Suspended Sentences: Consequences of Offending During the Or...

Introduction

A suspended sentence is a custodial sentence that the court holds in reserve. Instead of sending someone straight to prison, the court imposes a Suspended Sentence Order (SSO) with conditions to be completed in the community. If the person then breaches the order or commits a new offence during the operational period, the court can activate the custodial term.

This guide explains what happens if you offend while on a suspended sentence in England and Wales, how courts decide whether to activate the sentence, and what other outcomes are possible.

What You'll Learn

• What a Suspended Sentence Order (SSO) is and how it works
• When courts are likely to impose an SSO
• The difference between breaching SSO requirements and committing a new offence
• The “unjust in all circumstances” test and how courts apply it
• When activation is full, partial, or avoided
• Alternatives the court may use where the new offence is not imprisonable
• How the new offence is sentenced (including consecutive terms and aggravation)
• When credit is applied for completed requirements and when deferral may be appropriate
• Why offences committed before the SSO was made do not affect the order

Core Concepts

What a Suspended Sentence Order means

• The court imposes a custodial term but suspends it for a set operational period.
• The custodial term must be at least 14 days and no more than two years.
• During the operational period, the person must comply with requirements such as:
  • Unpaid work
  • Curfew or electronic monitoring
  • Rehabilitation activity with Probation
  • Programme or treatment requirements
• Failing to comply is a breach. Breach is a separate offence and usually triggers consideration of activating the suspended custodial term.

Plainly put: you are on a “last chance” to complete community-based requirements instead of going to prison.

When courts use a suspended sentence

Sentencing Council guidance highlights factors that suggest an SSO may be appropriate:

• A realistic prospect of rehabilitation
• Strong personal mitigation (for example, caring responsibilities or serious illness)
• Immediate custody would cause significant harmful impact on others

Factors that weigh against an SSO include:

• Ongoing risk or danger to the public
• Punishment can only properly be achieved by immediate custody
• A poor history of complying with court orders

New offences during the operational period

If you commit a new offence while an SSO is in force and are convicted:

• The court dealing with the new offence starts from the position that the suspended custodial term should be activated.
• The court must activate the sentence unless it would be unjust in all the circumstances to do so.

This is a strong presumption. The more serious the new offence or the poorer the compliance with the SSO, the more likely activation becomes.

The “unjust in all circumstances” assessment

When deciding whether it would be unjust to activate the custodial term, the court will look closely at:

• Compliance with SSO requirements to date (attendance, progress, positive reports)
• The nature and seriousness of the new offence
• Why the original court suspended the sentence
• Any new and exceptional factors that were not before the original sentencing court (for example, a recent, significant change in caring duties or health)

The assessment is not a re-run of the original sentence. It is about whether, in light of compliance and genuinely new circumstances, activation would now be unjust.

The court hearing the new offence makes this decision.

Activation options, credit, and alternatives

If activation is justified, the court may:

• Activate the full custodial term; or
• Activate part of the term, giving credit for:
  • Unpaid work hours completed
  • Days spent on curfew or electronically monitored exclusion
  • Demonstrable progress on rehabilitation

Activation in full is more likely where:

• The new offence is serious
• The new offence is similar in type and gravity to the original offence
• There has been little or no compliance with SSO requirements
• There are multiple new offences

Where the new offence is not imprisonable, the court may decide not to activate and instead:

• Extend the operational period of the SSO
• Add different or more demanding requirements
• Extend any supervision period with Probation
• Impose a fine

In rare cases, where the SSO has barely started and there has been no fair chance to comply through no fault of the defendant, the court may defer sentence to allow time to demonstrate compliance. Expect this only in exceptional circumstances.

Important timing point:

• If the new offence occurred before the SSO was imposed (i.e., it pre-dates the order), the SSO should not be affected.

How the new offence is sentenced

• If the new offence itself attracts a custodial sentence, that sentence will usually be ordered to run consecutively to any activated suspended term, subject to the totality principle.
• Committing an offence during the operational period of an SSO is an aggravating factor when setting the sentence for the new offence. This can increase the starting point and, in turn, the final sentence.

Key Examples or Case Studies

Example 1: Similar new offence and poor compliance

• Background: SSO for shop theft with unpaid work and a curfew. The defendant misses several appointments and is convicted of another shop theft.
• What happened: The court activated the full suspended term due to poor compliance and similarity of offending. It then sentenced the new theft separately and made that sentence consecutive.
• Why: Repeated behaviour and limited engagement pointed strongly towards prison.

Example 2: Minor non-custodial offence and strong progress

• Background: SSO for a low-level assault with rehabilitation requirements. The defendant attends all sessions and is later convicted of a non-imprisonable public order offence.
• What happened: The court decided it would be unjust to activate, extended the operational period, and added a further programme requirement.
• Why: Good compliance, non-custodial new offence, and clear progress supported a community-based response.

Example 3: New offence predates the SSO

• Background: SSO for fraud is imposed in March. In May the defendant is prosecuted for a motoring offence that occurred in January.
• What happened: The court did not activate the SSO because the new offence was committed before the order existed.
• Why: Timing matters. The SSO only bites for conduct during its operational period.

Example 4: Credit for completed requirements

• Background: SSO with 200 hours’ unpaid work and a 3-month curfew. The defendant completes most hours and the curfew, then commits an unrelated, low-level theft.
• What happened: The court activated the suspended sentence in part, giving credit for the hours and curfew completed. It also imposed a short community penalty for the new theft.
• Why: Substantial compliance justified a reduced activation rather than the full term.

Practical Applications

• Read your SSO carefully. Know every requirement, appointment, and deadline.
• Keep records of compliance: appointment letters, attendance logs, and any positive Probation reports.
• If you cannot attend a requirement for a good reason (illness, emergency), inform Probation immediately and keep proof.
• If charged with a new offence while on an SSO:
  • Seek legal advice promptly
  • Obtain an up-to-date compliance report
  • Gather evidence of rehabilitation (work, training, treatment)
  • Prepare any genuinely new personal mitigation (for example, recent caring duties or medical updates)
• Ask the court to consider whether activation would be unjust in light of compliance and new factors.
• If activation is likely, request part-activation with credit for work completed, curfew days served, and demonstrated progress.
• Propose alternatives where the new offence is non-custodial (extend the order, add a programme, extend supervision).
• Check the date of the alleged new offence. If it predates the SSO, make this clear to the court.
• For practitioners, address totality and explain why any new custodial term should be consecutive or, where appropriate, concurrent (for example, same incident).
• Always explain why the original court suspended and how those aims are being met.

Summary Checklist

• SSO = custodial term held in reserve with community requirements
• Applies where custody of 14 days up to 2 years is appropriate
• Breach of requirements is a new offence and risks activation
• New offence during the operational period: court must activate unless unjust
• Unjust test focuses on compliance, seriousness of new offence, and genuinely new factors
• Activation can be full or part; credit can reflect unpaid work and curfew completed
• Non-custodial new offence: court may extend or vary the SSO, or fine
• Deferral is possible only in exceptional cases with little chance to comply so far
• If the new offence happened before the SSO, the order should not be affected
• New offence during an SSO is an aggravating factor and may increase the new sentence
• If the new offence is custodial, expect a consecutive term subject to totality

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