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You will have to meet certain conditions to receive a suspended prison sentence. Examples include staying away from a specific location or engaging in unpaid work called ‘Community Payback’. If you break the suspended sentence’s conditions, you may be sentenced to time in prison.
With a suspended prison sentence, the defendant may also be required to pay fines; however, the court cannot impose both community and suspended prison sentences simultaneously.
A suspended sentence is typically applied when the offender has drug or alcohol abuse problems. A probation period allows them to receive treatment for their addiction. Most suspended prison sentences are combined with financial penalties, which include compensation.
The suspended sentence provides an alternative to short-term or medium-term custodial sentences. They are also considered a more economical option than imprisoning people for a minor offence. This type of sentence also helps to relieve the pressure and costs on the prison system.
If a defendant receives a suspended prison sentence and breaches the terms or commits another crime or offence, they will likely have to go to prison to serve the original sentence or the time they received initially.
There are several reasons that a suspended sentence may be applied to a case. Some of the offences that may qualify a defendant for this suspended sentence include:
● Drug offences
● Handling stolen goods
● Sexual offences
● Forgery and fraud
● Criminal damage
● Monitoring offences
● Violence against the person (This applies to some cases and situations)
After a defendant is convicted of a criminal offence that is punishable by time in prison, the court can decide to impose a prison sentence where the ‘custody threshold test’ is passed.
When the court orders a prison sentence that lasts between 14 days and two years (six months in Magistrates’ Court), it can suspend this sentence for up to two years.
If the court imposes consecutive sentences for two or more criminal offences, the power it has to suspend is only allowed if the aggregate of these terms doesn’t exceed the two-year mark or six months for the Magistrates Court.
After the court has determined that a prison sentence is a proper sentence for a crime, it must consider if it can or should suspend it. If this is the case, the court can suspend the sentence or the aggregate of the sentences for six months up to two years. This is called the “operation period.”
A prison sentence can also be suspended when younger people 18 or older have been sentenced to detention in an institution for younger offenders.
Some of the specific situations when a prison sentence can be suspended include:
● The Judge from the Crown Court imposes a prison sentence (for any defendant 21 years of age or older) between 14 days and two years or imposes a detention sentence for Young Offender Institutions (applies to defendants between the ages of 18 and 20) or between 21 days and two years. Then the Judge has the right to suspend the sentence.
● This power is also present in the magistrates’ court for any custodial sentence of up to 14 days to six months (in early 2022, this changed to up to 12 months).
● The suspension period is between a period of six months and two years. This is referred to as the “operational period.”
● The magistrates and Judge can and typically will add one or more requirements to orders of a suspended sentence. These requirements will be identical to those that can be attached to Community Orders (this includes a Rehabilitation Activity Requirement or Unpaid Work Requirement).
● There is guidance in place for the overarching sentencing guideline requiring the Imposition of community and custodial sentences regarding the factors that may influence against or for the use of a suspended sentence.
The factors determining it is appropriate to suspend the custodial sentence include the following:
● The offender presents some danger or risk to the public.
● The appropriate punishment is only achieved by putting the individual in immediate custody.
● History of low compliance with prior court orders.
The factors that would indicate that a suspended custodial sentence may be appropriate include:
● There’s a realistic prospect of rehabilitation.
● The individual has strong personal mitigation.
● If immediate custody is taken, it will result in a harmful impact on other people.
If the Judge determines that a suspended sentence applies to your situation, it’s required that the defendant complies with the requirements that are imposed during this suspension period. Also, it is required to be longer than the operational period.
The suspension period terms may require the defendant to undergo one or several of the following things:
● Programme requirement
● Unpaid work requirement
● Prohibited activity requirement
● Activity requirement
● Mental health requirement
● Curfew requirement
● Residence requirement
● Exclusion requirement
● Attendance centre requirement (if the offender is 25 years of age or under)
● Drug rehabilitation requirement
● Supervision requirement
● Alcohol treatment requirement
Before Legal Aid, the Sentencing and Punishment of Offenders Act 2012 states that a minimum of one requirement must be attached to a suspended sentence order. However, this obligation has since been removed, and now the court doesn’t consider any of these necessary.
The possible requirements that are optional to add to the suspended sentence order can be found in section 287 of the Sentencing Code.
A defendant is required to undertake between 40 and 300 hours of unpaid work. This unpaid work must be completed within 12 months of a suspended sentence being issued.
Usually, this requires that an offender participates in some type of activity that reduces the potential of another offence down the road. The court doesn’t specify the nature of this activity that must be done, but it will determine the total number of days to engage in this activity. This requirement was first introduced in 2015 and superseded the supervision and set activity requirements.
With this, the individual must attend an accredited programme designed to address the cause of their offence.
With this requirement, the defendant cannot engage in some activities. These are always related to the cause of their offence. For example, they may only be allowed to attend football matches for up to three years.
With this, the offender must remain in a set place (typically their home) for up to 16 hours per day for up to 12 months. The curfew that is imposed will also be monitored electronically.
