Chapter 6: Release of Prisoners on Licence

Clause 217: Meaning of "fixed-term prisoner"

492.     This clause is an interpretation provision. In particular it defines "fixed-term prisoner" for the purposes of this Chapter.

Clause 218: Power of the court to recommend licence conditions for certain prisoners

493.     This clause gives the court the power to recommend, when passing a custodial sentence of 12 months or more, particular conditions which in its view should be included in the licence subject to which the offender is released. It also places a duty upon the Secretary of State, when setting the conditions of the licence, to have regard to any recommendations which the court may have made.

Clause 219: The Parole Board

494.     This clause re-enacts section 32 of the Criminal Justice Act 1991. Its effect is to continue in being, and make provision for the constitution of, the Parole Board. The statutory duty of the Parole Board as set out in subsection (2) is to advise the Secretary of State on the release and recall of prisoners. In undertaking this function the Board must consider any evidence which the Secretary of State puts before it and any other evidence which it obtains (see subsection (3)). Subsections (5) and (6) give the Secretary of State the power to make rules concerning the proceedings of the Board and to give directions to the Board with regard to protecting the public and preventing further offences being committed.

Clause 220: Crediting of periods of remand in custody: terms of imprisonment and detention

     495.     This clause re-enacts with amendments section 87 of the Powers of Criminal Courts (Sentencing) Act 2000, which makes provision for the crediting of time spent on remand (and which is not yet in force). It allows for time spent in custody on remand to count as time served by the offender as part of his sentence (see subsection (3)). These provisions are only relevant where a custodial sentence is passed and the remand was in connection with the same offence, or a related offence. When crediting periods of remand in custody the Court is required by subsection (5) to state in open court the number of days spent on remand in connection with the offence and the number of days which count towards time served under the sentence as a result of this. Subsection (4) allows the court not to give a direction should this be in the interests of justice in a particular case, or alternatively where it is required under rules made by the Secretary of State under subsection (7). Where the court does not exercise its full powers in relation to the crediting of time spent on remand, subsection (6) requires that it must state a reason for this decision.

Clause 221: Effect of direction under section 220 on release on licence

496.     Clause 221 ensures that time spent on remand counts towards time served under the sentence for the purpose of calculating whether or not an offender has served a particular proportion or period of his sentence. The application of these provisions to a sentence of intermittent custody is dealt with in subsection (2).

Clause 222: Interpretation of clauses 220 and 221

497.     This clause defines the sentences to which the crediting of remand time applies, and provides definitions of the term 'remanded in custody' used within Clauses 220 and 221.

Clause 223: Persons extradited to the United Kingdom

498.     This clause re-enacts (with some modification) section 47 of the Criminal Justice Act 1991. In clause 223, subsection (2) ensures that in the case of a person extradited to the United Kingdom (as defined by subsections (1) and (3)), days spent in custody awaiting extradition may subsequently be subtracted from any custodial sentence passed by the court.

Clause 224: Duty to release prisoners

499.     The release provisions for all prisoners (excluding those subject to a life sentence or one of the new sentences for dangerous offenders under Chapter 5) are dealt with in this clause. All prisoners must spend a "requisite custodial period" in custody before the Secretary of State is required to release them on licence. This requisite period is calculated according to the particular sentence as described in subsection (3). For all prisoners serving a sentence of twelve months or more (excluding dangerous offenders and life sentence prisoners) the Secretary of State is required to release them on licence at the halfway point of their sentence. For prisoners serving a sentence of less than twelve months, release will be at the end of the specified 'custodial period'. For those serving a sentence of intermittent custody release will take place at the end of each custodial period as defined by clause 165.

