Detention in the Courthouse: Section 135 of the Magistrates' Courts Act 1980

Occasionally a situation arises where an adult defendant is convicted of an imprisonable offence, but it is inappropriate to impose either a fine, discharge, community order or custodial sentence.

In that case the court can exercise its powers under section 135 of the Magistrates' Courts Act 1980.

This allows the court to detain the offender until the end of the day, or whichever earlier time the court sees fit, before releasing them on their merry way. 

Depending on the circumstances - e.g. whether or not they appear in custody - they could be detained in the cells, or they could be compelled to sit for the entire day in the public gallery.

The court must ensure it releases the detainee early enough in the day for them to return to their normal place of abode.

In exercising this power, there is no requirement for the court to order the payment of costs or surcharge.

This is a very useful sentencing option and I am a big fan of its use. Sadly there are a lot of Magistrates who do not know about its existence or application. As it is an unconventional sentencing option, it is also not something every Legal Advisor would mention.

I have previously discussed the case of the homeless sandwich thief, who should never have been before the court in the first place. Given her situation, this was the ideal sentencing option - it gave credit for time in the cells and incurred her no additional expense. We also made sure she had the benefit of a hot meal before her release.

In another example a man admitted the shop theft of expensive electrical equipment, which was recovered in an undamaged, resaleable condition as he left the store.

He had significant outstanding fines in relation to public order offences, but had no previous convictions for theft or dishonesty. He also hadn't been in trouble for a few years. All the indications were that his co-accused was the driving force behind the crime, which he just went along with to save face.

Referring to the relevant guidelines, the sentencing starting point would have been a Band C fine. However, given his significant outstanding fines we decided that would be inappropriate. As theft is imprisonable, we again elected to detain him in the courthouse.