Corrections
What has to be true before a court is allowed to send someone to prison?
In one system, a ladder written into statute. A community order needs the offence to be serious enough; custody needs it to be so serious that neither a fine alone nor a community sentence can be justified; and if custody follows, it must be the shortest term commensurate with the seriousness.
In short
A threshold is a condition that has to be met before a kind of sentence becomes available at all. It is a different mechanism from a maximum, which caps what may be imposed, and from a guideline, which structures the choice within what is available. A threshold decides whether the choice arises.
Why it exists
AnalysisA system that only capped sentences would leave the most severe sanction available in every case within the cap, with nothing but judgement between an offence and a prison. Thresholds put the question the other way round: not how much custody is too much, but whether custody may be reached for at all.
How it works
The lowest rung is the community order. Section 204(2) of the Sentencing Act 2020 provides that the court must not make a community order unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant the making of such an order.
Crossing a threshold does not compel the sentence above it. Section 204(5) states that the fact the court may make a community order does not require it to do so — so the threshold opens a door rather than pushing the court through it, and a fine remains available above the line as well as below.
The custody threshold is drafted as a comparison rather than a level. Section 230(2) provides that the court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination, was so serious that neither a fine alone nor a community sentence can be justified for the offence.
And crossing the threshold does not settle the length. Section 231(2) provides that a custodial sentence must be for the shortest term, not exceeding the permitted maximum, that in the opinion of the court is commensurate with the seriousness of the offence or the combination — subject to stated exceptions for sentences fixed by law and required life sentences.
The thresholds outrank the guidelines rather than the other way round. The general duty to follow sentencing guidelines is expressly subject to an enumerated list of provisions that includes the fine rule, the community-order restriction, the custody threshold and the shortest-term rule.
Forming these opinions is not meant to be done on the papers alone. Section 204(3) requires the court, in forming its opinion about the community-order threshold, to take into account all the information available about the circumstances of the offence, including any aggravating or mitigating factors; and the pre-sentence report requirements apply to that opinion.
Common misconceptions
Widely held beliefs that do not match how the system actually operates.
Common belief: A court may imprison whenever the offence carries a prison sentence.
In practice: Section 230(2) requires the court to be of the opinion that the offence was so serious that neither a fine alone nor a community sentence can be justified. Availability in the offence definition is not the same as availability in the case.
Common belief: Crossing the community-order threshold means a community order should follow.
In practice: Section 204(5) states that the fact the court may make a community order does not require it to do so. A threshold makes a sentence available, not obligatory.
Common belief: Once custody is justified, the length is a matter for the court alone.
In practice: Section 231(2) requires the shortest term commensurate with the seriousness of the offence, within the permitted maximum, subject to stated exceptions.
Common belief: Sentencing guidelines override the statutory thresholds.
In practice: The duty to follow guidelines is expressly subject to a list of provisions that includes the custody threshold and the shortest-term rule. The statute outranks the guideline.
Common belief: The custody threshold applies to every offence.
In practice: Section 230(3) disapplies it where a mandatory sentence requirement applies, with narrow exceptions. Where Parliament has fixed the sentence, the threshold has nothing to operate on.
How this varies between jurisdictions
A required section on every guide. Arrangements differ between countries, and we say how.
One statute, four rungs, in the order they are tested.
- A fine, whose amount must reflect seriousness and take account of means — s. 125.
- A community order, available only if the offence was serious enough to warrant one, and not required even then — s. 204(2) and (5).
- Custody, available only if the offence was so serious that neither a fine alone nor a community sentence can be justified — s. 230(2).
- If custody, the shortest term commensurate with the seriousness, within the permitted maximum — s. 231(2).
Rights and accountability
AnalysisA threshold expressed as an opinion the court must form is a reviewable step. A custodial sentence passed without the section 230(2) opinion has a defect in the route to it, which is a different complaint from arguing that the term was too long.
AnalysisThe comparative drafting also creates a record. Because the custody test is framed against a fine and a community sentence, a court crossing it has necessarily addressed both — and what it says about them is available to anyone examining the decision afterwards.
What we could not establish
- One system’s thresholds are described from primary text. How courts apply "so serious" in practice is case law this platform has not researched.
- Nothing here indicates whether any offence would cross any threshold. It sets out what the statute requires the court to be satisfied of, not any outcome.
