House of Lords - Explanatory Note
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Clause 221: Imprisonment or detention for public protection: release on licence

520.     This clause introduces Schedule 15 which sets out the release provisions for the sentences for public protection.

Clause 222: Appeals where previous convictions set aside

521.     This clause applies to cases where an offender has been sentenced under the provisions relating to the commission of a second relevant offence (contained within clause 220(3)). If subsequently, the first conviction is overturned on appeal, clause 222 enables notice of appeal against the new sentence to be given at any time within 28 days from the date which the previous conviction was set aside.

Clause 223: Certificates of convictions for the purposes of section 211

522.     This clause provides for a court in England and Wales to certify that it has convicted a person of a relevant offence.

Clause 224: Offences under service law

523.     This clause provides for equivalent convictions under service law to be taken into account for the purpose of clause 220, which relates to the assumption of dangerousness.

Clause 225: Determination of day when offence committed

524.     Where an offence has been committed over several days, this clause treats it as having been committed on the last of those days.

Clause 226: Detention under clauses 217 and 219

525.     This clause provides that a juvenile sentenced to a sentence of detention for public protection or an extended sentence may be detained in such place as may be determined by the Secretary of State or by such other person as may be authorised by him.

Clause 227: Conversion of sentences of detention into sentences of imprisonment

526.     This clause amends section 99 of the Powers of Criminal Courts (Sentencing) Act 2000. This enables the Secretary of State to direct that an offender sentenced to a sentence of detention may be treated as if he had been sentenced to a term of imprisonment if he has reached the age of 21 or, if he has reached the age of 18, if he has been reported by the board of visitors as exercising a detrimental influence on the other inmates. This clause extends this power to the new sentence of detention for public protection and the new extended sentence.

Chapter 6: Release of Prisoners on Licence

Clause 228: Meaning of "fixed-term prisoner"

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

Clause 229: Power of the court to recommend licence conditions for certain prisoner

528.     This clause gives the court the power to recommend, when passing a custodial sentence of 12 months or more, particular conditions that in its view should be included in the licence which the offender is subject to on release. 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 230: The Parole Board

529.     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. Subsection (7) gives effect to Schedule 16.

Clause 231: Crediting of periods of remand in custody: terms of imprisonment and detention

530.     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. 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 232: Effect of direction under section 231 on release on licence

531.     Clause 232 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 233: Interpretation of clauses 231 and 232

532.     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 231 and 232. Time spent in police detention will not count as time spent on remand for the purposes of clause 231. This is because there is a qualitative difference between time spent on remand and time spent in police custody, the former being preventative and imposed by the courts whereas the latter is an unavoidable feature of the investigation of crime.

Clause 234: Persons extradited to the United Kingdom

533.     This clause re-enacts (with some modification) section 47 of the Criminal Justice Act 1991. In clause 234, 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 235: Duty to release prisoners

534.     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 176.

Clause 236: Power to release prisoners on licence before required to do so

535.     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 immediately after leaving prison. 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%.

536.     The provisions within the Bill extend the maximum period available for HDC to 135 days. Subsection (6) 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 (4). Subsection (2) has the effect of providing for the period spent on HDC to be tapered according to the length of sentence. The provisions for HDC are modified by subsections (1)(b), (2A), (3)(i) and (5) in relation to sentences of intermittent custody As with normal prison sentences, on intermittent custody the offender will spend a number of days on HDC equal to the days he would have spent in custody had he not received HDC.

Clause 237: Release on licence of prisoner serving extended sentence under section 218 or 219

537.     This clause sets out the release provisions for the extended sentences set out in. clauses 218 and 219 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 238: Power to release prisoners on compassionate grounds

538.     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 subsection (2) requires the Parole Board is to be consulted prior to release wherever possible.

Clause 239: Duration of licence

539.     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 240: Licence conditions

540.     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 175). 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 (4) 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 licence. 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 241: Duty to comply with licence conditions

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

     Clause 242: Curfew condition to be included in licence under section 236

542.     Subsection (1) defines the curfew condition to be attached to early release on Home Detention Curfew (HDC), as provided in Clause 236. 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. Subsection (4) provides for the curfew condition in sentences of intermittent custody. Subsections (5) and (6) set out administrative arrangements for the provision of electronic monitoring.

     Clause 243: Recall of prisoners while on licence

543.     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 244.

     Clause 244: Recall of prisoners released under s.236

544.     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. 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 245: Further release after recall

545.     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 246: Additional days for disciplinary offences

546.     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 247: Early release of fine defaulters and contemnors

547.     This clause re-enacts, with appropriate modifications, section 45 of the Criminal Justice Act 1991 (as amended), which sets out the release provisions for persons committed to custody in default of payment of a fine or for contempt of court, which are not sentences of imprisonment and therefore are not covered by the normal release provisions.

