NON-CUSTODIAL SENTENCES NOTES
List of sentences on the syllabus, and whether the MC/CC have power to use
Sentence MC CC
Absolute discharge Yes Yes
Conditional discharge Yes Yes
Fine Yes, subject to any stat maximum Yes, subject to any stat maximum
Community order Yes Yes
A suspended sentence of Yes, though the custodial term that is Yes
imprisonment suspended is subject to the same
maximums below for determinate
sentences
A determinate custodial Yes, subject to a maximum of 6 months, Yes, limited only by the statutory
sentence or two 6-month sentences to run maximum for an offence
consecutively (so 12 months) where a
person is charged with 2 or more
either-way offences.
Mandatory minimum No Yes
sentence for a third
domestic burglary
Mandatory life sentence No Yes
for murder
a. Absolute and Conditional Discharges (a discharge is not a community sentence)
Absolute discharge → lowest form of sentencing available- usually imposed to reflect the
triviality of an offence, the circumstances in which an offender came to be prosecuted or
special factors relating to the offender. Nothing D must do not do to comply with it.
Conditional discharge → discharge with a condition attached that if the D commits another
offence during the period specified, they can be resentenced for the original offence and
sentenced for the new offence. No other condition or requirement may be inserted. The
period of the CD is fixed by the court but must not exceed 3 years.
S12 Powers of Criminal Courts (Sentencing) Act 2000 → (1) Where a court by or before which
a person is convicted of an offence (not being an offence the sentence for which is fixed by
law or falls to be imposed under a provision in (1A)) is of the opinion, having regard to the
circumstances incl. the nature of the offence and the character of the offender, that it is
inexpedient to inflict punishment, the court may make an order either—
(a) Discharging him absolutely; or
(b) If the court thinks fit, discharging him subject to the condition that he commits no
offence during such period, not exceeding 3 years from the date of the order, as may
be specified in the order.
(1A) The provisions referred to in (1) are— s.1(2B) or 1A(5) PCA 1953, s.51A(2) FA 1968,
s.139(6B), 139A(5B) or 139AA(7) CJA 1988, s.110(2) or 111(2) of this Act,
s.224A, 225(2) or 226(2) CJA 2003, s.29(4) or (6) VCRA 2006, s.8(2) OWA 2019.
, If a person CD under this section is sentenced for the offence in respect of which the order
for conditional discharge was made, that order shall cease to have effect (S12(5)). Any
court may, on making an order for CD, allow any person who consents to do so, to give
security for the good behaviour of the offender (s. 12(6)). When making an order for the
person to give security, the court should specify the type of conduct from which the offender
is to refrain (CrimPD VII, j.20).
Where a CD has been imposed on appeal, it shall be deemed, if made on appeal from a MC,
to have been imposed by that court and, if made on appeal from the CC or the COA, to have
been made by the CC (S15(2)).
Use of Absolute/Conditional discharges → power to grant is available to all criminal courts
whatever the offender’s age and, apart from the exceptional cases in which s12(1) or (1A),
whatever the offence. Where an offence is dealt with by an AD, no surcharge is payable.
Where a person has received:
(a) 2 or more youth cautions is convicted of an offence committed within 2 years of the date
of the last of those cautions or
(b) A youth conditional caution followed by a youth caution is convicted of an offence within
2 years of the date of the youth caution,
the court must not deal with the offence by way of CD, unless of the opinion that there are
exceptional circumstances relating to the offence or the person that justify its doing so.
(s66ZB(5) and (6) CDA 1998)
A person convicted of breaching a prohibition in a sexual harm prevention order (SHPO)
cannot be dealt with by way of a CD (SOA 2003, s. 103I (4)).
Combining Discharge with Other Sentences or Orders
A discharge cannot be combined with a punitive measure for the same offence i.e. with a
custodial sentence, a community order or a fine except where permitted by statute. BUT if an
offender is given a discharge for one of a number of offences, the court is free to exercise its
normal powers of sentence with respect to the other offences.There are restrictions on the
use of the discharge where the court is proposing to make a referral order.
A discharge may be combined with an order to disqualify a person from acting as a company
director or with a recommendation for deportation. BUT → a football banning order cannot
be made where an absolute (but not a conditional) discharge given.
S12(7) → permits the combination of an absolute or condition discharge with 'any
disqualification' e.g. from driving or from making compensation, deprivation or restitution
orders, in respect of the offence – no mention of confiscation orders BUT SC has held a
confiscation order can be made on an offender sentenced by way of a discharge.
S12(8) → permits combination of an absolute or conditional discharge with an order under
s21A POAA 2015 (criminal courts charge but now effectively abolished as sum is £0) or making
a costs order against the offender.
