Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill


Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc

91

 

(5)   

In subsection (1A), for “a direction under section 240 or 240A includes a

direction under” substitute “section 240ZA includes”.

(6)   

In the heading, for “direction under section 240 or 240A” substitute “section

240ZA or direction under section 240A”.

(7)   

In section 242 (interpretation of sections 240 to 241), in subsections (1) and (2)

5

and in the heading, for “sections 240” substitute “sections 240ZA”.

(8)   

For section 243(2) (persons extradited to the United Kingdom) substitute—

“(2)   

In the case of an extradited prisoner, the court must specify in open

court the number of days for which the prisoner was kept in custody

while awaiting extradition.

10

(2A)   

Section 240ZA applies to days specified under subsection (2) as if they

were days for which the prisoner was remanded in custody in

connection with the offence or a related offence.”

(9)   

In section 246 (power to release prisoners early)—

(a)   

in subsection (4)(i), for “to whom a direction under section 240 or 240A

15

relates” substitute “to whom section 240ZA applies or a direction under

section 240A relates”;

(b)   

in subsection (4A)(b), for “a direction under section 240 includes a

direction under” substitute “section 240ZA includes”.

(10)   

In section 269 (determination of minimum term in relation to mandatory life

20

sentence)—

(a)   

in subsection (3)(b), for the words from “any direction which it would

have given” to “certain types of condition)” substitute “section 240ZA

(crediting periods of remand in custody) or of any direction which it

would have given under section 240A (crediting periods of remand on

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certain types of bail)”;

(b)   

after that subsection insert—

“(3A)   

The reference in subsection (3)(b) to section 240ZA includes

section 246 of the Armed Forces Act 2006 (crediting periods in

service custody).”

30

(11)   

In section 305(1A) (modification of reference to want of sufficient distress),

inserted by paragraph 155 of Schedule 13 to the Tribunals, Courts and

Enforcement Act 2007, for “In the definition of “sentence of imprisonment” in

subsection (1) the reference” substitute “In this Part any reference”.

(12)   

In section 330(5) (rules to be subject to affirmative resolution)—

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(a)   

after paragraph (b) insert “or”, and

(b)   

omit paragraph (d) and the “or” preceding it.

(13)   

Schedule 13 (crediting of time in custody) has effect.

(14)   

In consequence of the amendments made by this section, in the Criminal

Justice and Immigration Act 2008 omit—

40

(a)   

section 21(2), (5) and (7);

(b)   

section 22(2) and (3);

(c)   

section 23 and Schedule 6.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc

92

 

Release

112     

Prisoners serving less than 12 months

(1)   

After section 243 of the Criminal Justice Act 2003 insert—

“Unconditional release

243A    

Duty to release prisoners serving less than 12 months

5

(1)   

This section applies to a fixed-term prisoner who is serving a sentence

which is for a term of less than twelve months.

(2)   

As soon as a prisoner to whom this section applies has served the

requisite custodial period for the purposes of this section, it is the duty

of the Secretary of State to release that person unconditionally.

10

(3)   

For the purposes of this section “the requisite custodial period” is—

(a)   

in relation to a person serving a sentence of imprisonment for a

term of less than twelve months or a determinate sentence of

detention under section 91 or 96 of the Sentencing Act for such

a term, one-half of the sentence, and

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(b)   

in relation to a person serving two or more concurrent or

consecutive sentences, the period determined under sections

263(2) and 264(2).

(4)   

This section is subject to—

(a)   

section 256B (supervision of young offenders after release), and

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(b)   

paragraph 8 of Schedule 20B (transitional cases).”

(2)   

Schedule 14 (amendments consequential on subsection (1)) has effect.

113     

Restrictions on early release subject to curfew

(1)   

In section 246 of the Criminal Justice Act 2003 (power to release prisoners on

licence), subsection (4) is amended as follows.

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(2)   

After paragraph (a) insert—

“(aa)   

the sentence is for a term of 4 years or more,”.

(3)   

In paragraph (g)—

(a)   

for “during the currency of the sentence” substitute “at any time”, and

(b)   

at the end insert “(and the revocation has not been cancelled under

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section 255(3))”.

(4)   

Omit the “or” at the end of paragraph (h) and after that paragraph insert—

“(ha)   

the prisoner has at any time been returned to prison under

section 40 of the Criminal Justice Act 1991 or section 116 of the

Sentencing Act, or”.

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(5)   

After subsection (4) of that section insert—

“(4ZA)   

Where subsection (4)(aa) applies to a prisoner who is serving two or

more terms of imprisonment, the reference to the term of the sentence

is—

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc

93

 

(a)   

if the terms are partly concurrent, a reference to the period

which begins when the first term begins and ends when the last

term ends;

(b)   

if the terms are to be served consecutively, a reference to the

aggregate of the terms.”

5

(6)   

In subsection (6) of that section, at the end insert—

““term of imprisonment” includes a determinate sentence of detention

under section 91 or 96 of the Sentencing Act or under section 227 or 228

of this Act.”

