When must a court suspend a short prison sentence?
A prison sentence does not always mean that the defendant is taken into custody at once. Since 22 March 2026, courts in England and Wales have been required to suspend many custodial sentences of 12 months or less. The change is important, but it is not a ban on short immediate sentences and it does not mean that every defendant who receives a short term will remain free.
The new approach was considered by the Court of Appeal in R v Corey Morgan [2026] EWCA Crim 886. The decision explains how strong the statutory presumption is and why the ordinary seriousness of an offence will rarely be enough, on its own, to displace it.
A presumption of suspension, not a presumption against custody
The court must still decide the correct type and length of sentence in the usual order. It first asks whether the offence is so serious that neither a fine nor a community order can be justified. Passing the custody threshold does not make imprisonment inevitable: a community order may still be appropriate if it can achieve the purposes of sentencing.
If prison is unavoidable, the court fixes the shortest term that reflects the seriousness of the offence. Only then does it consider whether that term must or may be suspended. A suspended sentence cannot be imposed merely as a more severe-looking community order. The judge must first have concluded that a custodial sentence is justified.
A suspended sentence remains a prison sentence. It is simply not activated immediately. The offender is allowed to remain in the community during an operational period, often with requirements imposed by the court. Reoffending or failing to comply can lead to some or all of the custodial term being activated.
Which cases fall within the new rule?
The presumption was introduced by section 1 of the Sentencing Act 2026, which inserted sections 264A and 277A into the Sentencing Code. It applies to adult offenders convicted on or after 22 March 2026 where the court proposes a custodial term of 12 months or less and a suspended sentence order is legally available.
The date of conviction is decisive. The new rule can therefore apply to an offence committed before 22 March 2026 if conviction occurred on or after that date. Conversely, a defendant convicted before 22 March remains under the previous regime even if sentence is passed later.
There are separate statutory provisions for offenders aged 18 to 20 and those aged 21 or over, but the central presumption is the same. The court must make a suspended sentence order unless a listed exclusion applies or it finds exceptional circumstances that justify immediate custody.
When does the presumption not apply?
The legislation removes the presumption in several defined situations. It does not apply where:
- the offender is already in custody, whether serving a sentence, remanded in another case or detained under a hospital order;
- the court is resentencing the offender for breach of a community order or suspended sentence order;
- the new offence was committed while the offender was subject to a community order or suspended sentence order;
- the offence, or an associated offence, amounted to or was closely connected with a breach of a court order; or
- there is a significant risk of physical or psychological harm to an individual.
These are exclusions from the presumption, not automatic instructions to imprison. If an exclusion applies, the court returns to the ordinary discretionary question: is it appropriate to suspend the sentence in all the circumstances? Immediate custody may be required, but it does not follow merely from the fact that the presumption has fallen away.
What are “exceptional circumstances”?
Even where none of the listed exclusions applies, the court may impose immediate custody if there are exceptional circumstances relating to the offence, a combination of associated offences or the offender, and those circumstances justify not suspending the sentence.
“Exceptional” is deliberately a strong word. It does not simply mean serious, unpleasant or deserving of punishment. Any case in which a custodial sentence is imposed has already crossed a high seriousness threshold. If ordinary seriousness were enough, the presumption would add very little.
The statute requires two linked judgments. The circumstances must genuinely be exceptional, and they must justify immediate rather than suspended custody.
The Court of Appeal in Corey Morgan declined to produce a list of examples. That was intentional. Whether circumstances are exceptional depends on the whole case, and a rigid catalogue would risk turning an exacting test into another checklist.
What happened in Corey Morgan?
Morgan pleaded guilty to dangerous driving. After an argument involving a former partner, he pursued a car carrying a child and two women, one of whom was pregnant. He had consumed alcohol and drugs. He threatened to ram the car containing the women and children. He did in fact ram that car as well as colliding with a parked car during a high-speed chase through residential streets. He eventually crashed into a tree. The offence was plainly grave.
