In accordance with section 277 of the Sentencing Code, when considering imposing a sentence of imprisonment of at least 14 days but no more than 2 years on an offender aged 21 or over, the courts may suspend that sentence by way of a suspended sentence order (note that this Act also includes a measure to increase this maximum period from 2 years to 3 years). The same power applies to adult offenders under 21 by virtue of section 264 of the Sentencing Code.
	A suspended sentence is a custodial sentence that can only be imposed on an adult if the court is satisfied that the seriousness of the offence merits a custodial term but that other factors relating to the offence, or the offender mean that the sentence can be suspended. Currently, whether to suspend any qualifying custodial sentence is a matter of judicial discretion, taking into account the factors set out in the overarching sentencing guideline, Imposition of Community and Custodial Sentences. The court is obliged to expressly consider these factors when it is about to impose a custodial sentence which is within the range of sentences which can be suspended. The factors listed in the guideline are not an exhaustive list.
	When imposing a suspended sentence order, the court may impose community requirements on the offender. If the offender breaches the order by failing to comply with any of the conditions or requirements, the offender will be given a warning in respect of the first breach and, if there is a second breach within the next 12 months, they will be returned to court. Equally, if the offender commits a new offence during the suspension period, they will be returned to court. If the breach is proven to the court’s satisfaction, there is a presumption that the court will activate the suspended custodial sentence.
	This Act introduces a statutory presumption for courts to suspend custodial sentences of 12 months or less unless an exception within the section applies. The presumption to suspend applies to offences which pass the custody threshold and where the court considers it appropriate to impose a custodial sentence of 12 months or less.
Legal background Part 1: Sentencing Suspended sentences Presumption of suspended sentence order for sentences of 12 months or less