Court gives guidance on when immediate custody can follow a sentence of 12 months or less
Suspended sentence presumption has been clarified by the Court of Appeal (Criminal Division), which has set out the circumstances in which an immediate prison sentence can be imposed when the custodial term is 12 months or less.
In Fiona Hodge & Ors v R [2026] EWCA Crim 1181, handed down on 16 September 2026, the court considered four cases involving section 277A of the Sentencing Act 2020. The provision applies to adults convicted on or after the relevant commencement date where the sentence is no more than 12 months and a suspended sentence order is available.
The court said that, where section 277A applies, a sentencing court must make a suspended sentence order unless it considers that exceptional circumstances relating to the offence, associated offences or the offender justify not doing so. A number of statutory exclusions also apply, including specified situations involving custody, supervision orders, breaches of court orders and significant risks of physical or psychological harm.
The Court of Appeal said the concept of “exceptional circumstances” must be applied narrowly. It held that such circumstances may arise where the offender’s culpability or the harm caused, intended or foreseen is exceptionally high. They may also arise where the particular nature of the offence creates an exceptional public interest in deterrence.
Sentencers must take a holistic approach, considering the relevant circumstances together. The court stressed that culpability and harm, which may already have been assessed when determining whether custody is required and deciding its length, must be considered again when applying section 277A. The purposes of sentencing under section 57 of the Sentencing Act 2020 must also be considered, particularly whether immediate custody is exceptionally required for deterrence.
The judgment also makes clear that the fact an offence caused death does not, by itself, constitute an exceptional circumstance. In the cases of Fiona Hodge and Jason Carter, the deaths caused by careless driving were relevant to the assessment but were not sufficient on their own to justify immediate custody. The court therefore suspended both sentences.
Hodge’s 12-month sentence was suspended for two years. Jason Carter’s 13-month sentence was quashed and replaced with nine months’ imprisonment suspended for two years. The court said the original sentence had to be examined particularly carefully because a sentence just above 12 months removes the statutory protection provided by section 277A.
The court reached a different result in Morne Potgieter’s case. His appeal was dismissed because the court upheld the finding that exceptional circumstances justified immediate custody, taking account of the very serious harm caused to two victims together with other relevant circumstances.
In James McClements’ case, the Attorney General’s reference was allowed. The court concluded that the misconduct in public office required a sentence exceeding 12 months because of serious aggravating features, including the duration of the offending, exploitation of a vulnerable woman, repeated use of the police NICHE system to access information and the use of the offender’s position to discourage a report of a bail breach. Section 277A therefore did not apply. An immediate sentence of 15 months was imposed instead of the original eight-month suspended sentence.
For solicitors involved in sentencing work, the practical point is that the 12-month threshold is now a critical stage in the analysis. Where section 277A applies, practitioners should address whether any statutory exclusion applies and, if not, identify the specific circumstances said to be exceptional and explain why they justify immediate rather than suspended custody. The judgment emphasises that courts must be careful not to treat ordinary features of an offence as exceptional and must give reasons identifying the factors that truly meet the statutory test.