When deciding the type of sentence and amount, magistrates and judges (the court) will consider a number of factors. In England and Wales, the relevant law is now principally consolidated in the Sentencing Code in the Sentencing Act 2020, which generally applies to convictions on or after 1 December 2020, subject to transitional provisions. See also Powers of Courts to Sentence Adults. The main procedural rules are Criminal Procedure Rules 2025, rr24.11 and 25.16.
1. THE SERIOUSNESS OF THE OFFENCE
The court will make an initial assessment of the seriousness of the offence. If the defendant pleaded guilty, the prosecutor will outline the facts of the case to the court. If the defendant contested the charge, ie, pleaded not guilty, then the magistrates or judge would have noted the facts during the trial. The court must consider the offender’s culpability and the harm caused, intended or foreseeably risked: s63. When imposing a community sentence or custodial sentence:
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The court must take into account all such information about the circumstances of the offence(s) including any aggravating or mitigating factors as is available to it: ss204(3), 208(7), 230(6) and 231(7), as applicable.
If the offence was aggravated by racial or religious hostility, or hostility related to disability, sexual orientation or transgender identity, the court must treat that fact as an aggravating factor (that is to say, a factor that increases the seriousness of the offence) and state this in open court: s66. The racial and religious provisions do not apply where the conviction is already for a racially or religiously aggravated offence under ss29–32 of the Crime and Disorder Act 1998. Other statutory aggravating factors include specified assaults on emergency workers or people serving the public, terrorist connections, the foreign-power or designated-body condition, and sexual grooming of a child within s70A, applicable to convictions from 29 June 2026.
A dispute about facts which would materially affect sentence must be resolved. This may require a Newton hearing, at which evidence is heard without a jury; the prosecution must prove disputed aggravating facts beyond reasonable doubt. An agreed basis of plea does not bind the court. The prosecutor must also provide any victim personal statement or other relevant evidence of the offence’s impact.
2. THE DEFENDANT’S RECORD
The magistrates or judge will then consider the defendant’s previous convictions, if any. This information will have been recorded in a police antecedent statement. In addition, the Sentencing Code provides that in considering the seriousness of any offence:
The court must treat each relevant previous conviction as an aggravating factor where it can reasonably do so, having regard in particular to the nature and relevance of the previous offence and the time elapsed; it must state this in open court: s65. Previous convictions do not automatically require a more severe sentence.
The court must treat the fact that an offence was committed whilst on bail as an aggravating factor and state this in open court: s64.
Mandatory and minimum sentences must be imposed in certain situations, subject to the applicable exceptions:
For offenders aged 18 or over at conviction, ss273 and 283 require a life sentence for a second listed offence where the conditions in Schedule 15 and those sections are met. Broadly, the current offence must warrant at least ten years’ custody and, before committing it, the offender must have been convicted of a qualifying listed offence for which a sentence of at least ten years, or a life sentence with at least five years before eligibility for release, was imposed. Extension periods and credit for pre-sentence detention are subject to the statutory rules. The court need not impose life if particular circumstances relating to the offences or offender would make it unjust. This differs from the former second-serious-offence scheme in s109 of the 2000 Act, which remains relevant to certain offences committed before 4 April 2005.
Where a person aged 18 or over when committing a third qualifying Class A drug trafficking offence meets the sequential conviction requirements in s313, the court must impose a custodial sentence of at least seven years. For a current offence committed on or after 28 June 2022, the exception is exceptional circumstances relating to any of the offences or the offender which justify not doing so; for earlier offences, the test is particular circumstances making the sentence unjust.
Where a person aged 18 or over when committing a third qualifying domestic burglary meets the sequential conviction requirements in s314, the court must impose a custodial sentence of at least three years. The same distinction between the exceptional-circumstances test for offences committed from 28 June 2022 and the earlier unjust-in-all-the-circumstances test applies. In both schemes, the offender must already have the two qualifying convictions when committing the current offence, and the second qualifying offence must have been committed after conviction for the first. Section 73 permits limited reductions for guilty pleas.
Sections 311–312 and 315 also prescribe minimum sentences for specified firearms and weapons offences, including qualifying repeat possession offences involving knives, offensive weapons or corrosive substances. Under s316, an offender sentenced under s313, s314 or s315 may give notice of appeal within 28 days of a necessary previous conviction being set aside.
3. PLEA IN MITIGATION
The defendant’s lawyer (or even the defendant personally) will make a plea in mitigation. This is an opportunity to explain to the court why the offence was committed, the defendant’s personal circumstances and any genuine remorse. The Sentencing Code provides that:
The Code’s basis-of-opinion provisions do not prevent a court from mitigating an offender’s sentence by taking into account such matters as, in the opinion of the court, are relevant in mitigation of sentence: s77. Mandatory statutory requirements still apply.
4. REPORTS
Before forming the relevant opinions for a discretionary custodial sentence or community sentence, the court must normally obtain and consider a Pre-Sentence Report (PSR): s30. For an adult, it may dispense with a report if it considers one unnecessary in the circumstances. For an offender under 18, this is permitted only if a previous PSR exists and the court has considered its information before deciding that a new report is unnecessary. The purpose of a PSR is to provide information to the court about the offender and the offences so that the court has sufficient relevant information to enable it to decide a suitable sentence. For an adult, it is prepared by a probation officer; for an offender under 18 it may also be prepared by a local-authority social worker or youth offending team member. An interview with the defendant informs the report, which addresses:
(a) an assessment of the offending behaviour;
(b) an assessment of the risk to the public; and
(c) a clear and realistic indication of the action which can be taken by the court to reduce re-offending.
