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Draft Sentencing Guideline on breach offences: risk of increase in custodial sentences

25 April 2017

A more accurate estimate of impact on the prison population is needed as soon as possible after new sentencing guidelines take effect, says the Justice Committee in its report. Without this there is a risk of an increase in custodial sentences without a Government commitment to meet the additional demand for places in the prison estate.

Draft guideline for breach offences

The report considers the draft guideline for breach offences published for consultation by the Sentencing Council on 25 October 2016.  At present, guidelines are only available for certain breach offences and these vary in their format and scope. The Council has now decided to issue a single definitive guideline document covering the majority of breach offences, including those listed below.

Breach of a Community Order

The guideline should remind sentencers to consider the offender's individual circumstances, including the reasons for the breach taking place and any shortfall in the quality of supervision by probation services which may have contributed to the likelihood of a breach. Mitigating factors when sentencing should include any mental health condition or learning disability that is linked to committing the breach offence. (para 28)

Breach of a Suspended Sentence Order

The guideline should explain how the ‘unjust in all the circumstances' test for avoiding custody should be applied to offenders whose original offence clearly fell short of the custody threshold. (para 34)

Breach of a Post Sentence Supervision

Taking into account concerns about the quality and delivery of ‘Through the Gate' services, as well as concerns about responses to breaches and recalls to custody, sentencers should consider any serious failings in the quality or delivery of Through the Gate services to the offender.

Breach of a Protective Order

These orders are often used in cases of domestic violence and stalking – and a breach is a criminal offence punishable with up to five years' imprisonment. Recognising that the circumstances surrounding such orders may not always be straightforward, sentencers should be alerted to the need for a full examination of the circumstances of the breach; and the guideline should expressly require consideration of whether the offender has subjected the victim to threats or coercive control, including online abuse, unless a separate prosecution is intended for this abuse. (para 45)


The Sentencing Council for England and Wales is an independent non-departmental body of the Ministry of Justice, set up to promote greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary. Its primary role is to issue guidelines on sentencing which the courts must follow unless it is in the interests of justice not to do so. The Council also assesses the impact of guidelines on sentencing practice and promotes public awareness of sentencing practice in the magistrates' courts and the Crown Court.

Under section 120 of the Coroners and Justice Act 2009, the Council is required to publish sentencing guidelines in draft before they are finalised. S120 (6) of the 2009 Act lists the Justice Committee as a statutory consultee on draft guidelines.

The Council has decided to issue a single definitive guideline document covering the following breach offences:

  • Breach of a Community Order
  • Breach of a Suspended Sentence Order
  • Breach of Post Sentence Supervision
  • Failing to Surrender to Bail
  • Breach of a Protective Order (restraining and non molestation orders)
  • Breach of a Criminal Behaviour Order and ASBO
  • Breach of a Sexual Harm Prevention Order and Sexual Offence Prevention Order
  • Failing to Comply with Notification Requirement
  • Breach of disqualification from acting as a director
  • Breach of disqualification from keeping an animal

In 2014, Post Sentence Supervision was extended to all offenders who receive a custodial sentence of more than one day but less than two years. Although it operates in a similar way to COs, which have a punitive element, PSS is designed to be purely rehabilitative, with all offenders receiving 'Through the Gate' resettlement services. A breach of PSS requirements can lead to recall to custody for up to 14 days.

The Committee considered the Joint Inspectorates' report on 'Through the Gate' resettlement services for short sentence prisoners, which found levels of recall which were ‘concerning'. It also identified a number of shortcomings in service provision including insufficient preparation for release (e.g. assistance with debt, accommodation and employment), and almost no evidence of responsible officers considering the best approaches to short sentence prisoners, either to encourage them to keep to the terms of their licences or to help them reduce levels of reoffending.

The Committee concluded that assessing the seriousness of a PSS breach by reference only to the level of compliance creates a real risk of unfairness and disproportionality in individual cases, as well as undermining the policy's rehabilitative purposes and increasing pressures on the prison population.

Further information

Image: Ministry of Justice