Several offences, such as those involving offensive weapons and blades, have minimum sentencing provisions, resulting in imprisonment for at least six months for many offenders.
A question arose as to whether such prison sentences could lawfully be suspended.
In the case of Whyte Whyte [2018] EWCA Crim 2437 the court held:
“Although section 189 of the Criminal Justice Act 2003 empowers the court to suspend a sentence of imprisonment, we consider that the reference to “imprisonment” under the minimum sentencing provisions is a reference to a term of immediate imprisonment.”
This decision was the subject of criticism from several commentators, not least barrister Lyndon Harris, a respected expert on sentencing law. Harris wrote:
(1) the provisions do not distinguish between immediate and suspended imprisonment;
(2) under s.189(6) of the CJA 2003, a suspended sentence which has not taken effect is a sentence of imprisonment for the purposes of all enactments (and there being no position to the contrary in s.139 of the CJA 1988); and
(3) under s.189, it is possible to suspend any sentence of imprisonment of more than 14 days (21 in the case of an offender aged 18–20 at conviction) and not more than 2 years.”
In the recent case of Uddin [2022] EWCA Crim 751, the Court of Appeal, expressly referencing Harris’s critique, held:
“It should be noted that Whyte was a decision of a two-judge court which had heard submissions only on behalf of the appellant. Having reflected upon it and with the benefit of the fuller discussion of the principles by which we have been assisted today, we are satisfied, with all respect to the members of the court, that the decision in Whyte was made per incuriam and should not be followed. In our view, it is lawful for a court imposing a minimum sentence of detention in a young offender institution, or of imprisonment, pursuant to section 315 to order that it be suspended.
Our reasons are that the provisions of sections 264 and 277 as to the availability of a suspended sentence impose requirements as to the term of the sentence (or the aggregate term of the sentences), but are not qualified in any other way. The provisions of section 289 unequivocally state that – save for the exceptions permitted by subsection (2), which are not applicable to this case – a suspended sentence which has not taken effect is to be treated as a sentence of detention in a young offender institution, or of imprisonment, for the purpose of all enactments. If Parliament had wished to make an exception from those provisions, in order to require any custodial sentence imposed pursuant to minimum sentence provisions to take effect immediately, it could have done so.
We would add that our view is consistent with the overall scheme of the statutory provisions, which is that a court must first decide whether a custodial sentence is necessary and only then, if the relevant criteria are satisfied, decide whether it can be suspended. It is also consistent with the Sentencing Council’s Imposition guideline, which emphasises that a suspended sentence is a custodial sentence. We emphasise that we have been considering the position where, as in this case, a court imposes a minimum sentence but suspends it. Although we do not decide the point, our provisional view is that different considerations will apply if the court concludes, in accordance with section 315(2), that there are particular circumstances which would make it unjust to impose an appropriate custodial sentence.”
However, it is not all good news as the court went on to say:
“Although not unlawful, however, we are also satisfied that suspending such a sentence will only rarely be appropriate, because in most cases the suspending of the sentence would undermine the punitive and deterrent effect which Parliament plainly intended the minimum sentencing provisions to have. There will be few circumstances in which a court concludes that the imposition of an appropriate custodial sentence would not be unjust but, notwithstanding the clear intention of Parliament, that the sentence can nonetheless be suspended.”
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Image credit: Arms over the entrance to the Crown Court and County Court in St Aldates’, Oxford. Photograph taken 2006-03-25. Copyright © 2006 Kaihsu Tai.