Clause 225: Power to release prisoners on licence before required to do so

500.     This clause relates to home detention curfew (HDC). The Crime and Disorder Act 1998 amended the Criminal Justice Act 1991 so that certain categories of prisoner, after being risk assessed, could spend the last part of their custodial sentence on HDC. HDC operates as a transitional phase between prison and living in the community without restriction. Under the existing law in section 34A of the Criminal Justice Act 1991, an offender he can be released up to 60 days early if he is assessed as suitable for HDC by the Prison Service. A curfew is imposed and the offender is monitored electronically to ensure he keeps to the terms of the curfew. If he violates the curfew or any standard condition of his licence (such as being of good behaviour) he is recalled to prison. HDC came into operation in 1999. Since that time there have been nearly 60,000 participants (around 2300 at any one time). The successful completion rate of HDC is 90%.

501.     The provisions within the Bill extend the period available for HDC to 90 days. Subsection (4) also gives the Secretary of State the power to amend by order both the period available for HDC and the eligibility of certain prisoners to HDC. Not all prisoners are eligible for release under the HDC scheme. Those ineligible include prisoners serving one of the sentences applicable to dangerous offenders, and prisoners who are liable to deportation. Also, prisoners who have less than 14 days to serve of their required custodial period following sentence (e.g due to remand time being deducted from the required custodial period) are not eligible for HDC. Ineligible categories are specified in subsection (3). Subsection (2) has the effect of providing for the period spent on HDC to be tapered according to the length of sentence.

Clause 226: Release on licence of prisoner serving extended sentence under section 207 or 208

502.     This clause sets out the release provisions for the extended sentences set out in clauses 207 and 208. Subsection (2) provides that once an offender has served one half of the "appropriate custodial term", then subject to the recommendation of the Parole Board the prisoner may be released on licence. Once the prisoner has served the full 'appropriate custodial term' he must be released.

Clause 227: Power to release prisoners on compassionate grounds

503.     This clause re-enacts section 36 of the Criminal Justice Act 1991, and sets out the procedure for releasing fixed-term prisoners on compassionate grounds. The Secretary of State may only release prisoners on these grounds if exceptional circumstances exist (for example where the prisoner is suffering from a terminal illness). In such cases the Parole Board is to be consulted prior to release wherever possible.

Clause 228: Duration of licence

504.     Subsection (1) provides that, after release, all prisoners serving determinate sentences remain on licence following release for the remainder of the sentence. Particular provision is made in subsection (2) for intermittent custody, reflecting the fact that the offender must return to prison at the end of each "intermittent" licence period before being subject to final release. In either case, the provisions as to the duration of licence are subject to the fact that the offender may be recalled into custody in the event of breach of a licence condition.

Clause 229: Licence conditions

505.     This clause makes provision in relation to the conditions which may be attached to a licence following a prisoners' release. All licences must include "the standard conditions" as defined insofar as they are compatible with the other licence conditions. An example of a "standard condition" that could be prescribed is a requirement that the offender be of good behaviour. Other than the standard conditions, the content of the licence will vary according to the sentence being served. For prisoners serving one or more sentences of less than twelve months the conditions of the licence are set by the court at the point of sentence (see clause 164). These conditions apply in conjunction with the standard conditions (see subsection (2)). For prisoners serving one or more sentence of more than 12 months the conditions of the licence are set by Prison and Probation Service prior to the prisoners' release. In this case, subsection (3) provides that the standard conditions will apply, together with any other condition prescribed for this purpose by the Secretary of State and specified in the license. In either case, conditions as to electronic monitoring and drug testing may also be applied under section 62 or 64 of the Criminal Justice and Court Services Act 2000.

Clause 230: Duty to comply with licence conditions

506.     This clause requires the offender to comply with any conditions attached to their licence.

     Clause 231: Curfew condition to be included in licence under section 225

507.     Subsection (1) defines the curfew condition to be attached to early release on Home Detention Curfew (HDC), as provided in Clause 225. The curfew condition specifies periods during which the offender must remain in a specified place, and includes a requirement that the curfew is electronically monitored. Under subsection (2) the curfew condition can specify more than one place and/or more than one period. There are time limits; except for the first and last days, a curfew cannot last for less than 9 hours in any one day. Under subsection (3) the curfew condition is to last until the date the offender would have been released from prison if he had not received early release. Subsections (4) to (5) set out administrative arrangements for the provision of electronic monitoring.

