CUSTODIAL SENTENCES NOTES
a. Custodial Sentences in the CC and MC
MC→ impose max 6 months or 2 6-month sentences to run consecutively (so 12 months)
where person charged with 2 or more either-way offences.
CC→ has max unlimited powers of imprisonment.
Available custodial sentences E2.1
s76(1) PCC(S)A 2000➔ 'custodial sentence' means (a) a sentence of imprisonment, (b) a
sentence of detention under the PCC(S)A 2000, s. 90 or 91, (c) a sentence of detention under
the CJA 2003, s. 226, 226B or 228, (d) a sentence of custody for life under the PCC(S)A 2000,
s. 93 or 94, (e) a sentence of detention in a young offender institution, or (f) a detention and
training order.
The term 'sentence of imprisonment' does not include a committal for contempt of court or
any kindred offence (s. 76(2)).
Offenders aged under 21 at the date of conviction cannot be sentenced to imprisonment
(s89(1) PCC(S)A 2000).
Those under 21 cannot be committed to prison for any reason, such as non-payment of a fine,
but if a person under 21 is remanded in custody, committed in custody for sentence, or sent
in custody for trial under s51 or s51A CDA 1998, he may be committed to prison for the period
before his case is disposed of (s89(2) PCC(S)A 2000)
Max Custodial Sentences E2.2
• Max prison terms for indictable/either way offences are almost always laid down by
statutes creating those offences.
• Where a person is convicted on indictment of an offence against any enactment and
is liable to be sentenced to imprisonment, but the sentence is not limited to a specified
term or life by any enactment, the max prison sentence available is two years (s77
PCC(S)A 2000). This provision does not apply to common-law offences, for which the
penalty which may be imposed by the CC is not subject to any limitation except that
it must not be disproportionate to the actual offence committed.
Limits on Imprisonment→ MC and the CC when Limited to MC Powers E2.5
MC
The min prison sentence which may be imposed is one of five days (s. 132 MCA 1980) and the
max is six months in respect of any one offence (s. 78(1) PCC(S)A 2000) unless a shorter max
term is provided by statute.
, The six-month limit does not, however, apply to imprisonment for non-payment of a fine.
The max aggregate term which magistrates can impose is six months, unless two of the terms
are imposed for offences triable either way, in which case the maximum aggregate term is
12 months (s. 133 MCA 1980). These provisions also apply to the sentence of detention in a
young offender institution but not to the detention and training order. MC are subject to the
criteria for determining both the imposition and length of a custodial sentence.
CC
Care must be taken when sentencing in the CC in the situation where EW offences have
resulted in acquittal or not been proceeded with, and the D falls to be sentenced only for one
or more summary offences (e.g. common assault or criminal damage below the £5,000
threshold). The CC is limited to a max of 6 months' imprisonment for common assault and to
three months' imprisonment for the criminal damage and, by s133 MCA 1980 to a max
aggregate custodial sentence of six months, less any appropriate reduction for a guilty plea.
A salutary case is Moore [2015] ➔ where sentences of three months' imprisonment were
imposed consecutively for four offences of common assault, producing a total of 12 months,
which was then suspended for 18 months. On appeal the sentence was reduced to four
months' imprisonment imposed concurrently on each count, and then suspended.
A MC having power to imprison a person may instead order detention within the precincts of
the court- house or at any police station until such hour, not later than 8 p.m. on the day on
which the order is made, as the court directs (s. 135(1) MCA 1980). Such order shall not
operate to deprive the person of a reasonable opportunity of returning home on the same
day (s. 135(2)).
b. Restrictions on Imposing Custodial Sentences
S152 CJA 2003 E2.7
(1) This section applies where a person is convicted of an offence punishable with a custodial
sentence other than one— (a) fixed by law, or (b) falling to be imposed under a provision
mentioned in subsection (1A).
(1A) The provisions referred to in subsection (1)(b) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;
(b) section 51A(2) of the Firearms Act 1968;
(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;
(d) section 110(2) or 111(2) of the Sentencing Act; (e) section 224A, 225(2) or 226(2) of
this Act;
(e) section 224A, 225(2) or 226(2) of this Act;
(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.