548.     Subsection (2) provides for unconditional release at the half-way point of the term. This would cover those serving terms of both under and over 12 months. Subsection (3) makes provision for offenders who are also serving a sentence of imprisonment. Subsection (4) provides a power to release these persons unconditionally on compassionate grounds

Clause 248: Concurrent terms

549.     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 249: Consecutive terms

550.     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 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 250: Restriction on consecutive sentences for released prisoners

551.     This clause re-enacts with changes provisions in section 84 of the Powers of Criminal Courts (Sentencing) Act 2000. The clause provides that if an offender is sentenced to custody for an offence while he is on licence from another offence, the prison term for the offence shall start immediately, and not wait until the licence for the first offence expires.

Clause 251: Release on licence, etc: drug testing requirements

552.     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 of 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 under this provision applies is lowered to 14 years. A sentence of detention under Clause 217 or 219 of this Bill will be included for the purposes of this Clause. 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 17 years.

Clause 252: Alteration by order of relevant proportion of sentence

553.     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 218 and 219) which must be served before a prisoner is eligible for release on the recommendation of the Parole Board.

Clause 253: Interpretation of Chapter 6

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

Chapter 7: Effect of Life Sentence

Clause 254: Determination of minimum term in relation to mandatory life sentence

555.     This clause relates to mandatory life sentences (that is, life sentences fixed by law). The only offences carrying a mandatory life sentence are murder and certain offences involving murder.

556.     This clause requires a court passing a mandatory life sentence to make an order specifying a period of time the prisoner must serve before the Parole Board can consider release on licence under the provisions of section 28 of the Crime (Sentences) Act 1997 (i.e. the "minimum term"). The exception is that if the offender was 21 or over at the time of the offence, and the court takes the view that the murder is so grave that the offender ought to spend the rest of his life in prison, the order is that those early release provisions are not to apply to the offender (See subsection (4)).

557.     A life sentence is defined (Clause 9) as meaning a sentence of imprisonment for life, which is imposed on those convicted of murder who are 21 or more years of age, a sentence of custody for life, which is for those aged 18, 19 or 20 years of age, and a sentence of detention during Her Majesty's Pleasure, which is for those under 18 years of age.

558.     As regards juvenile offenders, the effect of these amendments is to move the provision for the determining the appropriate minimum term in murder cases from section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 to this Bill, so that the principles in the Schedule 17 apply.

559.     Subsection (3) requires the court to set the minimum term by reference to the seriousness of the offence, and also to take into account time spent on remand.

560.     Subsection (5) makes further provision in relation to the assessment of the seriousness of the offence. It requires the court to have regard to the principles set out in Schedule 17, and to any additional guidelines that may be issued by the Lord Chief Justice or by the Sentencing Guidelines Council. Schedule 17 is explained in detail below.

561.     Subsection (6) enables the Secretary of State to amend Schedule 17 by order. An order under this power is subject to affirmative resolution procedure (see clause 229(5)).

Clause 255:     Duty to give reasons

562.     Clause 31 ensures that everyone concerned is afforded a clear and readily understood explanation of the reasoning of the court in arriving at the minimum term imposed. The explanation of the minimum term is in addition to the explanation of the effect of the sentence required by clause 167 of the Bill.

Clause 256: Appeals

563.     Clause 256 ensures that the opportunity to apply to the Court of Appeal, and thereafter to House of Lords, in order to appeal against a minimum term is open to prisoners falling within both Clause 1 and Clause 5.

Clause 257: Review of minimum term on reference by Attorney General

564.     Section 36 of the Criminal Justice Act 1988 provides for the Attorney General to refer a case concerning certain offences to the Court of Appeal for review if he is of the opinion that the sentence imposed is unduly lenient. As a matter of sentencing practice the Court of Appeal, when increasing a sentence which in its view is unduly lenient, operates a "double jeopardy" discount in favour of the offender to take account of the fact that he or she is being sentenced for a second time. A person convicted of murder is in any event subject to a life sentence and has no certain prospect of a particular release date. The new section 3A to the Criminal Justice Act 1988 will prevent the Court of Appeal from applying a discount of this kind in referred cases relating to minimum term orders under clause 254(2).

Clause 258: Life Prisoners transferred to England and Wales & Clause 259: Further provisions about references relating to transferred life prisoners

565.     The need to provide for judicial determination of minimum terms in mandatory life sentences affects not only those convicted here but also the small number of prisoners who have been convicted in jurisdictions outside the British Islands (i.e. the United Kingdom, the Channel Islands and the Isle of Man) and who consent to be transferred to England and Wales in order to serve their sentence here. Clauses 5 and 6 provide for the cases of these transferred life sentence prisoners to be referred to the High Court for a minimum term to be fixed.

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Prepared: 23 May 2003