Custodial Sentences: Suspended or Immediate?

Whenever a person is convicted of an offence the court has a range of sentencing options at its disposal, the most serious of which is the custodial sentence.

A custodial sentence should only be imposed if the offence, or combination of offences, is so serious that neither a fine or community sentence can be justified.

For a single summary or either-way offence, the Magistrates' Court has the power to impose a custodial sentence of up to 26 weeks. Where the court is sentencing more than one either-way offence, it has the power to impose a custodial sentence of up to 52 weeks. The court has the power to suspend a custodial sentence for up to 24 months.

The Government is currently legislating to increase the sentencing powers of the Magistrates' Court.

By reference to the available guidelines, sentencers need to determine if the offence at hand crosses the custody threshold - e.g. is serious enough to merit a custodial sentence.

Even if an offence crosses the custody threshold, that does not make the imposition of a custodial sentence inevitable. There will be some situations where a community sentence can be imposed with punitive and rehabilitative elements commensurate with the severity of the offence being sentenced.

Suppose an offence does cross the custody threshold and the sentencer has decided that only a custodial sentence is appropriate, a decision then has to be taken whether or not to suspend the period of custody. That is a decision entirely for the sentencer, although the Sentencing Council has produced guidance indicating circumstances when it might be appropriate to suspend a custodial sentence.

Generally speaking, the following factors indicate that it may be appropriate to suspend a custodial sentence:

• Realistic prospect of rehabilitation;
• Strong personal mitigation;
• Immediate custody will result in significant harmful impact on others.

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

• Offender presents a risk or danger to the public;
• Appropriate punishment can only be achieved by immediate custody;
• History of poor compliance with court orders.

The court can attach the same requirements to a suspended sentence as it would a community order, although these should be less onerous to reflect the fact that a suspended sentence is a more severe penalty in its own right.

The Sentencing Council makes the following remarks: "A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed."

We refer readers to our earlier article about suspended sentence breach guidelines.