Explainer: Custodial Sentence

27th February 2024

What is a Custodial Sentence?  

A Custodial Sentence is a sentence of imprisonment where a person is taken into state custody, normally a prison. Imprisonment is the most severe punishment that can be handed down by the courts. It should only be used in situations where no other punishment would be considered adequate. In some cases, the offence itself might be serious enough to demand a custodial sentence but the court will also examine the circumstances of how the offence was committed.  

When can a Custodial Sentence be imposed? 

A court is not obliged to impose a custodial sentence except where the legislation provides that a certain offence will attract a mandatory (compulsory) sentence which may be a mandatory minimum or maximum sentence. (See more here) 

Mandatory Sentence 

A mandatory sentence requires that a person is imprisoned for a specific amount of time if convicted of committing certain crimes.  

For example, murder has a mandatory sentence of life imprisonment.  

Maximum Sentence 

The law has maximum sentences for all crimes. The maximum sentence is used in the most serious cases but if the judge considers the offence to be less serious, they can impose a shorter sentence. A person cannot be imprisoned for a term of imprisonment longer than the maximum sentence specified by law.  

Minimum Sentence 

The judge usually has discretion to decide what length a convicted person's sentence should be; however, some laws set a minimum sentence for particular offences (for example firearm offences or certain drugs offences).  

A minimum sentence sets out the lowest level of punishment which may be imposed if a person is found guilty of an offence. 

For example, if you are found guilty of possession of drugs with a value greater than €13,000 you will get a minimum sentence of 10 years imprisonment. (Section 27(3C) of Misuse of Drugs Act 1977, as amended.) You may be sentenced to longer than 10 years, but you cannot be sentenced to less than 10 years.  

However, even where there is a minimum sentence in place, the judge has discretion to impose a lesser sentence for a first offence. 

What is the legal basis for a Custodial Sentence? 

The legal basis for a Custodial Sentence will depend on the offence committed. Any sentencing requirements will be set out in the legislation for the offence. It will usually be at the end of the legislation, or it will be in the same section as the offence.  

Statistics on how often Custodial Sentences are used in Ireland 

Ireland’s prison population has grown since 2000. On 5 December 2007, Ireland had 3,334 prisoners. On 1 September 2023, there were 4,612 prisoners in Ireland.  

In Irish prisons, a very large number of convicted persons are given short prisons sentences. With approximately two-thirds of all people being committed to prison annually for sentences of less than 12 months.