consequence add nothing to the period actually served. |
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Offender subject to an existing suspended sentence order |
Where an offender commits an additional offence during the operational period of a suspended sentence and the court orders the suspended sentence to be activated, the additional sentence will generally be consecutive to the activated suspended sentence, as it will arise out of unrelated facts. |
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Offender subject to an existing extended sentence |
The court can order a determinate sentence to run consecutively to an extended sentence. The determinate sentence will commence on the expiry of the appropriate custodial term of the extended sentence and the offender will become eligible for a parole review after becoming eligible for release from the determinate sentence. The court should consider the total sentence that the offender will serve before becoming eligible for consideration for release. If this is not just and proportionate, the court can reduce the length of the determinate sentence, or alternatively, can order the second sentence to be served concurrently. |
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Offender subject to an existing indeterminate sentence |
The court can order a determinate sentence to run consecutively to an indeterminate sentence. The determinate sentence will commence on the expiry of the minimum term of the indeterminate sentence and the offender will become eligible for a parole review after becoming eligible for release from the determinate sentence. The court should consider the total sentence that the offender will serve before becoming eligible for consideration for release. If this is not just and proportionate, the court can reduce the length of the determinate sentence, or alternatively, can order the second sentence to be served concurrently. |
In respect of community orders, the Council proposes to add to the existing guidance as follows:
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Community orders |
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Circumstance |
Approach |
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Offender convicted of an offence while serving a community order |
The power to deal with the offender depends on the offender being convicted while the order is still in force; it does not arise where the order has expired, even if the additional offence was committed while it was still current. (Paragraphs 22 and 25 of Schedule 10 to the Sentencing Code) Community order imposed by magistrates’ court If an offender, in respect of whom a community order made by a magistrates’ court is in force, is convicted by a magistrates’ court of an additional offence, the magistrates’ court should ordinarily revoke the previous community order and sentence afresh for both the original and the additional offence (see below for further guidance). Community order imposed by the Crown Court Where the magistrates’ court has no power to commit the new offence it should sentence the new offence and commit the offender to the Crown Court to be re-sentenced for the original offence. When sentencing both the original offence and the new offence the sentencing court should consider the overall seriousness of the offending behaviour taking into account the additional offence and the original offence. The court should consider whether the combination of associated offences is sufficiently serious to justify a custodial sentence. If the court does not consider that custody is necessary, it should impose a single community order that reflects the totality of the overall criminality. The court must take into account the extent to which the offender complied with the requirements of the previous order. Where the offender was subject to an unpaid work requirement on the earlier order, the number of hours remaining to be completed on that earlier order should be added to the number of hours of unpaid work the court would impose for the new offence. If the aggregate number of hours would exceed 300 (which cannot be exceeded in the new order), the court should consider imposing a further punitive requirement (or a fine) in addition to unpaid work. While it is generally preferable to revoke any earlier order, there may be situations where for reasons of continuity it would be helpful to allow an existing order to continue alongside a new order. It is not unlawful for the court to leave the existing community order running and impose a new community order even if the aggregate number of hours of unpaid work exceeded 300. However, it will be generally undesirable to make an order which imposes a significantly longer total period. |
The impact
The proposed changes to the Totality guideline are not anticipated to have a direct impact on the requirement for prison or probation resources. They are merely designed to provide additional helpful information on existing best practice.