Presumption to Suspend Short Custodial Sentences: Sentencing Council Clarifies the Role of “Exceptional Circumstances”

One of the most important of those reforms is the statutory presumption in favour of suspending short custodial sentences, and the recent clarification given by the Court of Appeal and the Sentencing Council on when that presumption can be displaced.

Following the introduction of section 277A of the Sentencing Act 2020 earlier this year, the Court of Appeal and the Sentencing Council have now provided important clarification on how courts should approach the statutory presumption in favour of suspending sentences of 12 months' imprisonment or less. 

The statutory presumption

Section 277A of the Sentencing Act 2020, which came into force on 22 March 2026, introduced a significant change to sentencing practice. In most cases where a court imposes a custodial sentence of 12 months or less, that sentence must be suspended unless one of the statutory exceptions applies. 

The provision reflects a wider policy objective of reducing the use of short-term imprisonment in circumstances where rehabilitation and community-based interventions may better address offending behaviour while reducing pressure on the prison estate.

However, custody will remain appropriate in some cases. 

Court of Appeal guidance in R v Morgan

The first significant appellate consideration of section 277A came in R v Morgan [2026] EWCA Crim 886 (“Morgan”). The defendant had been sentenced to eight months' imprisonment for dangerous driving. Although the sentencing judge considered whether suspension was appropriate, neither the parties nor the court addressed the newly enacted statutory presumption. 

The Court of Appeal allowed the appeal, concluding that section 277A applied and that, absent a finding of exceptional circumstances, a suspended sentence order was mandatory. The immediate custodial sentence was therefore unlawful and was replaced with an eight-month sentence suspended for two years. 

Of particular significance was the Court's treatment of the "exceptional circumstances" test. The Crown argued that the seriousness of the offending justified immediate custody. The Court rejected that submission, emphasising that seriousness alone is unlikely to amount to an exceptional circumstance for the purposes of the legislation. 

While declining to provide an exhaustive definition, the Court confirmed that exceptional circumstances should be given their ordinary meaning and should be understood as circumstances that are uncommon or out of the ordinary. Even though the offence involved prolonged dangerous driving committed under the influence of alcohol and drugs, the facts were not considered exceptional. 

The decision serves as an important reminder that sentencing courts must expressly consider the statutory presumption and that departure from it will require something more than simply pointing to the seriousness of the offence itself. 

Sentencing Council responds

Following the Court of Appeal's judgment, the Sentencing Council moved quickly to amend its guideline on the imposition of community and custodial sentences. The amendment, published on 6 August 2026, seeks to ensure that the guideline accurately reflects the position clarified by the Court of Appeal. 

The most important change concerns the practical effect of a finding of exceptional circumstances.

The amended guideline makes clear that where a court concludes that exceptional circumstances exist, which relate to the offence or the offender, under section 277A(2), which justify an immediate custodial sentence it should proceed directly to impose an  such a sentence. In those circumstances, there is no need to carry out any further assessment of the guideline factors that would otherwise assist the court in deciding whether suspension is appropriate.

By contrast, where the presumption does not apply as a result of a statutory exemption , including  where the custodial term is longer than 12 months but no more than three years, the court must still consider the guideline's suspension factors before deciding whether a sentence should be suspended. 

Why does this matter?

The clarification may appear technical, but it has significant practical implications.

Prior to Morgan, there was scope for uncertainty as to whether a finding of exceptional circumstances merely displaced the presumption in favour of suspension, leaving the court to continue weighing the usual suspension factors. The Court of Appeal has now confirmed that exceptional circumstances operate differently. Once established, they justify immediate custody without any further balancing exercise. 

For prosecutors, defence lawyers and defendants alike, this creates a clearer framework for sentencing submissions. Arguments are likely to focus more heavily on whether circumstances are genuinely exceptional rather than on the broader suspension factors.

Looking ahead

As one of the first appellate authorities on section 277A, Morgan is likely to have a substantial influence on sentencing practice. Further case law will undoubtedly emerge as courts grapple with the boundaries of what constitutes an exceptional circumstance.

For now, the position is clear. 

Sentencers must actively consider the statutory presumption in favour of suspension where a custodial sentence of 12 months or less is imposed. Immediate custody will require a recognised exception, and where exceptional circumstances are relied upon, those circumstances must be truly out of the ordinary. 

The Sentencing Council's amendment brings much-needed clarity and ensures that the guidelines now align with the Court of Appeal's interpretation. 

For those involved in criminal investigations and prosecutions, understanding the scope of the presumption and the limited circumstances in which it can be displaced will be critical when assessing sentencing risk and developing case strategy.