Offences to be taken into Consideration (TICs)

• Benefits
• General Principles
• Procedure
• Conditional Cautions
• Magistrates' Court Cases - TICs
• Offences TIC'd which were previously charged in another Area
• Crown Court Cases - TICs
• Significance
• Sentence
• Compensation
• Proceeds of Crime Act 2002
• Acquittal
• Convictions quashed on appeal
• Prosecuting admitted TICs
• Rejected TICs

Benefits

These include:

• the court has a fuller and more accurate picture of the offending and is able to give a longer sentence than it would if it were dealing only with the substantive charge;
• the defendant is able to "clear the slate" to avoid the risk of subsequent prosecution for those offences and put the past behind him which can support rehabilitation;
• Although the presence of TICs may increase the sentence , the additional penalty will be less severe than if the offences were prosecuted separately;
• the victim has an opportunity to claim compensation in respect of an offence admitted by the defendant, detected and acknowledged by the criminal justice system;
• the police gain valuable intelligence, increase clear up rates, record a fuller picture of offending for possible use in future cases or to support applications for CR/ASBOs or other restrictive orders;
• the prosecution has a fuller and more accurate picture of the offender's criminal history when considering the public interest stage of the full Code Test, bail decisions, bad character, dangerousness etc;
• resources are used efficiently;and,
• the public's confidence in the criminal justice system is improved.

General principles

The defendant must admit the offence and should do so personally rather than through legal representatives.

A defendant should not be invited to have an offence taken into consideration in the following circumstances:

• If the public interest requires that it should be the subject of a separate trial;
• If the court has no jurisdiction to deal with the offence;
• If the offence attracts mandatory disqualification or endorsement and the offence(s) for which the defendant is to be sentenced do not;
• If the offence to be taken into consideration is likely to attract a greater sentence than the offence for which he is to be sentenced;
• If the offence to be taken into consideration is not similar to one of the offences for which he is to be sentenced. (Exceptionally a judge may take into consideration dissimilar offences if satisfied that it is in the interest of justice to do so);
• If the offence to be taken into consideration might, by virtue of its date, constitute a breach of an earlier sentence giving the court increased powers of sentence;
• If the offender would escape the possibility of an extended sentence being imposed, which would otherwise fall to be considered by the court, had the specified offence been charged as a substantive offence.

When prosecutors are considering lengthy TIC schedules - often in respect of defendants who want to "wipe the slate clean" they must ensure that the Sentencing Council guidelines on TICs are adhered to, in particular:

It is generally undesirable for TICs to be accepted in the following circumstances:

• where the TIC is likely to attract a greater sentence than the conviction offence;
• where it is in the public interest that the TIC should be the subject of a separate charge;
• where the offender would avoid a prohibition, ancillary order or similar consequence which it would have been desirable to impose on conviction. For example:
  • where the TIC attracts mandatory disqualification or endorsement and the offence(s) for which the defendant is to be sentenced do not;
  • where the TIC constitutes a breach of an earlier sentence;
  • where the TIC is a specified offence for the purposes of section 224 of the Criminal Justice Act 2003, but the conviction offence is non-specified; or
  • where the TIC is not founded on the same facts or evidence or part of a series of offences of the same or similar character (unless the court is satisfied that it is in the interests of justice to do so). 

Procedure

Procedural safeguards are now set out in the Sentencing Council's Offences taken Into Consideration and Totality Definitive Guideline which came into effect on 11 June 2012.

The police should include 5 copies of the TIC schedule with the prosecution file in accordance with the Manual of Guidance.

A copy of the TIC schedule should be included in advance information to the defence or pre-sentence information to the Probation Service

There should be sufficient information in the case papers to enable the prosecution and defendant to decide whether to ask the court to take such offences into consideration and to enable the offence(s) to be properly outlined to the court.

Any interview record should include adequate and sufficient details of any admissions made by a defendant to offences appearing in the TIC schedule.

The TIC schedule must be served on the defendant who should be given a full opportunity to understand what he is being asked to accept. The defendant must admit the offence and should do so personally rather than through legal representatives. Special care should be taken with vulnerable and/or unrepresented defendants. The defendant must sign the schedule.

Two copies of the TIC schedule (MG18) and a Compensation schedule (MG19) should be presented to the Court when the defendant pleads guilty or is convicted so that the defendant can be asked whether s/he wishes the Court to take into consideration all or some of the offences included in the TIC schedule and so that compensation orders can be made where appropriate.

When the TICs are put to the defendant, the list need not be read out in full. It is sufficient if the judge confirms with the defendant that he has signed the list, that it contains so many offences, that he agrees he committed those offences and he wishes them to be taken into consideration when sentence is passed for the substantive offence(s).

The number of offences which the defendant wishes to be taken into consideration should be endorsed on the file. The original schedule, suitably endorsed, should be retained by the Court and a copy supplied by the court to the police. A copy of the TIC schedule, clearly marked as to which offences were admitted by the defendant, should be retained in the file.