Where to go next
Related: what a community order requires, sentencing guidelines and who writes them, and what sentencing is for.
Related topics
- How can one fine be fair to a rich person and a poor person at once?
Two systems answer by separating what the offence deserves from what the offender can pay. Germany splits the fine into a number of daily units and a value per unit; England and Wales fixes one amount that must reflect seriousness and take account of means — upwards as well as downwards.
- Is a community sentence just a warning with paperwork?
No. In one system the statute lists fifteen kinds of requirement a court may attach — unpaid work, curfews, exclusion, residence, treatment, electronic monitoring of compliance and of whereabouts — and the order is whatever combination the court imposes.
- Is imprisonment the normal outcome of a criminal conviction?
In the systems whose statutes are quoted here, it is the outcome the law tells courts to reach for last. Two legislatures write restraint into the text — one as a principle of sentencing, one as a rule about specific sentence lengths.
Sources
The National Archives (legislation.gov.uk) · Legislation · 2020 · link verified 2026-08-26
The official revised text, each section read directly at its own page. Supports s. 125(1): "The amount of any fine fixed by a court must be such as, in the opinion of the court, reflects the seriousness of the offence"; s. 125(2): in fixing the amount the court must take into account the circumstances of the case including in particular the financial circumstances of the offender so far as known or apparent; and s. 125(3): that this applies "whether taking into account the financial circumstances of the offender has the effect of increasing or reducing the amount of the fine". Supports s. 204(2): the court must not make a community order unless it is of the opinion that the offence, or the combination of the offence and associated offences, "was serious enough to warrant the making of such an order"; s. 204(3): the court must take into account all available information about the circumstances including aggravating and mitigating factors; and s. 204(5): the fact that the court MAY make a community order "does not require it to do so". Supports s. 230(2): the court "must not pass a custodial sentence unless it is of the opinion that" the offence, or the combination, "was so serious that neither a fine alone nor a community sentence can be justified for the offence"; and s. 230(3): that the section does not apply where a mandatory sentence requirement applies. Supports s. 231(2): a custodial sentence "must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness" of the offence or combination, subject to stated exceptions for sentences fixed by law and required life sentences. Sections in force 1 December 2020 (S.I. 2020/1236). ENGLAND AND WALES, extent-marked E+W. It states no sentence for any offence and supports no prediction of any outcome.
The National Archives (legislation.gov.uk) · Legislation · 2020 · link verified 2026-08-26
The official revised text, each section read directly. Supports s. 59(1): every court "must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case" and must follow relevant guidelines in exercising any other sentencing function, "unless the court is satisfied that it would be contrary to the interests of justice to do so"; and s. 59(2): that the duty is subject to an enumerated list of provisions including s. 125(1) (fine must reflect seriousness), s. 204(2) (restriction on community order), s. 230 (threshold for discretionary custodial sentence), s. 231 (shortest term commensurate with seriousness) and the mandatory-minimum provisions mentioned in s. 399(c). Supports s. 30(2): where the pre-sentence report requirements apply and the offender is 18 or over, "the court must obtain and consider a pre-sentence report before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary" to do so; s. 30(3): the stricter rule for offenders under 18; and s. 30(4): that where a court does not obtain and consider such a report, "no custodial sentence or community sentence is invalidated by the fact that it did not do so". Supports s. 31(1): a "pre-sentence report" is a report made or submitted by an appropriate officer "with a view to assisting the court in determining the most suitable method of dealing with an offender", containing information as prescribed by rules; s. 31(2)(a): that for an offender aged 18 or over the appropriate officer is "an officer of a provider of probation services"; s. 31(4): that the court may accept a pre-sentence report given orally in open court; and s. 31(5): that it must be in writing for an offender under 18 in specified cases. Supports s. 201, the community order requirements table, which lists as requirement types: unpaid work; rehabilitation activity; programme; prohibited activity; curfew; exclusion; residence; foreign travel prohibition; mental health treatment; drug rehabilitation; drug testing (inserted 28 June 2022 by the Police, Crime, Sentencing and Courts Act 2022); alcohol treatment; alcohol abstinence and monitoring; attendance centre; electronic compliance monitoring; and electronic whereabouts monitoring. ENGLAND AND WALES, extent-marked E+W. It supports nothing about Scotland or Northern Ireland, states no sentence for any offence, and supports no claim about what any guideline says or how often any requirement is imposed.