Suspended sentence

From CrimeLine from Andrew Keogh

Sections 189 to 194 (suspended sentences) Date of commencement 4 April 2005

Imposing a Suspended Sentence under CJA 2003

NB The Criminal Justice Act 2003 is not yet fully in force re: suspended sentences: See: Section 189 as amended

A suspended sentence is a sentence of imprisonment. This requires a court to be satisfied that the custody threshold has been passed and: that the length of the term is the shortest term commensurate with the seriousness of the offence.

A sentence of not more than 12 months (or 51 weeks when the CJA is fully in force) may be suspended,
For between 6 months and 2 years (the operational period),
During that period, the court can impose one or more requirements available for a community sentence.
The period during which the offender undertakes community requirements is “the supervision period” when the offender will be under the supervision of a “responsible officer”; this period may be shorter than the operational period,
The court may periodically review the progress of the offender in complying with the requirements.

If the offender:

(a) fails to comply with a requirement during the supervision period, or

(b) commits a further offence during the operational period,

(d) the terms of the supervision made more onerous.

There is however a presumption that the suspended sentence will be activated either in full or in part.

(i) The decision to suspend

There are many similarities between the suspended sentence and the community sentence. The suspended sentence is a prison sentence and is appropriate only for an offence that passes the custody threshold and for which imprisonment is the only option. It is important to note that a community sentence may be imposed for an offence that passes the custody threshold where the court considers that to be appropriate.

The decision making process before a suspended sentence can be imposed is:

has the custody threshold been passed?
if so, is it unavoidable that a custodial sentence be imposed?
if so, can that sentence be suspended? (sentencers should be clear that they would have imposed a custodial sentence if the power to suspend had not been available)
if not, can the sentence be served intermittently?
if not, impose a sentence which takes immediate effect for the term commensurate with the seriousness of the offence.

(ii) Length of sentence

Before making the decision to suspend sentence, the court must already have decided that a prison sentence is justified.

It is important to note that a prison sentence that is suspended should be for the same term that would have applied if the offender were being sentenced to immediate custody.

The decision to suspend the sentence should not lead to a longer term being imposed than if the sentence were to take effect immediately.

When assessing the length of the operational period of a suspended sentence, the court should have in mind the relatively short length of the sentence being suspended and the advantages to be gained by retaining the opportunity to extend the operational period at a later stage (see below).

Review

The order can be reviewed at periodic intervals, and the court can order that it be given a report on the offender’s progress in complying with the community requirements of the order. Drug rehabilitation requirements are reviewed as part of the provisions under section 210. The powers of the court on review are specified in section 191.

(iii) Requirements

A suspended sentence involves a clear deterrent threat. The community requirements should therefore be less onerous than those imposed under a community sentence. If the court wishes to impose onerous or intensive requirements on an offender it should review its decision to suspend the sentence and consider whether a community sentence might be more appropriate. The operational period of a suspended sentence should reflect the length of the sentence being suspended. As an approximate guide, an operational period of up to 12 months might normally be appropriate for a suspended sentence of up to 6 months and an operational period of up to 18 months might normally be appropriate for a suspended sentence of up to 12 months.

C. Breaches

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. Where there is a further breach within a twelve-month period, breach proceedings must be initiated.

Where breach proceedings are brought the court can:

Extend 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, for
The 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 if applicable, facts of the new offence.

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.

If a court amends the order rather than activating the suspended prison sentence, it must, either:

Extend the supervision or operational periods (provided that these remain within the limits defined by the Act), or
Make the requirements more onerous.

In such cases, the court must state its reasons for not activating the prison sentence, which could include the extent to which the offender has complied with requirements or the facts of the subsequent offence.

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.

Sentencing Guidelines: See: 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.

Powers of the Criminal Courts (Sentencing) act 2000

New Offences

Near the end of an operational period (having complied with the requirements imposed), it may be more appropriate to amend the order rather than activate it.
Less serious than the offence for which the suspended sentence was passed, may justify activating the sentence with a reduced term or amending the terms of the order.
Non-imprisonable offence, the sentencer should consider whether it is appropriate to activate the suspended sentence at all.

It is expected that any activated suspended sentence will be consecutive to the sentence imposed for the new offence.

