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Criminal Defence Articles

What is a Custodial Sentence?

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Custodial sentences remain common punishments for the most serious crimes in England and Wales, despite the fact that statistics show that their use might be declining. In 2018, 75,800 people were given an immediate custodial sentence having been found guilty in a court of law compared to 80,700 a decade earlier in 2009. If you have received – or suspect you are due to receive – a custodial sentence and you need to know more about what it means, continue reading for some answers to common questions as well as information on who you need to speak to if you require legal representation.

What types of sentences are handed down in England and Wales?

The main two types of criminal sentence in England and Wales are ‘suspended’ prison sentences, and ‘custodial’ prison sentences:

  • Suspended sentences are those that are understood to be ‘carried out in the community’. For example, a person might be required to do community service or to abide by strict conditions, like getting home before a certain time each night (called a ‘curfew’) or avoiding certain areas, like schools or parks. If a person does not complete their community service, fails to abide by conditions, or commits another crime, they will go to prison for the remainder of their sentence.
  • Custodial sentences are served in prison (at least partially, and at least at the outset). The lengths of those sentences are determined both by the crime and by any aggravating or mitigating factors (such as a crime being particularly violent, which might make the sentence longer, or the crime not having a major impact on anyone, which might make the sentence shorter). Custodial sentences may also be carried out in specialist establishments, like rehabilitative, educational, or psychiatric facilities, if necessary.

Other types of punishment, like fines, community orders, and mandatory rehabilitation, are sometimes referred to as ‘non-custodial sentences’ and are given in the vast majority of cases.

Who decides what type of sentence to give?

While it is usually the role of the jury to decide whether a person is guilty of an offence, it is the role of the judge (or magistrate) to decide what type and length of sentence a person will be given if they have been found guilty.

More often than not, a separate sentencing hearing will be held in court (sometimes with the person being required to ‘attend’ court via video link from prison if they were not bailed before sentencing). Sentencing hearings do not have juries present, but the general public may still attend (which could, of course, involve some jury members).

When are custodial sentences given?

Certain offences in England and Wales must be punished by a custodial sentence. The most obvious offence in this category is the offence of murder, but others exist, too.

Where a judge has a choice about the type of punishment to be given, she or he must give a custodial sentence only where the offence ‘was so serious that neither a fine alone nor a community sentence can be justified for the offence’ (Criminal Justice Act 2003 (England and Wales)). A judge will take a lot of factors into account when thinking about this, and they may include:

  • Whether the crime involved children
  • Whether the crime resulted in significant harm to the victim or victims
  • Whether the crime was part of gang activity or a larger criminal enterprise
  • Whether the defendant showed any remorse, or tried to make things right before being arrested
  • Whether the crime was an instance of repeat offending (also known as ‘recidivism’)
  • Whether particularly vulnerable groups were targeted as victims (for example, older people)
  • Whether the defendant has a good or bad character

The more aggravating factors a crime has, the more likely a custodial sentence will be given.

Are certain types of person more likely to be given a custodial sentence?

In short, yes, and there are a few factors that will indicate to a judge that a custodial sentence is appropriate.

The first relates to repeat offending. While it is certainly possible to get a custodial sentence for a first-time offence, custodial sentences are often seen with repeat offenders.

Another relates to the behaviour and character of the defendant. If the person is known to be a violent or aggressive individual, the judge may decide a custodial sentence is appropriate to shield the public from risk. Unfortunately, there is no way of telling for sure what a punishment will be unless a particular sentence is mandatory, such as a life sentence with a minimum of 15 years for an adult who has committed murder (more information on life sentences can be found below).

These are two examples of aggravating factors that will indicate to a judge that it is appropriate to use a custodial sentence rather than a suspended or non-custodial sentence.

What’s the difference between concurrent and consecutive sentences?

If a person is found guilty of multiple crimes, they may be given multiple sentences for each of those crimes. Upon sentencing, the judge will specify whether the sentences must be served at the same time (concurrently) or whether the sentences must be served one after the other (consecutively).

For example, if someone were given a seven-year sentence and a ten-year sentence in 2020 (and assuming they served only those terms with no adjustments) they could serve them:

  • concurrently, which means they would serve ten years (the longest sentence) and be released in 2030, or
  • consecutively, which means they would serve seventeen years (both sentences added together) and be released in 2037.

What’s the difference between determinate and indeterminate sentences?

Determinate sentences are those that are given for a fixed length of time. If the sentence is for less than 12 months, the person is usually released automatically at the halfway mark (although this might not happen in cases of bad behaviour or other issues in prison).

If the sentence is for more than 12 months, the person will usually spend the first half of their sentence in prison and the remainder of it ‘on licence’. Being on licence means a person has a number of conditions attached to their release, like the obligation to observe a curfew or to avoid certain areas – such as town centres. If that person breaks any of those conditions, they can be taken back to prison immediately.

Indeterminate sentences, on the other hand, are not given with any fixed length of time. The judge will not set a date when the person will be released, but instead will set a minimum term (or ‘tariff’) that the person must stay in prison before they can be considered for release by the Parole Board.

Does a ‘life’ sentence really mean a person spends their whole life in prison?

While they may sound simple, life sentences can actually be quite confusing. If a court finds someone guilty of murder, for example, the judge must give them a life sentence. There is no option for another punishment.

That being said, even in cases of murder, a life sentence may not actually mean that the person will spend their whole life in prison. The only time a person must spend their whole life in prison is if they receive a ‘whole life term’, which means a person will never be considered for release (unless new evidence proves their innocence, of course).

A regular ‘life sentence’, on the other hand, means that a person will go to prison for a specified period of time (the tariff) but may be released after that time if they are no longer considered to be a risk to the public. This is called ‘being eligible for parole’. If the person is considered to still be a risk to the public, they may not be released at all (and could, therefore, stay in prison for the rest of their life). For adults in England and Wales, the starting point for a life sentence for murder is 15 years.

Can you appeal a custodial sentence?

To give a frustrating lawyer’s answer, ‘it depends’. The range of reasons that someone might be able to appeal are many and various, and as such the best course of action is to consult a solicitor. A solicitor will advise you both whether you are able to appeal your sentence (or your conviction, if necessary) as well as whether they think you have a realistic chance of winning. No two cases are alike in this instance, so it’s best to arrange an appointment with your solicitor to talk through your case.

Where next for help with custodial sentences?

If you need more information about the different types of custodial sentences, or you need specific advice for yourself or someone you care about, get in touch with the team at Stuart Miller Solicitors. At Stuart Miller Solicitors, we have an expert team of criminal defence solicitors who are ready to assist with even the most complex of cases. For a no-obligation consultation, please contact our office today.


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