In its response to the Gauke Sentencing Review, the government has indicated its intention to introduce a legislative restraint on courts’ discretion to impose a short prison sentence. Related restrictions on the use of custody exist in other jurisdictions such as Scotland and New South Wales (see Appendix). The Gauke Review did not identify the specific length of prison sentence which would be targeted and there remains some ambiguity about whether it will include sentences of 12 months or less or less than 12 months. This ambiguity is reflected in the government statement that endorses a presumption against the use of prison sentences of less than a year which also goes on to refer to sentences of 12 months or less:
- A presumption against custodial sentences of less than a year – in favour of tough community sentences that better punish offenders and stop them reoffending. Judges will still retain the power to hand down sentences of 12 months or less to offenders who have breached a court order, including restraining orders and Domestic Abuse Protection Orders, and in exceptional circumstances. (emphasis added).
Thus, with the exception of offenders convicted of breaching a court order, courts will have to find ‘exceptional circumstances’ before they may impose a ‘short’ prison sentence, likely to be defined as a sentence of 12 months or less in length. Instead, they will impose a suspended sentence order.
The proposed presumption is more far-reaching than previous proposals. Twelve months is a higher ceiling than similar presumptions operating in some other jurisdictions such as New South Wales (where it is six months). In addition, the language proposed by the Gauke Review and endorsed by the government is more restrictive than the analogous legislation in other countries. In Scotland, courts are not required to find and enumerate exceptional circumstances before they can impose a short prison sentence. They are simply required to ‘consider that no other method of dealing with the person is appropriate.’ The more robust presumption proposed for England and Wales may reflect recognition that the Scottish approach has failed to significantly reduce the number of short prison sentences.[1] The Gauke Review has proposed a single category of offending which would be excluded from the presumption: offences involving a breach of a judicial order. All other offences would be subject to the presumption in favour of the imposition of a suspended sentence order,
Current Short Sentence Caseload
Statistics for 2024 compiled by the Sentencing Academy reveal that across both levels of court (magistrates’ courts and the Crown Court) over six out of ten prison sentences (62%) were 12 months or less and therefore classified as ‘short’ for the purposes of the presumption. In total, 49,647 such short sentences were imposed in 2024. When a proposal to create a presumption against sentences of 12 months or less was included in the 2023 Sentencing Bill, the Ministry of Justice estimated that 37% of the current short term sentence caseload would be unaffected by the presumption; meaning that approximately two-thirds of such sentences will likely now attract a suspended sentence.[2] As a consequence the volume of offenders likely to receive a suspended sentence order instead of a short prison sentence is likely to increase significantly.[3] In 2024, 48,949 suspended sentence orders were imposed across all courts. Finally, another recommendation made by the Review will stimulate still further the volume of suspended sentences. Recommendation 3.2 would extend the upper limit of suspended sentence orders from two to three years, a significant increase.
Statistics reveal that many offenders convicted of relatively serious crimes currently receive immediate prison sentences under 12 months. Approximately 1,500 offenders convicted of assault occasioning actual bodily harm in 2024 received an immediate prison sentence of 12 months or less. An analysis published by Parliament in 2023 estimated that approximately one quarter of short prison sentences were imposed for common assault and battery, assault of an emergency worker or possession of a knife.[4] In addition, almost all of these offenders had previous convictions, and approximately half had served all three principal sanctions (a community order; a prison sentence and a suspended prison sentence).
In light of these trends, as the Sentencing Review acknowledges, the government will need to mount a significant public legal education initiative to ensure that public confidence in the sentencing process does not decline. The Sentencing Academy’s most recent survey of public attitudes provides support for the proposition that the public generally sees sentencing as too lenient.[5] The imposition of a suspended sentence for a violent offence may attract public criticism.
Statutory Presumptions and Sentencing Guidelines
In discretionary sentencing regimes such as those operating in Australia, legislative presumptions against the use of short prison sentences are relatively easy to implement. The court takes all relevant sentencing factors into account and arrives at a provisional sentence of, say, five months custody. If this sentence length is beneath the statutory threshold for the imposition of a prison sentence, at this point the court would impose an alternative sanction, usually some form of intensive home confinement. The legislation often stipulates the community-based alternative sanction which a court should impose in place of the short immediate prison sentence.
In England and Wales, however, matters are more complicated. When sentencing, courts apply guidelines issued by the Sentencing Council. These guidelines lay down a series of steps for courts to follow. In most guidelines, there are three levels of harm and three of culpability. A court first determines the level of harm and the offender’s culpability, and the guideline then provides a sentencing range within which the court will work.
For example, for the offence of assault occasioning actual bodily harm a court may determine that the case falls into the high culpability and low (level 3) harm category. This combination generates a guideline sentence range from a high-level community order up to 18 months imprisonment. The starting point sentence is 36 weeks custody. The court uses the guideline’s starting point sentence and moves above 36 weeks to reflect aggravating factors and below to account for mitigating factors. After doing so, it proceeds through several additional steps. At the conclusion of the last step, the court’s sentence reflects all legally-relevant sentencing factors. For this offence, the provisional sentence may well be under the government’s proposed 12-month threshold. If the legislation follows the model proposed in the Sentencing Review, the court in this case will need to find exceptional circumstances in order to impose a 36-week sentence of immediate imprisonment. But since the court will have considered all relevant circumstances, it is unclear what further considerations might justify imposing the prison sentence which the court, guided by the guideline, determined was proportionate having considered all factors.
