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Sentencing violent and sexual offenders – a review of the recent legislative changes

Following the December 2019 election, the Queen’s speech set out the government’s legislative agenda for the year. One key area of reform identified was the sentencing of violent and sexual offenders. Consequently, the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 came into force on the 1st April 2020 and modifies the application of sections 244 and 246 of the Criminal Justice Act 2003. This article considers the effect of this modification and its implications on offenders going forward.

What effect does the Order have?

The Order effectively results in some offenders serving a greater proportion of their sentence in custody. Whilst in respect of most offences, offenders previously served half of their sentence in custody before being released on licence, offenders convicted of offences to which these provisions apply (and who are sentenced to at least 7 years’ imprisonment for such an offence) will serve two-thirds of their sentence before being released on licence.

Which offences does the Order apply to?

Article 2 of the Order clarifies that the provisions apply to offences found in Parts 1 and 2 of Schedule 15 of the Criminal Justice Act 2003. Part 1 of the Schedule contains the specified violent offences, while Part 2 contains the specified sexual offences. These provisions do not apply to terror related offences found in Part 3 of the Schedule, for which offenders have been subject to a different legislative change. The full Schedule can be found here.

The provisions only apply to offences on the Schedule which carry a maximum sentence of life imprisonment. For example, an offender convicted of rape (which carries a maximum sentence of life imprisonment) might be ordered to serve two-thirds of their sentence, but an offender convicted of threats to kill (which carries a maximum sentence of 10 years’ imprisonment) would not.

It is also important to note that the provisions do not apply unless the sentence imposed is at least 7 years’ imprisonment. Even if the maximum sentence for an offence is life imprisonment, but the term imposed is less than 7 years, the offender will only serve half of their sentence before being released on licence.

Who is exempt?

Article 5 of the Order stipulates that the provisions apply only to sentences imposed on or after 1st April 2020. The provisions will apply even if the offender was convicted prior to this date, but was not sentenced until after it.

The provisions also do not apply to any offender who is aged under 18 at the time they are sentenced.

Further, they do not apply to ‘Offenders of Special Concern’ under section 236A of the Criminal Justice Act 2003, who are already subject to a special custodial sentence.

What are the implications?

The new provisions can result in stark differences in the length of time served in custody, so it is important that clients to whom these provisions may apply are advised appropriately and that their expectations are managed.

Following the implementation of these provisions, an offender who receives a sentence of 6 and a half years for an offence of rape will, as before, spend 3 years and 3 months in custody. By contrast, an offender who receives a sentence of 7 years will spend 4 years and 8 months in custody. A difference of 6 months to the sentence – which would previously have resulted in a difference of only 3 months in custody – can now in some cases result in a further 1 year and 5 months in custody.

The provisions apply individually to each sentence. Where an offender is being sentenced for more than one offence to which the provisions apply and the terms are to served consecutively, each consecutive sentence of over 7 years for a specified offence will separately carry the two-thirds minimum. If a consecutive sentence is under 7 years, the offender will be released after serving half of that sentence as normal. The provisions are not triggered where the total length of the sentence and any consecutive sentence is over 7 years, but the individual sentences are less than 7 years each. These considerations will be important to bear in mind when advising.

The full text of the Order can be found here.

Eleanor Mitten

Ellie is a second six pupil and is undertaking her pupillage under the supervision of Kate Batty.

16th June 2020