Are Courts Ready for the Sentencing Act?

 

With the prison population almost 1,200 higher than it was when the Sentencing Act became law in January, its easy to see why the government want its key provisions to come into force quickly. But are the courts ready to apply the presumption against short prison sentences to those convicted from next Monday?

The law looks reasonably clear about the types of case for which the presumption wont apply- such as where the sentence is imposed alongside a longer prison sentence for another offence, the offender is remanded in custody in relation to another offence or where the commission of the offence relates closely to the breach by the offender of an existing court order.

The court’s task will be less straightforward in forming an opinion that suspending the sentence would put a particular individual at significant risk of physical or psychological harm.  And even less so in reaching an opinion that there are exceptional circumstances which relate to the offending or the offender which justify not making the order. I haven’t seen any guidance on the kind of factors courts should take into account in reaching the view that, notwithstanding the presumption, the offender should go to jail.

The Magistrates Association have said that “magistrates will require clear guidance in identifying exceptional circumstances in practice, and the confidence to refuse a suspended sentence where such circumstances genuinely apply”. The obvious body to produce such guidance is the Sentencing Council. In their January meeting they agreed to make some minor edits to their guideline on the imposition of community and custodial sentences as a result of the Act but that “consultation will be required for potential further amendments to the guideline, particularly on the presumption of suspension, and on further Sentencing Act provisions coming into effect later in the year”. There has been no consultation that I have seen.

The Sentencing Act Impact assessment says that “judicial discretion means there is a high level of uncertainty on estimated impacts. If fewer custodial sentences are diverted to suspended sentence orders than modelled scenarios, impacts will be different”.  This could mean less relief for the overcrowded prison system- and unnecessary jail terms for individuals.