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A custodial sentence is a term of imprisonment or 'detention at Her Majesty's pleasure'. Under the Powers of criminal courts sentencing act (2000), a custodial sentence may only be imposed if
- such a sentence is mandatory (e.g., the mandatory life sentence for Murder), or
- it is the only appropriate sentence, having regard for the gravity of the offense, or
- the court is satisfied that there is no other way to protect the public from the offender (and even then only if the crime was 'violent' or 'sexual' in nature).
In all other cases, another form of sentence must be passed. Even if the offence itself may be appropriately attract a custodial sentence, courts are supposed to take into account mitigating factors that may suggest a lesser sentence on the facts of a particular case.
Where the offense is violent or sexual, and it is necessary to protect the public, not only may a custodial sentence be passed where it would not be allowed ordinarily, but the duration of imprisonment may be allowed to exceed the statutory maximum for the offense. A 'violent offence' is one that may cause death or serious injury, including Arson. A 'sexual offence' is one of a long list set out in the legislation, and includes Rape and offences of indecency with children.
Although recent legislation seeks to reduce the likelihood of an offender being imprisoned, at the same time there has been a move towards more severe penalities for certain crimes. Particularly controversial is the recent extension of the mandatory life sentence to offenders convicted of a second 'serious' offence.