RELEASE ON LICENCE AND POST-SENTENCE SUPERVISION
Automatic Release at the Halfway Point
Where adult defendants receive custodial sentences, the length of the sentence is normally fixed for a definite period. These are known as determinate sentences. A defendant who receives a determinate sentence will not usually serve the whole of the sentence in custody.
Adult defendants who receive a custodial sentence of up to 2 years (for an offence committed after 31st January 2015) will be automatically released at the halfway point and then be on licence in the community to the end of the sentence. At the end they will then have an additional period of post-sentence supervision to ensure that they are supervised for a period of 12 months.
This means that a defendant who receives 18 months’ imprisonment for an offence of Assault Occasioning Actual Bodily Harm (ABH) will serve 9 months in custody, then be released on licence for 9 months and then have an additional period of 3 months post-sentence supervision.
Defendants who receive determinate sentences of over 2 years will be automatically released after serving half of their sentence and the remaining half is served on licence in the community.
Return to Custody
Once released, breaching the terms of licence/supervision or being charged with another offence committed during that period can result in being recalled to custody.
Exceptions to the Halfway Rule
There are some exceptions to the halfway point release provisions:
For some prisoners, release can take place even earlier under Home Detention Curfew (see below).
For prisoners serving life sentences (except those serving whole life orders), they will be required to serve a minimum term before they can be considered for parole.
Prisoners deemed ‘offenders of particular concern’ are eligible for discretionary release by the parole board at the halfway point but may be required to serve all of their sentence in custody (read more below).
Prisoners serving extended sentences must serve two-thirds of the custodial element of the sentence (and more in some situations). You can read more about these sentences below.
EARLY RELEASE – HOME DETENTION CURFEW
Release Before the Halfway Point
Defendants who receive sentences of between 3 months and under 4 years may also be eligible for release on Home Detention Curfew (HDC), which enables release up to 135 days before automatic release at the halfway point. The sentencing court takes no part in deciding upon early release and will not take the possibility of such into account when fixing the length of sentence.
Once released on HDC, the defendant will have to wear an electronic tag and a curfew will be imposed. Breaching the curfew requirement can result in being recalled to prison.
Eligibility Exceptions to Home Detention Curfew
Not all prisoners are eligible for HDC. Prisoners who are not eligible include:
Those serving sentences of 4 years or more;
Violent and sex offenders who have received extended sentences;
Those subject to sexual offences notification requirements;
Prisoners serving a sentence for failure to return to custody following temporary release;
Prisoners subject to a Hospital Order;
Prisoners recalled to prison from a Home Detention Curfew or licence period:
Prisoners liable to removal from the UK.
Offences Presumed Unsuitable for Home Detention Curfew
Certain offences are ‘presumed unsuitable’ for HDC. This means that early release under HDC will not take place unless the prisoner can demonstrate there are exceptional circumstances to justify it.
Offences presumed unsuitable for HDC include homicide-related offences (e.g. manslaughter, attempted murder, making threats to kill, causing death by driving), explosives and terrorism offences, possession of an offensive weapon or bladed instrument, possession of a firearm with intent (to endanger life, cause fear of violence, resist arrest, commit an offence), child cruelty offences and offences aggravated on the grounds of race, religion or sexual orientation.
See the Further Information section below for further details including the full list of offences preseumed unsuitable for HDC.
OFFENDERS OF PARTICULAR CONCERN
No Automatic Release at the Halfway Point
One exception to the normal release provisions at the halfway point is ‘offenders of particular concern’.
Defendants aged 18 or over are considered to be offenders of particular concern if:
(a) they have been convicted of an offence within Schedule 18A to the Criminal Justice Act 2003. This includes terrorism offences and offences of rape of a child under 13 and assault of a child under 13 by penetration; and
(b) they receive an immediate custodial sentence for the offence which is neither a life sentence nor an extended sentence.
In these circumstances the ‘offender of particular concern’ will not be entitled to automatic release on licence after serving half of the sentence.
Instead he can apply for parole and may be released at this halfway point up until the end of the sentence (i.e. a 30 year old defendant sentenced to 8 years for a Schedule 18A offence would be entitled to apply for release at 4 years.
He could be released by the parole board at any stage up until the 8 year stage. At 8 years he must be released). Offenders in this category have an additional 1 year period of licence added to their sentence.
To use the example above, if the defendant was released after serving 4 years in custody, he would be on licence for 5 years; if released after 8 years he would be on licence for 1 year.
EXTENDED SENTENCES FOR DANGEROUS OFFENDERS
At least Two-Thirds to be Served
An extended sentence can be imposed only in the Crown Court and is one type of sentence designed for defendants who are assessed as dangerous but for whom a sentence of life imprisonment is not justified. With an extended sentence there is a custodial element and a licence element. It is this licence element which is extended in this type of sentence, the purpose of this being for the protection of the public.
