The decision in R v Hodge is now the leading authority on the statutory presumption that adult custodial sentences of 12 months or less should be suspended unless “exceptional circumstances” justify immediate imprisonment.
The judgment confirms Parliament’s intention, as set out in S.277A, that short immediate custodial sentences should be the exception. Where section 277A applies, sentencers must start from the position that the sentence should be suspended and clearly identify any exceptional circumstances justifying immediate custody.
The Court considered four appeals illustrating the presumption:
- Hodge: A 12-month immediate sentence for causing death by careless driving was quashed and replaced with a 12-month sentence suspended for two years.
- Carter: A 13-month immediate sentence for causing death by careless driving was reduced to nine months following reassessment of culpability and, because section 277A then applied, suspended for two years.
- Potgieter: The appeal was dismissed and an immediate 12-month sentence upheld for offences including causing serious injury by careless driving and drink and drug driving, as exceptional circumstances existed.
- McClements: An eight-month suspended sentence for misconduct in a public office was found unduly lenient and replaced with15 months immediate imprisonment. Section 277A therefore did not apply.
What are “exceptional circumstances”?
Building on R v Morgan [2026] EWCA Crim 886, the Court confirmed that exceptional circumstances are those not “commonly encountered”, although they need not be unprecedented or extraordinarily rare. Section 277A creates a presumption in favour of suspension for all offences. The question is therefore whether features of the case genuinely justify departure from that statutory position.
The assessment must be holistic, considering all relevant circumstances and the purposes of sentencing. Factors capable of amounting to exceptional circumstances include:
- exceptionally high culpability;
- exceptionally high harm;
- an exceptional need for deterrence; or
- a combination of factors which collectively justify immediate custody.
The Court specifically considered offences of causing death by careless driving and held that a fatality cannot, by itself, constitute an exceptional circumstance. Although death is highly relevant and may contribute to a finding of exceptional circumstances, sentencers must identify something genuinely exceptional beyond the fatality itself.
The judgment also emphasises the significance of the 12-month threshold. Appeals should not be dismissed merely because the potential reduction appears modest. Where a reduction to 12 months or less engages section 277A, appellate courts must carefully scrutinise the sentence so that Parliament’s intention is properly reflected.
Practical implications
For DWF’s Regulatory, Investigations and Inquiries (RII) team, Hodge may be a valuable sentencing tool for individuals facing regulatory prosecution following serious incidents, particularly fatal workplace accidents where immediate custody is sought despite section 277A applying.
- Increased scope to avoid immediate custody
The decision has important implications for directors, senior managers and employees prosecuted for criminal, health and safety, environmental and wider regulatory offences. Defence teams now have stronger grounds to argue that meeting the custody threshold does not automatically require immediate imprisonment.
- Fatalities alone should not automatically result in immediate custody
Where death is an inherent consequence of the offence, Hodge confirms that the fatality alone cannot constitute an exceptional circumstance. In workplace fatality prosecutions, the focus may therefore shift towards additional factors such as repeated breaches despite warnings, previous enforcement history or flagrant disregard for safety.\
- Increased importance of sentencing appeals
The Court highlighted the need for careful scrutiny of sentences around the 12-month threshold. This may provide stronger grounds for appeals where a sentence is slightly above 12 months or the justification for immediate custody is inadequately explained, giving clients an additional route to challenge custodial outcomes.
We would like to thank Becca Lax for their contribution to this article.
DWF's RII Team specialises in criminal defence and provides representation into investigations and prosecutions by the Police, HSE and other regulatory bodies. If we can help you, please contact one of our experts.