For further details see ss30–32. A PSR may be given orally in open court, but s31(5) requires a written report in the specified cases involving custody for offenders under 18.
It may also be necessary to obtain a medical report on the defendant’s physical or mental health. Where the offender is or appears to be suffering from a mental disorder, a court imposing a custodial sentence other than one fixed by law must obtain and consider a medical report unless it considers one unnecessary. It must consider the mental-health information before it and the likely effect of custody on the condition and available treatment: s232.
5. SENTENCE
The following are two central decisions in the sentencing process.
(1) The court must decide which type of sentence to pass: (i) a custodial sentence, (ii) a community sentence, (iii) a fine, or (iv) a discharge. Other sentences may also be available depending on the type of offence committed or the age of the defendant. Some guidance on deciding the type of sentence is provided by the Sentencing Code:
Subject to the mandatory-sentence and other statutory exceptions, a court may not pass a custodial sentence unless the offence(s) was so serious that neither a fine alone nor a community sentence can be justified: s230. Meeting that threshold does not make custody inevitable; mitigation may justify a community sentence: s77(2). Where an adult is convicted on or after 22 March 2026 and a suspended sentence is available, a custodial term of twelve months or less must normally be suspended, subject to the exclusions and exceptional-circumstances provisions in ss264A and 277A.
A court may not make an adult community order unless the offence(s) was serious enough to warrant it; its requirements must be suitable for the offender, subject to the statutory punishment requirement: ss204 and 208. Youth rehabilitation orders are governed by the separate provisions in Part 9, Chapter 1.
(2) The court must then decide the tariff, ie how much?
The Magistrates’ Court Sentencing Guidelines give starting points for offences which magistrates deal with regularly in adult courts. They list the kind of aggravating and mitigating factors which might make either a more or less severe sentence appropriate in an individual case.
The Sentencing Council issues definitive guidelines for the Crown Court and magistrates’ courts, which courts must follow unless contrary to the interests of justice: s59. The Court of Appeal also provides sentencing guidance. For example, guidelines were given for the offence of rape in R v Billam (1986) 82 Cr App R 347. That is a historical example; current rape sentences are governed by the applicable Sentencing Council guideline. The Sentencing Advisory Panel, which began work in July 1999, provided objective advice and information to the Court of Appeal when it formulated or revised sentencing guidelines. The Sentencing Council replaced the Panel and the Sentencing Guidelines Council on 6 April 2010.
Otherwise, some general guidance has been provided by statute:
Subject to the statutory exceptions, a discretionary custodial sentence must be for the shortest term, not exceeding the permitted maximum, commensurate with the seriousness of the offence(s): s231. The court cannot simply increase an ordinary determinate sentence beyond that term on public-protection grounds; the dangerous-offender provisions must be considered where applicable.
An extended sentence may be available for a specified violent, sexual or terrorism offence where the statutory dangerousness and other conditions are met. For an offender aged 21 or over at conviction, s280 requires a significant risk of serious harm from further specified offences and either a qualifying previous conviction or an appropriate custodial term of at least four years; mandatory life and serious-terrorism sentences take precedence. Under s281 the licence extension is at least one year and no more than five years for a specified violent offence, eight years for a specified sexual or terrorism offence, or ten years for a qualifying serious terrorism offence. The combined term cannot exceed the offence’s statutory maximum. Corresponding provisions for younger offenders appear in ss254–256 and 266–268.
The requirements of an adult community order must be the most suitable for the offender, and the restrictions on liberty must be commensurate with the seriousness of the offence(s), subject to the requirement for a punitive element unless a fine is also imposed or the statutory exceptional circumstances apply: s208.
Before fixing the amount of a fine to be imposed on an offender, the court must inquire into his financial circumstances: s124. The fine must reflect seriousness and take account of financial circumstances, which may increase or reduce it: s125.
There may be a reduction in sentence for guilty pleas, under s73:
The court will take into account the stage in the proceedings at which the offender indicated his intention to plead guilty and the circumstances in which this indication was given. If as a result, the court imposes a punishment which is less severe than it would otherwise have imposed, it must state in open court that it has done so: s52(7).
For adults whose first hearing was on or after 1 June 2017, the guilty-plea guideline normally gives one-third credit at the first stage, a maximum of one-quarter thereafter, reducing to a maximum of one-tenth on the first day of trial and potentially zero during trial. Exceptions include a justified delay and rejection of the offender’s account at a Newton hearing. Murder minimum terms have a separate maximum reduction of one-sixth or five years, whichever is less. Statutory minimum sentences restrict reductions; for example, s73 generally prevents a guilty plea reducing an adult minimum under ss312–315 below 80% of the required term. Separate guidance applies to children.
Where there is more than one offence, the court must consider totality when deciding whether sentences should run concurrently or consecutively. It must also consider applicable credit for time on remand and relevant ancillary orders, including compensation, confiscation, protective orders, costs and the statutory surcharge. The court must give reasons and explain the sentence’s effect in ordinary language, subject to the procedural exceptions: s52 and CrimPR rr24.11 and 25.16. Since 5 October 2026, if it considers an offence involved domestic abuse, it must announce that view.
Sentence may be adjourned where further information or reports are needed. Deferment to assess post-conviction conduct or changed circumstances is a distinct power requiring the offender’s consent: ss3–5. The maximum deferment is twelve months where conviction for all the offences was on or after 22 March 2026, and six months where any conviction was earlier.
Last updated: 10 November 2026
