24. Custodial sentences

Question 1

What is a custodial sentence?

Answer 1

A custodial sentence is:
(a) a detention and training order under section 233,
(b) a sentence of detention under Chapter 2 of this Part,
(c) a sentence of detention in a young offender institution,
(d) a sentence of custody for life under section 272 or 275, or
(e) a sentence of imprisonment.
This is subject to subsection (3).
This does not include a committal for contempt of court or any other kindred offence.
Section 222(3) explains that s. 222(1) does not apply to ‘custodial sentence’ where any of the following expressions is used in the Code: ‘appropriate custodial sentence’, ‘current custodial sentence’, ‘pre-Code custodial sentence’ and ‘relevant custodial sentence’. With regard to ‘pre-Code custodial sentence’, this means (a) a detention and training order imposed under the PCC(S)A 2000, s. 100, (b) a sentence of detention under the PCC(S)A 2000, s. 90 or 91, the CYPA 1933, s. 53(1) or (3), the CJA 2003, s. 226B or 228, (c) the CJA 2003, s. 226, and (d) the PCC(S)A 2000, s. 93 or 94 and the CJA 1982, s. 8.

Question 2

At what age can a person not be sentenced to imprisonment?

Answer 2

Offenders aged under 21 at conviction cannot be sentenced to imprisonment. Those under 21 cannot be committed to prison for any reason, such as non-payment of a fine, but this does not prevent committal to prison to a person remanded, committed in custody for sentence, or sent in custody for trial

Question 3

What are the maximum sentence limits on cases on indictment?

Answer 3

Maximum prison terms for indictable offences and EW offences are almost always contained in statute.
Where a person is convicted on indictment of any offence against any enactment punishable by imprisonment but this sentence is not limited to a specified term or life, the maximum sentence available is two years.
This does not apply to common-law offences, where the limit is only that which is not disproportionate.

Question 4

What are the maximum sentences on cases where the court is limited to the magistrates’ powers?

Answer 4

Where a court is limited to the sentencing powres of the magistrates’, the minimum prison time is 5 days but maximum is 6 months for one summary offence (unless otherwise provided). for EW offences, the applicable limit is variable.

if sentencing one EW offence committed before 2nd may 2022, the limit is six months.

between then and 30th march 2023, it is 12 months (except for a SHPO, CBO, or restraining order where tried summarily).

if after 30th march, 6 months.

the maximum aggregate term for summary offences is 6 months, and for two or more EW offences it is 12

where sentencing in crown and defendant falls to be sentenced for only summary offences, the limit is six months and three months for criminal damage, and limited to maximum aggregate of six months.

a mags court who cannot sentence to prison can order detention within precincts of a court house or police station until no later than 8pm (so long as that will not deprive them of a reasonable opportunity of returning home on the same day).

Question 5

When should a custodial sentence be imposed?

Answer 5

The court must not impose a custodial sentence unless of the opinion that the offence or the combination of the offences was so serious that neither a fine alone nor CO can be justified.
The overarching sentencing guideline states the clear intention of this test is to reserve custody for the worst offences, but that there is no general definition of the threshold.
The circumstances of the offence + guidelines help determine this threshold.
Passing the threshold does not mean that a custodial sentence is inevitable.
This does not apply to a mandatory sentence offence.
A court may pass a custodial sentence on an offender who has failed to express willingness to comply with a requirement which the court proposes to include in a CO and where the requirement requires this.
In forming its opinion on custody, the court must take into account all relevant information.
Where the offender stands convicted of two or more offences the court must consider the seriousness of the sum of the offences, provided these are associated with one another (convicted of it in the proceedings in which the offender is convicted of the other or is sentenced for it at the same time as being sentenced for that offence).

Question 6

How does a court decide on the length of a custodial sentence?

Answer 6

The custodial sentence must be for the shortest term that is commensurate with the seriousness of the offence/combination of associated offences.
When determining this, the court should not take into account any licence or PSS.
This does not apply for fixed sentences or carries a required life sentence (detention for life, custody for life, imprisonment for life).
It also applies to an extended sentence only in respect of the determination for the length of the appropriate custodial term.
It must take all information into account.

Question 7

How does the court avoid disproportionate sentences when dealing with several offences?

Answer 7

Where dealing with several offences, the approach could lead to a disproportionate sentence. Therefore, totality would apply.
Where a court is dealing with several offences of which are so serious that only custody can be justified but the remainder are not so serious, the court is not precluded from passing custody. However, they should be ordered to run concurrently and should not increase the sentence of the total term.

Question 8

What thought can a court give to prison conditions where thinking of sentencing to custody?

Answer 8

Overcrowding of the prison system is a grave concern which shows imprisonment should only be given where necessary and no longer than necessary.
May be a relevant factor for suspending sentences.
Can keep in mind things like the pandemic.
That a prisoner would be required to serve in isolation is not normally relevant to sentence.

Question 9

What time is counted as time served for the purpose of a sentence?

