Most sentences imposed by the courts will be determinate sentences, with the offender being released on licence after they have served one-half of their sentence. However, from 1 April 2020, certain prisoners will now have to serve two-thirds of their sentence before they are released on licence (Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019). These are prisoners sentenced to a term of imprisonment of 7 years or more for a relevant violent or sexual offence (i.e. one found within Part 1 or Part 2 of Sch.15 of the Criminal Justice Act 2003). This new two-thirds provision does not apply to any sentence imposed before 1 April 2020.
It was already the case that certain offenders would have to serve two-thirds of their sentence before being eligible for release. This article explores these extended sentences, as well as looking at life sentences, under the dangerousness regime. It will also cover special custodial sentences for offenders of particular concern.
This is a complex area and this article aims to provide an overview only. It focusses on the provisions for those aged 18 or over only. The appendix includes a brief discussion of how a finding of dangerousness is made, along with links to the relevant schedules where the applicable offences are listed.
Extended Sentences for Certain Violent, Sexual or Terrorism Offences (s226A CJA 2003)
If the following 4 conditions are met, the court may impose an extended sentence of imprisonment on the offender. Extended sentences are available irrespective of the date of the commission of the offence.
The 4 conditions are:
- A person aged 18 or over is convicted of a specified offence (whether the offence was committed before or after this section came into force (3 December 2012)) AND
- A finding of dangerousness has been made AND
- The court is not required by s224A or 225(2) to impose a sentence of imprisonment for life AND
- Condition A or B is met
Specified offences are listed in Sch.15. Parts 1, 2 and 3 contain specified violent offences, specified sexual offences and specified terrorism offences, respectively.
Condition A: At the time the offence was committed, the offender had been convicted of an offence listed in Sch.15B.
Condition B: If the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least 4 years.
The extended sentence is equal to the sum of the appropriate custodial term and the extension period for which the offender is to be subject to a licence.
The extension period is of such length as is necessary for protecting the public. It must be at least one year. It must not exceed 5 years in the case of a specified violent offence or 8 years in the case of a specified sexual offence.
The term of the extended sentence must not exceed the maximum statutory term permitted for the offence. There is nothing wrong in principle with the extension period taking the total term outside the range in the Sentencing Guidelines.
Specified offences include an offence that was abolished before 4 April 2005 and would have constituted such an offence if committed on the day on which the offender was convicted of the offence.
What if someone is being sentenced for a combination of specified and non-specified offences?
Where the key issue is whether the appropriate custodial term is at least four years, the seriousness of the aggregate offending must be considered. If a 4-year term results from doing so, this can be imposed in relation to the specified offence or lead specified offence, with concurrent determinate terms imposed for other offences.
Extended sentences – Post-Sentence
For prisoners serving an extended sentence, they must be released on licence as soon as they have served two-thirds of the appropriate custodial term if the sentence was imposed before the coming into force of s4 of the Criminal Justice and Courts Act 2015 (on 13 April 2015), the appropriate custodial term is less than 10 years and the sentence was not imposed in respect of an offence listed in Parts 1 to 3 of Sch.15B.
In any other case, the prisoner’s case must be referred to the Parole Board as soon as they have served two-thirds of the appropriate custodial term.
On release, any remaining period of the custodial term is served on licence in addition to the extended licence period.
They must be released on licence as soon as they have served the appropriate custodial term.
Life sentences are available only for offences committed on or after 4 April 2005.
Life Sentence for Serious Offences (s225 CJA 2003)
The court must impose a life sentence if the following conditions are met:
- A person aged 18 or over is convicted of a serious offence committed after the commencement of this section (4 April 2005) AND
- The court has made a finding of dangerousness AND
- The offence is one in respect of which the offender would be liable to imprisonment for life AND
- The court considers the seriousness of the offence justifies the imposition of a life sentence
Serious offences are specified offences which are, apart from s224A (see below), punishable by imprisonment for life or imprisonment for a determinate period of ten years or more.
