Sentencing

CRP.08 Sentencing (Criminal Practice, FLK2)

The framework

Sentencing is governed by the Sentencing Act 2020 (the Sentencing Code), which consolidated the law. The court must follow the relevant Sentencing Council definitive guideline unless contrary to the interests of justice (s.59–60). For an offender aged 18 or over when convicted, s.57 requires regard to five purposes: punishment; reduction of crime (including deterrence); reform and rehabilitation; protection of the public including victims of crime; and reparation to persons affected by the offences. Section 57(3) excludes offences subject to a mandatory sentence requirement and the specified Mental Health Act orders and directions.

For under-18s, that five-purpose duty does not apply. The court must have regard to the principal aim of the youth justice system, preventing offending or re-offending by under-18s, and to the welfare of the child or young person; these duties are preserved by s.58 (Crime and Disorder Act 1998, s.37; Children and Young Persons Act 1933, s.44). This is a distinct youth framework, not an adult sentence with an age discount. See CRP.10.

Method (guideline approach)

1. Determine the offence category by assessing culpability and harm.
2. Take the category starting point, then adjust within the range for aggravating and mitigating factors.
3. Apply other reductions (assistance, totality), then the guilty-plea reduction.

Guilty-plea reduction (s.73 + guideline)

• Up to one-third if entered at the first stage (first hearing).
• One-quarter after the first stage.
• One-tenth as the maximum on the first day of trial, reducing further (towards nil) once the trial has begun.
• Reduction applies even where mandatory/minimum sentences engage (subject to statutory floors).

Types of sentence (ladder of seriousness)

• Custody is a last resort: only if the offence is "so serious" that neither fine nor community order is justified (s.230). Custodial threshold.
• Suspended sentence: eligible term. For an offender aged 21 or over when convicted, a term of imprisonment must be at least 14 days and no more than 3 years if convicted on or after 22 March 2026; the maximum remains 2 years for an earlier conviction (Sentencing Act 2020, s.277(2), (3B); Sentencing Act 2026, ss.2, 49(4)). Consecutive terms imposed on the same occasion must not exceed that maximum in aggregate. For a conviction on or after that date, the exclusions in s.277(3A) also prevent suspension where a specified extended or offender-of-particular-concern sentence is imposed for that or another offence on the same occasion. Section 264 provides the corresponding maximum and exclusions for detention in a young offender institution.
• Suspended sentence: periods. The operational period is at least 6 months, normally no more than 2 years, but may be up to 3 years if the suspended term, or aggregate of consecutive terms imposed on the same occasion, exceeds 2 years (s.288(1)-(2B)). A supervision period for community requirements is distinct: normally 6 months to 2 years and no longer than the operational period, subject to the unpaid-work rule in s.288(5).
• Suspended sentence: presumption for 12 months or less. Where an offender aged 21 or over when convicted is convicted on or after 22 March 2026, the imprisonment term is not more than 12 months and a suspended sentence order is available, the court must suspend unless it considers that exceptional circumstances, relating to the offence (or its combination with associated offences) or the offender, justify not doing so (Sentencing Act 2020, s.277A(1)-(2)). Section 264A gives the corresponding rule for detention in a young offender institution where the offender was at least 18 but under 21 when convicted.
• When that presumption does not apply. Section 277A(3) excludes an offender who, when the sentence is imposed, is already in custody under a custodial sentence or court committal, on remand for an unassociated offence or in specified service custody, or is detained in hospital under the specified hospital orders or directions; it also excludes a sentence that is one of two or more imposed on the same occasion if any of them exceeds 12 months, or if they are consecutive and exceed 12 months in aggregate. Further exclusions concern re-sentencing for an offence for which the offender is or has been subject to a supervision order; an offence committed during such an order; an offence constituting, or closely connected with, breach of a court order or a service-proceedings order or award; and a finding that suspension would put a particular individual at significant risk of physical or psychological harm. The offence-based exclusions also cover an associated offence. A supervision order means only a community order, suspended sentence order, detention and training order, referral order, youth rehabilitation order or one of the armed-forces orders listed in s.277A(8). Sections 277A(3)-(5) give the full custody and hospital categories; remand is not confined to prison custody. Section 264A contains the corresponding exclusions for young adults.
• Presumption is not the whole suspension test. The pre-sentence-report requirements apply when deciding exceptional circumstances or the significant-risk exclusion (s.277A(6); s.264A(5)). Where the presumption does not apply, the ordinary statutory power to suspend remains (s.277A(7); s.264A(6)); non-application is not an automatic requirement for immediate custody.
• Exceptional circumstances are not an ordinary discretion to refuse suspension. If s.277A applies, seriousness alone is unlikely to be exceptional; saying that the prison term should have been longer is not itself an exceptional circumstance (R v Morgan [2026] EWCA Crim 886, [42], [48], [51]-[55]). The Sentencing Council's 6 August 2026 amendment directs immediate custody once exceptional circumstances justifying non-suspension are found, without a further balancing of the usual suspension factors. By contrast, where a s.277A(3) exclusion applies, or the term exceeds 12 months but remains within the statutory suspension limit, the ordinary suspension factors remain relevant (Morgan [38]-[40]; Imposition of community and custodial sentences guideline, section 8, amendment of 6 August 2026).
• Community order: must pass the community threshold (s.204) — offence "serious enough."
• Fines: based on seriousness and means; magistrates' fines are unlimited for many offences.
• Discharges: absolute or conditional (up to 3 years).