If there is any doubt as to which offences in a list the defendant wishes to have taken into consideration, the doubt should be resolved in open court;and if there is any doubt about his admission of a particular offence, it should not be taken into consideration.

If the defendant is committed to the Crown Court for sentence, then the Crown Court must follow the usual procedure, even if the Defendant agreed to the schedule in the Magistrates' Court.

Conditional cautions

Prosecutors can give a conditional caution to a person aged over 18 (section 22 Criminal Justice Act 2003). An offender may be Conditionally Cautioned for more than one offence on the same cautioning occasion. Generally, it will be appropriate to offer a single Conditional Caution for the totality of the offending rather than prefer individual Conditional Cautions for each offence.

The more offences committed, the less likely it will be that the case remains suitable for an out-of-court disposal, even if, individually, the cases would be suitable for a Conditional Caution. However, where the totality of the offending does not cause the case to become so serious that a prosecution must follow, the offer of a Conditional Caution may still be appropriate.

Since the Conditional Cautioning process does not allow for the preparation of a normal TIC schedule, it is important to ensure that the possibility of including a condition to pay compensation covers all the victims affected by the individual's offending. The extent to which compensation can be included as a reparative condition is always subject to the proportionality principle.

Magistrates' Courts Cases - TICs

A magistrates' court may take outstanding offences into consideration. It must not take into consideration a charge which has been committed or sent to the Crown Court. A magistrates' court should obtain the consent of the relevant legal adviser to the Justices before taking into consideration a matter pending as a charge before another magistrates' court. As with Crown Court cases, the prosecutor also should liaise with the CPS in the other area to check whether the offence is one that is suitable to be taken into consideration.

Offences TIC'd which were previously charged in another Area

Where TICs are dealt with in another area to that from which the offences originate, it is essential that liaison takes place between police and CPS Areas, not only to ensure that it is appropriate to deal with the matters as TICs, but also to ensure that any necessary follow up action is taken in the originating area. For example, withdrawal of substantive proceedings and outstanding warrants, once taken into consideration elsewhere.

Crown Court Cases - TICs

A Crown Court judge may take other offences into consideration even though they have already been charged as offences and committed for trial or sent to that or another Crown Court. The judge should enquire whether there is any prosecution objection before doing so.

If the offence is charged in another CPS Area, the lawyer or caseworker should liaise with that Area in order to ascertain whether the offence is suitable to be taken into consideration.

If the other offence is too serious to take into consideration, it may still be appropriate for the proceedings to be transferred so that all are dealt with by one court.

When deciding whether or not it is appropriate for an offence that is charged to be taken into consideration, prosecutors should consider the factors set out above.

The Crown Court should not take into consideration an offence which it is not empowered to try e.g. a summary offence.

Where a defendant has been committed for sentence after asking for offences to be TIC'd by the magistrates' court, the Crown Court must follow the usual procedure and ascertain whether he wishes the offences to be TIC'd by the Crown Court. He may decide he no longer wishes them to be taken into account.

Significance

When assessing the significance of offences being taken into consideration, the court is likely to attach weight to the demonstrable fact that the offender has assisted the police (particularly if they are enabled to clear up offences which might not otherwise have been brought to justice), but the way in which the court deals with them should depend on context; in some cases, the offences may add little or nothing to the sentence which the court would otherwise impose, whereas in other cases, they may aggravate the sentence and lead to a substantial increase (e.g. where they show a pattern of criminal activity involving careful planning or a deliberate rather than casual involvement in crime, where they show an offence or offences committed on bail, or where they show a return to crime immediately after an offender has been before a court and given a chance to redeem himself, which he has immediately rejected). R v Miles [2006] EWCA Crim 256 and R v Lavery [2009] 3 All E.R.295, C.A).

From 11 June 2012 the Sentencing Council guideline on TICs provides that "The sentence imposed on an offender should, in most circumstances, be increased to reflect the fact that other offences have been taken in to consideration" and sets out the following stepped approach for the courts to follow:

1. Determine the sentencing starting point for the conviction offence, referring to the relevant definitive sentencing guidelines. No regard should be had to the presence of TICs at this stage.

2. Consider whether there are any aggravating or mitigating factors that justify an upward or downward adjustment from the starting point. The presence of TICs should be treated as an aggrevating feature that generally justifies an upward adjustment from the starting point. Where there are a large number of TICs it may be appropriate to move outside the category range, although this must be considered in the context of the case and subject to the principle of totality. The court is limited to the statutory maximum for the conviction offence.

3. Continue through the sentencing process including:

• consider whether the frank admission of a number of offences is an indication of a defendant's remorse or determination and/or demonstation of steps taken to address addiction or offending behaviour;
• Any reduction for a guilty plea should be applied to the overall sentence;
• The principle of totality;
• When considering ancillary orders these can be consdiered in realtion to any or all of the TICs, specially:
  • Compenstion orders
  • restitution orders.