     Clause 232: Recall of prisoners while on licence

508.     Subsection (1) enables the Secretary of State to revoke the licence of an offender and recall him to prison. Under subsection (2) a person recalled has to be informed of the reasons for his recall and can make written representations about it. Subsection (3) provides for the Parole Board to consider all recalls. Under subsection (4), if the Board decides that the person should be released, the Secretary of State must release him. Subsection (5) provides that if a person on licence is recalled he can be detained and if at large he will be treated as unlawfully at large. Subsection (6) provides that this clause does not apply to offenders recalled from Home Detention Curfew, who are dealt with in Clause 233.

     Clause 233: Recall of prisoners released under s.225

509.     Subsection (1) enables the Secretary of State to revoke the licence of an offender on Home Detention Curfew and recall him to prison if he has failed to comply with a licence condition or if his whereabouts can no longer be electronically monitored (if he has a curfew condition). Under subsection (2) if a person on HDC has his licence revoked, he must be informed of the reason when he returns to prison, and he is able to make written representations about the revocation. Subsection (3) enables the Secretary of State to cancel a revocation of an HDC licence after considering such representations. Under subsection (4) such a cancellation has the effect that the licence is taken not to have been revoked. Subsection (5) provides that an offender whose HDC licence is revoked may be detained, is to be considered unlawfully at large, and is subject to arrest.

Clause 234: Further release after recall

510     When an offender has been recalled to prison, arrangements are made with a view to his further release. Under subsection (1) the Parole Board must either set a date for future release or set a date for it to review the offender's case. Under subsection (2), if it decides to set a date for review, that date must be within one calendar year. Subsection (3) provides that a future date need not be fixed if the offender was due for release within 12 months. Under subsection (4) if the Board decides upon a future release date the offender must be released on that date. Subsection (5) provides that at a review the Board can either recommend immediate release or fix a date for future release or for future review.

     Clause 235: Additional days for disciplinary offences

     511.     This clause re-enacts section 42 of the Criminal Justice Act 1991, which enables rules under the Prison Act 1952 to provide for additional days to be added to prisoners' sentences if they are found to be guilty of disciplinary offences whilst in custody.

     Clause 236: Persons liable to removal from the United Kingdom

512.     This clause defines, for the purposes of this Part, a person who is liable to removal from the United Kingdom. It ensures that an offender who is serving an extended sentence (see clauses 207 and 208) and is liable to removal from the United Kingdom may be released after half of the requisite period has been served without the recommendation of the Parole Board (as set out in clause 226). Since he will not remain in the United Kingdom, the Parole Board need not be involved.

Clause 237: Concurrent terms

513.     This clause deals with release in the case of an offender serving two or more terms of imprisonment at the same time (concurrently). In such cases the offender must serve the longest custodial period of the sentences which have been passed before being released on licence. He will then remain on licence until the expiry of the longest sentence. Subsection (3) states that in cases where a sentence of more than and a sentence of less than 12 months are ordered to be served concurrently, the Secretary of State (in practice the Prison and Probation Services) may set the licence conditions without having regard to any conditions which the court set when passing the shorter sentence.

     Clause 238: Consecutive terms

514.     This clause deals with release in the case of offenders serving two or more terms of imprisonment to be served one after the other (consecutively). In such cases for all sentences the offender must serve a period equal to the aggregate of the custodial periods of the sentences which have been passed before being released on licence. Where sentences of less than 12 months and more than 12 months (including the extended sentence) are passed at the same time, or where more than one sentence of more than 12 months is passed, following release the offender will remain on licence for a period equal in length to the aggregate of the lengths of the individual licence periods for each sentence. Subsection (4) provides that where sentences of less than 12 months are to be served consecutively the offender will remain on licence until he has served a term equal in length to the longest licence period for any one of his sentences. Therefore the term to be served will be the aggregate of the custodial periods plus the longest licence period.

