Custodial sentence: immediate custody and what follows

A custodial sentence is a period of detention in prison imposed by a court following conviction for a criminal offence. The court orders immediate custody when the seriousness of the offence, the harm caused or the risk to the public makes any other form of punishment inadequate. HS Criminal Law explains what happens when a judge or magistrate passes a custodial sentence, how the length is calculated and what the convicted person can expect during and after custody.

Immediate custody vs other sentences

When a court convicts someone, it chooses between custody, a community order, a fine, a conditional discharge or a suspended sentence. Immediate custody means the person is taken to prison straight away, usually from the courtroom. A suspended sentence involves a prison term that is held over the person's head but not activated unless they commit another offence or breach a requirement within a set period.

Community orders keep the person in the community but attach requirements such as unpaid work, curfews or supervision. Courts turn to custody only when the offence is so serious that no other penalty will do. The sentencing court must state in open court why custody is necessary and why a lesser sentence cannot be justified.

Length of custodial sentence

Sentencing guidelines set a range for each offence based on the harm done and the offender's culpability. The judge or magistrate identifies a starting point within that range, then adjusts it for aggravating factors—previous convictions, use of a weapon, targeting a vulnerable victim—and mitigating factors such as an early guilty plea, genuine remorse or evidence of steps toward rehabilitation.

Magistrates can impose custody of up to six months for a single offence, or twelve months for consecutive sentences. The Crown Court has no upper limit on sentence length, though Parliament sets the maximum for each offence. Sentences over four years are served entirely in custody; shorter ones involve release partway through on licence. More on the framework courts follow appears in the article on sentencing guidelines.

Time served and release

A person sentenced to a determinate custodial sentence does not serve the entire term in prison. Those with sentences under twelve months are released automatically at the halfway point. Someone with a sentence between twelve months and four years is also released at the halfway mark but remains on licence until the end of the full term. Sentences of four years or more trigger an additional parole consideration after the person has served two thirds of the term.

Release on licence means supervision by a probation officer and compliance with conditions such as residence requirements, exclusion zones or regular reporting. Breaching licence conditions can result in recall to prison. The licence period ends when the full custodial term expires, though the conviction remains on the person's record long after release.

Time on remand

Time spent in custody before trial or sentencing—known as remand—is automatically deducted from the final custodial sentence. If someone has been held on remand for three months and receives a twelve-month sentence, they serve the remaining nine months. The court announces the deduction when passing sentence.

Categories of prison

England and Wales use a four-tier system: Category A for those whose escape would pose the greatest threat to public safety; Category B for prisoners who do not need maximum security but for whom escape must be made very difficult; Category C for those who cannot be trusted in open conditions but are unlikely to attempt escape; and Category D, open prisons with minimal security, for those nearing release. The allocation depends on the offence, the sentence length and an assessment of risk.

Young adults and women are held in separate establishments. A person under eighteen at the time of sentencing goes to a young offender institution or secure training centre, not an adult prison.

Life in custody

Daily routine inside varies by prison but generally follows a set pattern. Prisoners are unlocked in the morning for work, education or training. Meals are served at fixed times. Association periods allow time out of cells for exercise, use of phones or showers. Lock-up happens in the late afternoon or evening, with a final unlock for supper in some establishments.

Contact with family takes the form of visits, letters and telephone calls. The number and length of visits depend on the prison's regime and the prisoner's conduct. Most establishments allow two visits per fortnight, though enhanced prisoners may receive more. Phone credit must be purchased from prison earnings or sent in by family.

Work and education

All prisoners are expected to engage in purposeful activity. This includes workshops manufacturing goods, maintenance roles within the prison, classroom education and vocational training. Participation earns a small wage, part of which can be spent in the prison shop and part saved for release. Refusal to work can result in loss of privileges or disciplinary action.

Conditions for early release

Automatic release happens at the halfway or two-thirds point, depending on sentence length. Prisoners serving extended sentences or those convicted of particular violent or sexual offences face a parole hearing. The Parole Board assesses whether the person still poses a risk to the public. It reviews reports from prison staff, probation officers and sometimes psychologists before deciding whether to grant release on licence.

A negative parole decision means the person remains in custody. They can reapply after a set period, usually one or two years. Even when parole is granted, release comes with strict conditions and the possibility of recall if those conditions are breached or new concerns emerge.

Steps to take after receiving a custodial sentence

1. Instruct a solicitor immediately if you have not already done so, to discuss the possibility of an appeal against conviction or sentence.
2. Inform your employer, landlord and any benefit agencies of your sentence, so arrangements can be made for your absence.
3. Arrange for someone you trust to manage urgent matters such as rent payments, care of dependants or storage of belongings.
4. Gather documents you will need in prison—proof of identity, medical records, details of any prescriptions—and hand them to your legal representative or a family member who can pass them to the prison.
5. Ask the prison reception staff about the induction programme as soon as you arrive, so you understand the daily routine, how to request medical attention and when you can make phone calls.

Impact on criminal record

A custodial sentence appears on a criminal record and is disclosed in standard and enhanced checks for years after release. The length of the rehabilitation period depends on the sentence: a term of up to six months has a rehabilitation period of two years from the end of the sentence; between six and thirty months, four years; over thirty months but less than four years, seven years. Sentences of four years or more are never spent and remain disclosable indefinitely.

Filtering rules may prevent some older convictions from appearing on a check, but sentences above a certain threshold always appear. The article on criminal record duration sets out how long different sentences remain on record and when they can be filtered.

Differences between magistrates' court and Crown Court custody

Challenges during custody

Separation from family places strain on relationships. Maintaining contact through visits and phone calls requires effort from both sides, and the cost of travel to distant prisons can be prohibitive. Children may struggle to understand why a parent has been removed, and partners face the burden of managing a household alone.

Employment is almost always lost, making it harder to rebuild after release. Housing can be forfeited if rent goes unpaid. Mental health deteriorates in some cases due to isolation, the prison environment and the loss of autonomy. Access to healthcare inside varies, and waiting times for treatment can be long.

Recall to custody

Release on licence is conditional. Breaking a licence condition—missing an appointment with a probation officer, failing to stay at the approved address, committing a further offence—triggers recall. The person is arrested and returned to prison, where they remain until the Parole Board reviews the case. Fixed-term recall lasts a set period, typically fourteen or twenty-eight days; standard recall has no fixed end date and requires a parole hearing.

The person recalled can make representations to the board, but the burden is on them to show they no longer pose a risk. A recall decision can add months or years to time served, even when no new offence has been charged.

Prepare now if custody is likely

Knowing a custodial sentence may follow conviction gives you time to act. Settling outstanding debts, storing valuables with someone reliable and making childcare arrangements all ease the transition. Speak to your solicitor about the realistic range of sentence you face and what an appeal might achieve.

• Secure your home and arrange for someone to collect post or check the property regularly
• Write a list of login details, account numbers and contact details for agencies you deal with, and leave it with a trusted person
• Cancel direct debits you will not be able to honour while inside
• Tell your GP and any specialist you see that you are going into custody, so medical records can be transferred to the prison

This article is for general information only. HS Criminal Law does not provide legal advice or representation.

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