(2) 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.
a. Custodial Sentences in the CC and MC
MC→ impose max 6 months or 2 6-month sentences to run consecutively (so 12 months)
where person charged with 2 or more either-way offences.
CC→ has max unlimited powers of imprisonment.
Available custodial sentences E2.1
s76(1) PCC(S)A 2000➔ 'custodial sentence' means (a) a sentence of imprisonment, (b) a
sentence of detention under the PCC(S)A 2000, s. 90 or 91, (c) a sentence of detention under
the CJA 2003, s. 226, 226B or 228, (d) a sentence of custody for life under the PCC(S)A 2000,
s. 93 or 94, (e) a sentence of detention in a young offender institution, or (f) a detention and
training order.
The term 'sentence of imprisonment' does not include a committal for contempt of court or
any kindred offence (s. 76(2)).
Offenders aged under 21 at the date of conviction cannot be sentenced to imprisonment
(s89(1) PCC(S)A 2000).
Those under 21 cannot be committed to prison for any reason, such as non-payment of a fine,
but if a person under 21 is remanded in custody, committed in custody for sentence, or sent
in custody for trial under s51 or s51A CDA 1998, he may be committed to prison for the period
before his case is disposed of (s89(2) PCC(S)A 2000)
Max Custodial Sentences E2.2
• Max prison terms for indictable/either way offences are almost always laid down by
statutes creating those offences.
• Where a person is convicted on indictment of an offence against any enactment and
is liable to be sentenced to imprisonment, but the sentence is not limited to a specified
term or life by any enactment, the max prison sentence available is two years (s77
PCC(S)A 2000). This provision does not apply to common-law offences, for which the
penalty which may be imposed by the CC is not subject to any limitation except that
it must not be disproportionate to the actual offence committed.
Limits on Imprisonment→ MC and the CC when Limited to MC Powers E2.5
MC
The min prison sentence which may be imposed is one of five days (s. 132 MCA 1980) and the
max is six months in respect of any one offence (s. 78(1) PCC(S)A 2000) unless a shorter max
term is provided by statute.
, The six-month limit does not, however, apply to imprisonment for non-payment of a fine.
The max aggregate term which magistrates can impose is six months, unless two of the terms
are imposed for offences triable either way, in which case the maximum aggregate term is
12 months (s. 133 MCA 1980). These provisions also apply to the sentence of detention in a
young offender institution but not to the detention and training order. MC are subject to the
criteria for determining both the imposition and length of a custodial sentence.
CC
Care must be taken when sentencing in the CC in the situation where EW offences have
resulted in acquittal or not been proceeded with, and the D falls to be sentenced only for one
or more summary offences (e.g. common assault or criminal damage below the £5,000
threshold). The CC is limited to a max of 6 months' imprisonment for common assault and to
three months' imprisonment for the criminal damage and, by s133 MCA 1980 to a max
aggregate custodial sentence of six months, less any appropriate reduction for a guilty plea.
A salutary case is Moore [2015] ➔ where sentences of three months' imprisonment were
imposed consecutively for four offences of common assault, producing a total of 12 months,
which was then suspended for 18 months. On appeal the sentence was reduced to four
months' imprisonment imposed concurrently on each count, and then suspended.
A MC having power to imprison a person may instead order detention within the precincts of
the court- house or at any police station until such hour, not later than 8 p.m. on the day on
which the order is made, as the court directs (s. 135(1) MCA 1980). Such order shall not
operate to deprive the person of a reasonable opportunity of returning home on the same
day (s. 135(2)).
b. Restrictions on Imposing Custodial Sentences
S152 CJA 2003 E2.7
(1) This section applies where a person is convicted of an offence punishable with a custodial
sentence other than one— (a) fixed by law, or (b) falling to be imposed under a provision
mentioned in subsection (1A).
(1A) The provisions referred to in subsection (1)(b) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;
(b) section 51A(2) of the Firearms Act 1968;
(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;
(d) section 110(2) or 111(2) of the Sentencing Act; (e) section 224A, 225(2) or 226(2) of
this Act;
(e) section 224A, 225(2) or 226(2) of this Act;
(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.
(2) 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.
