If you have spoken to a lawyer who talks about a custody risk, you can be forgiven for getting this confused with childcare arrangements! Custody or a custodial sentence is nothing to do with children or a confusing grammatical set of rules! The term custody used in the context of a criminal prosecution means prison, jail, “time behind bars” or “being sent down.”
A prison sentence is the harshest sentence available for the court to impose in the case of some serious motoring charges. The deprivation of a person’s liberty is not a decision taken lightly by the courts and is usually only appropriate in cases where there is no other suitable penalty to imposed. For example, multiple repeat offences of a serious nature such as high reading drink driving charges combines with dangerous driving.
In recent months the growing prison population in England and Wales has become a major problem and this also has a bearing on the courts’ approach to imposing jail time. Whilst the courts must impose a prison sentence where it is appropriate, they will also be mindful of the rise of the prison population. This is certainly a factor taken into account when imposing a sentence in cases where a short custodial sentence may be an option.
Lord Justice William Davis Chairman of the Sentencing Council for England and Wales said in March 2023:
“Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that. It will be a matter for government to communicate to the courts when prison conditions have returned to a more normal state.”Lord Justice William Davis
The Sentencing Council’s full statement is worth a read if you fear the possibility of a prison sentence in your own case.
This guidance will be relevant in cases where a drink-drive charge is before the court with a breath reading of over 120 or in failure to provide cases where a deliberate refusal has occurred whilst highly intoxicated. In repeat offender cases this will also be an issue depending on the case specific details including the proximity of previous offence(s) and level of alcohol reading.
In the recent Court of Appeal case of R v Arie Ali [2023] EWCA Crim 232, it was confirmed that whilst there are ongoing pressures on prison capacity and a person is facing a short custodial sentence, then this can be taken into account for sentencing decisions.
In cases where an offence may cross the threshold for a short prison sentence to be imposed, the court may impose a community order instead, or a suspended sentence. The Court in this case set a precedent by referring to the current prison population levels and how this may be factored into the decision making process. It was, however, stressed that this will only apply to sentences passed until the population crisis is resolved.
Where a matter is so serious that it would not be appropriate to suspend a sentence, then a prison sentence may still follow regardless of the current prison population levels.
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