Editorial
As we enter Autumn it is fair to say that the Criminal Justice System has spent most of the year in the media spotlight. As the row over limiting jury trials and increasing the powers of the Magistrates’ Court rumbles on, the early release provisions have generated yet further unfortunate headlines. That issue is considered in detail by Emilene Davis in an article designed to assist practitioners to untangle the web of release provisions which affect how much actual time their convicted clients might end up serving in custody.
As the flow of RASSO trials through the Crown Court shows no signs of slowing, Sarah Regan has written a helpful article on a fairly obscure High Court decision. What appears at first blush to be a rather dry costs case is actually a stark warning to the CPS to be wary of charging weak cases for fear of real consequences.
And finally I’ve put together a brief article on the subject of sexsomnia (also known as sleep-sex) and how to evidence the condition when a client advances it as a defence to sexual offending.
As dark nights draw in, I’m sure many have been looking forward to an opportunity to pour themselves a warming drink, sit beside a roaring fire and delve into a new Albion Chambers Crime Team Newsletter. So here it is; enjoy!
Edd Hetherington
Head of the Albion Crime Team
Am I going to prison? When will I get out?
Part One: Am I going to prison?
Whether a defendant has pleaded guilty or has been found guilty following trial, one of the main questions that they will have is “am I going to prison?” The typical answer is “it depends”, because, of course, the answer to that question is fact, offence and offender specific. However, since the Sentencing Act 2026 (“the 2026 Act”) came into force on 22 March 2026, there is clearly a steer away from immediate custodial sentences of short duration.
This article explores some of the provisions of the 2026 Act which will be relevant to the question of whether a defendant may receive a community-based disposal, such as a suspended sentence order, as opposed to immediate custody.
It should be noted that the provisions only apply to those convicted after 22 March 2026; if a defendant pleaded guilty or was convicted prior to 22 March 2026, but is due to be sentenced after that date, then these provisions do not apply.
Suspended Sentences
Section 1 of the 2026 Act creates a presumption that for defendants over the age of 18 where the term of the sentence is to be not more than 12 months’ custody, that sentence will be suspended. In those circumstances the court must impose a suspended sentence order unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender that justify not doing so. The 2026 Act achieves this by the insertion of a new section 277A into the Sentencing Act 2020 (the “2020 Act”).
There are exceptions. The presumption does not apply where:
- the defendant is already serving a custodial sentence, remanded in custody on another matter(s) or detained in hospital pursuant to a hospital order (s277A(3)(a)(b)(c) of the Act 2020).
- the defendant is sentenced for more than one offence and the aggregate of consecutive sentences exceeds the 12-month limit (s277A(3)(d) of the Act 2020). For example, if the defendant is to be sentenced for 3 offences and receives a sentence of 9 months’ custody for the first offence, 6 months’ custody consecutive for the second and no separate penalty for the third, the presumption would not apply. If however, the 6 months’ custody were concurrent, i.e. ran alongside the sentence of 9 months’ custody, then the presumption would apply.
- the offence, or an associated offence, is one which the defendant is/has been the subject of a Supervision Order and the defendant falls to be resentenced (s277A(3)(e) of the 2020 Act).
- the offence, or an associated offence, was committed whilst the defendant was subject to a Supervision Order (s277A(3)(f) of the 2020 Act).
- the offence, or an associated offence, constituted or occurred in circumstances closely connected with a breach of an order of a court (s277A(3)(g) of the 2020 Act)
- the court is of the opinion that making the order would put a particular individual at significant risk of physical or psychological harm (s277A(3)(h) of the 2020 Act). This is likely to apply, for example, in cases of domestic abuse where there is evidence of a significant risk of harm and a suspended sentence order would risk putting that individual at further risk.
That said, even in circumstances where the presumption does not apply, the court is not precluded from suspending a sentence in the usual way.
Custodial Sentences which may be Suspended
Where a defendant is aged 18 or over at the date of conviction, Section 2 of the 2026 Act gives the Court the power to impose a sentence of up to 3 years’ custody suspended for up to 3 years. This is so done by amendment to Section 277 of the Act 2020.
Previously, the Crown Court only had the power to impose up to 2 years’ custody suspended for a period of up to 2 years. As such, the 2026 Act has extended both the maximum sentence length and operational period in respect of suspended sentences. The 2026 Act does not however increase the period of supervision, which is presently a maximum period of 2 years; the supervision period is the period within which the defendant is to be supervised by an officer of the Probation Service.