At the present, if a court is considering imposing a sentence of immediate imprisonment it should apply the Imposition guideline to determine whether the sentence could be suspended. If the court has determined that the custody threshold has been crossed, the guideline reminds users that: ‘Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.’ The guideline then provides factors which should incline or disincline a court from suspending sentence.
The Council will have to issue similarly structured guidance to assist a court in determining whether exceptional circumstances exist which justify disregarding the presumption against a short prison sentence. There will likely be few such circumstances, as factors such as ‘history of poor compliance with court orders’ are already baked into the presumption. The Ministry of Justice estimated that only 2% of cases will attract a short prison sentence through the use of exceptional circumstances.[6]
Some Questions Worth Considering
In the absence of a public or professional consultation exercise for the recommendations of the Sentencing Review (or the subsequent legislation that the government has indicated it will soon introduce), the only input will be in the form of Parliamentary review. Assuming the government legislates a presumption along the lines proposed by the Gauke Review, Parliament may wish to consider a number of questions:
- Is the ceiling of the presumption (12 months) set at the appropriate level? A low ceiling such as three months (which is where the Scottish presumption began) may have little impact on the volume of short prison sentences. A higher ceiling of 12 months means that many more, and more serious cases will receive a suspended sentence order rather than an immediate prison sentence. Are these more serious cases likely to attract public and media criticism?
- The ‘exceptional circumstances’ requirement means that there will be very few cases in which the court invokes its discretion to impose an immediate prison sentence. Is the ‘exceptional circumstance’ requirement too restrictive? Would the more discretionary approach adopted in Scotland be preferable?
- The Gauke Review proposed to exclude only offenders convicted of a breach of a court order. Some groups responding to the Review advocated a presumption which would exclude more serious offences.[7] Should the legislation exclude offenders convicted of the more serious crimes? Or should there be a lower ceiling of say nine months for crimes of violence or sexual aggression, and a higher ceiling of possibly 15 months for non-violent offences?
- What role should the offender’s criminal history play? Should the presumption exclude the most persistent offenders? Or should these offenders be covered by the ‘exceptional circumstances’ exception?
Summary
While simple in concept, a legislative presumption against the imposition of prison sentences of 12 months or less (except for certain specified offences and when exceptional circumstances exist) is in fact complex to implement. In conjunction with the Sentencing Council, the government will have to carefully consider the impact of the presumption on the existing guidelines. The role of the Court of Appeal and the Sentencing Council will be critical to the success of any reforms in this area. Together these bodies will need to provide clear guidance to courts on matters such as the definition and ambit of what constitutes ‘exceptional circumstances’.[8]
Appendix
Legislative Presumptions against Short Prison Sentences in Other Jurisdictions
Scotland
A court must not pass a sentence of imprisonment for a term of [12] months or less on a person unless the court considers that no other method of dealing with the person is appropriate.
(3B) Where a court passes such a sentence, the court must—
(a) state its reasons for the opinion that no other method of dealing with the person is appropriate, and
(b) have those reasons entered in the record of the proceedings.
New South Wales
CRIMES (SENTENCING PROCEDURE) ACT 1999 – SECT 5
Penalties of imprisonment
5 Penalties of imprisonment
(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
(2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including–
(a) its reasons for deciding that no penalty other than imprisonment is appropriate, and
(b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) A sentence of imprisonment is not invalidated by a failure to comply with this section.
(5) Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order.
Notes:
[1] See discussion in Mills, H. (2019) ‘Stopping short?’ Sentencing Reform and Short Prison Sentences. London: Prison Reform Trust.
[2] This is the ‘central estimate’ of the Impact Assessment, see page 8. Ministry of Justice (2023) Sentencing Bill – Changes on the Presumption of the suspension of short sentences. Impact Assessment, London: Ministry of Justice, page 6. SentencingBillIAShortSentences.pdf
[3] Assuming that approximately two-thirds of the current short sentence caseload become suspended sentences, this represents an increase of 31,277 cases.
[4] See POSTbrief 52, page 9.
[5] Roberts, J.V., Crellin, L., Bild, J. and Mouton, J. (2024) Who’s in Prison and What’s the Purpose of Imprisonment? A Survey of Public Knowledge and Attitudes. London: Sentencing Academy. Available at: https://www.sentencingacademy.org.uk/whos-in-prison-and-whats-the-purpose-of-imprisonment-a-survey-of-public-knowledge-and-attitudes/.
[6] Ministry of Justice (2023) Sentencing Bill – Changes on the Presumption of the suspension of short sentences. Impact Assessment, London: Ministry of Justice, page 6. SentencingBillIAShortSentences.pdf
[7] In its submission to the Sentencing Review, Revolving Doors recommended the government ‘Introduce a presumption against prison sentences of 12 months or less in cases of low-level, non-violent/non-sexual offences’ submission-to-the-Sentencing-Review (1).pdf, p. 3, emphasis added.
[8] As discussed in Mills, H. (2019) ‘Stopping short?’ Sentencing Reform and Short Prison Sentences. London: Prison Reform Trust.