Deferment and the duration of orders

• Deferment is before sentence. The court postpones passing sentence to consider conduct after conviction or a change in circumstances (Sentencing Act 2020, s.3). The offender must consent and undertake to comply with the proposed requirements; the court must find deferment in the interests of justice, and restorative-justice requirements need the participants' consent (s.5(1)). The maximum is 12 months from the order if all relevant convictions are on or after 22 March 2026, but 6 months if any is earlier (s.5(2)-(2A); Sentencing Act 2026, ss.5, 49(4)). Section 4 normally excludes a second deferment for the same offence, subject to its Crown Court cross-reference; it also excludes a magistrates' court case requiring a compulsory referral order. The court cannot remand the offender on the same occasion as making the deferment order (s.5(4)).
• Unpaid work: no general twelve-month limit. From 11 May 2026, the former twelve-month completion period in Schedule 9 paragraph 1 is removed, including for orders already made. The offender must still work as instructed by the responsible officer. A community order normally continues until its end date or, if later, completion of unpaid work, unless revoked or terminated (s.220). For a suspended sentence with unpaid work, supervision continues until the specified hours are worked, but not beyond the operational period (s.288(5); Sentencing Act 2026, s.36; SI 2026/402, reg.2).
• Early termination is distinct from expiry. From 11 May 2026, an in-force community order can terminate, and a suspended sentence's supervision period can terminate, on the date specified to the offender by the responsible officer. The order must not contain the specified special-review provision; where the order imposes a rehabilitation activity requirement, the responsible officer must not consider any further instructions under it necessary; all other community requirements must have been complied with; and, if there is a sentence plan, the responsible officer must consider its objectives met and no additions necessary. These conditions apply to orders whenever made. Ending supervision does not end the suspended sentence's operational period (Sch.10 para.15A; Sch.16 para.22A; ss.220, 288; Sentencing Act 2026, ss.38-39; SI 2026/402, reg.2). The paragraphs expressly use rehabilitation activity requirements until the new probation-requirement provision commences.

Ancillary orders

Compensation (court must consider, s.55, and give reasons if not ordered), victim surcharge, costs, disqualification, confiscation (POCA 2002).

Mandatory/minimum sentences

• Murder: life with a minimum term (Sch 21).
• Third-strike domestic burglary: min 3 years; third Class A trafficking: min 7 years.
• Repeat weapon, bladed-article or corrosive-substance offences (s.315): when the index offence was committed, the offender must have been aged at least 16 and must by then have had at least one relevant conviction (s.315(1)(c)). The index offences are carrying an offensive weapon, having a bladed article in public, having a bladed article or offensive weapon on education premises, and having a corrosive substance in public (s.315(1)(a)). The index offence must have been committed on or after 17 July 2015, or 6 April 2022 for the corrosive-substance offence. Relevant earlier convictions are defined in s.315(4)-(5); they are not confined to the identical offence.
• Age at conviction fixes the s.315 minimum: under 18, a detention and training order of at least 4 months; 18 to 20, at least 6 months in a young offender institution; 21 or over, at least 6 months' imprisonment (s.315(3); s.315(6) makes the section subject to s.252A). For an index offence committed on or after 28 June 2022, the court must impose the appropriate custodial sentence unless exceptional circumstances relating to the offence, previous offence or offender justify not doing so. For an earlier index offence within s.315, the test is particular circumstances relating to those matters that would make it unjust in all the circumstances (s.315(2)-(2A)). These are offence dates, not conviction dates.
• Guilty-plea qualification: for a person aged 18 or over when convicted, s.73(3)-(4) permits a sentence below the s.315 minimum, but not below 80% of the otherwise required sentence. For a person aged 16 or 17 when convicted, s.73(5) instead permits any sentence the court considers appropriate after considering the stage and circumstances of the guilty plea. Neither provision makes a reduction automatic.
• Minimum term and suspension are separate questions. In R v Uddin [2022] EWCA Crim 751, [20]-[25], the court held that a s.315 minimum sentence of imprisonment or detention in a young offender institution can lawfully be suspended, but that suspension would only rarely be appropriate because it would usually undermine Parliament's punitive and deterrent purpose. A detention and training order cannot be suspended ([23]). For convictions on or after 22 March 2026, also apply the later short-sentence presumption in s.277A (imprisonment) or s.264A (young offender institution): these contain no exclusion merely because s.315 applies, but the presumption applies only where the term imposed is not more than 12 months, and availability, the listed exclusions and the exceptional-circumstances test still matter. How Uddin's earlier "rarely appropriate" qualification operates with that later presumption is not settled by that judgment. Do not use the earlier judgment alone to bypass the new statutory test.

Newton hearings

Where a defendant pleads guilty but disputes the prosecution's factual basis and the difference is material to sentence, the judge holds a Newton hearing to resolve facts (prosecution proves to the criminal standard). Full plea credit can be lost if the defendant's account is rejected.

Common traps

• Plea credit is by stage, not lateness in days — first hearing = one-third.
• Totality: consecutive sentences must reflect overall offending; don't just add up.
• Custody is genuinely a last resort: apply the threshold, then ask whether the sentence must or may be suspended.
• Compensation must be considered in every case; reasons required if refused.

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