Court of Appeal: Short Sentences Should Almost Always Be Suspended

On 16 September 2026 the Court of Appeal ruled that it is "the will of Parliament that short prison sentences should almost always be suspended" — and quashed immediate prison sentences in two cases where the judge had sent someone straight into custody.

The judgment is Hodge and others v R [2026] EWCA Crim 1181 — four cases heard together. It builds on an earlier ruling, R v Morgan [2026] EWCA Crim 886, and takes it further. Here is what it says, and what it does not say.

The law it deals with

Section 277A of the Sentencing Act 2020 was inserted by the Sentencing Act 2026 and came into force on 22 March 2026.

In plain terms: if you are aged 21 or over, you were convicted on or after that date, and the sentence the court settles on is 12 months or less, the court must suspend it — unless there are "exceptional circumstances" relating to the offence or to you that justify not suspending it.

A suspended sentence means the prison term is passed but not served. The order has an operational period — commit a further offence during it and the prison term can be activated. It may also have a supervision period with requirements attached, such as unpaid work or a curfew. The two are set separately and are often different lengths. Breach either and you can end up serving the custody.

When the presumption does not apply at all

The duty to suspend is switched off in a number of situations, including where:

• you are already in custody, detained under mental health legislation, or serving service custody under the Armed Forces Act 2006
• the sentence is one of two or more passed on the same occasion and either any one of them is more than 12 months, or they are to be served consecutively and together come to more than 12 months
• the offence is, or relates to, a breach of a court order
• the offence was committed while you were subject to a supervision order
• you are being re-sentenced for an offence you were previously supervised for
• the court finds that suspending would put a particular person at significant risk of physical or psychological harm

That last exception matters in domestic abuse and stalking cases in particular. Note the wording on multiple sentences carefully: sentences ordered to run concurrently, each of 12 months or less, are not caught by that exception.

What the Court of Appeal decided

The Court refused to reduce "exceptional circumstances" to a formula. But it gave two clear routes by which a case can qualify:

• where the culpability of the offender, or the harm caused, intended or foreseen, was exceptionally high; or
• where the particular nature of the offence requires deterrence to a degree that is exceptional.

The Court said judges must look at everything together — culpability, harm, and the purposes of sentencing — before deciding whether a case is genuinely exceptional. Picking out one bad feature is not enough.

The point that decided two of the appeals

Two of the four cases were causing death by careless driving. The Court of Appeal's wording: "The fact of death in a case of causing death by careless driving is not irrelevant when considering whether the case involves exceptional circumstances, but it will not be decisive if it is the only factor which could be so described."

In Hodge's case, 12 months' immediate custody was quashed and replaced with 12 months suspended for two years.

Carter's case is the one worth studying, because it worked differently. He had been given 13 months — just over the threshold, so section 277A never applied at all. The Court of Appeal held that 13 months was manifestly excessive, reduced the term to 9 months, and at that point the duty to suspend was engaged. The 9 months was suspended for two years. As the Court put it, Parliament has made the region of 12 months "a critical watershed".

Where it went the other way

The Court dismissed a third appeal, Potgieter — causing serious injury by careless driving against two victims, together with driving with excess alcohol and excess drugs. Nobody died, but two people were seriously hurt, the vehicle had worn tyres, and he had been warned. The sentencing judge had put culpability at the highest level for the offence. The Court of Appeal upheld the finding that those circumstances, taken together, were exceptional, and the immediate sentence stood.

A fourth case ran the opposite way. The Attorney General referred a suspended sentence for misconduct in public office as unduly lenient. The Court agreed and replaced it with 15 months' immediate custody. Once the right sentence exceeds 12 months, section 277A does not bite at all.

That is the honest shape of this ruling: a strong presumption, not a bar on prison.

What this means for you

If you are being sentenced now, or someone in your family is. Where the offence is serious enough for custody but the term is 12 months or less, the starting point in law is suspension. The judge has to identify something exceptional to justify immediate custody, and this judgment sets a real bar for that.

If someone was sent to prison on a short sentence after 22 March 2026. It is worth having the sentencing remarks looked at: did the judge apply section 277A at all, and what was identified as exceptional? In Hodge's case, "someone died" was not enough on its own. That is exactly the reasoning this judgment now tests. Our appeal review exists to test precisely that.

If the sentence was just over 12 months. Do not assume the door is shut. Carter was given 13 months and still ended up suspended, because the Court found the length itself manifestly excessive and cut it to 9. If the term looks inflated — particularly just above the threshold — that is worth a look.

If there were several sentences. The presumption is only switched off where one of them exceeds 12 months, or where they run consecutively and add up to more than 12 months. Sentences running concurrently, each of 12 months or less, are not excluded. People get this wrong. Check what the warrant says.

If the conviction is from before 22 March 2026. This does not help. The section applies to people convicted on or after that date. That is a hard line and we would rather tell you now than let you hope.

If it was a breach of a court order, or committed on a supervision order. The presumption is switched off, and the judgment does not change that.

An appeal against sentence needs permission and is subject to a strict time limit running from the date of sentence — see appeal time limits. Late applications can be made but have to be explained, and may not be allowed in. If you think this ruling touches your case, act on it rather than sit on it.

We cannot tell you an appeal will succeed, and nobody honest can. What can be done is a proper read of the sentencing remarks against what section 277A and this judgment now require, and a straight answer about whether there is an argument there.

Talk to us

Case Review UK carries out independent written case reviews by senior UK lawyers and barristers. Fixed fee, no hourly billing, written report in 7 to 14 days. See how it works.

WhatsApp +44 7417 361696 or email enquiries@casereviewuk.co.uk. Send us the sentencing remarks and we will tell you honestly whether there is anything worth reviewing.

This article is general information about the law in England and Wales, correct at the date of publication. It is not legal advice on any individual case, and Case Review UK is not a substitute for a solicitor or for representation in court.