The guideline can be  viewed in full at:

http://sentencingcouncil.judiciary.gov.uk/guidelines/guidelines-to-download.htm

Sentence

As the offender is not charged or convicted of the offences taken into consideration, the court's powers of sentence are limited to the maximum for the offences for which he has been convicted. This is not a significant restriction on sentencing options since maximum penalties generally exceed by a considerable margin the penalty that a court is likely to want to impose in any but the most serious of cases.

Compensation

The court is required pursuant to the Powers of Criminal Courts (Sentencing) Act 2000 section 130(1) to consider the question of compensation in respect of offences being taken into consideration. Evidence to support the extent of the compensation sought must be available in these circumstances and the relevant sections of the MG18 and MG19 completed.

In the magistrates' court, the total sum of a compensation order is limited under section 131 of the Act to (currently) £5,000 per offence in respect of which the offender has been formally convicted. Compensation orders in respect of TIC offences cannot therefore exceed those limits. For example, if the defendant is convicted of 1 offence and there are 5 TICs, the total compensation awarded cannot exceed £5,000. If the defendant is convicted of 2 offences and there are 10 TICs, the total compensation awarded cannot exceed £10,000.

There are no such limits in the Crown Court.

If a confiscation order is made against the defendant under the Proceeds of Crime Act 2002, victims can be compensated using money derived from the confiscated sum. If it is clear that there would otherwise be insufficient means to compensate the victim, the court must order the shortfall to be paid from the confiscated sum. Victims of TIC offences are included in these provisions.

Proceeds of Crime Act 2002

If the offender does not have a criminal lifestyle (as defined in the Act) the court must determine the benefit of his "particular criminal conduct". Section 76(3) permits the Crown Court to include TICs when making this determination. If he does have a criminal lifestyle, the court must determine his benefit from "his general criminal conduct", which includes TICs.

Acquittal

If the defendant is acquitted of the substantive offence and there is a schedule of TICs, the prosecution should still consider whether it is appropriate to charge some or all of the TICs as substantive offences. Where it is thought appropriate to proceed with new charges and where the defendant pleads guilty to those new charges, the court should be informed that the defendant had made early voluntary admissions to those charges.

Convictions quashed on appeal

Where on convictions an offence has been taken into consideration, there is no conviction in respectof that offence. If, there, onappeal, the conviciton for the substantive offence were to be quashed, the defendant cannot establish a plea of autrefois convict should he be subsequently prosecuted in respect of the outstanding offence.

Prosecuting admitted TICs

Although there is no conviction in respect of offences TIC'd and a plea of autrefois convict is therefore not available, the practice is not to proceed on an offence previously TIC'd by the court. If, exceptionally, the practice is not observed, the court should ensure no additional punishment is imposed on account of such offence. A CCP should be consulted before any decision to prosecute is made in these circumstances. An attempt to proceed may be considered to amount to an abuse of process.

Rejected TICs

Where, in court, a defendant rejects previously admitted TICs, the CPS file should be clearly marked and immediate consideration given to prosecuting the now denied offences.

Earlier in the process (preferably at the charging/review stage), prosecutors should have agreed with the police which TICs were to be proceeded with in the event of the defendant's refusal to accept them. That decision would have been based, in the usual way, on the sufficiency of evidence, the public interest test and the guidance provided in the Code for Crown Prosecutors which provides:

Paragraph 9.5 states:

"where a defendant has previously indicated that he or she will ask the court to take an offence into consideration when sentencing, but then declines to admit that offence in court, Crown Prosecutors will consider whether a prosecution is required for that offence. Crown Prosecutors should explain to the defence advocate and the court that the prosecution of that offence may be subject to further review, in consultation with the police or other investigators wherever possible."

The defendant can be invited, in court, to give a reason for his denial of the previously admitted offences. Any explanation given should be taken into account by the prosecutor when deciding whether or not to proceed with charges.

Where possible, the prosecutor should immediately inform the court and defendant that the prosecution intends to proceed on the relevant denied offences and, if in the magistrates' court, lay information there and then. The police should be notified by CPS that this has happened. If it is not possible to lay the relevant information there and then, for example in a Crown Court case, the police will need to be notified so that they can take the appropriate action.

Prosecutors should not ask for sentencing on the substantive offences to be delayed to await the outcome on the new offence(s). However, the new file should be fully endorsed to record the context in which the decision to prosecute was made so that, in the event of sentencing on the new offence(s), the court can be properly apprised and can sentence appropriately, reflecting the lack of credit for any guilty plea and the denial in court of a previously admitted TIC.

If a decision is made not to prosecute a denied TIC offence, the police should notify the victim, especially because the court will not be empowered to make a compensation order.