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 Powers of the courts - custody 
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The Custody Threshold

Section 152(2) Criminal Justice Act 2003 provides:

      “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 for the offence.”

Imprisonment is used for the most serious offences and offenders


A custodial sentence for an offender over 18 means:

(a) Imprisonment

(b) Detention at Her Majesty’s pleasure for murder by under 18s

(c) Life sentence for under 21s

(d) Detention in a young offender institution (YOI)

(e) Detention and training order.

There are only three forms of custodial sentence now available for offenders under 18:

A custodial sentence for an offender under 18 means:

(a)  Detention and training order;

(b)  Detention for serious offences; and

(c)  Detention at Her Majesty’s pleasure for murder.

Detention is normally in a Young Offenders Institute (YOI). In theory only people over the age of 18 can be sent to an adult prison. Young offenders are held in separate units.


A person aged 18 or over is sentenced of imprisonment or a suspended sentence.


Before passing a custodial sentence the court will want to know more about the convicted person and will order (section 156) the probation service to produce a report on his / her work, school, lifestyle, domestic circumstance and other relevant information.


Home Detention Curfew (HDC)


See "Tagging"

The Criminal Justice Act 2003 introduced a range of new sentencing options, including two ‘intermediate’ sanctionsCustody Minus’ and ‘Intermittent Custody’.  These provide options short of full time custody.

Custody Plus

All offenders who are released from prison have a period of supervision in the community, providing an opportunity to break the cycle of offending.


The time spent in prison is for between 2 weeks and 13 weeks.  The rest of the 12 month sentence is spent on licence in the community. The licence period is subject to conditions set by the court and the prison governor.


If the offender breaches the licence conditions, he or she will be recalled to custody for part or all of the remaining supervision period. Recall is an executive decision, subject to appeal to the Parole Board.


Custody Minus (suspended sentence)

With Custody Minus the offender has the chance to undertake a community punishment, but with the threat of imprisonment for any failure. This requires close working between the prison and probation service.


Custody Minus is a suspended sentence order, in essence it is a sentence of custody plus, suspended for six months to two years, during which the court sets community requirements from the same options as are available for the generic community sentence.


The court may review the order if it wishes. A breach would result in a return to court for the original custodial sentence to be imposed or, in some cases, the suspended sentence order to be continued but made more onerous.


Intermittent custody

Intermittent custody allows offender to serve their sentence intermittently, returning to prison at night or at the weekend.


The object of intermittent custody is to punish while at the same time enabling the offender to continue in employment, or to maintain caring responsibilities, or to attend a course or an education or reparative programme.


This order requires the offender's consent.


Dangerous offenders 

Indeterminate sentence for public protection (IPP)

IPP is a new kind of open ended "life" sentence.  There is no release date and the prisoner does not get out until a parole board decides he or she is no longer a risk to the public.

The are for offenders convicted of one of 153 specified sexual or violent offences which carry a maximum prison sentence of 10 years or more, and who are considered to be a danger to the public.

They are very poplar with the judges and are blamed for the shortage of prison space. Officials say there could be 25,000 people on IPPs by 2012.

CJA 2003 introduced the scheme for the sentencing of dangerous adults.


An indeterminate sentence for public protection (IPP) must be imposed on offenders convicted of sexual and violent offences where there is “significant risk to members of the public of serious harm”.


The court sets a tariff period, after which release is at the discretion of the Parole Board on grounds of public safety.


On release the offender will be subject to supervision on licence for at least ten years, after which time the licence may be revoked by the Parole Board if it considers it safe to do so, otherwise it will continue.


Indeterminate sentences and the sex offenders register

Effect of Violent Crime Reduction Act 2006


Indeterminate sentences for public protection were introduced on 1 April 2005, increasing the numbers of offences that attracted a potential life sentence.


Many of these offences would only merit an offender being placed on the sex offenders' register for five years, but now any sexual offender given an indeterminate sentence for public protection will automatically be placed on the sex offenders' register for life.


Will there be 25,000 indeterminate sentences by 2012?

With the prisons full to overflowing, the Criminal Justice Act 2003 introduced what is in effect another form of life sentence.

Whereas a few hundred life sentences are passed each year, within 2 years (by September 2007) over 3,000 people were serving an indeterminate sentence for public protection.

It has been officially estimated that the total indeterminate prison population - currently 9,000 including lifers - will have reached 25,000 by 2012.

An unimaginable prospect in terms of prison management maybe, but by no means unrealistic, on current trends.

Extended sentence for public protection

An extended sentence for public protection (EPP) is required in the same circumstances as the indeterminate public protection sentence, but where the sexual or violent offence committed carries a maximum penalty of less than ten years.


The offence which attracts this sentence may be quite minor in nature, but the court must set the custodial part of the sentence at twelve months or more, if it wishes to impose an extension period under these provisions.


The imposition of one or other of these public protection sentences is mandatory for a second sexual or violent offence, unless the offender can satisfy the court that he or she poses no continuing risk.


How the courts determine 'dangerousness'

Section 229 Criminal Justice Act 2003 gives guidance on assessing dangerousness and whether the offender poses a 'significant risk to members of the public’ When making this assessment the court must take into account all the information available to it about the nature and circumstances of the offence and it may also take into account any information about the pattern of behaviour of which the offence forms a part and any information about the offender.

Where an offender is aged 18 or over and has a previous conviction for a relevant offences the offender will be assumed to be dangerous, unless the court considers on the basis of the evidence before it this assumption to be unreasonable. A relevant offence includes a sexual or violent offence.


R v Johnson and others [2006] CA


WLR report here


^[Sentencing – an offender with no previous convictions can be dangerous, likewise an offender with previous convictions might not be dangerous – statutory presumption to be read accordingly]

Five conjoined appeals concerning effect of Sec 229 Criminal Justice Act 2003, dangerousness.


Held: Strictly speaking, although punitive in its effect, a sentence of imprisonment for public protection did not represent punishment for past offending; it was concerned with future risk and public protection.


R v Lang [2005] CA (on dangerousness) needed amplifying.

It was not a prerequisite that the offender should have previous convictions to be dangerous. A man of good character might properly qualify for this sentence.


The sentencer was entitled to conclude that the offender with previous convictions, even for specified offences, did not necessarily satisfy the requirements of dangerousness.


Just as the absence of previous convictions did not preclude a finding of dangerousness, the existence of previous convictions for specified offences did not compel such a finding. There was a presumption that it did so, which might be rebutted.

Advantages of custodial sentences

On the one hand it is inescapable fact that custodial sentences ensure the criminal cannot commit so many crimes against the public at large and the purpose of public protection is thereby realised.

Disadvantages of custodial sentences

On the other hand in the book “Bricks of Shame” by Vivien Stern showed that prisoners spend too much time with other prisoners in an “academy of crime”.   This is a frequently trumpeted complaint about prison but it avoids the reality that outside prison criminals freely associate and have the opportunity to practise their "academic" learning.


There is frequent family breakdown and prison is simply ineffective.


The cost is enormous £24,000 per year/prisoner as are the hidden costs to society. Prisoners endure conditions which are unacceptable in a civilised society.  There is a high suicide rate, and it is claimed that the majority of prisoners suffer from at least two diagnosable mental conditions. 


Overcrowding, there are many more prisoners detained than the prisons were designed for often resulting in sharing cramped accommodation.


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