Further release after recall

10

114     

Cancellation of revocation of licence

(1)   

After section 254(2) of the Criminal Justice Act 2003 (representations by person

recalled) insert—

“(2A)   

The Secretary of State, after considering any representations under

subsection (2)(a) or any other matters, may cancel a revocation under

15

this section.

(2B)   

The Secretary of State may cancel a revocation under subsection (2A)

only if satisfied that the person recalled has complied with all the

conditions specified in the licence.

(2C)   

Where the revocation of a person’s licence is cancelled under

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subsection (2A), the person is to be treated as if the recall under

subsection (1) had not happened.”

(2)   

In section 255(3) of that Act (cancellation of revocation under section 255), for

“subsection (2)(b)” substitute “subsection (2)(a)”.

115     

Further release after recall

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(1)   

For sections 255A to 255D of the Criminal Justice Act 2003 (further release after

recall) substitute—

“Further release after recall

255A    

 Further release after recall: introductory

(1)   

This section applies for the purpose of identifying which of sections

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255B and 255C governs the further release of a person who has been

recalled under section 254.

(2)   

The Secretary of State must, on recalling a person other than an

extended sentence prisoner, consider whether the person is suitable for

automatic release.

35

(3)   

For this purpose “automatic release” means release at the end of the

period of 28 days beginning with the date on which the person returns

to custody.

(4)   

A person is suitable for automatic release only if the Secretary of State

is satisfied that the person will not present a risk of serious harm to

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members of the public if released at the end of that period.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc

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(5)   

The person must be dealt with—

(a)   

in accordance with section 255B if suitable for automatic release;

(b)   

in accordance with section 255C otherwise.

(6)   

For the purposes of this section, a person returns to custody when that

person, having been recalled, is detained (whether or not in prison) in

5

pursuance of the sentence.

(7)   

An “extended sentence prisoner” is a prisoner serving an extended

sentence imposed under—

(a)   

section 227 or 228 of this Act, or

(b)   

section 85 of the Sentencing Act;

10

   

and paragraph (b) includes (in accordance with paragraph 1(3) of

Schedule 11 to the Sentencing Act) a reference to section 58 of the Crime

and Disorder Act 1998.

255B    

 Automatic release

(1)   

A prisoner who is suitable for automatic release (“P”) must—

15

(a)   

on return to prison, be informed that he or she will be released

under this section (subject to subsections (8) and (9)), and

(b)   

at the end of the 28 day period mentioned in section 255A(3), be

released by the Secretary of State on licence under this Chapter

(unless P is released before that date under subsection (2) or (5)).

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(2)   

The Secretary of State may, at any time after P is returned to prison,

release P again on licence under this Chapter.

(3)   

The Secretary of State must not release P under subsection (2) unless the

Secretary of State is satisfied that it is not necessary for the protection of

the public that P should remain in prison until the end of the period

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mentioned in subsection (1)(b).

(4)   

If P makes representations under section 254(2) before the end of that

period, the Secretary of State must refer P’s case to the Board on the

making of those representations.

(5)   

Where on a reference under subsection (4) the Board directs P’s

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immediate release on licence under this Chapter, the Secretary of State

must give effect to the direction.

(6)   

Subsection (7) applies if P is recalled before the date on which P would

(but for the earlier release) have served the requisite custodial period

for the purposes of section 243A or (as the case may be) section 244.

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(7)   

Where this subsection applies—

(a)   

if P is released under this section before that date, P’s licence

must include a curfew condition complying with section 253,

and

(b)   

P is not to be so released (despite subsections (1)(b) and (5))

40

unless the Secretary of State is satisfied that arrangements are in

place to enable that condition to be complied with.

(8)   

Subsection (9) applies if, after P has been informed that he or she will

be released under this section, the Secretary of State receives further

information about P (whether or not relating to any time before P was

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recalled).

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc

95

 

(9)   

If the Secretary of State determines, having regard to that and any other

relevant information, that P is not suitable for automatic release—

(a)   

the Secretary of State must inform P that he or she will not be

released under this section, and

(b)   

section 255C applies to P as if the Secretary of State had

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determined, on P’s recall, that P was not suitable for automatic

release.

255C    

Extended sentence prisoners and those not suitable for automatic

release

(1)   

This section applies to a prisoner (“P”) who—

10

(a)   

is an extended sentence prisoner, or

(b)   

is not considered to be suitable for automatic release.

(2)   

The Secretary of State may, at any time after P is returned to prison,

release P again on licence under this Chapter.

(3)   

The Secretary of State must not release P under subsection (2) unless the

15

Secretary of State is satisfied that it is not necessary for the protection of

the public that P should remain in prison.

(4)   

The Secretary of State must refer P’s case to the Board—

(a)   

if P makes representations under section 254(2) before the end

of the period of 28 days beginning with the date on which P

20

returns to custody, on the making of those representations, or

(b)   

if, at the end of that period, P has not been released under

subsection (2) and has not made such representations, at that

time.

(5)   

Where on a reference under subsection (4) the Board directs P’s

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immediate release on licence under this Chapter, the Secretary of State

must give effect to the direction.

