It is a matter of public record that prisons in England and Wales are near capacity.
The Government has introduced legislation, the Sentencing Act 2026, in an effort to ease pressure on the prison estate.
The court is obliged to follow this legislation when sentencing. By the same token the court is obliged to follow any relevant sentencing guidelines, unless it is contrary to the interests of justice to do so.
It is very rare for the Magistrates' Court to step outside of the sentencing guidelines, because doing so will almost certainly result in an appeal. Remember that a defendant has the automatic right of appeal against any decision taken by the Magistrates' Court.
There are two aspects of the new legislation that are particularly relevant to the Magistrates' Court:
- Firstly, the new presumption that any custodial sentence of less than 12 months will be suspended;
- Secondly, that a person will only be remanded in custody if there is the real prospect of an immediate custodial sentence upon their conviction.
What does all this mean? In short, the criteria for an immediate custodial sentence or remand in custody are stricter than they have ever been. It was already pretty hard for the court to impose a custodial sentence. It is now even harder.
There are a few exceptions to the presumptions above, most notably when a defendant commits an offence whilst already subject to a court order. The associated person ground for refusing bail is also preserved.
Example 1:
Suppose a non-dwelling burglar appears before the court and pleads guilty at the first opportunity. He was not subject to any court orders at the time of the offence, but he does have a history of committing offences whilst subject bail.
The offence falls in category B1 of the relevant sentencing guideline, which has a starting point of 12 months' custody.
Weighing up the aggravating and mitigating factors, the court arrives at a sentence of 15 months' custody. However, as the defendant admitted the offence at the first opportunity they are entitled to 1/3 credit, which takes the final sentence back down to 10 months' custody.
As that is less than 12 months', the presumption is in favour of suspending the custodial term. The presumption applies unless there are exceptional circumstances, which there are not in this case. The burglar would therefore be sentenced to 10 months' suspended for up to 2 years (in the Crown Court a sentence can now be suspended for up to 3 years).
Example 2:
The burglar in example 1 appears before the court in the same circumstances as described earlier. On this occasion the court is unable to obtain a pre-sentence report, so needs to sentence him at a later time.
The Crown applies for a remand in custody on the grounds that if granted bail there are substantial grounds to believe he would commit further offences.
Based on the information available, the court would determine the likely sentence for the burglar. Having admitted the offence at the first opportunity, he is entitled to 1/3 credit. The court determines the burglar's likely sentence, including credit, would be 10 months' custody.
On the facts the presumption in favour of a suspended sentence would still apply. This means there is no real prospect of an immediate custodial sentence, so the court cannot remand the burglar on the ground put forward by the Crown.
Example 3:
A prolific thief is before the court for five offences of shop theft, which they admit at the first opportunity. They have extensive previous, having recently served a 20-week custodial sentence for shop theft. It would appear that they started reoffending as soon as they were released from custody. Having just been released they have a clean slate and are not currently subject to any court orders.
The shop thief uses the same modus operandi every time. They walk into a supermarket, head straight for the produce aisle, load a carrier bag with expensive steak and cheese and then walk straight out. They then head to the local pub where they sell the goods for a fraction of their true price, using the proceeds to fund their drug habit. The thief acts so quickly that their crime is usually not noticed until CCTV is reviewed later on.
The five offences before the court were all committed in the same week and from the same store. The stolen goods, none of which were recovered, had a total value £800. The court sentences in totality reflecting the £800 loss to the store.
The court determines that these are category B2 offences on the relevant sentencing guideline, which has a starting point of a low level community order. There is some degree of planning, as the same store is targeted in the same manner each time. The £800 clearly fits into level 2 harm on the guideline.
Given the defendant's record, the court is of the view that it is in the interests of justice to step out of the guidelines and impose a custodial sentence. The court considers that a 12-week sentence would be minimum commensurate with the seriousness of the offences, when considered in totality.
As the defendant admitted the offences at the first opportunity they are entitled to 1/3 credit, which takes the final sentence back down to 8 weeks' custody.
As that is less than 12 months', the presumption is in favour of suspending the custodial term. The presumption applies unless there are exceptional circumstances, which there are not in this case. The shop thief would therefore be sentenced to 8 weeks' suspended for up to 2 years.
Example 4:
The shop thief in example 3 appears before the court for the offences previously described. On this occasion they are subject to a community order, which the new offences have put them in breach of. According to the Probation Service they have made very little effort to engage with the requirements of the order and breach proceedings were already in the pipeline.
Using the same logic as before, the court determines that an 8-week sentence is the minimum commensurate with the seriousness of the offences. However, as the defendant is already subject to a community order, the presumption of suspending any custodial term of less than 12 months does not apply.
The court still considers imposing a suspended sentence, but can find no good reason to do so. That being the case the shop thief is sentenced to 8 weeks' immediate custody.
Example 5:
The shop thief in example 3 appears before the court for the offences previously described. The court is unable to obtain a pre-sentence report, so needs to sentence him at a later time.
The Crown applies for a remand in custody on the grounds that if granted bail there are substantial grounds to believe he would commit further offences.
Using the same logic as before, the court determines that an 8-week sentence is the minimum commensurate with the seriousness of the offences.
On the facts the presumption in favour of a suspended sentence would still apply. This means there is no real prospect of an immediate custodial sentence, so the court cannot remand the shop thief on the grounds put forward by the Crown.
Example 6:
The shop thief in example 3 appears before the court for the offences previously described. The court is unable to obtain a pre-sentence report, so needs to sentence him at a later time. On this occasion he is currently subject to a suspended sentence order for similar offences of shop theft.
The Crown applies for a remand in custody on the grounds that if granted bail there are substantial grounds to believe he would commit further offences.
Using the same logic as before, the court determines that the appropriate sentence is one of 8 weeks' custody. However, as the defendant is already subject to a suspended sentence order, the presumption of suspending any custodial term of less than 12 months does not apply.
Given the defendant has reoffended during the operational period of a suspended sentence order, there is the real prospect of a immediate custodial sentence. This means the court can remand them in custody on the grounds put forward by the Crown.
