Tag Archives: custody

Graffiti gang get ‘least possible sentence’ – Right or wrong?

Yesterday the Telegraph reported the case of a gang of youths who over a three-year period, caused £150,000 worth of damage to Tube trains in London.

The facts of the offence are not too important. What we are more concerned with is the implication that the Judge, in imposing the ‘least possible sentence’ is an example of the ‘soft judges’ about which the Telegraph and Daily Mail in particular regularly bemoan.

In fact, there is a good reason why the Judge said that he was imposing the least possible sentence. There is a duty imposed upon the courts to impose a custodial sentence for the shortest possible term, Criminal Justice Act 2003 s 153:

“…the custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence…”

If we consider this provision, it is an obvious requirement – why would we want judges to impose sentences that were longer than necessary in order to meet the aims of the sentence? If 6 months is an appropriate punishment, and will allow for suitable rehabilitation, why waste public funds on a 9 month sentence? It makes no sense.


In this case, the Judge made other comments which the Telegraph appeared to take issue with:

“I don’t endorse it but I understand the adrenaline rush and the feeling it gives them and they may be isolated in their families.

“I don’t want to be doing this and I will by as lenient as I can be. They’ve got talent and some of Mr Rowe’s portfolio you would be proud of.”

“Clearly they are talented artists”

On one view, this is a ‘soft’ judge not treating the offence with the seriousness that it requires, considering the damage caused.

On the other, it is a judge who is trying to understand why the offenders have committed their offences, appreciate the circumstances of each offender and see the potential for the offenders to turn their talents away from graffiti and to lawful art.

Is that not what we want our judiciary to do?

The Judge imposed sentences of 2 years, 9 months and a 6-month Detention and Training Order.

Prison Categorisation

If someone is sent to prison then how they will be managed in custody depends on what sort of a risk they present (or that the prison think they present).

Men over the age 21 form the vast majority of the prison population. Adult male prisons are divided into ‘open’ and ‘closed’ prisons. Closed prisons are more secure and prisoners aren’t allowed out without an escort. The higher the categorisation, the more onerous the prison existence will be.

Within the prison service, prisoners are divided into four categories; imaginatively named A, B, C and D:

Category A – Prisoners whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must be to make escape impossible.

Category B – Prisoners for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult.

Category C – Prisoners who cannot be trusted in open conditions but who do not have the resources and will to make a determined escape attempt.

Category D – Prisoners who present a low risk; can reasonably be trusted in open conditions, and for whom open conditions are appropriate.

Prisoners who are in Categories A-C will be held in closed conditions. If someone is held on remand, then they will be allocated to Category B, unless they are going to be on trial for a very serious offence and would be allocated to Category A, in which case they will be held in ‘Provisional Category A’ conditions.

The categorisation exercise will be carried out after someone is sentenced and will be decided after looking at a variety of factors; the offence, previous offending, length of sentence etc.

As part of every person’s sentence plan, the prisoner will generally work their way through the various categories until they are in Category D from where they will be released.

Adult females are categorised in a similar way (although there are far fewer than males). Category A is the same, the equivalent of Category B is ‘Restricted status’, Category C is ‘closed’ and category D ‘open’.

Youths are categorised in the same way as adult females.

Full details are in the relevant PSI (Prison Service Instructions) which can be found here for men, here for women and here for youths.

Custodial Sentence for Youths

Sentencing for youths is very different than for adults.


A sentence of imprisonment can ONLY be passed on someone who is aged 21 at the time of sentence. In practice, if someone is aged between 18 and 21 it is relatively straightforward. The maximum sentences are the same as for adults, but, instead of prison, the person will be sentenced to detention instead.

This applies to the other types of prison sentences as well – it is suspended sentence of detention, detention for public protection etc.


For someone convicted of murder, they will be sentenced to ‘custody for life’ – in practice the same as life imprisonment. Someone under the age of 21 cannot be sentenced to a whole life tariff however.