Suspended sentences Criminal Justice act 2003

Section 189: Suspended sentences of imprisonment

Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005

Important See: Statutory Instrument 2005 No. 643 Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005: Paragraph 2

(2) In section 189 (suspended sentences of imprisonment) -

(a) in subsection (1) for the words from "at least 28 weeks" to the words "section 181" substitute the words "at least 14 days but not more than twelve months, or in the case of a magistrates' court, at least 14 days but not more than six months";

(b) in subsection (2) for the words "65 weeks" substitute the words "twelve months, or in the case of a magistrates' court, six months".

Section 189 deals with suspended sentences of imprisonment. Subsection (1) enables a court which passes a prison sentence of less than 12 months to suspend that sentence for a period of between six months and two years while ordering the offender to undertake certain requirements in the community. The custodial part of the sentence will not take effect unless the offender fails to comply with those requirements or commits another offence within the period of suspension. The period during which the offender undertakes requirements is called "the supervision period" and the entire length of suspension is called "the operational period". Subsection (2) makes provision for consecutive sentences and limits the total term to 65 weeks. Under subsection (3) the length of time the offender undertakes requirements may be less (but not more) than the entire period of suspension, but each of the two periods must last between six months and two years. Subsection (4) provides that the supervision period must not exceed the operational period. Subsection (5) prohibits the court from imposing a community sentence alongside a suspended sentence (though a fine or compensation order could be imposed). Subsection (6) provides that a suspended sentence is to be treated as a sentence of imprisonment.

A community requirement must be imposed as part of the sentence R v Lees-Wolfenden
The supervision period of a suspended sentence must not end later than the operational period: Tomkins, R. v [2010] EWCA Crim 244 (05 February 2010)

Section 190: Imposition of requirements by suspended sentence order

Section 190 specifies the requirements that can be attached to a suspended sentence order. Subsection (1) lists those requirements. Subsection (2) sets out certain restrictions on imposing particular requirements. Subsection (3) states that where the court imposes a curfew requirement or an exclusion requirement, it must also impose an electronic monitoring requirement (as defined in Section 215) unless electronic monitoring is not available in the local area or someone else whose consent is required (e.g. a landlord) withholds that consent. Subsection (4) provides for the court to add an electronic monitoring requirement to ensure compliance with certain other requirements. Subsection (5) requires the court to consider the compatibility of the requirements before imposing them.

Section 191: Power to provide for review of suspended sentence order

Section 191 Subsection (1) confers a discretion on courts to provide that a suspended sentence order passed under section 189(1) be subject to periodic review at a review hearing. Subsection (2) excludes cases where the offender is subject to an order that imposes a drug rehabilitation requirement that is subject to court review, as those orders will already be subject to review. A review hearing is conducted by the court responsible for the order. Subsections (3) to (5) specify which court is responsible for the order in particular situations.

Section 192: Periodic reviews of suspended sentence order

Section 192 makes provision for what is to happen at a review hearing. Subsection (1) confers on the court a power to amend any community requirement of the suspended sentence order, following consideration of the responsible officer's report. Subsection (2) limits the power of amendment. In particular, the court cannot impose a new requirement unless the offender consents, but it can impose a requirement of the same kind (this is explained in subsection (3)). An offender's consent is also required before amending a drug, alcohol or mental health treatment requirement. The court may extend the supervision period, but not so that it lasts longer than two years or ends later than the operational period. The court may not amend the operational period. Unless the offender consents, the court may not amend the order if an appeal against it is pending. Subsection (3) provides that a requirement of the same kind as another paragraph if it falls within section 190(1). It also has the effect of allowing the court to add an electronic monitoring requirement to an existing requirement.

Under subsection (4), where on the basis of the responsible officer's report, the court is of the opinion that the offender is making satisfactory progress, it can dispense with a review hearing. It may also amend the order to provide that subsequent reviews can be held on the papers, and without a hearing. Subsection (5) provides the court with the power to require the offender to attend a review hearing where the court is of the opinion his progress is no longer satisfactory. Under subsection (6) the court may adjourn a review hearing where it wishes to deal with the offender in respect of a breach of a requirement under formal breach proceedings. Subsection (7) enables the court to adjust the intervals between review hearings. Subsection (8) is an interpretation provision.

