Wednesday, 29 January 2020

Longer time in custody for some prisoners

From 1 April 2020, a two-thirds rule will apply to certain prisoners - Government 22 January 2020 - Serious violent and sexual offenders to spend longer in prison

Orders have been approved by both Houses of Parliament to alter the law about the release of certain prisoners and to require them to serve longer in prison. The Orders are silent about rehabilitation of prisoners and the work to be done with them whilst they are serving their sentences.

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Criminal Justice and Courts Act 2015 (Consequential Amendment) Regulations Order 2019 

House of Lords debate (22 January 2020) approving the regulations and House of Commons debate 28 January 2020.

Release of Prisoners Order:

The Criminal Justice Act 2003 section 244(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.

Therefore, most prisoners serving determinate prison sentences will continue to serve 50% BUT those sentenced to 7 years or more for a relevant violent or sexual offence will have to serve two-thirds.

The term relevant violent or sexual offence is defined by the Order as an offence listed in Part 1 or 2 of Schedule 15 to the 2003 Act for which a sentence of life imprisonment may be imposed.

Part 1 of Schedule 15 lists offences such as manslaughter, kidnapping, false imprisonment, wounding with intent to cause grievous bodily harm (Offences against the Person Act 1861 s18) etc. Part 2 of Schedule 15 lists sexual offences such as rape (Sexual Offences Act 2003 s.1).

This sentencing reform is therefore limited in scope and aimed at those serving lengthy determinate sentences for particularly serious examples of the Schedule 15 offences.


The two-thirds rule will NOT apply to those sentenced before Wednesday 1 April 2020 (when the Order comes into force).  Hence, it appears that a 9 year sentence imposed on 31 March would attract release at four and half years but, if imposed a day later on 1 April, release will not be until 6 years have been served.

Also, the change will not apply to an offender aged under 18 at the time the sentence for the relevant violent or sexual offence was imposed.

Offenders of particular concern:

A further category to which the two-thirds rule will not apply are those serving a special custodial sentence for offenders of particular concern - CJA 2003 s236A.  The offences are set out in Schedule 18A to the CJA 2003 and they are offences with a "terrorist connection." This category of offender came into sentencing law with the Criminal Justice and Courts Act 2015 section 6 (and Schedule 1).

Schedule 1 to the 2015 Act sets out arrangements for the sentencing of, and release of, offenders convicted of the listed offences of particular concern. Offenders on whom this sentence is imposed will be subject to Parole Board release between the halfway and end point of the custodial term instead of automatic release at the halfway point.

The Amendment Order:

Criminal Justice and Courts Act 2015 (Consequential Amendment) Regulations Order 2019 

This makes a consequential amendment to section 267 of the Criminal Justice Act 2003. Section 267 allows for an order to modify the application of section 264 (consecutive terms) of the 2003 Act, to alter the percentage of the proportion of a prisoner’s consecutive sentence that is to be served in custody.

The future of sentencing law:

Our sentencing law  reflects badly on legislators who, particularly over the last 30 years, have enacted law and the piled amendment on top of amendment. As the reader will see from a reading of the various links in this post, the byzantine statutory provisions are far from easy to read and understand.

The Minister (Mr Chris Philp - Parliamentary Under-Secretary of State, Ministry of Justice) indicated that wider issues to do with sentencing will be considered via a sentencing White Paper and sentencing Bill later this year.  Mr Philp said - "One topic that the sentencing White Paper will certainly deal with, ... , is short custodial sentences, which are not particularly effective at stopping reoffending. The White Paper will address that, and in particular it will make proposals to do more to treat the causes of offending behaviour, particularly drug and alcohol addiction and mental health problems, which are often the cause of high-volume repeat offending. Short custodial sentences do not deal effectively with that cohort of offenders, but that is not the topic of the regulations; it is a matter we will come to in the forthcoming White Paper and sentencing Bill."

See also the Sentencing (Pre-consolidation Amendments) Bill 2019-20  which seeks  to give effect to Law Commission recommendations relating to commencement of enactments relating to sentencing law and to make provision for pre-consolidation amendments of sentencing law.

Brief note:

Under the Criminal Justice Act 1991 section 33, Short-term prisoners (i.e. those sentenced to less that 4 years) were to be released having served 50% of the sentence imposed. Long-term prisoners (4 years or more) were to be released once they had served-two-thirds. The Criminal Justice Act 2003 replaced the two-thirds rule with 50%.

The Guardian 27 January - Longer sentences will not cut crime

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