List of sentences on the syllabus, and whether the MC/CC have power to use
Sentence MC CC
Absolute discharge Yes Yes
Conditional discharge Yes Yes
Fine Yes, subject to any stat maximum Yes, subject to any stat maximum
Community order Yes Yes
A suspended sentence of Yes, though the custodial term that is Yes
imprisonment suspended is subject to the same
maximums below for determinate
sentences
A determinate custodial Yes, subject to a maximum of 6 months, Yes, limited only by the statutory
sentence or two 6-month sentences to run maximum for an offence
consecutively (so 12 months) where a
person is charged with 2 or more
either-way offences.
Mandatory minimum No Yes
sentence for a third
domestic burglary
Mandatory life sentence No Yes
for murder
a. Absolute and Conditional Discharges (a discharge is not a community sentence)
Absolute discharge → lowest form of sentencing available- usually imposed to reflect the
triviality of an offence, the circumstances in which an offender came to be prosecuted or
special factors relating to the offender. Nothing D must do not do to comply with it.
Conditional discharge → discharge with a condition attached that if the D commits another
offence during the period specified, they can be resentenced for the original offence and
sentenced for the new offence. No other condition or requirement may be inserted. The
period of the CD is fixed by the court but must not exceed 3 years.
S12 Powers of Criminal Courts (Sentencing) Act 2000 → (1) Where a court by or before which
a person is convicted of an offence (not being an offence the sentence for which is fixed by
law or falls to be imposed under a provision in (1A)) is of the opinion, having regard to the
circumstances incl. the nature of the offence and the character of the offender, that it is
inexpedient to inflict punishment, the court may make an order either—
(a) Discharging him absolutely; or
(b) If the court thinks fit, discharging him subject to the condition that he commits no
offence during such period, not exceeding 3 years from the date of the order, as may
be specified in the order.
(1A) The provisions referred to in (1) are— s.1(2B) or 1A(5) PCA 1953, s.51A(2) FA 1968,
s.139(6B), 139A(5B) or 139AA(7) CJA 1988, s.110(2) or 111(2) of this Act,
s.224A, 225(2) or 226(2) CJA 2003, s.29(4) or (6) VCRA 2006, s.8(2) OWA 2019.
, If a person CD under this section is sentenced for the offence in respect of which the order
for conditional discharge was made, that order shall cease to have effect (S12(5)). Any
court may, on making an order for CD, allow any person who consents to do so, to give
security for the good behaviour of the offender (s. 12(6)). When making an order for the
person to give security, the court should specify the type of conduct from which the offender
is to refrain (CrimPD VII, j.20).
Where a CD has been imposed on appeal, it shall be deemed, if made on appeal from a MC,
to have been imposed by that court and, if made on appeal from the CC or the COA, to have
been made by the CC (S15(2)).
Use of Absolute/Conditional discharges → power to grant is available to all criminal courts
whatever the offender’s age and, apart from the exceptional cases in which s12(1) or (1A),
whatever the offence. Where an offence is dealt with by an AD, no surcharge is payable.
Where a person has received:
(a) 2 or more youth cautions is convicted of an offence committed within 2 years of the date
of the last of those cautions or
(b) A youth conditional caution followed by a youth caution is convicted of an offence within
2 years of the date of the youth caution,
the court must not deal with the offence by way of CD, unless of the opinion that there are
exceptional circumstances relating to the offence or the person that justify its doing so.
(s66ZB(5) and (6) CDA 1998)
A person convicted of breaching a prohibition in a sexual harm prevention order (SHPO)
cannot be dealt with by way of a CD (SOA 2003, s. 103I (4)).
Combining Discharge with Other Sentences or Orders
A discharge cannot be combined with a punitive measure for the same offence i.e. with a
custodial sentence, a community order or a fine except where permitted by statute. BUT if an
offender is given a discharge for one of a number of offences, the court is free to exercise its
normal powers of sentence with respect to the other offences.There are restrictions on the
use of the discharge where the court is proposing to make a referral order.
A discharge may be combined with an order to disqualify a person from acting as a company
director or with a recommendation for deportation. BUT → a football banning order cannot
be made where an absolute (but not a conditional) discharge given.
S12(7) → permits the combination of an absolute or condition discharge with 'any
disqualification' e.g. from driving or from making compensation, deprivation or restitution
orders, in respect of the offence – no mention of confiscation orders BUT SC has held a
confiscation order can be made on an offender sentenced by way of a discharge.
S12(8) → permits combination of an absolute or conditional discharge with an order under
s21A POAA 2015 (criminal courts charge but now effectively abolished as sum is £0) or making
a costs order against the offender.
