The Custody Threshold
Section 152(2) Criminal Justice Act 2003
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
at Her Majesty’s pleasure for murder by under 18s
sentence for under 21s
in a young offender institution (YOI)
and training order.
There are only three forms of custodial sentence now
available for offenders under 18:
A custodial sentence for an offender under
(a) Detention and training order;
for serious offences; and
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)
Criminal Justice Act 2003
introduced a range of new sentencing options, including two ‘intermediate’
sanctions ‘Custody Minus’ and ‘Intermittent Custody’. These provide
options short of full time custody.
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 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
This order requires the offender's consent.
Indeterminate sentence for public protection
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
The court sets a tariff period, after which
release is at the discretion of the Parole Board on grounds of public
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
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
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
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
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
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
How the courts determine 'dangerousness'
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  CA
^[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
Five conjoined appeals concerning effect of
Sec 229 Criminal Justice Act 2003, dangerousness.
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  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
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