The Criminal Justice and Courts Bill and MoJ misinformation

The Criminal Justice and Courts Bill and MoJ misinformation


The Criminal Justice and Courts Bill is currently making its way through Parliament, containing, among other things, amendments to sentencing legislation. Thanks to David Allen Green (@JackofKent), @JoshuaRozenberg and others – who over the weekend were discussing the “non-news story” that was the plans to increase the maximum sentence for offences committed by internet trolls (s.1 Malicious Comms Act 1988) from 6 months to 2 years – I had cause to read an MoJ press release about the Bill…

Ending automatic early release

What is likely to become section 4 of the Act when enacted makes provision for ending automatic early release for those serving extended sentences.

An extended sentence is one which includes a custodial part and a licence part. The licence part is designed to deal with the risk posed by the offender, whereas the custodial part is designed (predominantly) to satisfy the punitive aspect of the sentence. An extended sentence can only be imposed where the court has found the offender to be ‘dangerous’ – that is that they pose ‘a significant risk of serious harm to members of the public’.

There are currently two types of extended sentence, for the purposes of determining release. The first, is where the custodial period of the sentence is 10 years or more and the offender has a previous conviction for a Schedule 15B offence (this includes things such as manslaughter, s.18 GBH and rape). In those circumstances, release is discretionary at the 2/3 point, and the offender has to apply to the parole board. If the parole board consider that the offender is safe to release, the offender is released on licence (to serve the remained of the custodial period on licence, and then the period of extended licence on top of that). If the parole board do not consider that the offender is safe to release, the offender is not released and is liable to automatic release at the expiry of the custodial term, at which point he or she will be released to serve their extended licence.

The second type of extended sentence for the purposes of release is cases which do not fall into the first type (which is most of them). In such cases, the offender is automatically released at the 2/3 point and the parole board do not get the opportunity to consider the offender’s case. The offender is released to serve the remainder of the custodial period on licence, and then the extended licence on top of that.

The provisions contained in the Bill will change that. Automatic early release will end, and so all offenders serving an extended sentence, of any length, irrespective of whether they have a previous conviction for a Schedule 15B offence, will have to go before the parole board.

Wasted money and misinformation

Where to start? Well firstly, the extended sentence legislation was brought in by the current government, with the current Sec of State for Justice at the helm, in December 2012.

The MoJ brought in legislation which repealed the IPP (Imprisonment for Public Protection) sentence (an IPP sentence was very close to a life sentence as an offender receiving such a sentence was given a minimum term of custody which had to be served before an application to the parole board could be made for their release; this meant that an offender receiving an IPP sentence may never be released, and could only be released if the parole board deemed it safe to do so). This repeal left a gap in the sentencing powers for dangerous offenders, as the only options were an extended sentence or a life sentence. In December 2012, I predicted this would result in more life sentences. In 2013, the Court of Appeal made the same comment. 

In October 2014, Minister of State for Justice Lord Faulks QC made a speech at the Criminal Justice Management Conference, during which he said:

The government is tackling automatic early release. It cannot be right that serious sex offenders and terrorists may serve only half their sentence in prison and – regardless of how they have progressed with their rehabilitation – are then released automatically midway through their sentence.

The Bill therefore introduces measures to end automatic early release for anyone given an extended determinate sentence, or sentenced to standard determinate custody for the rape of a child or for serious terrorism offences. No such offenders will be released before the end of their custodial term, unless the Parole Board judges that they no longer pose a risk of serious harm to the public.

The effect is to require the parole board to assess every single extended sentence prisoner at the 2/3 point of their sentence to determine whether they ought to be released. If release is not granted, the offender will be released at the expiry of the custodial term. (Interestingly, if we compare this to the previous extended sentences under the 2003 Act, release was granted at the half way point, so in a little under 3 years, the practical effect of receiving an extended sentence will have potentially doubled. Take the following example of a 6 year extended sentence with 1 year licence:

2003 extended sentence: automatic release after 3 years: 3 years on licence + 1 year extended licence

2012 extended sentence: automatic release after 4 years: 2 years on licence + 1 year extended licence

2014 (?) extended sentence: possible release at 4 and automatic release at 6 years (with balance of custody spent on licence) + 1 year extended licence.

So some 18 months after the MoJ introduced this legislation, it amends it, to plug the gap left by the legislation they repealed. Not only is this a waste of money (because, had they conducted their research properly in the first place this change could have been implemented by one piece of primary legislation rather than two (at god only knows what cost) but the MoJ then conveniently omit from their press release the fact that they are making a significant amendment to a piece of legislation they brought in to force only 18 months ago.

Terrorism and sexual offences

The Bill also includes a provision to end automatic release for “offenders of particular concern” – that is someone who has committed an offence listed in Schedule 18A when aged 18+.Where a court imposes a determinate sentence (i.e. not a life sentence or extended sentence, because the offender is ‘dangerous’) for an offence listed in Schedule 18A (e.g. rape of a child under 13 or possessing an article for terrorist purposes), then the offender will have to apply to the parole board upon reaching the half way point in his or her sentence before they can be released. Again, the parole board will only release the prisoner if it is safe to do so. This is notwithstanding that the court has not found the offender to be ‘dangerous’ and therefore not imposed a sentence which requires the parole board to assess the safety of release. Is this purely political? If the government considers that the current dangerousness test is adequate, and that judges are applying it correctly (which we must assume, as there are no amendments to it in the Bill – ideal time to make any), then it must expect the parole board to grant release to all of the offenders caught by this change. What as waste of time and money for the parole board; but you can’t put a price on good political capital, and everyone dislikes terrorists and child rapists.

One truly wonders who is responsible for such errant law-making…

This post was sponsored by Tranter Cleere Solicitors.