Clause 239: Release on licence, etc: drug testing requirements

515.     This clause amends section 64 of the Criminal Justice and Court Services Act 2000. It provides that should a responsible officer, as defined in subsection (6), be of the opinion that the offender is likely to misuse any specified class A drug and that such misuse has caused or contributed to any offence for which he was convicted or may cause him to commit further offences; the offender must provide when requested a sample, to ascertain whether he has a specified class A drug in his system. The requirement for a trigger offence to apply to this section is removed. The minimum age of persons to whom drug testing on licence applies is lowered to 14 years. The presence of an appropriate adult as defined in subsection (6), is required for the taking of a sample in the case of an offender who is under the age of 16 years.

     Clause 240: Alteration by order of relevant proportion of sentence

516.     This clause gives the Secretary of State the power to amend by order the proportion of a custodial sentence of 12 months or more which must be served in prison before the release. It also enables the Secretary of State to amend by order the proportion of an extended sentence for certain sexual and violent offences (see clauses 207 and 208) which must be served before a prisoner is eligible for release on the recommendation of the Parole Board.

Clause 241: Interpretation of Chapter

517.     This clause explains various terms used in the Chapter.

Chapter 7: Other Provisions about sentencing

Clause 242: Deferment of Sentence

518.     This clause introduces Schedule 16, which deals with deferred sentences.

Clause 243 Inclusion of drug treatment requirement in action plan order or supervision order

519.     This clause introduces Schedule 18, which enables a requirement as to drug treatment and testing to be included in an action plan order or a supervision order.

520.     The action plan order is a community sentence, which is available where a child or young person aged between 10 and 17 years old is convicted of any offence for which the sentence is not fixed by law. The order lasts for a period of three months and provides a short but intensive and individually tailored programme of intervention designed to address the young persons offending behaviour and associated risk factors. The court may attach a range of requirements such as offending behaviour work, education and reparation.

521.     The supervision order is a community sentence available for a child or young person aged between 10 and 17 years old. The duration of the order may range from a minimum of six months to a maximum of three years. A range of requirements may be attached to the supervision order such as residence, reparation, night restrictions and activities specified by a youth offending team.

     Clause 244: Alteration of penalties for summary offences

522.     This clause is consequential on the changes in the structure of short sentences which this Bill introduces and the corresponding increase in magistrates' sentencing powers. It introduces Schedules 18 and 19, which make changes to the maximum penalties for summary only offences which previously carried a maximum penalty of four months or less. These offences are either to have the maximum penalty lowered so that they are no longer punishable with imprisonment (see Schedule 18) or to have the maximum penalty raised to 51 weeks imprisonment so that they may be punishable with a sentence of imprisonment complying with clause 163.

     Clause 245: Alteration of penalties for other summary offences

523.     This clause enables the Secretary of State to amend by order the maximum penalties for summary only offences currently carrying a maximum custodial penalty of five months or less. Under subsection (1) such amendments may be made only in relation to offences which are not listed in Schedule 18 or 19 and are contained either in an Act passed before or in the same Session as this Bill, or any subordinate legislation made before the passing of this Bill. In such cases the Secretary of State may (by order) either remove imprisonment as a penalty for the offence or raise the maximum penalty for the offence to 51 weeks imprisonment. Subsection (6) provides that any order made under this clause may not affect the penalty for any offence committed before the commencement of this section.

524.     In addition, subsections (4) and (5) provide for any summary offence contained in an Act passed before or in the same Session as this one which are currently punishable with a maximum term of imprisonment of 6 months to be punishable with a maximum term of 51 weeks.

