9.4 Custodial Sentences, Suspension & Release

9.4 Custodial Sentences, Suspension & Release

Deprivation of liberty is the most severe penalty available in criminal proceedings in England and Wales. Consequently, the Sentencing Code (Sentencing Act 2020) establishes strict statutory hurdles before a court can pass an immediate custodial sentence. Where the custodial boundary is reached, judges and magistrates must consider whether the sentence can be suspended under a Suspended Sentence Order (SSO). This section analyzes the statutory custodial threshold, sentence length principles, the suspension decision-making matrix, breach mechanics, and the statutory rules governing custodial release and licence supervision.

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1. The Statutory Custodial Threshold (Sentencing Code s.230 & s.231)

Before a court can pass a custodial sentence (whether immediate or suspended), it must satisfy the mandatory statutory threshold set out in section 230 of the Sentencing Code.

Section 230(2): The Seriousness Test

"The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified."

Key Principles of the Custodial Threshold:

1. Custody as a Last Resort: A custodial sentence cannot be imposed simply because an offender has prior convictions or because a fine would be inconvenient. The index offence (alone or combined with associated offences) must cross the boundary of gravity where non-custodial penalties are wholly inadequate.
2. Section 231 (Shortest Commensurate Term): Where the section 230 threshold is passed, section 231 of the Sentencing Code mandates that the term of imprisonment must be the shortest term that is commensurate with the seriousness of the offence (or combination of offences).
3. Duty to Give Reasons: Under section 52 of the Sentencing Code, the court must explain in plain language why it formed the opinion that the offence was so serious that custody was unavoidable.

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2. Suspended Sentence Orders (SSOs)

Where the court determines that an offence crosses the section 230 custodial threshold and dictates a term of imprisonment, the court must next decide whether that custodial sentence should take immediate effect or be suspended.

Statutory Structure of an SSO (Sections 264 & 286–305 Sentencing Code)

A Suspended Sentence Order (SSO) is a sentence of imprisonment that is held in suspense. The offender does not go directly to prison; instead, the sentence takes effect only if the offender commits another offence or fails to comply with attached community requirements during a specified period.

Statutory Eligibility Parameters:

• Custodial Length Boundary: The term suspended must be at least 14 days and not more than 2 years. A magistrates' court can therefore only suspend a sentence within its own limits: 6 months for a single summary offence and 12 months for a single either-way offence (Sentencing Code, s.224(1A)), subject to a 12-month aggregate on consecutive either-way terms (MCA 1980, s.133(2)).
• The Operational Period: The timeframe during which the offender must not commit any further offence. The court must fix the operational period at not less than 6 months and not more than 2 years.
• The Supervision Period: The timeframe during which the offender must comply with any community requirements attached to the SSO. Set between 6 months and 2 years (cannot exceed the operational period).

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3. Sentencing Council Guideline on Imposition of Custodial Sentences

The Sentencing Council Definitive Guideline on Imposition of Community and Custodial Sentences sets out a structured two-stage approach for suspension:

1. Stage 1: Calculate the appropriate custodial sentence length strictly based on offence seriousness, aggravating/mitigating factors, and guilty plea credit.
2. Stage 2: If the custodial length is 2 years or less, evaluate whether the sentence should be suspended by balancing published factors.

+-----------------------------------------------------------------------+
|                      FACTORS FAVOURING SUSPENSION                     |
+-----------------------------------------------------------------------+
| 1. High realistic prospect of rehabilitation.                         |
| 2. Strong personal mitigation (e.g., sole carer for young children).  |
| 3. Immediate custody will cause severe harmful impact on dependants.  |
+-----------------------------------------------------------------------+
                                   VS
+-----------------------------------------------------------------------+
|                    FACTORS FAVOURING IMMEDIATE CUSTODY                |
+-----------------------------------------------------------------------+
| 1. Offender presents a recent or ongoing risk/danger to the public.  |
| 2. Appropriate punishment can ONLY be achieved by immediate custody. |
| 3. History of poor compliance with court orders or supervision.       |
+-----------------------------------------------------------------------+

Mandatory Community Requirements: When making an SSO, the court must impose one or more community requirements (such as unpaid work or rehabilitation activity requirements) during the supervision period, unless there are exceptional circumstances making requirements unnecessary.

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4. Breach of Suspended Sentence Orders (Schedule 16 Sentencing Code)

An offender breaches an SSO if they commit a new offence during the operational period OR fail without reasonable excuse to comply with a community requirement during the supervision period.

The Statutory Presumption on Breach

Under Schedule 16 to the Sentencing Code, when an offender breaches an SSO and appears before the court, there is a strong statutory presumption:

The court must order that the suspended custodial sentence take effect (either in full or in part) unless it is satisfied that it would be unjust in all the circumstances to do so.

Judicial Options on Breach:

1. Activate Custody in Full: Order the offender to serve the entire original custodial term immediately.
2. Activate Custody in Part: Reduce the custodial term served (e.g., ordering 6 months of a 12-month suspended term to be served) to reflect partial compliance with requirements.
3. Find Activation Unjust & Amend Order: If activating custody is unjust (e.g., due to exceptional medical grounds or near-completion of all requirements), the court may:
   • Extend the operational period or supervision period (up to the 2-year maximum).
   • Impose more onerous community requirements (e.g., adding 50 hours of unpaid work).
   • Impose a financial penalty for breach of up to £2,500.

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5. Custodial Release Mechanisms & Licence Rules

Where an immediate custodial sentence is passed, the offender does not serve the entire term inside a prison facility. The statutory release framework governs transition to the community.

Standard Determinate Sentences (SDS)

• Automatic Release Point: Under section 244 of the Criminal Justice Act 2003, offenders serving a Standard Determinate Sentence (SDS) are automatically released from prison at the 50% (halfway) mark of their sentence.
• Serious Offender Release Threshold (66.7%): Under amendments introduced by the Police, Crime, Sentencing and Courts Act 2022, offenders serving determinate sentences of 4 years or more for specified serious violent or sexual offences must serve two-thirds (66.7%) of their sentence in custody before automatic release.
• Licence Supervision: Upon release, the offender is placed on licence for the remainder of the sentence term (the remaining 50% or 33.3%).
• Licence Conditions & Recall: The offender must comply with mandatory standard conditions (reporting to probation, residing at an approved address) and any bespoke conditions (exclusion zones, curfew). A breach of licence conditions results in immediate executive recall to prison by the Secretary of State / Parole Board to serve out the remainder of the sentence.

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Summary of Custodial Thresholds & Suspension Rules