Section 193: Breach, revocation or amendment of suspended sentence order, and effect of further conviction

Section 193 introduces Schedule 12.

Section 194: Transfer of suspended sentence orders to Scotland or Northern Ireland

Section 194 introduces Schedule 13 which sets out the procedure for transferring suspended sentence orders to Scotland or Northern Ireland.

Interpretation of Chapter

Section 195: Interpretation of Chapter 3

Section 195 defines various terms used in the Chapter.

Case law

Zeca, R. v (21 January 2009)

Zeca, R. v [2009] EWCA Crim 133 (21 January 2009) This appeal against sentence raised the question of how the court should deal with a breach of suspended order of imprisonment by the commission of a further offence where an unpaid work requirement added to that order has been fulfilled. Held: there should have been some recognition of the appellant's limited progress made under the order. The imposition of the sentence of twelve months' imprisonment quashed and for it six months' imprisonment substituted

Waters and Young, R v 8 October 2008

Waters and Young, R v 8 October 2008 In a case where the defendant has served such period of time on remand that a custodial sentence would result in the defendant’s immediate release, it was not proper to impose a suspended sentence of imprisonment. There was no bar on the Court of Appeal substituting a prison sentence in place of a suspended sentence on appeal, as the substituted sentence could not properly be regarded as a more severe penalty in the circumstances.

Nobbs v Director of Public Prosecutions (27 June 2008)

Nobbs v Director of Public Prosecutions [2008 EWHC 1653 (Admin) (27 June 2008) This was an appeal by way of case stated from the dismissal the Crown Court of the appellant's appeal against sentences of imprisonment imposed on the appellant by Magistrates' Court. it is the dismissal of that appeal which is the subject of this appeal by way of case stated. The two questions formulated on behalf of the appellant for the opinion of the High Court are these:

"(1) Is the activation of the suspended sentence unlawful or Wednesbury unreasonable having regard to the Sentencing Guidelines Council guidelines issued December 'New Sentences: Criminal Justice Act 2003'?

(2) As a matter of law, on what basis in imprisoning a defendant can the judge depart from the Magistrates Association guidelines and Sentencing Council guidelines?"

Held: I would therefore answer the first question posed for our opinion as "no", and since I take the view that the Crown Court did not depart from either the guidelines of the Sentencing Guidelines Council or the guidance of the Magistrates Association, as the latter guidance did not purport to apply to the sentence for an offence of driving with excess alcohol when that offence was committed during the operational period of a previously imposed suspended sentence, in my opinion it would not be appropriate for the court to answer the second question.

Sheppard, R. v (28 February 2008)

Sheppard, R. v [2008] EWCA Crim 799 (28 February 2008) The applicant admitted breach of the requirements of a suspended sentence order, comprising 12 months' imprisonment suspended for two years. The requirements of the order included 150 hours unpaid work, supervision and 20 days education, training and employment. The applicant came before the court on three occasions for breaching his order. In consequence of his breaches of that order on the third occasion the Judge ordered that the suspended sentence should take effect immediately, with its original custodial period, 12 months, unaltered. That order was referred by the Registrar of Criminal Appeals to the Full Court because it raised an issue of principle in relation to the activation of suspended sentences. The applicant submitted that since he had complied with some of the Supervision Order it was wrong in law to impose the whole of the original custodial term. Held: compliance is a factor which should be taken into account in the exercise of the court's discretion.

“However, it seems to us that it is not appropriate for a sentencing court always to give credit and to reduce the suspended sentence in such circumstances. Community orders and suspended sentences are seen by some sections of the public as a soft alternative to prison. For the public to have confidence in them, they must be properly enforced by the courts. If there are repeated breaches, as there were in this case, then defendants must know that they will face the probability that the full sentence originally imposed will be reactivated. It is also right for us to note that the probation service spend a good deal of time and effort providing the services in respect of which community orders depend. It is important that the courts ensure that such time and resources are not wasted on those defendants who only comply with the terms of the orders when they feel like it. It is also important that the probation service knows that courts may well impose full terms when community service orders and suspended sentence orders are breached; they can then give a clear message to those who are subject to such orders.”

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