REGINA v BEN JOHN

A special custodial sentence under section 278 of the Sentencing Code is an indivisible sentence of imprisonment comprising the appropriate custodial term and a further one-year licence period. It may be suspended under section 277 only where the aggregate term does not exceed two years. The custodial term must therefore not exceed 12 months. Suspension will nevertheless be appropriate only in exceptional circumstances because of the practical difficulties concerning the licence period. A two-year custodial term plus one year’s licence could not lawfully be suspended.

Following conviction for an offence under section 58 of the Terrorism Act 2000, the Crown Court imposed two years’ imprisonment suspended for two years, together with an additional one-year licence period. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether a special custodial sentence required by section 278 of the Sentencing Code could lawfully be suspended.

The court granted leave to refer and quashed the sentence as unlawful and therefore unduly lenient.

1. Statutory construction. A sentence under section 278 of the Sentencing Code is a sentence of imprisonment for the purposes of section 277. The special custodial sentence is indivisible. Its term is the aggregate of the appropriate custodial term and the additional one-year licence period. The two-year limit in section 277 therefore applies to that aggregate, not merely to the custodial element. A sentence under section 278 could consequently be suspended only where the appropriate custodial term did not exceed 12 months.
2. Practical suitability. The court agreed with the practical difficulties identified in R v Fruen [2016] EWCA Crim 561; [2016] 1 WLR 4432. Suspension would be appropriate only in exceptional circumstances, even where it was legally available. The court was provisionally inclined to the view that licence conditions could be imposed only after an offender had served time in custody. It did not finally decide that issue, since it was unnecessary to the result.
3. Application to the sentence. The sentence imposed below comprised two years’ imprisonment and a further year’s licence, giving a three-year sentence of imprisonment for section 277 purposes. It therefore exceeded the statutory maximum for a suspended sentence order. The court considered that the two-year custodial term was very lenient but was not itself unduly lenient in the unusual circumstances. The sentence was unduly lenient because it was unlawful.
4. Substituted sentence. Under section 36(1)(b) of the Criminal Justice Act 1988, the court could impose a sentence which the Crown Court had power to pass. A community order and a permissible shorter suspended sentence would be insufficient. The suspended sentence was quashed and replaced by a three-year special custodial sentence under section 278, comprising two years’ custody and one year’s licence. Credit was directed for time spent on remand and, subject to qualification, half the period spent under curfew.

• Court of Appeal (Criminal Division) — On the Attorney General’s reference, the court granted leave, quashed the suspended sentence as unduly lenient and substituted a three-year special custodial sentence under section 278 of the Sentencing Code: [2022] EWCA Crim 54.
• Crown Court at Leicester — Following conviction for one offence under section 58 of the Terrorism Act 2000, the offender was sentenced to two years’ imprisonment suspended for two years, with an additional one-year licence period.