Answer 9

Where a person is serving imprisonment in respect of an offence and the offender has been remanded in connection with the offence or a related offence (doesn’t matter if also another offence), the day counts as time served in relation to only one sentence and only so counts once.
The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence. But this is subject to subsections (4) to (6).

(4) If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served.
(6) A day is not to count as time served as part of any automatic release period served by the offender (see section 255B(1)).

Question 10

How/when should a court give credit for time served?

Answer 10

Where a person is serving imprisonment in respect of an offence and the offender has been remanded in connection with the offence or a related offence (doesn’t matter if also another offence), the day counts as time served in relation to only one sentence and only so counts once.
The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence. But this is subject to subsections (4) to (6).

(4) If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served.
(6) A day is not to count as time served as part of any automatic release period served by the offender (see section 255B(1)).
This section credits periods of remand automatically, so that it is not necessary for sentencers to give any direction that time served on remand should count. The judge has no discretion
This applies to sentences of imprisonment, detention in a YOI, detention under s250, detention and training order, custodial sentences for certain offenders of particular concern, and extended sentences of imprisonment or detention. Also applies for life sentences where no fixed sentence.
Equally applies where fixing a minimum term for murder. In such a case credit needs to be addressed.
It may be a relevant consideration for the court as to whether further punishment is justified if a person has already spent a significant time on remand.
Where a court imprisons and also disqualifies, if a person has spent a significant time on remand it was open to the court to avoid injustice by reducing the discretionary period accordingly. Cannot go below minimum period of disqual.

Question 11

How and when is credit for bail worked out?

Answer 11

Where a person was given a qualifying curfew on bail (9 or more hours at a place and electronic monitoring), the court must direct the credit period is to count as time served.
The court must make this direction. This includes where the tag has not been fitted.
The steps to do this are:
(a) Add the day the requirements first came in (including part days)
(b) The number of other days it was applicable
(c) Deduct any days which the person was subject to any requirement of securing the electronic monitoring or on temproray release
(d) Deduct from the remainder the number of days during that remainder on which the offender has broken either or both of the conditions
(e) Divide by two
(f) Round up to nearest whole number.
(g) Direct this is to count.
A day of the credit period counts as time served in relation to only one sentence and only once, and a day of the credit period is not to count as time served as part of automatic release.
Should state this in open court.
Applies for imprisonment or YOI detention or SSO or determinate sentence of detention or detention and training.

Question 12

When should concurrent/consecutive sentences be given?

Answer 12

Sentences will ordinarily be concurrent where:
* Arise out of the same incidents or facts or
* There is a series of offences of the same or similar kind, especially when against the same person
The lead sentence should be just and proprionate. May be taken outside the category range.

Sentences will be appropriate where:
* Offences arise out of unrelated facts or incidents
* Those committed in the same incident are distinct, involving an aggravating element that requires separate recognition
* Offences are of the same or similar kind but the overall criminality will not be sufficiently reflected by concurrent sentences
* One or more offences qualifies for the statutory minimum and the concurrent sentences would improperly undermine it.

Not permissible to impose consecutive sentences for offences committed at the same time to evade the statutory maximum penalty.

There are guidelines on when concurrent/consecutive sentences are appropriate (totality guideline)

In respect of the imposition of a determinate sentence upon an offender who is currently serving a determinate sentence, the totality guideline helps.

Question 13

What are the early release provisions?

Answer 13

In the case of determinate sentences, there is a duty to release the offender on licence once the half-way point has been met. The licence remains in force until expiry of the sentence.

Licence may be revoked and returned to custody.

In a case where an offender would otherwise be autmaatically released, the SoS can refer the offender to the parole board if so required (if over 18 on the first day they would be entitled to be released) if the SoS believes they would pose a significant risk to the public of serious harm occasioned by murder or other specified offences.

Question 14

Where can sentences be suspended?

Answer 14

A sentence of imprisonment or detention to a YOI can be suspended where a determinate sentence is imposed for no more than two years and at least 14 days/21 days for a YOI (21 being the minimum term for YOI sentences).
Detention and training orders cannot be suspended.
Committal to custody for a criminal contempt of court is not a sentence of imprisonment and so cannot be suspended

A suspended sentence cannot be ordered unless all the statutory provisions as to the imposition of a sentence of immediate imprisonment have been observed.
Guidelines apply (must not be instituted as a more severe form of community order). Sentencers must be clear they would impose immediate custody if the power to suspend were not available. If not, a non-custodial sentence should be imposed.
The custodial sentence that was suspended should be for the same term as an immediate sentence.
The time for suspension should be reflective of the sentence (i.e. 12 months for 6 months imprisonment).

Where two or more sentences imposed on the same occasion are to be served consecutively, the power to suspend does not apply unless the aggregate is less than two years.

Question 15

What other orders can be combined with suspended sentences?

