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What is a suspended sentence?

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A suspended sentence is a type of prison sentence. It is imposed when a court decides that an offence or series of offences justifies a prison sentence of less than 2 years, but that there are reasons why the sentence need not be served immediately. If immediate custody is required, it means exactly that – the offender goes to jail straight away. However, if the custodial sentence is suspended, the offender is dealt with in the community as long as they:

  • do not commit further offences within the “operational period” and;
  • comply with any “community requirements” attached to the order.

The “operational period” is the length of time that the suspended sentence is hanging over the offender’s head. This can be between six months and two years.

The “community requirements” are things that the offender has to do as part of the order. It can be a punitive requirement – like unpaid work or an electronically monitored curfew or it can be rehabilitative requirement – to see probation or complete a course. Often it is a combination of requirements to punish and rehabilitate. Occasionally, it is a “stand alone” order, meaning that there are no requirements attached to the suspended sentence (other than the requirement to stay out of trouble).

The decision to suspend a sentence

A sentence of 12 months immediate custody is as serious as 12 months custody suspended for 2 years. However, as explained above, there is a massive difference as to how those two sentences work in practice. It is often the case that the most impact the solicitor or barrister can have in assisting a defendant, is to successfully argue that a sentence can be suspended. There is no mathematical formula for the Judge or Magistrates to decide this but they do have factors to consider and balance against each other. These are set out in the sentencing guidelines.

Factors pointing towards a suspended sentence would include:

  • Realistic prospect of rehabilitation
  • Strong personal mitigation
  • Immediate custody will result in significant harmful impact upon others

Whilst factors pointing towards immediate custody would include:

  • Offender presents a risk/danger to the public
  • Appropriate punishment can only be achieved by immediate custody
  • History of poor compliance with court orders

Part of the job of the solicitor is to help gather together any material that supports the factors pointing towards a suspended sentence and deal with any of the concerns that might lead towards immediate custody. It is then for the advocate (whether solicitor or barrister) to argue the point in court.

Which offences can be suspended?

Most offences can result in a suspended sentence. If the offence is non-imprisonable (for example – driving without insurance) or has a sentence fixed by law (for example life imprisonment for murder) then this is obviously not an option. However, there are a wide range of offences for which a prison sentence of less than 2 years can be appropriate, and therefore where a suspended sentence can be considered. Just as examples, these can include:

  1. Assault occasioning actual bodily harm
  2. Fraud
  3. Theft by employee
  4. Possession of cannabis with intent to supply.

If you are charged with a offence serious enough for a custodial sentence then it is crucially important that you seek legal advice and representation. Our experienced criminal defence lawyers can help guide you through the process and advise as to the likely sentence you will receive.

What happens if I breach my suspended sentence?

Breaching a suspended sentence will frequently result in activation of the custodial part of the sentence. There is a presumption in law that this will be the case. This makes the prospect of custody very likely.

However, breaching a suspended sentence does not mean immediate custody in every case – although the starting point of activating the sentence does mean that any breach is a serious matter. The court may decide to take an alternative decision that focuses instead on modifying the terms of the suspended sentence. If this is the direction the court takes, involvement of one of the following options will happen:

  1. An increase in the duration or severity of the community requirements
  2. Extension of the period of supervision
  3. Financial penalty imposed

We understand that facing a criminal offence can be a frighting time for you and your family. Our team has specialist knowledge of the law and process surrounding sentences of this kind.

If you have been charged with a criminal offence and are worried about a custodial sentence please do not hesitate to contact the team on 0161 696 6188 or complete our online enquiry form.

By Faye Dutson, criminal defence and appeals team