Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.

Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.

Monday, 17 February 2014


There is, arguably, a common perception…..misconception?.......that those who commit serious criminal offences  are sentenced too leniently.  In real terms such comments are often related to offenders whose custodial sentence is suspended.  Custody suspended is  a disposal only when the custody threshold has been breached i.e. the offence is so serious that only custody is appropriate and that it is inappropriate to impose a stand alone community order or fine or any other non custodial sentence.  The obvious effect of such a sentence is that it might act as a deterrent against future offending within the period of suspension because the default position in that event would be immediate activation of all or part of the sentence.   I have copied below the relevant section of the original guidance on breaches of a suspended sentence.

C. Breaches 2.2.15 The essence of a suspended sentence is to make it abundantly clear to an offender that failure to comply with the requirements of the order or commission of another offence will almost certainly result in a custodial sentence. Where an offender has breached any of the requirements without reasonable excuse for the first time, the responsible officer must either give a warning or initiate breach proceedings.31 Where there is a further breach within a twelve-month period, breach proceedings must be initiated.32
2.2.16 Where proceedings are brought the court has several options, including extending the operational period. However, the presumption (which also applies where breach is by virtue of the commission of a further offence) is that the suspended prison sentence will be activated (either with its original custodial term or a lesser term) unless the court takes the view that this would, in all the circumstances, be unjust. In reaching that decision, the court may take into account both the extent to which the offender has complied with the requirements and the facts of the new offence.33
2.2.17 Where a court considers that the sentence needs to be activated, it may activate it in full or with a reduced term. Again, the extent to which the requirements have been complied with will be very relevant to this decision.
2.2.18 If a court amends the order rather than activating the suspended prison sentence, it must either make the requirements more onerous, or extend the supervision or operational periods (provided that these remain within the limits defined by the Act).34 In such cases, the court must state its reasons for not activating the prison sentence,35 which could include the extent to which the offender has complied with requirements or the facts of the subsequent offence.
2.2.19 If an offender near the end of an operational period (having complied with the requirements imposed) commits another offence, it may be more appropriate to amend the order rather than activate it.
2.2.20 If a new offence committed is of a less serious nature than the offence for which the suspended sentence was passed, it may justify activating the sentence with a reduced term or amending the terms of the order.
2.2.21 It is expected that any activated suspended sentence will be consecutive to the sentence imposed for the new offence.
2.2.22 If the new offence is non-imprisonable, the sentencer should consider whether it is appropriate to activate the suspended sentence at all.

Where the court decides to amend a suspended sentence order rather than activate the custodial sentence, it should give serious consideration to extending the supervision or operational periods (within statutory limits) rather than making the requirements more onerous.

As far as magistrates` courts are concerned some relevant figures for the Y/E September 2012 are that 1,113,388 offenders were sentenced.  Of those 68,942 received custodial sentences of which 23,331 (34%) were suspended.   What I cannot find from the above  figures is the number of those who have breached their suspended sentence orders. 

The problem with SSOs is that there is an underlying prescription within the Ministry of Justice that prison sentences are to be avoided and that such sentences should be reserved for those most likely to be harmful to the citizen going about his lawful business.  However since the riots of 2011 and the ongoing stirring up of fear of terrorism  those whose actions threaten the stability of the state appear also to  be subject to increasingly harsh immediate custodial sentences.   My experience of structured sentencing is that many legal advisors when presented with a bench`s decision of immediate custody will offer “advice” that perhaps there is enough wiggle room to suspend the sentence.  The whole analysis of deciding if an offender having clearly breached the custody threshold should be mitigated to that sentence being suspended is thrown into disarray by sentencing at crown courts.  About 16% of sentences for either way or indictable only offences receive community orders. That includes those offenders who elect trial by jury and those sent there for sentencing from the lower court.

Sensational headlines like this are nothing new.  But there is no doubt the whole process of  a suspended custodial sentence is a very hot potato. We can only chip away to its underlying principles as best as we can in order to use it justly for all involved.  


  1. I agree that suspended sentences are not understood, but that is substantially because the redtops consistently misrepresent them as 'walking free' which you and I know they are not.

    16% of crown court sentences may be community orders but we don't know how they are broken down I believe - there may not be any amongst them sent for sentencing because the magistrates found the matter exceeded their powers.

    I have never had a legal advisor suggest suspending a custody sentence that I can think of; they have always reminded us that immediate custody is the default for those who breach them.

    1. Quote: "I have never had a legal advisor suggest suspending a custody sentence that I can think of" Unquote

      That wasn't what was being said. It was being said that an LA might suggest that a bench which is considering immediate custody might instead consider the option of suspension. Which is fair enough although surely all magistrates are well aware of the possibility to suspend a sentence. The point being made was, I believe, that LAs might try to influence the decision towards suspension rather than immediate custody so as to avoid adding to the prison population.

      An experienced and robust bench will make its own mind up. It is only necessary for the LA to confirm the legality of the sentence. The decision rests with the bench. If I am satisfied that immediate custody is appropriate then that is what I will state and I won't be influenced by an LA attempting to steer me towards a decision that I don't feel is just and appropriate.

  2. Magistrates are obliged to consider suspending a sentence - of course that doesn't mean it has to be suspended, but they must consider it. A LA is entitled to ask if this has been considered.


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