The courts have a range of robust powers for when a sentence is suspended. A suspended sentence can include one or more of the fourteen ‘requirements’ available for community orders, such as electronic monitoring and community payback. The courts have the flexibility to choose and balance requirements in line with the statutory purposes of sentencing.
	The ISR recommended that the Government legislate to ensure short custodial sentences (sentences of 12 months or less) are used only in exceptional circumstances. While short custodial sentences may be useful in some circumstances, they often do not provide meaningful rehabilitation to offenders, have limited deterrent effect, and have high financial costs. Ministry of Justice analysis has found that suspended sentence orders and community orders can more effectively reduce reoffending when compared to short sentences of immediate custody.
	This Act introduces a statutory presumption that courts 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.
	The ISR did not recommend a complete abolition of short custodial sentences and noted that they will continue to be appropriate in some circumstances.
	The Act includes an exemption for offences committed by, or closely connected to, breaching a court order. This means that when an offender breaches a court order (including any protective order related to violence against women and girls, such as restraining orders and stalking protection orders), the presumption does not apply, and the court has full discretion to impose an immediate custodial sentence. This exemption applies both where the breach of a court order itself constitutes a criminal offence (such as breach of a restraining order), and where the offence has been committed in circumstances closely connected to the breach of a court order (even if breach of the order is not itself a criminal offence).
	The Act also includes express exemptions for offences committed while an offender is subject to a supervision order (such as a suspended sentence order) and where the court is re-sentencing an offender following breach of a supervision order.
	The court is also not under the presumption to pass a suspended sentence order, where passing such an order would put a particular individual at a significant risk of harm. This is intended to enable the court to pass immediate custodial sentences where there are victims or other at-risk individuals who would be at significant risk of harm if the court suspended the sentence. It is expected to be particularly relevant in the context of domestic abuse and violence against women and girls. Harm includes both physical and psychological harm.
	In these cases, the court should continue to consider whether to suspend a custodial sentence in line with the current practice.
	The court can also depart from the presumption to suspend a short sentence where there are exceptional circumstances relating to the offence or the offender, which would justify not passing a suspended sentence order.
Policy background Part 1: Sentencing Suspended sentences Presumption of suspended sentence order for sentences of 12 months or less