Aggravating Factor

The Sentencing Council's General Guideline lists 'Factors increasing seriousness' under statutory and non-statutory headings, with a warning that courts should take 'Care ... to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence.' Previous convictions are the clearest statutory example. Section 65 of the Sentencing Code 'states that: (1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions,' and requires that '(2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to— (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.'

Offending on bail is treated the same way. Section 64 of the Sentencing Code provides that 'In considering the seriousness of any offence committed while the offender was on bail, the court must - (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.' Both provisions share the same structural feature: where the court does treat a relevant fact as aggravating the offence, it is required to say so out loud, in open court, rather than simply reflecting it in a higher sentence without explanation.