If a residence requirement is imposed, the defendant cannot go into or around specific areas or places for up to two years.
With this requirement, the offender cannot travel abroad for up to 12 months. This prohibition can be applied to specific days or dates. Additionally, it may allow the defendant to travel to some destinations but not others. It is possible to ban all foreign travel, too.
Under this requirement, the person may have to undergo treatment for mental health issues; however, they must consent. The maximum time that this can be required is up to three years.
This requirement means that an offender must receive treatment to address drug use or misuse and offer samples for testing when requested. It’s also required that the offender consent to this order, and the requirement’s duration will vary, lasting from six months up to three years.
The offender must avoid using alcohol for a certain period. They must also submit to ongoing monitoring.
If an offender is under the age of 25, then this requirement may be made. With this, the offender must go to an attendance centre for 12 to 36 hours and undertake a programme of activities designed to help prevent another offence.
It is mandatory for this unless deemed inappropriate when imposing an exclusion or curfew requirement. It is also discretionary when imposing attendance centres, alcohol treatment, drug rehabilitation, mental health treatment, foreign travel prohibition, residence, prohibited activity, programme, rehabilitation activity, or unpaid work requirements.
With this, the offender must submit to ongoing electronic monitoring. The monitoring continues for a specified amount of time.
If the defendant in the situation commits any additional criminal offence during this operational period, the likely result will be the requirement for them to serve the full prison term imposed before the suspended sentence was issued.
In situations where the suspended sentence is breached or if the defendant does not comply with the set terms, the custodial term will be activated (in most cases).
There’s a presumption that in these situations, the suspended prison term will become active (in part or in whole) when the terms have been breached. A potential exception to this is if it is determined unjust.
However, the court has alternative options, too.
These include things like:
● Make the community requirements that were originally ordered more severe.
● Extend the total supervision period that was ordered (if community requirements were ordered).
● Extend the whole operational period but not extend beyond two years from the date of the original order.
Some of the more specific ways that a suspended prison sentence can be breached are described here.
If a defendant doesn’t carry out all requirements of the suspended sentence without a reasonable reason, they will usually receive a warning. An example of this would be failing to attend an unpaid work appointment without a good reason.
The warning that is issued will typically state that if they fail to comply with this within the next 12 months, they may have to go back to court. If the failure to comply continues, it can result in the defendant having to go back to court due to a breach of the suspended sentence.
If a defendant is convicted of another offence committed during the operational period of the suspended sentence, the case will be returned to court. At this point, it is considered a breach, and the individual will have to go to court for the breach and the additional offence they committed.
If a defendant is required to return to court because of a breach of the suspended sentence, they will be asked if they admit to it. If the defendant does not admit the breach, a hearing will be scheduled, and a judge will determine if a breach occurred.
If a breach occurs (regardless of whether it is proven or admitted), the court will activate the suspended sentence (in part or in whole). The exception will be if the court determines this is unjust. This means the defendant will be required to serve all or some of the initially imposed sentences.
For situations where the court determines it would be unjust to activate the suspended sentence, the defendant may face a fine of up to £2500. This fine is imposed to cover the cost of the breach. There may also be a community order requirement that is attached to the defendant’s suspended sentence. If this is the case, the court can extend it or make it more severe. However, it is required that the defendant consent to things like alcohol treatment, drug rehabilitation treatment, or mental health treatment.
In most cases, the Crown Court will handle all breaches related to suspended sentences no matter where the sentence was given. It’s only possible for the Magistrates” Court to deal with these types of violations if the sentence was passed by it. However, it’s possible to commit the case to the Crown Court in situations where the powers it has to deal with the defendant aren’t adequate.
Some of the most common questions about suspended sentencing orders and requirements in the UK are answered here.
Like Community Orders, two main requirements are attached to Suspended Sentence Orders that are more common than the others. For example, in 2018, approximately 67.7% of the Suspended Sentence Orders came with rehabilitation activity requirements. Also, 48% of the orders contained an unpaid work requirement.
Since the Suspended Sentence Order was introduced in 2005 through the Criminal Justice Act 2003, and the requirement of exceptional circumstances was removed as a requirement to justify the suspension of any custodial sentence, the use of these suspended sentences increased quite a bit. In 2004, which was the year right before the reforms were made, just 2,855 suspended sentences were used. However, in 2018, there were 42,699 Suspended Sentence Orders imposed.
According to research conducted by the Ministry of Justice, the reoffending rate for those receiving a Suspended Sentence Order or a Community Order was less than that of an offender who received shorter prison sentences (of up to 12 months). The one-year rate for reoffending following a shorter-term custodial sentence of under 12 months was about four percentage points higher than if the court used a Community Order or Suspended Sentence Order.
Understanding the law and your options can be challenging. Utilising the services of a solicitor for any criminal legal matter will be beneficial and help you know if a suspended prison sentence may apply to your situation.
While it is not possible for all cases or offences, it is a viable option for some. Keep this in mind to ensure that you get the best possible outcome for your criminal case.
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