(6)   

Subsection (7) applies if P is recalled before the date on which P would

(but for the earlier release) have served the requisite custodial period

for the purposes of section 243A or (as the case may be) section 244.

30

(7)   

Where this subsection applies—

(a)   

if P is released under this section before that date, P’s licence

must include a curfew condition complying with section 253,

and

(b)   

P is not to be so released (despite subsection (5)) unless the

35

Secretary of State is satisfied that arrangements are in place to

enable that condition to be complied with.

(8)   

For the purposes of this section, P returns to custody when P, having

been recalled, is detained (whether or not in prison) in pursuance of the

sentence.”

40

(2)   

After section 244(1) of that Act (duty to release certain prisoners on licence at

half-way point) insert—

“(1A)   

Subsection (1) does not apply if the prisoner has been released on

licence under section 246 and recalled under section 254 (provision for

the release of such persons being made by sections 255B and 255C).”

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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc

96

 

(3)   

In the heading of section 253 of that Act (curfew conditions) after “section 246”

insert “, 255B or 255C”.

(4)   

In section 256(1) of that Act (review by the Board), for “section 255B(4), 255C(4)

or 255D(1)” substitute “section 255B(4) or 255C(4)”.

(5)   

In consequence of the amendments made by this section, omit section 29(2) and

5

(3) of the Criminal Justice and Immigration Act 2008.

Other provisions about release

116     

Supervision of young offenders after release

   

After section 256A of the Criminal Justice Act 2003 insert—

“Supervision of young offenders after release

10

256B    

Supervision of young offenders after release

(1)   

This section applies where a person (“the offender”) is released under

this Chapter from one of the following terms if the term is for less than

12 months—

(a)   

a term of detention in a young offender institution;

15

(b)   

a term of detention under section 91 of the Sentencing Act;

(c)   

a term of detention under section 209 of the Armed Forces Act

2006.

(2)   

The offender is to be under the supervision of—

(a)   

an officer of a provider of probation services,

20

(b)   

a social worker of a local authority, or

(c)   

if the offender is under the age of 18 years at the date of release,

a member of the youth offending team.

(3)   

Where the supervision is to be provided by an officer of a provider of

probation services, the officer must be an officer acting in the local

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justice area in which the offender resides for the time being.

(4)   

Where the supervision is to be provided by—

(a)   

a social worker of a local authority, or

(b)   

a member of a youth offending team,

   

the social worker or member must be a social worker of, or a member

30

of a youth offending team established by, the local authority within

whose area the offender resides for the time being.

(5)   

The supervision period begins on the offender’s release and ends three

months later (whether or not the offender is detained under section

256C or otherwise during that period).

35

(6)   

During the supervision period, the offender must comply with such

requirements, if any, as may for the time being be specified in a notice

from the Secretary of State.

(7)   

The requirements that may be specified in a notice under subsection (6)

include—

40

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc

97

 

(a)   

requirements for securing the electronic monitoring of the

offender’s compliance with any other requirements specified in

the notice;

(b)   

requirements for securing the electronic monitoring of the

offender’s whereabouts (otherwise than for the purpose of

5

securing compliance with requirements specified in the notice);

(c)   

in the circumstances mentioned in subsection (8), requirements

to provide, when instructed to do so by an officer of a provider

of probation services or a person authorised by the Secretary of

State, any sample mentioned in the instruction for the purpose

10

of ascertaining whether the offender has any specified Class A

drug in his or her body.

(8)   

The circumstances referred to in subsection (7)(c) are that—

(a)   

the offender has attained the age of 18 years;

(b)   

the offender’s term of detention was imposed for a trigger

15

offence; and

(c)   

the requirements to provide samples are being imposed for the

purpose of determining whether the offender is complying with

any other requirements specified in the notice.

(9)   

The function of giving such an instruction as is mentioned in subsection

20

(7)(c) must be exercised in accordance with guidance given from time

to time by the Secretary of State; and the Secretary of State may make

rules about the requirements that may be imposed by virtue of

subsection (7) and the provision of samples in pursuance of such an

instruction.

25

(10)   

In this section—

“specified Class A drug” has the same meaning as in Part 3 of the

Criminal Justice and Court Services Act 2000;

“trigger offence”—

(a)   

has the same meaning as in that Part, unless paragraph

30

(b) applies;

(b)   

if the offender’s term of detention was imposed for an

offence under section 42 of the Armed Forces Act 2006

(criminal conduct), means such an offence as respects

which the corresponding offence under the law of

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England and Wales is a trigger offence within the

meaning of that Part.

256C    

Breach of supervision requirements

(1)   

Where an offender is under supervision under section 256B and it

appears on information to a justice of the peace that the offender has

40

failed to comply with requirements under section 256B(6), the justice

may—

(a)   

issue a summons requiring the offender to appear at the place

and time specified in the summons, or

(b)   

if the information is in writing and on oath, issue a warrant for

45

the offender’s arrest.

(2)   

Any summons or warrant issued under this section must direct the

offender to appear or be brought—

 
 

 
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Revised 22 March 2012