It is important to note that the operational period (the timeframe during which the suspended sentence is active and can be activated if the offender breaches the terms set by the court) may only exceed 2 years if the length of the custodial sentence exceeds 2 years. As an example, a sentence of 18 months’ custody suspended for 3 years would be unlawful. Conversely, a sentence of 26 months’ custody suspended for 3 years would be lawful.
Deferred Sentence
In addition to suspended sentences, Section 5 of the 2026 Act increases the duration by which a sentence can be deferred from 6 to 12 months; this is done by amendment to section 5 of the Sentencing Code.
A deferment order is where the Court delays sentencing. The purpose of a deferment order is to enable the Court to have regard to the defendant’s conduct after conviction including the extent to which the defendant has complied with any requirements imposed by the Court. A deferment order may be made where the court considers that a specified period will allow for a different sentence to that which would otherwise be imposed on that day; for example a suspended sentence rather than a sentence of immediate custody.
This increase to the period for which a sentence can be deferred gives more opportunity for a defendant to demonstrate a realistic prospect of rehabilitation such that rather than immediate custody a community-based disposal is appropriate.
In light of the changes brought about by the 2026 Act, it would appear the answer to the query “am I going to prison” may be less bleak than it was under the old provisions. For sentences of 12 months’ custody or less, whilst previously a sentence could be suspended, the starting point now is that it will be, subject of course to those exceptions outlined above. Furthermore, in those cases where a Court accepted that there was a realistic prospect of conviction but the custodial sentence exceeded 2 years and as such the Court could not suspended, the 2026 Act creates the power for the court to suspend such a sentence, provided that the length of the custodial term does not exceed 3 years. Finally, in those cases where, if sentenced on the day an immediate custodial sentence would be inevitable, more opportunity is provided to defendants by way of longer periods of deferment to show their commitment to rehabilitation. Whilst there can be no guarantee of avoiding immediate custody, many defendants will have much better prospects of remaining in the community under the new provisions of the 2026 Act than they would previously.
Part Two: When will I get out?
Where an immediate custodial sentence is inevitable, the question of when a Defendant will be released is also dependant upon the offence for which they have been convicted as well as the length/type of sentence received. The 2026 Act has brought about well-publicised changes to the release provisions; the provisions outlined below were due to come into force as of 2 September 2026 but were delayed to 1 October 2026. For those serving, there will be a staggered implementation, phased across ten “tranches”, due to occur between October 2026 and June 2027, based on length of sentence.
Section 23 of the 2026 Act, amends the Criminal Justice Act 2003 provisions governing the requisite custodial periods for adult standard determinate sentences. The requisite custodial period for those serving these sentences who are released under Section 244 of the 2003 Act is 40% or 50% of the sentence imposed (depending on the offence); Section 23 reduces this period to one-third of the sentence. So for example, someone who has been convicted of Controlling and Coercive Behaviour who received a sentence of 3 years, under the 2003 Act would have been released after serving half of their sentence, 1 year and 6 months, whereas when the 2026 Act comes into force that same individual will be released after serving a third of their sentence, i.e. 1 year, meaning they spend 6 months less in prison. Another example is where a individual received a period of 4 years for Possession with Intent to Supply Class A drugs, under the old legislative provisions the individual would have been released after serving 40% of their sentence, i.e. just over 19 months, whereas when the 2026 Act comes into force they will be released after serving 1/3 of their sentence, that being around 15 and a half months, i.e. roughly 4 months less.
Those in practice will be aware that there are some offences to which the 40%/50% release provisions do not apply; Emily Heggadon’s article in the Summer 2025 edition of this newsletter entitled “When will I be released, Miss?” details when Section 244ZA applies. What practitioners now need to be bear in mind is that those who under Section 244ZA of the 2003 Act would have been released after serving two-thirds of their sentence, will be released at the halfway point once Section 24 of the 2026 Act comes into force. For example, where a person receives 4 years for assault by penetration, previously they would have been released after serving two-thirds of their sentence, i.e. after 32 months, whereas they will now be released at the halfway point, i.e. after serving 2 years, spending 8 fewer months in custody.
There is an exception for offenders serving sentences of 7 years or more for the following serious violent and sexual offences, who will remain eligible for automatic release at the two-thirds point and not before.
(i) Manslaughter;
(ii) Soliciting murder;
(iii) GBH/wounding with intent;
(iv) Ancillary offences related to the offences stated in i – iii above;
(v) Inchoate offences in relation to murder;
(vi) Specified sexual offences for which life imprisonment could have been imposed.
There are no changes to release dates for those serving extended sentences and sentences for certain offenders of particular concern. They will remain eligible to apply to the parole board at the two-thirds point of their sentences.