Unlike usual determinate (fixed term) sentences where release will take place by the halfway stage, a defendant sentenced to an extended sentence will serve at least two-thirds of the custodial element of the sentence.
There is no right to automatic release at the two-thirds stage. An application for parole can be made at that stage; if parole is refused release must take place at the conclusion of the custodial element, unless a further successful parole application has been made resulting in earlier release.
What is an extended sentence?
An extended sentence can be imposed only in the Crown Court and is one type of sentence designed for defendants who are assessed as dangerous but for whom a sentence of life imprisonment is not required.
With an extended sentence there is a custodial element and a licence element. It is this licence element which is extended in this type of sentence, the purpose being the protection of the public.
What are the requirements for an extended sentence?
Extended sentences may be imposed only if the following conditions are satisfied:
A defendant aged 18 years of age or more is convicted of a specified offence (see below for the meaning of specified offence)
The judge assesses the defendant to be dangerous (i.e. a significant risk to members of the public of serious harm by committing further specified offences (see below for the meaning of serious harm, specified offence and for how the judge assesses risk); and
A sentence of imprisonment for life is not required (i.e. life sentences for dangerous offenders, or for defendants with a previous listed offence); and
The defendant EITHER has a previous conviction for an offence listed in Schedule 14 of the Sentencing Act 2020 (these include offences of manslaughter, wounding with intent, possession of a firearm with intent, armed robbery, terrorism offences, indecent images of children, rape, other serious sexual offences and human trafficking);
The judge considers that, if it were to impose an extended sentence, the custodial element of the sentence would be at least 4 years.
What is Serious Harm?
‘Serious harm’ means death or serious personal injury, whether physical or psychological (s.306(2) Sentencing Act 2020).
What is a Specified Offence?
There are 3 types of specified offences (s.306 Sentencing Act 2020):
(a) specified violent offences (specified in Part 1 of Schedule 18 of the Sentencing Act 2020), such as manslaughter, actual bodily harm (ABH), grievous bodily harm (GBH), child cruelty, robbery, arson, affray and violent disorder; or
(b) a specified sexual offence (specified in Part 2 of Schedule 18), such as rape, sexual assault, paying for sexual services of a child, administering a substance with intent, trafficking for sexual exploitation, exposure and voyeurism; or
(c) a specified terrorism offence (specified in Part 3 of Schedule 18), such as membership of a proscribed organisation, possessing an article for terrorist purposes, encouragement of terrorism, preparation of terrorist acts and training for terrorism.
Specified offences are relevant to extended sentences because (1) the defendant must have been convicted of a specified offence; and (2) in assessing dangerousness, the judge must consider the defendant to pose a significant risk to members of the public of serious harm by committing further specified offences.
How do judges assess dangerousness – a significant risk of serious harm?
In reaching a decision about whether a defendant poses a significant risk to members of the public of serious harm occasioned by the commission by him/her of further specified offences (i.e. whether the defendant is a dangerous offender), the court takes into account those matters set out in s.308 Sentencing Act 2020 as follows:
(a) the court must take into account all the information that is available to it about the nature and circumstances of the offence,
(b) the court may take into account all the information that is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,
(c) the court may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (b) forms part, and
(d) the court may take into account any information about the offender which is before it.
How much time must be served during an extended sentence?
Unlike determinate (fixed term) sentences where release will take place by the halfway stage, a defendant sentenced to an extended sentence will serve at least two-thirds of the custodial element of the sentence. At the two-thirds stage the case will be referred to the parole board to consider the prisoner’s release.
If parole is refused, release must take place at the conclusion of the custodial element of the sentence, unless a further successful parole application has been made resulting in earlier release.
How long can the licence period be for?
After release the defendant will be on licence. The extended licence period must be for a minimum of 1 year and a maximum of 5 years for a specified violent offence and 8 years for a specified sexual or terrorism offence (or a maximum of 10 years for a serious terrorism offence).
When combined together, the custodial element and lthe icence element cannot exceed the maximum sentence for the offence.
Extended sentence example
30 year old defendant convicted of wounding with intent (an offence contrary to s.18 Offences Against the Person Act 1861). This is a specified violent offence;
The judge considers defendant to be dangerous (a significant risk to members of the public of serious harm occasioned by the commission by him/her of further specified offences;
The judge considers that in the circumstances of the case imprisonment for life is not justified;
The defendant has a number of previous convictions for violence, but none in Schedule 14, but the judge is of the view that the custodial element of sentence should be 6 years;
The judge passes extended sentence of 6 years’ imprisonment with a 4 year licence extension;
This means defendant will serve a minimum of 4 years in custody (⅔ of the 6 year custodial element) and a maximum of 6 years in custody. He is not entitled to automatic release at ⅔ but he can be considered for parole at that stage.
After release he will be on licence until the end of the extended period; this means 6 years on licence if released after 4 years, or 4 years on licence if released after 6 years.