Life Sentence for Second Listed Offence (s224A CJA 2003)
The court must impose a life sentence if the following conditions are met unless the court is of the opinion that there are particular circumstances which relate to the offence or the previous offence or the offender that would make it unjust to do so in all the circumstances:
- A person aged 18 or over is convicted of an offence listed in Part 1 of Sch.15B AND
- The offence was committed after this section comes into force (3 December 2012) AND
- The sentence condition and the previous offence condition are met
The sentence condition: But for s224A, the court would, in compliance with 152(2) (‘so serious’ test) and 153(2) (‘shortest term commensurate with seriousness’ provision), impose a sentence of imprisonment for 10 years or more, disregarding any extension period imposed by s226A.
The previous offence condition: At the time the offence was committed, the offender had been convicted of an offence listed in Sch.15B (the previous offence) and a relevant life sentence or a relevant sentence of imprisonment for a determinate period was imposed on the offender for the previous offence.
A life sentence is relevant if the offender was not eligible for release during the first 5 years of the sentence or the offender would not have been eligible for release during that period but for the reduction of the period of ineligibility to take account of a relevant pre-sentence period.
An extended sentence is relevant if the appropriate custodial term imposed was 10 years or more.
Any other sentence of imprisonment for a determinate period is relevant if it was for a period of 10 years or more.
The Correct Sentencing Approach for life sentences for second listed offence:
First, consider the question of dangerousness
If not dangerous:
- Consider whether s224A applies. If it does, the court must pass a life sentence unless unjust.
- Consider whether they are required to impose a life sentence under s225.
- If they are required to impose a life sentence under s225, the court must also consider whether the conditions in s224A are met and, if so, state that fact in open court.
- If they are not required to impose a life sentence under s225, the court must consider s224A. If those conditions are met, the court must impose a life sentence unless unjust.
Life Sentences – Post-Sentence
Offenders are eligible to be released at the expiry of the minimum term but are not entitled to be released at any point.
Special custodial sentence for offenders of particular concern (s236A CJA 2003)
If the following conditions are met, the term of the sentence must be equal to the sum of the appropriate custodial term and a further period of one year for which the offender is to be subject to a licence:
- Where a person is convicted of an offence listed in Sch.18A (whether the offence was committed before or after this section comes into force (13 April 2015)) AND
- The person was 18 or over when the offence was committed AND
- The court does not impose either a sentence of life imprisonment or an extended sentence under s226A
This section applies when sentencing a person for an offence after it was brought into force, 13 April 2015, whether the person was convicted of the offence before or after this date.
Passing an ordinary determinate sentence for a Sch.18A offence is not an option. The total term must not exceed the statutory maximum for the offence. The duty to impose a s236A sentence is often missed by advocates and the court.
Offenders of Particular Concern – Post-Sentence
The offender’s case must be referred to the Parole Board as soon as he has served the requisite custodial period. This period is one-half of the appropriate custodial term. The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019 did not modify this provision. The offender must be released on licence as soon as he has served the appropriate custodial term.
Dangerous offenders are offenders who are considered to pose a significant risk of serious harm to members of the public by the commission of further specified offences.
In assessing dangerousness, the court must take into account all such information as is available to it about the nature and circumstances of the offence and may take into account all such information as 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.
The issue of risk must be determined on the premise that the offender is at large. It would place an unrealistic burden on a judge to expect him to decide whether there would be a significant risk from the offender at the point when he would be released from the appropriate determinate sentence. Doing the latter would also usurp the function of the Parole Board.
However, the court can still consider questions about the possible impact of alternative sentencing options which would sufficiently address the risk posed by the offender so as to make an indeterminate sentence unnecessary.
In most cases, the judge will require assistance from the probation service in the form of a PSR. There is a duty to obtain such a report before forming an opinion as to risk that is adverse to the defendant unless the court is of the opinion that it is unnecessary to obtain such a report.
A sentencer is entitled to reject an expert’s report concluding that a defendant is not dangerous but he must explain his reasons for doing so.
Where there are conflicting psychiatric reports and the judge indicates it is unnecessary to hear evidence from them, the offender is entitled to expect that the evidence of the defence psychiatrist will be accepted.
Links to Relevant Schedules
Sch.15, parts 1, 2 and 3: https://www.legislation.gov.uk/ukpga/2003/44/schedule/15