In short, Section 23 of the Act 2026 reduces the requisite custodial periods for standard determinate sentences to one-third under Section 244 of the 2003 Act and to one-half under Section 244ZA of the 2003 Act. For those currently serving, once the legislation comes into force there will be staggered implementation with transitional dates running to June 2027.
A Real Need For Change
On the 30th of June 2026, the High Court handed down judgment in Director of Public Prosecutions v The Inner London Crown Court (2026) EWHC 1633 (Admin). The case involved the dismissal of a claim for judicial review of a costs order and on the face of it could not have made for duller reading. In fact, although the chronology and terminology of the making of a costs order maybe more War and Peace than Rivals, its potential application to other cases make the read worthwhile.
Sadly, neither the facts nor the chronology are unusual. At some point every single day, in every Crown Court, a judge will no doubt be heard asking the prosecution to explain the delay in a seemingly simple RASSO case reaching the Crown Court. Typical is this recent judicial exchange; “how does this happen – defendant 18, complainant 19, friends, simple allegation of rape February 2021, defendant interviewed September 2021, first hearing MC June 2026, PTPH July 2026.” Similarly, at every PTPH involving a case where the complainant says she can’t remember but thinks she couldn’t have consented, the judge properly asks whether consideration has been given to likelihood of success. And those 2 issues; delay and the proper application of the first part of the two-stage test were the basis for the application in this case.
The allegation of rape during the course of a relationship was made to the police on the 24th of January 2019. During the course of a video recorded interview (ABE) conducted the same day, the complaint alleged 2 rapes. The first in 2018, when during consensual intercourse she asked whether the defendant would “finish soon” to which he replied, “yeah, I’m nearly finished”, following which she said she “just fell asleep.” The next morning, she noticed a love bite on her back which caused her to think the defendant must have carried on after she fell asleep because she didn’t remember him doing that. The second incident was another earlier occasion during the course of the relationship when she said the defendant had sex with her while she was asleep. He denied the allegations in an interview the following day. He was charged with a single count of rape (the 2018 allegation) on the 18th of January 2025 but before trial the prosecution sought to adduce the earlier incident as bad character. That application was unsurprisingly refused, and the judge having had to review the evidence to determine the application, asked whether the prosecution had given sufficient consideration to the likelihood of a conviction. He was told that there had been 3 reviews by the reviewing lawyer and the decision made to proceed to trial.
At trial, the defence made a successful submission of no case to answer. In response, the Prosecution accepted they had difficulty establishing the absence of implied consent and confirmed that it would not be unreasonable for the judge to withdraw the case from the jury. In his ruling, the judge concluded that the evidential difficulties, including the inability to identify when the complainant had fallen asleep, the “wholly inconsistent” complaint evidence and the scope for confusion and unreliability of the “confession evidence” (text messages in which the defendant said he was sorry without specifying for what) meant that a jury could not properly be sure of guilt.
The prosecution did not seek to appeal the terminating ruling and following the directed acquittal, the defence solicitors lodged a claim for costs pursuant to s. 19 of The Prosecution of Offences Act 1985 on 2 basis: (i) the failure of the prosecution to progress the case in a timely manner; and (ii) the decision to prosecute and continue the proceedings in a fundamentally weak case.
Section 19 allows for a costs order to be made “where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party”.
The judge, making a costs order for £97,000 rejected the first basis but concluded that the decision to prosecute constituted an improper act within the meaning of s. 19, that the case was one which no reasonable prosecutor could have brought and had resulted in the defendant incurring costs.
And although it is a decision made following the judicial review of a costs order, the case has significant application for RASSO cases more generally. As set out above, a delay of 6 years between complaint and charge is sadly commonplace in RASSO cases. The delay in this case, although ultimately deemed not to amount to an improper act or omission within s. 19, was said to be unexplained and unacceptable. But the fact that the judge in this case didn’t make that finding, doesn’t mean it can never be. A trawl through a Niche or Incident Report will often reveal months or even years of inactivity. RASSO cases are particularly susceptible to such delay because of a belief that the evidence has to be tested against any possible line of challenge. And although the emphasis changed to a suspect focussed approach under Operation Soteria Bluestone, the fear of simply charging has persisted. It is also why, a threat of a costs order under s.19 may be the only way to change what appears to be an institutional problem.
Seection19 is purposefully restrictive in application and should only be used in the most clear cut and exceptional cases. The Criminal Procedure Rule 45.8 sets out a 3-stage approach:
- has there been an unnecessary or improper act or omission?
- as a result, have any costs been incurred by another party?
iii. If the answers to both are yes, should the court exercise its discretion to order the party responsible to meet the whole or any part of the costs, and if so, what specific sum is involved?
