Discharges are the lowest level of sentence that the court can impose.
There are two types of discharge - an absolute discharge, which effectively means a line is drawn under the matter; and a conditional discharge, which means an offender will escape further punishment unless they reoffend during the period of the discharge.
According to the Sentencing Council, in 2024 around 3 percent of offenders sentenced were made subject to a discharge. That does seem a bit on the low side to me, because in my own experience conditional discharges are fairly common.
Absolute discharges:
An absolute discharge is a sentence available to the court by virtue of section 79 of the Sentencing Act 2020.
An absolute discharge can be imposed in relation to any offence that is not subject to a mandatory sentencing requirement.
An absolute discharge is appropriate when the court, having considered the circumstances of both the offence and offender, considers it inexpedient to impose any other punishment.
A fairly typical example of where an absolute discharge might be imposed is where an offender is already a serving prisoner. Suppose an offender is already serving 12 months' for burglary and they come before the court for a far lesser offence - e.g. drunk and disorderly or low value shop theft. An absolute discharge could be used to "tidy up" that new offence.
An absolute discharge might also be an appropriate sentence for an offender who had successfully argued special reasons in relation to a driving offence.
The court could also impose an absolute discharge in circumstances where an offence has technically been committed, but no culpability can be attached to the offender. In those cases, the court might consider the prosecution process is punishment enough.
Imposition of an absolute discharge in no way affects the court's ability to impose ancilliary orders (e.g. disqualification, compensation, restitution, costs etc.)
No surcharge is payable when the court imposes an absolute discharge.
Conditional discharges:
A conditional discharge is a sentence available to the court by virtue of section 80 of the Sentencing Act 2020.
With a few exceptions, a conditional discharge can be imposed in relation to any offence that is not subject to a mandatory sentencing requirement. Exceptions include breaches of youth conditional cautions, criminal behaviour orders and sexual harm prevention orders.
A conditional discharge is appropriate when the court, having considered the circumstances of both the offence and offender, considers it inexpedient to impose any other punishment. It is made on the condition that the offender does not reoffend for the period of the discharge.
There is no minimum period for a conditional discharge, but there is a maximum period of 3 years.
If the offender does reoffend during the period of a conditional discharge, then the court can resentence them for the offence for which the discharge was imposed in addition to the new offence committed.
In effect a conditional discharge hangs over the head of the offender until the expiry of the discharge period. This means a conditional discharge can be used to encourage the good behaviour of an offender. It also means that a conditional discharge is a more severe sentence than an absolute discharge.
If the offender is resentenced for the offence for which the conditional discharge was imposed, then the discharge is superceded by the new sentence.
Imposition of a conditional discharge in no way affects the court's ability to impose ancilliary orders (e.g. disqualification, compensation, restitution, costs etc.)
The statutory surcharge is payable when the court imposes a conditional discharge.
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