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Custody Threshold

The court must not pass a custodial sentence unless it is of the opinion that the offence was so serious that neither a fine alone nor a community sentence can be justified for the offence.


Proviso to custody threshold

It does not prevent the court from passing a custodial sentence if the offender fails to express willingness to comply with a community order requirement which requires an expression of such willingness (i.e. mental health treatment, drug rehabilitation or alcohol treatment).


Four questions posed by Sentencing Council guideline on custodial sentences.

1. Has custody threshold been passed?
2. Is it unavoidable that a sentence of imprisonment be imposed?
3. What is the shortest term commensurate with the seriousness of the offence?
4. Can the sentence be suspended?



For offenders on the cusp of custody, imprisonment should not be imposed where there would be a disproportionate impact on dependants.


Short sentences

When a court is considering imposing a comparatively short period of custody - 12 months or less - it should generally ask itself, particularly where the offender has not previously been sentenced to custody, whether an even shorter period might be equally effective in protecting the interests of the public and punishing and deterring the criminal.


Concurrent or consecutive

Does the offending amount to a single series of incidents, or unrelated offences?


Totality principle

It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. This means it is important to step back and check that the overall time to be served is commensurate with the seriousness of the course of offending that is being dealt with.


Mags custodial sentencing powers for a single summary offence

6 months


Mags custodial sentencing powers for two or more summary offences

6 months is the maximum aggregate


Mags custodial sentencing powers for a single either way offence

6 months


Mags custodial sentencing powers for two or more either way offences

12 months is the maximum aggregate


CC custodial sentencing powers

Only limited by the minimum sentence prescribed by statute for the offence in question.


Time on remand

Number of days for which the offender was remanded in custody in connection with the offence counts as time served by the offender, and so is effectively deducted from the sentence.

Remand on bail with electronically-monitored curfew for at least 9 hours per day results in the defendant receiving credit at the rate of half a day for every day spent subject to a qualifying electronically monitored curfew.


Release on license

Generally, a prisoner is released on license automatically after serving 1/2 of the sentence. The license remains in force for the remainder of the sentence (i.e. the second half). The offender can be recalled to prison if they breach the conditions of the licence. Where the sentence is less than two years, the offender must comply with ’supervision requirements’ during the 'supervision period’, which begins with the expiry of the sentence, and ends 12 months after the offender has served the requisite custody period (i.e. 12 months after the half-way point of the sentence).


Relevance of early release to sentencing

Early release should not be taken into account when deciding what sentence to impose.


What length of custodial sentence may be suspended?

A custodial sentence may be suspended if its length is between 14 days and 2 years.


How long can a sentence be suspended for?

Such a sentence may be suspended for a period of between six months and two years, known as the operational period.


What can be added on to a suspended sentence?

Additional requirements, the same as those
which may be included in a community order, may be added, to be carried out during the supervision period (which must not end later than the operational period).


What sort of sentence is a custodial sentence?

Suspended sentence is a custodial sentence, even though the period of custody is not served immediately and might never be served, and so can only be passed if the offence passes the custodial threshold.


How must a suspended sentence not be used?

A suspended sentence must not be imposed as a more severe form of community order. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If they would not, then a non-custodial sentence should be imposed.


When does breach of suspended sentence occur?

Breach of a suspended sentence occurs if the offender has failed without reasonable excuse to comply with any of the community requirements of the suspended sentence order, or is convicted of an offence committed during the operational period of the suspended sentence order.


Options of the court when a suspended sentence is breached

In either case, the court is required to do one of the following:

Activate the suspended sentence with the custodial period unaltered (usually served consecutively with the sentence for the ‘breach’ offence).

Activate the suspended sentence but with a shorter period of custody.

Impose a fine of up to £2500.

Amend the order by imposing more onerous community requirements or extending the supervision and/or operational period, subject to two-year maximum that applies.

Court must activate the sentence unless unjust to do so in view of all the circumstances.

Court should consider:

To what extent has offender complied with any community requirements?

How close to the end of the operational period was the new offence committed? - Close to end might justify activating the suspended sentence only in part.

Does the new offence itself merit a custodial sentence? - Might be a good argument for not activating the suspended sentence.

The fact that the offence that was committed in breach of the suspended sentence is of a different type to the offence for which the sentence was imposed is not a strong argument against activating the suspended sentence.


Mandatory minimum sentences

Mandatory minimum of 7 years for a third conviction of trafficking in class A drugs, unless particular circumstances relating to any of the offences or to the offender would make this unjust.

There is a mandatory minimum of 3 years for a third domestic burglary conviction unless particular circumstances relating to any of the offences or to the offender would make this unjust.


Guilty plea reduction and mandatory minimum sentences

In both cases, guilty plea may reduce the sentence below the statutory minimum but not below 80% of that statutory minimum of 7 or 3 years. This is not the same as a 20% reduction in sentence. The minimum is 80% of 7 or 3 years.