Answer 15

An immediate prison sentence and a suspended sentence should not be imposed on the same occasion, nor should it be imposed upon an offender currently serving a term of imprisonment. A court must not also give a community order if passing a suspended sentence, even if for another offence.
A discharge may be given alongside a suspended sentence for two separate sentences.
A fine may be given alongside a suspended sentence but not where a fine alone would have been the appropriate sentence.
A fine might be added where there is no relevant victim to give compensation to but the defendant has resources from which a fine can be paid.
No restriction on ancillary orders.

Question 16

What requirements (if any) can be added to a suspended sentence order?

Answer 16

Community requirements can be added to an order, though they need not be.
The requirements available are:
unpaid work requirement (sch. 9, part 1);

rehabilitation activity requirement (sch. 9, part 2);

programme requirement (sch. 9, part 3);

prohibited activity requirement (sch. 9, part 4);

curfew requirement (sch. 9, part 5);

exclusion requirement (sch. 9, part 6);

residence requirement (sch. 9, part 7);

foreign travel prohibition order requirement (sch. 9, part 8);

mental health treatment requirement (sch. 9, part 9);

drug rehabilitation requirement (sch. 9, part 10);

drug testing requirement (sch. 9, part 10A);

alcohol treatment requirement (sch. 9, part 11);

alcohol abstinence and monitoring requirement (sch. 9, part 12);

attendance centre requirement (sch. 9, part 13);

electronic compliance monitoring requirement (sch. 9, part 14);

electronic whereabouts monitoring requirement (sch. 9, part 14).

Same requirements for Cos. Where a crown court suspends a sentence with these requirements, it may give supervision to the mags.
Every suspended sentence imposes a duty on the offender to keep in touch with their responsible officer and to obtain permission before changing residence.
An electronic compliance monitoring requirement is not available unless the CO imposes at least one requirement other than an alcohol abstinence and monitoring requirement or an electronic whereabouts monitoring requirement.

Where passing two or more requirements, it must consider whether they are compatible with each other. They also must not conflict with religious beliefs so far as possible or with the requirements of any other order to which the offender may be subject and to avoid interference with the times the offender works or attends school or any other educational establishment
Must specify the LJA the offender is to live in.

Question 17

When can a suspended sentence order be activated/what can the court do with a breach?

Answer 17

If a responsible officer is of the opinion that a person subject to an SSO has breached one of the community requirements, the officer must give a warning in the same circumstances as a normal breach (unacceptable, 12 months they’ll be breached, thereafter enforcement officer, then information laid).
If a person is proven to have breached (or have been convicted of an offence), the court must (for offenders aged 18 and over):
Either –
(a) the court may order that the suspended sentence is to take effect with its original term unaltered;
(b) the court may order that the suspended sentence is to take effect with the substitution for the original term of a lesser term;
(c) the court may order the offender to pay a fine of an amount not exceeding £2,500;
(d) in the case of a suspended sentence order that imposes one or more community requirements, the court may amend the order by doing any one or more of the following—

(i) imposing more onerous community requirements which the court could include if the offender had just been convicted by or before it of the offence in respect of which the order was made and it were then making the order,
(ii) subject to section 288(4), extending the supervision period, or
(iii) subject to section 288(2), extending the operational period;
(EVERYTHING IN D CAN ONLY BE EXERCISED AS IF IT WAS THE ORIGINAL SENTENCING COURT)
(e) in the case of a suspended sentence order that does not impose any community requirement, the court may, subject to section 288(2), amend the order by extending the operational period.
The court MUST deal with the offender in one of these ways; it is not permissible to revoke the order or revoke and resentence or make no order.
Where the court deals with the case above, it must make an activation order unless it is of the opinion that it would be unjust to do so in view of all of the circumstances, (must state reasons why) including these reasons especially:
(a) Compliance of offender so far
(b) The facts of the subsequent offence
Suspended sentence may run consecutive or concurrent (remember totality though).
A court cannot deal with a breach for a term longer than originally imposed.
The new offence that put them in breach ought not to be treated more seriously because of the fact it was committed while subject to that SSO.

Question 18

What does the guideline say on breach of a suspended sentence order?

Answer 18

There is a guideline for a breach of suspended sentence, which distinguishes between whether the breach is for a further new offence or a failure to comply with a community requirement.
In respect of the new offence one, the guideline states that ‘the facts/nature of the new offence is the primary consideration’ and sets out four categories of breach and the approach which may be taken, subject to the question whether activation of the sentence in whole or in part would be unjust in all the circumstances. Relevant factors include any strong personal mitigation, whether there is a realistic prospect of rehabilitation, or whether immediate custody will result in significant impact on others. The guideline states that in considering this question ‘only new and exceptional factors/circumstances not present at the time the suspended sentence order was imposed should be taken into account’. Apart from the most serious cases, the court should apply an appropriate reduction to the activated sentence to reflect unpaid work or curfew requirements completed.
For the breach of community requirements, the court must take into account ‘the extent to which the offender has complied’ with the suspended sentence order, and sets out three categories of breach and the approach which may be taken, subject to the question whether activation of the sentence in whole or in part would be unjust in all the circumstances. The relevant factors listed above are repeated, as is the need to take into account only ‘new and exceptional’ matters.