If someone is aged under 18 then the starting point (whatever the circumstances) is 12 years. This does not stop the Court from imposing a tariff much higher than 12 years in the appropriate circumstances.

For murder, it is the same rules as an adult except that the sentence is called ‘detention during Her Majesty’s Pleasure’.

General approach

The general rule is that offences will be dealt with in the Youth Court. This a ‘branch’ of the Magistrates Court with specially trained judges. Instead of the 6 months, the maximum sentence that they can pass is 2 years (or the maximum sentence for an adult, whichever is lower). The form of prison is called a Detention and Training Order (DTO). As with adults, this involves spending half of the sentence in a detention centre and the other half in the community under supervision.

The difference however is that the Youth Court can only pass a DTO in specified ‘chunks’ of time; 4, 6, 8, 10, 12, 18 and 24 months.

If someone is under the age of 15 then a DTO cannot be imposed unless they are a ‘persistent offender’, meaning that they have been in trouble several times before. For someone aged under 12, a DTO cannot be passed unless the court thinks that only such a sentence would be adequate to protect the public from further offending from him.

There is no power requiring the judge to take into account any time spent on remand for a DTO. If someone has spent time on remand however, the Judge should take this into account, as far as is possible, when sentencing.

When youths are sentenced in the Crown Court

Certain offences can lead to a sentence of more than two years, but this has to be imposed in the Crown Court. The Youth Court can send certain cases to the Crown Court. This only applies to offences where the maximum sentence is 14 years or more and, if the defendant is aged over 14, then causing death by dangerous driving or causing death by careless driving whilst under the influence of alcohol or drugs. These cases are called ‘grave crimes’.

If the Youth Court considers that the dangerous provisions apply and that the youth, if found guilty, may get a Detention for Public Protection sentence or Extended sentence, then they must be sent straight to the Crown Court.

For firearms offences where the minimum sentencing provisions apply, the person must be sent for trial in the Crown Court.

If a youth is sentenced in the Crown Court then they will either be sentenced to a DTO (if the Judge feels a sentence of 2 years appropriate), or detention under section 91 otherwise.

Overview – prison sentences

The news says that Mr Smith has just been sentenced to six months, or whatever the case may be. But what does that mean?

Age restrictions

You can only have a prison sentence if you are over 21 at the date that the Judge sentences you (there are similar but different sentences for people under 21).

What does it mean?

This is an order that a person is kept in prison for a specified, and definite period of time.

Maximums and minimums

The minimum period of a prison sentence in the Magistrates Court is 5 days. The maximum sentence that a Magistrates’ Court can pass is one of 6 months imprisonment (unless there are two either way matters, in which the court can pass a sentence of up to 12 months)

There is no minimum sentence in the Crown Court and, in theory, no maximum (other than the maximum sentence for the offence) although in practice sentences of over 20 years are very unusual (and reserved almost exclusively for large scale drug importation).


The rules surrounding exactly when people will be released are very complex [INSERT LINK], but in essence, you will serve half the prison sentence actually in custody (in the prison) and then be released. The remainder of the prison sentence will be spent supervised in the community under the probation service.

Sometimes, people are released earlier on an electronic tag. Again, the rules are complicated, and it depends on the length of sentence and type of offence that lead to the prison sentence, but you have to have served six weeks and at least a quarter of the sentence and you can be released 135 days earlier.


If you break the terms set by the probation service, they you can be recalled to prison (unless this is because of a new offence, there will usually be a warning given first). If that happens, then you will be arrested and taken back to prison.

There are different sorts of recall, sometimes it will be for a fixed term of 28 days, sometimes to serve the amount of time from when the ‘notice of recall’ is issued to when your sentence would have expired. In either case, you can apply to the Parole Board to be released.

Sometimes you may spend more or less time than half the stated sentence in prison. If you misbehave in prison you can be ‘charged’ with an offence and, if it is found proved, have extra days added to the sentence.