Sentencing Act 2020

226 Custodial sentence: restrictions in certain cases where offender not legally represented

(1) This section applies where—

(a) a magistrates’ court is dealing with an offender on summary conviction, or

(b) the Crown Court is dealing with an offender—

(i) on committal for sentence, or

(ii) on conviction on indictment.

Offenders aged under 21

(2) The court may not—

(a) make a detention and training order,

(b) pass a sentence of detention under section 250 (or 254) or under section 259 (offenders under 18),

(c) pass a sentence of detention in a young offender institution, or

(d) pass a sentence of custody for life (see sections 272 and 275),

unless the offender is legally represented in that court, or has failed, or is ineligible on financial grounds, to benefit from relevant representation (see subsections (7) and (8)).

Offenders aged 21 or over

(3) The court may not pass a sentence of imprisonment unless—

(a) the offender—

(i) is legally represented in that court, or

(ii) has failed, or is ineligible on financial grounds, to benefit from relevant representation (see subsections (7) and (8)), or

(b) the offender has previously been sentenced to imprisonment by a court in any part of the United Kingdom.

(4) For the purposes of subsection (3) a previous sentence of imprisonment which has been suspended and which has not taken effect under—

(a) paragraph 8 of Schedule 16,

(b) paragraph 8 of Schedule 12 to the Criminal Justice Act 2003,

(c) section 119 of the Powers of Criminal Courts (Sentencing) Act 2000, or

(d) section 19 of the Treatment of Offenders Act (Northern Ireland) 1968,

is to be disregarded.

(5) For those purposes, “sentence of imprisonment” does not include a committal for contempt of court or any kindred offence (and “sentenced to imprisonment” is to be read accordingly).

When a person is legally represented

(6) For the purposes of this section an offender is legally represented in a court if the offender has the assistance of counsel or a solicitor to represent him or her in the proceedings in that court at some time after being found guilty and before being sentenced.

Relevant representation: failure or ineligibility to benefit

(7) For the purposes of subsections (2) and (3), “relevant representation”, in relation to proceedings in a court, means representation under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (legal aid) for the purposes of the proceedings.

(8) For those purposes, an offender has failed, or is ineligible on financial grounds, to benefit from relevant representation if—

(a) the offender has refused or failed to apply for relevant representation, having—

(i) been informed of the right to apply for it, and

(ii) had the opportunity to do so,

(b) the offender’s application for relevant representation was refused on financial grounds, or

(c) relevant representation was made available to the offender but withdrawn—

(i) because of the offender’s conduct, or

(ii) on financial grounds.

Relevant representation is refused or withdrawn on financial grounds if it appears that the offender’s financial resources are such that the offender is not eligible for such representation.