The Crown Court found that the offence justified 21 months imprisonment before hearing any mitigation. Morgan was young, had no previous convictions and had sustained severe injuries in the crash. After a substantial reduction for those matters and credit for his guilty plea, the judge imposed eight months' immediate imprisonment.
The difficulty was that nobody had drawn the new statutory presumption to the judge's attention and he was apparently unaware of them himself. The judge considered the older guideline factors and said the driving was too serious for suspension, but he did not decide whether exceptional circumstances existed.
The Court of Appeal held that this was an error. Once the judge had selected a sentence of eight months, and none of the statutory exclusions applied, he was required to suspend it unless exceptional circumstances justified immediate custody. Seriousness alone was unlikely to meet that test because the selected term itself placed the offence within the class of short sentences Parliament had decided should almost always be suspended.
The court did not minimise the danger or fear caused. It observed that Morgan's conduct was very serious, but uncontrolled aggression by an angry former partner was regrettably not exceptional. Nor could the sentence be kept immediate on the basis that it might properly have been longer. The sentence actually selected governed the operation of the statute.
The appeal was allowed. The eight-month term was suspended for two years and Morgan was ordered to complete 15 rehabilitation activity sessions. He had already spent two weeks in prison. The discretionary part of his driving disqualification remained, although the extension added for time expected in custody was removed.
What if the sentence is longer than 12 months?
For convictions on or after 22 March 2026, a custodial sentence of more than 12 months and up to three years may be suspended, but there is no statutory presumption that it must be. The court applies the ordinary factors in the Sentencing Council's Imposition of community and custodial sentences guideline.
Factors favouring suspension include a realistic prospect of rehabilitation, a low risk of reoffending or harm, strong personal mitigation and significant harmful effects of immediate custody on other people, including dependent children. Factors pointing the other way include risk to another person, a need for immediate custody to achieve appropriate punishment, and a history of poor compliance coupled with an expectation of future non-compliance.
Those factors also guide the court where a sentence of 12 months or less falls within one of the statutory exclusions. They do not form an additional stage after the court has already found exceptional circumstances under the presumption. Corey Morgan prompted the Sentencing Council to amend its guidance so that the two routes are not confused.
What can be included in a suspended sentence order?
A suspended sentence order has an operational period during which further offending may activate the prison term. It can also contain requirements to be completed during a supervision period. Depending on the case and the assessment by the Probation Service, these may include rehabilitation activity, unpaid work, a curfew, treatment or another suitable requirement.
Requirements should be realistic, compatible and proportionate. Because the suspended custodial term is itself a punishment, the court should not overload the order with punitive requirements. If the proposed package becomes more onerous than is justified, that may indicate that a community order was the proper sentence in the first place.
Preparing for sentence
The presumption is powerful, but a favourable outcome should not be taken for granted. The court needs reliable information about risk, compliance and personal circumstances. A pre-sentence report may be decisive. Evidence of stable accommodation, work, caring responsibilities, treatment, abstinence, engagement with services and practical plans for rehabilitation can help the court understand whether the offender can be managed safely in the community.
Where the prosecution says an exclusion applies, the precise statutory language matters. A general assertion that somebody poses a risk is not the same as evidence of a significant risk of physical or psychological harm to an individual. Equally, where exceptional circumstances are alleged, the court should identify what is said to be exceptional and why it requires immediate imprisonment.
How Chetwode can help
Chetwode Criminal Defence Solicitors can identify whether the statutory presumption applies, test any claimed exclusion, prepare focused mitigation and ensure that the court has the evidence needed to consider a community-based sentence safely and lawfully.
If you are awaiting sentence, early preparation allows time to obtain a pre-sentence report, medical or treatment evidence, references and information about the impact of custody on others. It also allows any dispute about the facts or the correct guideline category to be resolved before the court reaches the final question of immediate or suspended custody.