What Does a Custodial Sentence Mean?

At Old Bailey Solicitors we understand the criminal justice system can be intimidating for individuals, especially when faced with the prospect of receiving a custodial sentence. It is essential to understand the implications of a custodial sentence, its legal ramifications, and the importance of adequate legal representation.

A custodial sentence involves the imprisonment of an individual for a specified duration, following a conviction for a criminal offence. Imprisonable offences are deemed severe enough that neither a financial penalty nor a community order is sufficient. Pursuant to section 230 of the Sentencing Act 2020, a custodial sentence may only be imposed, when the court is of the opinion that the offence is sufficiently grave to justify incarceration in lieu of alternative sanctions.

The Role of Sentencing Guidelines

The Sentencing Guidelines play a critical role in the sentencing regime by providing a structured and transparent approach to the sentencing of offenders. The Sentencing Guidelines are established by the Sentencing Council for England and Wales, which was created to help ensure fairness and consistency in sentencing. The Sentencing Code states that Judges and Magistrates must follow the guidelines unless it is not ‘in the interests of justice’ to do so. The Sentencing Council’s role in reviewing and updating these guidelines ensures that they remain aligned with contemporary social and legal standards. These guidelines aim to provide consistency and fairness in sentencing, ensuring that similar offences are punished similarly and that the punishment fits the severity of the crime and the circumstances surrounding it.

Types of Custodial Sentences

Custodial sentences can be categorised into distinct types, each serving a particular purpose within the framework of criminal justice.

• Fixed-term (often known as determinate) sentences – This is the most common type of custodial sentence. A specific number of years or months in prison, which is the maximum period of time that the offender serves in prison. They may not serve the entire sentence and may be released on parole after a period of time. When a person is released depends upon the length of the sentence, the type of offence for which it was imposed and the date on which it was imposed. For example, offenders sentenced to up to four years imprisonment may be released on licence after having served 40% of their sentence in prison (for most offences from September 2024) or after serving half of the sentence in prison. Offenders sentenced to four years or more for certain violent or sexual offences, may not be eligible for consideration for release until they have served two thirds of their sentence.
• Indeterminate sentences – This is a sentence with no fixed end date, such as life imprisonment, but with a minimum term known as a ‘tariff’. The offender may only be considered for release once the tariff has been served.
• Life sentences – In cases of very serious crimes, like murder, a life sentence may be imposed. This means the offender will be incarcerated for the remainder of their life, though they may become eligible to apply for parole after serving a minimum term (often referred to as the ‘tariff’) unless the Judge has made a whole life order, in which case the offender is required to spend the remainder of their life in prison.

Key Features of a Custodial Sentence

A custodial sentence is imposed for more serious offences or when the court deems that a prison sentence is necessary, either for public protection, deterrence, or the seriousness of the crime. A Custodial Sentence involves the following key features:

1. Imprisonment – Involves the offender being incarcerated in a prison facility. The length of imprisonment depends on the severity of the crime and the sentencing guidelines provided.
2. Detention in a Secure Facility – In certain cases, particularly for young offenders or individuals with special needs, a custodial sentence may involve detention in a secure youth facility or a specialised detention centre, rather than a regular prison.
3. Length of Sentence – Custodial sentences can vary in length, depending on the crime and the specific circumstances. They can range from a short period (such as a few months) to a long-term sentence (several years or even life imprisonment for the most serious crimes, such as murder). The period of time that the offender must spend in prison before being eligible for release can also vary considerably, depending on the date on which the sentence was imposed, the type of offence and the duration of the sentence.
4. Eligibility for Release – Offenders sentenced to fixed-term custodial sentences may be eligible for release after serving a portion of their sentence, depending on factors such as their behaviour in prison and their perceived risk to public safety. Life sentence offenders can also be eligible for release after serving a minimum term, but release is not guaranteed and depends on ongoing assessments.
5. Suspended Custodial Sentence – In some cases, a court may impose a custodial sentence but suspend it for a period of time, meaning the offender does not go to prison immediately. Suspended sentences are typically used for offenders who would normally receive a custodial sentence but are given a chance to avoid prison by adhering to conditions set by the court. A suspended sentence order may only be made where the period of imprisonment is two years or less. Any period of imprisonment that is for more than two years, cannot be suspended. If the offender commits another offence during the suspension period or fails to meet conditions set by the court, the court must activate the custodial sentence unless it would be unjust to do so. This means that they may be required to serve the original custodial sentence.

Alternatives to Custodial Sentences

While custodial sentences are often viewed as the primary punitive measure, the Court has the authority to consider alternative sentences in particular cases. Courts often consider community orders, fines, and other non-custodial penalties depending on the offence’s nature and the offender’s background.

Seeking Legal Representation

A thorough understanding of what a custodial sentence involves is essential for individuals at risk of receiving such a sentence. The various types of custodial sentences, alongside the guidelines that inform them and the complex legal landscape surrounding custodial sentences.

At Old Bailey Solicitors, we are committed to providing our clients with comprehensive legal support, ensuring they receive guidance throughout the duration of their cases. All individuals have the right to legal representation, and at Old Bailey Solicitors, we firmly believe that instructing an experienced solicitor can significantly affect the outcome of the case.