Authors: Professor Julian V. Roberts, Dr Elaine Freer and Dr Jonathan Bild
This report provides an introduction to the concept of deferred sentencing. Courts in England and Wales have long had the power to defer sentencing for up to six months. The Government’s 2020 White Paper, A Smarter Approach to Sentencing, expressed an intention to encourage greater use of deferred sentencing.
To date, very little research has explored this little-known element of sentencing law. The only peer-review publications exploring the subject appeared approximately 40 years ago. This report summarises the limited research on this topic and reports recent trends in the use of deferred sentencing in England and Wales.
The power to defer sentence was conceived to respond to those individuals whose personal and professional circumstances are most likely to be in transition and evolving in ways that have consequences for the sentencing decision. For this reason, deferred sentencing may be particularly appropriate for young adults whose personal and professional lives are changing rapidly. The idea behind the deferred sentence is that the offender has a limited time (up to six months) to address the problems which gave rise to the offending for which he or she is being sentenced.
When a court defers sentencing, the offender is required to comply with a number of requirements during the period of deferral. If the offender complies successfully with these requirements, there is a strong presumption that a non-custodial sanction will ultimately be imposed. This may mean imposing a suspended sentence order or community order in a case which would normally have resulted in a short immediate prison sentence. The deferred sentence therefore should serve as a powerful incentive for the offender to take steps towards desistance and away from offending.
The deferral order commonly involves completing or undertaking a drug or alcohol treatment programme.
The deferred sentencing provision was introduced in 1973 to provide an opportunity for the offender to demonstrate a change in personal circumstances during the period of deferral. Compliance with requirements designed to promote desistance normally resulted in the imposition of an alternative to immediate imprisonment.
Deferred sentencing thus targeted offenders convicted of an offence serious enough to justify the imposition of a custodial sentence.
The limited statistics available from the early period showed that almost all cases deferred ultimately attracted a non-custodial sentence. The volume of deferred sentences has declined considerably from a high of almost 10,000 cases a year in the mid-1970s although it is unclear why courts have moved away from exercising the power to defer sentence.
Most deferrals (approximately half of all cases) over the more recent period covered by the statistics we have been provided with by the Ministry of Justice in response to requests under the Freedom of Information Act (2005-2020) involved theft or minor fraud. Crimes involving violence or sexual offences accounted for 3% or less of all cases.
No data are currently available on the requirements imposed as part of a deferred sentence, the outcome of the deferment, or the sentence ultimately imposed.
Young adults represented a high percentage of cases deferred in the early years. In 1981, two-thirds of all deferments involved offenders under 21 years of age. Although deferred sentencing is most appropriate in cases involving younger offenders whose circumstances are often in transition, recent trends suggest that courts’ use of deferral has declined for this profile of offender.
Males accounted for 72% of cases in the Ministry of Justice’s data for 2005-2020. Female offenders were more likely to have sentencing deferred for summary non-motoring offences while male offenders were more likely to be deferred for drug offences.
Guidance for courts regarding the use of deferral is provided by the Court of Appeal, the Sentencing Council, and the Crown Court Compendium. The Sentencing Council guidance advises that deferred sentences will be appropriate in only very limited circumstances. Some academics have questioned this restrictive view of the power to defer sentence. In addition, a number of groups have called for deferred sentencing to be used more frequently, and in particular for young adults, female offenders, pregnant offenders as well as individuals commencing or undertaking treatment.
There are many gaps in our knowledge of how deferred sentencing currently operates. We know almost nothing about this little-known provision beyond the limited research summarised in this report.