The fact that a jury acquitted a defendant is obviously not always or indeed, normally the consequence of an unnecessary act or omission. But the Court in DPP v Denning (1991) 2 QB 532 (DC) confirmed that an improper or unnecessary act doesn’t require bad faith; merely that the act or omission would not have occurred had the party conducted its case properly.
In DPP v The Inner London Crown Court the Court restated the principles of a s.19 costs order confirming that: (i) s. 19 confers a limited jurisdiction and is not a mechanism for challenging prosecutorial decisions; (ii) the question for the court when determining a costs application is whether the decision to prosecute or continue proceedings was one which no reasonable prosecutor could have made; (iii) the error must be clear and stark; (iv) a prosecutorial decision may be wrong or ultimately unsuccessful, yet still be reasonable; (v) the assessment is anchored to the evidential position at the time of the charging decision, and as it developed in accordance with the duty of continuing review, without recourse to hindsight; and (vi) the jurisdiction will be used only in a rare or exceptional case.
In this case, the judge making the costs application concluded that the deficiencies in the prosecution case did not emerge through the testing of the evidence at trial but were apparent, or should have been apparent, to any competent prosecutor from the outset and said the prosecution had “all the hallmarks of wishful thinking being substituted for rigorous objective analysis. Bluntly the inherent weakness of this case was there to be seen for anyone who cared to look.” Importantly, he also said that the fact that there was no realistic prospect of success was plain after the ABE and the defendant’s interview had been conducted, i.e. within a day of the complaint having been made.
As set out above, neither the chronology nor the facts of this case are exceptional. In one case I defended relating to the removal of a condom during sex, prosecution counsel advised that on the evidence, there was no realistic prospect of conviction. The prosecution then sought advice from 3 different silks, before a fourth prosecuted it at trial. The complainant, who had significant mental health issues had to be cross examined before the jury acquitted in less than a quarter of an hour.
CCTV in another case showed that the complainant’s account of the incident was wrong. In another CCTV confirmed not only that the complainant’s account of a sexual assault in a nightclub was wrong (there was no contact by anyone) but that her identification of the defendant as the person responsible was also wrong. All of these complaints proceeded through to trial and all resulted in acquittals. And there are countless others in similar circumstances to DPP v The Inner London Crown Court where complainants cannot remember or are able to say whether they consented or not.
A decision to charge or to continue a prosecution in those circumstances on the basis that the complainant has to have their day in court is not a kindness, nor is it part of the prosecutorial 2-stage test. In post-trial interviews conducted with complainants, they consistently confirm that being subjected to cross-examination and thereby having to relive the event is as traumatic as the incident itself and the majority wish they hadn’t made the initial complaint, regardless of conviction or acquittal.
Cross-examination, no matter how carefully undertaken is demeaning to a complainant of a sexual allegation. It is also the first time in the entire process that they have had their account challenged. If it takes 6 years for the case to reach the court, that is 6 years during which they have had nothing but validation for their account, which makes any challenge difficult and the resultant acquittal seem like cruelty.
Similarly, until now, many judges have been reluctant to withdraw such cases from the jury, despite the fact they, along with everyone else involved in the case knows that there is no prospect of conviction. Perhaps the decision in DPP v The Inner London Crown Court will embolden advocates to make applications to dismiss or half time submissions and for judges to allow those in proper cases.
Perhaps, now, when cases are proceeded with despite clear evidence that there is no prospect of success, defence advocates should make applications for costs as a means of bringing about real change.
Because whilst a move to an offender-centric approach to charge is welcome, it ultimately does little to meet the stated aim of not making the victim feel that they are the one on trial. It has also done little to reduce the time taken to investigate.
So, alongside applications to stop proceedings and for costs in cases which are evidentially poor, there needs to be a complete change of emphasis in the prosecution and investigation of RASSO cases to avoid the issues in this case arising in the first place. Instead of a shopping list of enquiries requiring significant police manpower and building in significant delays before a decision is made to charge, a triage system could identify cases which could be fast tracked (those which result from an immediate complaint between 2 people who don’t know each other, cases involving child complainants, those where significant injury has been caused or those where the complainant is particularly vulnerable). Asking a complainant to sign an undertaking not to dispose of phone evidence and to provide consent to medical and other records should they be required at the time the complaint is taken would save significant time later on. Considering the evidence realistically rather than on a best-case basis prior to charge and if necessary, seeking advice from RASSO counsel at that stage would mean that far fewer complainants are left for years waiting for an outcome that ultimately everyone but them know is inevitable. DPP v The Inner London Crown Court may have been an expensive lesson, but as with all lessons, it is one from which we should learn rather than ignore.
