Sentencing: Suspended Sentence Orders

Crown Court - Manchester

Prisons and Young Offenders Institutions (YOI) are in the news again.  On 27th January, The Guardian reported that the prison population in England and Wales was 87,668.  This is said to be 3500 higher than at the same time in 2011.  In a 3 week period in January 2012, the prison population had risen by 1000.  This, seemingly inexorable rise, is clearly placing pressure on the Ministry of Justice budget.  More money on prisons is less money for elsewhere.   Of course, as pointed out on this blog on 19th December, there seems to be a vast sum of money owed in unpaid fines and other financial orders - "Fines ... all is not fine." 

A further, and very serious issue, is the number of suicides committed by young persons in custody - The Guardian 28th January 2012.   The deaths of Jake Hardy (aged 17) and Alex Kelly (aged 15) are the latest of these tragic events.  Campaigners have been demanding a public inquiry into the treatment of children within the juvenile justice system since the death of 16-year-old
Joseph Scholes, a deeply disturbed youth who hanged himself at Stoke Heath YOI in Market Drayton, Shropshire, almost a decade ago.  See INQUEST - Child and Youth Deaths in Prison.   INQUEST is calling for a properly-resourced public inquiry into the deaths of those children and young persons who have died in state custody since 1990.

Sentences of Imprisonment:

The sentencing regime reserves imprisonment for those offences which are so serious that no other sentence is justified - Criminal Justice Act 2003 s152 - "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."  The test of seriousness is based on the offence alone.  Other factors then come into play which may ultimately justify a non-custodial sentence.

This "so serious" test applies to all criminal offences.  The application of the test is not without difficulties in relation to offences of the same nature (e.g. various types of assault).  On the given facts of some cases, there is room for genuine difference of opinion as to whether the actual offence is "so serious."  Sentencing Guidelines assist here by offering the sentencer lists of factors which, if present in the facts of the offence, make it more or less serious.  If different types of offending are compared - as they sometimes are by thinking members of the public - it is not always easy to see why one form of offence results in immediate imprisonment (e.g. contempt of court by a juror) whereas another offence sometimes does not (e.g. a violent offender getting a suspended sentence or a community sentence).  Offences striking at the administration of justice are certainly viewed as particularly serious by the judiciary but if a juror conducting internet research merits immediate custody then, the public ask, why not the offender who has inflicted serious physical or mental injury on his victim? 

Suspended Sentence Orders:

The law provides a power to make a "suspended sentence order" (SSO) - Criminal Justice Act 2003 s.189 - the effect of which is to suspend a prison sentence for a period of time referred to as the "operational period" which may be from 6 months to 2 years.    The SSO will impose a period of imprisonment which is suspended provided that specified requirements (e.g. unpaid work, attendance at a specified programme etc) are completed.  It is possible for the imprisonment to be activated if the offender either commits a further offence during the operational period or fails to comply with the requirements.

Elements in the popular media dislike the practice of suspending imprisonment.  However, provided that the requirements are properly resourced, a SSO should place considerable demands on the offender and it has the possibility of effecting a rehabilitative change in the person's behaviour.  It is therefore incumbent on government to continue to ensure that adequate resources are made available for alternatives to imprisonment.  Interestingly, the Ministry of Justice has announced that two "payment by results" pilot schemes will be started in Staffordshire/West Midlands and in Wales - Ministry of Justice 25th January and, for more detail, see here. 

From time to time, cases appear in the media which certainly make one wonder precisely why the court has decided to suspend imprisonment.  Consider, for example, the report in the Manchester Evening News 15th January where it is reported that - "Three pals walked free from court after admitting tying a man with learning difficulties to a lamppost and torturing him in a terrifying four-hour ordeal."  Then there is the case of Chrapkowski and Lane, reported by the Daily Mail on 18th January where it is reported that a suspended sentence was imposed for an attack on a man which "put him in hospital for a month."   Whilst there will have been good reasons why these offenders were not sentenced to immediate imprisonment, it is arguable that such sentences may not be building the faith of the general public and of victims in the criminal justice system.

On what basis might a sentence of imprisonment be suspended? 

The legislation is not specific about this and it is necessary to turn to "guidelines" issued by the Sentencing Council (or its predecessor - Sentencing Guidelines Council).  "New Sentences: Criminal Justice Act 2003" was issued in December 2004.   Part 2 Section 2 of this document considers suspended sentences of imprisonment.  This guideline insists that "a suspended sentences is a sentence of imprisonment" and, as such, is subject to the same criteria as a sentence of imprisonment which is to commence immediately.   This requires a court to be satisfied that the custody threshold has been passed and that the length of the term is the shortest term commensurate with the seriousness of the offence.

In terms of the requirements which can be part of the SSO, this guideline indicates that - "Whilst the offence for which a suspended sentence is imposed is generally likely to be more serious than one for which a community sentence is imposed, the imposition of the custodial sentence is a clear punishment and deterrent." [Some will no doubt dispute that statement].  The guideline continues - "In order to ensure that the overall terms of the sentence are commensurate with the seriousness of the offence, it is likely that the requirements to be undertaken during the supervision period would be less onerous than if a community sentence had been imposed. These requirements will need to ensure that they properly address those factors that are most likely to reduce the risk of re-offending.  Because of the very clear deterrent threat involved in a suspended sentence, requirements imposed as part of that sentence should generally be less onerous than those imposed as part of a community sentence. A court wishing to impose onerous or intensive requirements on an offender should reconsider its decision to suspend sentence and consider whether a community sentence might be more appropriate."

Hence, what emerges is a not particularly clear picture of the circumstances under which a sentence of imprisonment might be suspended but the emphasis appears to be that it is to be done for reasons of rehabilitation since the majority of requirements which can be part of a SSO are rehabilitative in nature.  It may also be that a court might be persuaded to suspend a sentence where the imposition of immediate imprisonment might result in hardship to others such as children of a family.

Breach of a Suspended Sentence Order:

What is clear is that breach of a SSO will normally result in the offender going to prison.

The Sentencing Council's guidance (at page 26) states that - "The essence of a suspended sentence is to make it abundantly clear to an offender that failure to comply with the requirements of the order or commission of another offence will almost certainly result in a custodial sentence. Where an offender has breached any of the requirements without reasonable excuse for the first time, the responsible officer must either give a warning or initiate breach proceedings.  Where there is a further breach within a twelve-month period, breach proceedings must be initiated.

Where proceedings are brought the court has several options, including extending the operational period. However, the presumption (which also applies where breach is by virtue of the commission of a further offence) is that the suspended prison sentence will be activated (either with its original custodial term or a lesser term) unless the court takes the view that this would, in all the circumstances, be unjust. In reaching that decision, the court may take into account both the extent to which the offender has complied with the requirements and the facts of the new offence."

"Where a court considers that the sentence needs to be activated, it may activate it in full or with a reduced term. Again, the extent to which the requirements have been complied with will be very relevant to this decision."

Other material:

An interesting study on this was conducted by the Centre for Crime and Justice Studies, King's College, London.  See "The Community Order and the Suspended Sentence Order: the views and attitudes of sentencers"

Addendum 13th February:

In R v Court [2012] EWCA Crim 133, the Court of Appeal has emphasized the point that a suspended sentence must not be imposed unless the custody threshold has been crossed - see judgment at para. 17.