     Clause 246: Increase in maximum term that may be imposed on summary conviction of offence triable either way

525.     This clause provides for an increase in the maximum sentence available on the summary conviction of a triable either way offence (falling within subsection (3)) following commencement of this section so that it corresponds with the extent of the magistrates' sentencing powers. In line with this, subsection (4) provides for the penalties for such offences to be increased to 12 months imprisonment on summary conviction or, if magistrates' sentencing powers are further extended under clause 139, up to 18 months. This clause also makes consequential amendments to the Magistrates' Courts Act 1980 in so far as it deals with penalties on summary conviction of triable either way offences.

     Clause 247: Enabling powers: alteration of maximum penalties for summary and either way offences

     526.     Currently, various Acts contain provisions enabling subordinate legislation to create offences punishable with imprisonment. The purpose of this clause is to ensure that these enabling powers are amended as necessary to take account of the new sentencing framework. Subsections (1) and (2) amend the Slaughterhouses Act 1974 and the European Communities Act 1972. Subsection (3) gives the Secretary of State the power to amend by order any other enabling powers within any Act (passed before or in the same Session as this Bill) which allow for making offences punishable with imprisonment on summary conviction. Subsection (4) provides that an order under this power may amend the relevant enactment containing an enabling power so as either to remove its ability (through subordinate legislation) to make a summary offence punishable with imprisonment or to increase the maximum term of imprisonment to 51 weeks. Subsection (5) also enables an order under subsection (3) to amend enabling powers which make a triable either way offence punishable with imprisonment on summary conviction.

Clause 248: Increase in penalties for drug related offences

527.     This clause introduces Schedule 20.

Clause 249: Term of a detention and training order

528.     This clause is related to the increase in the maximum sentence for some summary-only offences from 6 months to 51 weeks. The clause provides that the maximum sentence for such offences in the case of those under 18 will remain as a 6-month detention and training order.

Chapter 8 : Supplementary

Clause 250: Sentencing: repeals

529.     This clause lists the main provisions superseded by this Part of the Bill. Full details of all repeals are found in Schedule 26.

Clause 251: Amendments relating to sentencing

530.     This clause introduces Schedule 21.

Clause 252: Interpretation of Part 12

531.     This clause defines various terms used in this Part of the Bill. It also outlines how to determine the age of an offender for sentencing purposes and how to construe "imprisonment" in relation to young offenders.

PART 13 : MISCELLANEOUS

     Clause 254: Preparatory hearings for serious offences not involving fraud

532.     This clause amends section 29 of the Criminal Procedure and Investigations Act 1996 which sets out the circumstances in which a statutory preparatory hearing may be held in cases not involving fraud. At present, preparatory hearings may be held in non-fraud cases where it appears to the judge that the case is of such complexity or length that holding a preparatory hearing is likely to bring substantial benefits. This clause adds "seriousness" to these criteria.

     Clause 255 : Preparatory hearings to deal with severance and joinder of charges

533.     This clause amends sections 7(1), 9(3) and 9(11) of the Criminal Justice Act 1987 and sections 29(2) and 31(3) of the Criminal Procedure and Investigations Act 1996. It adds issues of severance and joinder to the purposes for which preparatory hearings may be held under these Acts and also provides that the judge may make rulings on severance and joinder in preparatory hearings. These rulings will be appealable under the 1987 Act or the 1996 Act by both the prosecution and the defence, subject to the leave of the judge or the Court of Appeal.

     Clause 256: Reporting restrictions for preparatory hearings

534.     This clause extends to Northern Ireland the reporting restrictions that apply to preparatory hearings held in long or complex fraud cases under the Criminal Justice Act 1987 and those held in long or complex non-fraud cases held under the Criminal Procedure and Investigations Act 1996. At present these restrictions extend only to Great Britain. Subsections (3) and (7) provide that the consent of the Attorney General for Northern Ireland is required before proceedings for these offences can be instituted in Northern Ireland.