The Sexsomnia Defence: Legitimate Medical Issue or Desperate Excuse?
Recently I received instructions to defend a man accused of a number of rapes. The offences were alleged to have occurred during a long-term relationship. The unusual feature of the case was that the client asserted that he was innocent because he had been asleep at the relevant times. This was, he said, an example of sexsomnia.
Sexsomnia has been the subject of much media coverage since the late 1990s, but there are earlier examples of it being documented. Socrates’ account of parasomnia in Plato’s Republic includes mention of people having sex whilst asleep.
As the scientific understanding of sleep-related sexual phenomena has improved, so has the frequency with which the condition is relied upon in court. An investigation published in 2024 identified 80 cases in which the sexsomnia defence was advanced, with 51 of those happening in the last ten years of that period[1].
However, a study by criminologists from Southampton and Keele Universities[2] had considered the possibility that the media coverage of a small number of sexsomnia cases led a number of defendants to claim falsely that they had the condition in an attempt to avoid conviction.
Against this backdrop, I determined that it would be necessary to obtain a medical report to see if there was merit in the defence advanced by my lay client. Online research quickly revealed a thriving scientific debate as to the prevalence and nature of the condition. Accordingly, there were a surprisingly large number of potential experts to instruct.
Eventually my instructing solicitors were able to engage the services of a Consultant Neurologist and Accredited Somnologist from a leading research hospital. This gave me two new assets; first a suitable expert and secondly the word “somonology”, which I look forward to deploying in Scrabble one day.
This expert provided a report which revealed a host of fascinating detail about the medical understanding of the condition. First, the term ‘sexsomnia’ is disliked by the true experts, who prefer to talk in general of parasomnia – unusual sleep phenomena – and more specifically of ‘sleep sex’.
The report explained that the cortex is the principal site of higher-level brain functions, allowing us to think, perceive, speak, and remember. All information from the outside world reaches the cortex via the thalamus. In sleep, the thalamus acts as a gate, and information from the outside world is blocked, but information can be passed from one part of the cortex to another.
REM sleep is the deepest form of rest. Non-REM sleep is when parasomnia most often occur. This means that they will usually happen during the first half of the night.
Parasomnia often manifest as habitual behaviours or anti-social and sexual behaviours in sleep. But it will not always be obvious that a person is in fact asleep. When sleepwalking, the eyes are open, and the sleepwalker (or somnambulist) will navigate around the house or garden, avoiding obstacles and they may open or unlock doors or windows.
More complex parasomnias include sleep-eating, where the sleepwalker navigates to the fridge and may even cook food, the use of technology such as sleep emailing or sleep texting and even sleep-driving.
One video which was provided by the expert to demonstrate how complex such behaviours could be, showed a car being driven around suburban streets by a woman fast asleep. She had driven off in the night and this was reported by her concerned husband. Officers followed her for some distance before she parked neatly. When they approached the car, she was fast asleep. It is noteworthy that about 80% of reported parasomnias are associated with dreams and this particular woman had stopped the car outside her former home. The potential jury impact of such a video is immediately obvious.
A crucial detail of the expert evidence was that complex parasomnia tend mostly to be a lifelong feature. So a person truly afflicted will usually (although not always) have tended towards unusual sleep behaviours from a very early age.
My client in this recent case had an itinerant childhood and so had scant medical history. But he did have family witnesses who were happy to describe his childhood sleep activities, including getting onto a night bus and riding round a city for hours, all while sound asleep.
The very best evidence ultimately came from the complainant, who agreed in cross-examination that at the outset of their relationship the defendant had warned her that he did weird things in his sleep. This was many months before the first allegation of criminal conduct. Experts instructed by both sides agreed that this had been a common feature of many cases they had observed in the clinical context. Those tending to parasomnia often warn friends and new partners of their condition, so as to avoid embarrassing conversations later.
My client in that trial was acquitted of all offences. If he was, or may have been, asleep then he was either afflicted by automatism or else he was wholly lacking the requisite mens rea. After verdicts, the Judge and all professionals involved agreed that it had been an unusual trial and what appears to be a rare example of a successful ‘sexsomnia’ defence.
[1] https://www.theguardian.com/society/2024/dec/08/how-many-cases-are-derailed-by-sexsomnia-claims-the-cps-doesnt-know
[2] Rumbold and Rees, 2014.
Disclaimer
Any comments made or views expressed on the law within any articles in this newsletter are the views of the writer and are not necessarily the views of any other member of chambers and should not be relied upon as legal advice.
