Doing the Time

The last two years has brought a myriad of changes to the proportion of a custodial sentence that offenders will actually have to serve. Many factors are beyond the control of judges or counsel, and many of the changes have been made without fanfare.  Some of the changes are welcome news. The fact that time on remand for youths sentenced to Detention and Training Orders (“DTO’s”) now actually counts towards the detention period seems like a long overdue victory for fairness and common sense. Others have inevitably contributed to the escalating prison population. Alexandra Scott gives an overview of the regime as currently stands.

Early Release Provisions

“It is no part of the sentencing court’s function to set the point at which the offender will be released, or to calculate the sentence by reference to the date at which the offender will be released. The date at which the offender is entitled to release is a consequence of the sentence that is imposed, rather than an inherent part of the sentence. The determination of the release date is undertaken administratively in accordance with the statutory regime and (where appropriate) any decision of the Parole Board.” (R v Patel [2021] EWCA Crim 231)

Section 244 of the Criminal Justice Act 2003 (‘CJA 2003’) sets out the duty to release fixed-term prisoners on licence as soon as they have served the requisite custodial period, which is one-half of the sentence.  Section 244(3)(d) makes clear that where an offender is sentenced to two or more custodial sentences, the duty to release arises once half of the aggregate term has been served.

Over 7

In April 2020, the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 increased the proportion of the fixed custodial term which must be served for sentences of seven years and over passed for violent and sexual offences from one-half to two-thirds:

“3. In section 244 of the 2003 Act (duty to release prisoners), the reference to one-half in subsection (3)(a) is to be read, in relation to a prisoner sentenced to a term of imprisonment of 7 years or more for a relevant violent or sexual offence, as a reference to two-thirds. 

4. In section 264 of the 2003 Act (consecutive terms), the reference to one-half in subsection (6)(d) is to be read, in relation to a sentence to a term of imprisonment of 7 years or more for a relevant violent or sexual offence, as a reference to two-thirds. 

5. Articles 3 and 4 do not apply—

(a) in relation to any sentence imposed before the day on which this Order comes into force,

(b) in relation to an offender who was aged under 18 at the time the sentence for the relevant violent or sexual offence was imposed, or

(c) in relation to a sentence imposed under section 236A of the 2003 Act (special custodial sentence for offenders of particular concern) or section 265 or 278 of the Sentencing Code.

The explanatory memorandum made clear that “The objective of this change is to ensure the most serious of these offenders serving long sentences spend two-thirds of their sentence in custody, bringing their point of release into line with the release provisions for those serving extended determinate sentences … These robust sentences for dangerous and serious offenders ensure that the time they spend in custody reflects the severity of their crimes and takes account of the risk they pose to the public”.

The provisions apply only to those convicted of a violent or sexual offence specified in parts 1 (specified violent offences) or 2 (specified sexual offences) of schedule 15 of the CJA 2003 for which a life sentence may be imposed.  The list includes: manslaughter, kidnapping, false imprisonment, soliciting murder, wounding with intent to causing grievous bodily harm, infanticide, possession of a firearm with intent to endanger life, robbery, aggravated burglary, and rape.

4-7

On 28^th April 2022, the Police, Crime, Sentencing and Courts Act 2022 went a step further, inserting section 244ZA to the CJA 2003.  Section 244ZA (5)-(8) provides that for a smaller number of offences, a sentence of 4 years or over will mean that the release date will fall at the two-thirds point of the sentence:

(7)An offence is within this subsection if—

(a)it is specified in any of the following paragraphs of Part 1 of Schedule 15—

(i)paragraph 1 (manslaughter);

(ii)paragraph 4 (soliciting murder);

(iii)paragraph 6 (wounding with intent to cause grievous bodily harm);

(iv)paragraph 64 (ancillary offences), so far as it relates to an offence listed in paragraph 1, 4 or 6;

(v)paragraph 65 (inchoate offences in relation to murder), or

(b)it is an offence—

(i)that is specified in Part 2 of that Schedule (sexual offences), and

(ii)for which a sentence of life imprisonment could have been imposed (in the case of an offender aged 21 or over) at the time when the actual sentence was imposed.

It is significant that section 244ZA does not, for example, include kidnap, false imprisonment or robbery.  Likewise, the list of sexual offences captured by this provision is narrower.

Under 4

On the 6^th June 2023, the Criminal Justice Act 2003 (Home Detention Curfew) Order 2023 statutory instrument came in to force, amending the Home Detention Curfew (‘HDC’) scheme as set out at section 246 of the CJA 2003.  This change increases the days that can be served on HDC from 135 days to 180 days.  Offenders who are serving a sentence of imprisonment of at least 12 weeks but less than four years who have served the requisite custodial period of the sentence may be eligible for HDC.

The requisite custodial period is reached once the offender has served at least a quarter of the sentence, and a minimum of 28 days. The maximum period of release is 180 days. As with any sentence, the custodial period might include time on remand in custody or on bail with an EM curfew (“tagged bail”), so release can occasionally take place very soon after sentence, although the law requires at least 14 days in custody post sentence before an offender can be released on HDC. The government has produced a helpful flowchart.

The role of HDC is purportedly to provide a managed transition from prison to the community for those serving short sentences.  Evidence as cited by the Ministry of Justice in its policy document suggests that “People released early from prison on HDC are subject to an electronically monitored (EM) curfew. Research evidence about the impact on reoffending rates of using EM curfew with early release is inconclusive but promising, and it appears highly cost effective. The research suggests that the overall outcomes under HDC – especially when costs are taken into account – are preferable to keeping eligible offenders in custody at the end of the custodial element of their sentence.”

A cynic might consider that the government’s motivation had more to do with managing the spiralling prison numbers – an increase of which was inevitable in light of the changes brought in for longer sentences – and trying to reduce costs.  Nonetheless, this is a welcome change to those who are facing short sentences.

Youths

Another positive change comes in the Youth Court, and in relation to the sentencing of youths in the Crown Court. 

Section 158 of the Police, Crime, Sentencing and Courts Act 2022 gives sentencing tribunals greater discretion on the duration of any DTO.  Previously set terms of 4, 6, 8, 10, 12, 18 or 24 months were required, but now the only requirement is that they are between 4 and 24 months’ duration.  This should mean that sentences which more accurately reflect the facts of the offence and any credit can be imposed.

More significantly, for sentences passed on or after 28^th June 2022, any time spent on remand to youth detention accommodation will automatically be taken into account under section 240ZA of the CJA 2003 and count as time served towards any sentence of imprisonment.  It is worth noting that remand to local authority accommodation is not a remand in custody for these purposes – if the young person has been subject to a qualifying curfew while remanded to local authority accommodation then the relevant credit ought to be given by the court, in accordance with section 240 of the CJA 2003 and section 325 of the Sentencing Code.

Conclusion

Whilst broadly the changes have been designed to ensure some serious offenders are kept in custody for longer periods, there are a few modifications which will mitigate some of the effects of this on the prison population. The well-publicised prison-building programme which is aimed at increasing the prison estate by 20,000 places is not intended to create empty cells, and these changes will undoubtedly go some way to filling them.