Update on Early Release of Prisioners (Nov 2024)

INTRODUCTION

In the SQE Assessment Specification, it is clear that candidates are required to understand the different types of sentences that a court may impose following a conviction, including custodial sentences. The SQE Assessment Specification does not provide any specificity as to this topic. As such, it is difficult to assess the level of detail that candidates must know for the SQE1 and SQE2 assessments.

We have sought to cover all key topics in appropriate detail throughout the Revise SQE: Criminal Practice book. One matter on which we wish to provide even further detail to assist candidates is the issue of early release of prisoners.

SUMMARY OF LAW APPLICABLE PRE-SEPTEMBER 2024

The general rule prior to 10 September 2024 was that prisoners who are not entitled to unconditional release were required to be released on licence after serving half (50%) of the sentence imposed by the court. This is the case unless the offence requires the prisoner to serve 2/3 of their sentence (see below).

SUMMARY OF LAW APPLICABLE POST-SEPTEMBER 2024

The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 changed the landscape of early release provisions. The Order has amended the law such that prisoners will now serve 2/5 (40% of their sentence before automatic release). This is the case unless the offence requires the prisoner to serve 2/3 of their sentence (see below).

FURTHER DETAIL ON PRESENT LAW

The new 40% provision applies to all cases EXCEPT:

1. Offences where the term of sentence (single offence or the aggregate on multiple offences) is more than five years (in which case, the 50% provision will continue to apply).
2. If the offence that the offender is sentenced for is listed in the Schedule of Excluded Offences to the 2024 Order. Reference to an “offence” includes the inchoate versions of them (i.e. attempt, conspiracy, incitement, or aiding abetting, counselling and procuring an offence). There are no offences listed in the SQE assessment that are excluded from the 40% provision.
3. If the offender was sentenced to four or more years’ imprisonment for an offence listed in Part 1 of Schedule 15 to the Criminal Justice Act 2003 (i.e. Specified Violent Offences). The “Specified Violent Offences” in the SQE Assessment Specification are: manslaughter; s.18 GBH/ wounding; s.20 GBH/ wounding; s.47 ABH; robbery; s.9(1)(a) burglary where there is intent to inflict GBH or commit criminal damage; aggravated burglary; arson; aggravated criminal damage.

TWO-THIRDS PROVISION

The 40% provision also does not apply where the defendant is:

1. Sentenced to a fixed-term sentence of four years or more, but less than seven for the offence of manslaughter (including inchoate versions), OR wounding with intent (including inchoate versions), OR attempting, OR conspiring, OR inciting murder.
2. Sentenced to a fixed-term sentence of seven years or more for an offence listed in Part 1 of Schedule 15 to the Criminal Justice Act 2003 (i.e. Specified Violent Offences), and that offence is one for which life imprisonment could be imposed. The “Specified Violent Offences” for which a life sentence is available in the SQE Assessment Specification are: manslaughter; s.18 GBH/ wounding; robbery; arson; aggravated criminal damage.

Where either of these exceptions apply, the prisoner will be released on licence having served two-thirds of their sentence.

SUMMARY

Candidates are advised to consider the issue in the following order:

1. The starting point is that all prisoners must be released having served 40% of their sentence.
2. Consider the exceptions:
   1. Consider whether any of the exceptions to the 40% provision apply. If so, the prisoner must serve 50% of their sentence before they can be released on licence.
   2. Consider whether one of the two-thirds provisions apply to the offender. If so, the prisoner must serve 2/3 of their sentence before they can be released on licence.

 

RELEVANCE TO SQE ASSESSMENT

Candidates sitting the SQE1 and 2 Assessments in January 2025 may be required to know the new rules relating to early release provisions.