Part 1: Espionage, sabotage and persons acting for foreign powers Acting for a foreign power as aggravating factor in sentencing Section 19: Aggravating factor where foreign power condition met: England and Wales
Section 19 inserts a new section 69A into the Sentencing Code to provide a new aggravating factor for sentencing where the foreign power condition is met in relation to an offence (see section 31 for the foreign power condition). Under new subsections 69A(1) and (2), a court in England and Wales considering a person’s sentence for any offence which is not an offence under this Act (or an inchoate offence in relation to such an offence) must, if it appears the foreign power condition is or may be met in relation the offence, make a determination (on the criminal standard of proof) as to whether it is met or not.
	The court will make this determination on the basis of the usual information before it for the purposes of sentencing. This may include the evidence heard at trial, or evidence heard at a Newton hearing (if necessary) following a guilty plea, whilst also taking into account any representations by the prosecution or defence. A Newton hearing is where the judge hears evidence from both the prosecution and defence and comes to his or her own conclusion on the facts, applying the criminal standard of proof. If the court determines that the foreign power condition is met in relation to conduct which constitutes the offence, it must treat that as an aggravating factor when sentencing the offender and must state in open court that the offence is so aggravated (new subsection 69A(3)).
	The requirements for the foreign power condition to be met are provided at section 31.
	New subsection 69A(1)(a) provides that this statutory aggravating factor in sentencing will only apply in relation to offences committed on or after commencement. The aggravating factor cannot be applied to any offences under the National Security Act 2023 (new subsection 69A(2)).