New Suspended Sentence Order Breach Guidelines

New Sentencing Guidelines come into force on 1st October 2018, which require courts to deal more severely with breaches to suspended sentence orders (SSOs).

A custodial sentence can be imposed by the court when the defendant is convicted of an offence "so serious that neither a fine alone nor a community sentence can be justified for the offence". In certain circumstances the court might choose to suspend that sentence for a period of up to 2 years as an alternative to sending the defendant directly to custody.

The court can also attach certain requirements to an SSO, such as imposing a curfew, unpaid work requirement or being subject to a rehabilitation activity requirement (RAR). You can read a full list of RARs available to the court in our earlier article on types of sentence.

The Sentencing Council's definitive guideline "Imposition of Community and Custodial Sentences" contains information about the circumstances in which it might be appropriate to suspend a custodial sentence.

Generally speaking, the following factors indicate that it might not be appropriate to suspend a custodial sentence (e.g. it might be more appropriate to impose an immediate custodial sentence):

• The offender presents a risk/danger to the public;
• Appropriate punishment can only be achieved by immediate custody;
• The offender has a history of poor compliance with court orders.

The following factors might indicate that it is appropriate to suspend a custodial sentence:

• The offender has a realistic prospect of rehabilitation;
• The offender has strong personal mitigation;
• Immediate custody will result in significant harmful impact upon others.

If a defendant breaches an SSO, the starting point is to activate that sentence and commit him/her into custody unless it would be unjust to do so. For example, if a defendant has stayed out of trouble for 360 days of a 12 month suspended sentence for theft it would be unjust to commit him/her to custody if they were then caught speeding.

The system, as it stands, doesn't work all that effectively. It is not uncommon for a person breaching an SSO to avoid activation of that sentence, even when the breach offences are similar to the original. Alarmingly, those who breach an SSO twice (or more) can also avoid activation of the sentence.

I was in court not all that long ago when I heard a Legal Advisor musing over the fact that a lay Bench had failed to activate the suspended sentence of a third-time breacher, whereas if he'd appeared before the District Judge in the court next door "his feet wouldn't have touched the ground the second time". Such sentencing decisions bring into question credibility of the judicial system.

With effect from 1st October 2018 courts across England and Wales will be subject to new Sentencing Guidelines that make the imprisonment of those breaching an SSO much more likely. These are shown below:

Those that fail to comply with the requirements of an SSO - e.g. failure to attend probation meetings or unpaid work etc - can also expect to face activation of that sentence as a starting point.

A court can only consider new and exceptional circumstances not present at the time the original order was imposed, when deciding that it would be unjust to activate the sentence.

If the court does decide that activation would be unjust, then it must apply one of these three options:

• Impose a fine not exceeding £2,500; OR
• Extend the operational period (to a maximum of 2 years from the date of the original sentence); OR
• If the SSO imposes community requirements, do one or more of the following:
• Impose more onerous community requirements;
• Extend the supervision period (to a maximum of 2 years from the date of the original sentence);
• Extend the operational period (to a maximum of 2 years from the date of the original sentence).