Abstract
The custody threshold provision in England and Wales was intended to operate as a limit on the use of custodial sentences, preserving what is the system’s most severe sanction for the most serious offences. However over the past few decades it has become apparent that the custody threshold is failing. Academics have discussed the reasons for this failure, which has seen the prison population double in space of a quarter of a century. This piece explores the custody threshold in the context of the use of custody in other Western European jurisdictions. It examines the courts’ response to the provision and various judicial attempts to amplify Parliament’s language. The authors then consider the academic critiques of the custody threshold provision, analysing the extent to which said criticism can be seen as a solution to the problem, before offering a new critique of their own. Finally, in a move towards more a more principled approach to the custody threshold, the piece offers a solution which would, it is argued, make the provision more effective and more theoretically sound.
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The views expressed herein are solely the personal opinions of the authors. Our thanks to Andrew Ashworth and Antje du Bois-Pedain for helpful comments on an earlier draft.
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Roberts, J.V., Harris, L. Reconceptualising the Custody Threshold in England and Wales. Crim Law Forum 28, 477–499 (2017). https://doi.org/10.1007/s10609-017-9308-9
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DOI: https://doi.org/10.1007/s10609-017-9308-9