A question recently arose in the legal community as to when a sentence can be lawfully suspended.

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What is a suspended sentence?

A suspended sentence is when a judge sentences an offender to a period of imprisonment, but that imprisonment is delayed subject to certain conditions being fulfilled. It means the offender does not have to go to prison, so long as they do not commit any further offences and comply with the other conditions imposed.

If the offender breaks the terms of their suspended sentence, their sentence may be activated. This means that they could be sent to prison to serve their sentence in custody.

What crimes get a suspended sentence UK?

Lots of different crimes can result in a suspended sentence, including offences involving burglary, motoring offences and fraud. However, they can only be used when the custodial sentence is more than 14 days and less than two years. If the offender is aged between 18 and 20 at the time of conviction, a suspended sentence can only be used when the custodial sentence is more than 21 days and less than two years.

What’s the debate about?

Several offences have a minimum sentencing provision of at least six months’ imprisonment. The judiciary has recently been debating whether such prison sentences can be lawfully suspended.

The debate was sparked back in 2018, when the Court of Appeal made a ruling in the case of Whyte. It stated that the reference to “imprisonment” under the minimum sentencing provisions means that the offender should be subject to “immediate imprisonment” – not a suspended sentence.

Barrister Lyndon Harris, a leading expert on sentencing law, disagreed. He said that the provisions do not distinguish between immediate and suspended imprisonment. He also made reference to section 18 of the Criminal Justice Act, which states that it is possible to suspend any sentence of imprisonment that is between 14 days and two years long. (Although the rules are slightly different for offenders aged 18-20 at the time of conviction).

The Court of Appeal’s recent ruling

Harris’ opinion has since been echoed by the Court of Appeal in the recent case of Uddin. The ruling stated that in the case of Whyte, the court’s decision had been made “per incuriam”, meaning ‘through lack of care’. It said that the court’s former decision should not be followed, and that a judge or magistrate imposing a minimum sentence can order it to be suspended.

However, the Court of Appeal did also say that suspending a minimum sentence “will only rarely be appropriate”. Nevertheless, the sentence can be suspended, if it is just to do so.

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