Sentence release point from half-way to two thirds

In this article, Tony Williams examines the impact of the Police, Crime, Sentencing and Courts Act 2022, specifically how it will increase the number of defendants serving longer portions of their sentences before release on licence, adding pressure to the already strained prison system.

For several years, the criminal justice system has faced an overwhelming backlog and increasing delays from police investigation to charge and trial. Legislation passed in mid-2022 by a government claiming to be tough on crime, aimed at increasing prisoners’ time served, is only now starting to have a significant impact. It is important to begin with an exposition of the Police, Crime, Sentencing and Courts Act 2022 itself.

Anthony Williams

POLICE, CRIME, SENTENCING AND COURTS ACT (‘PCSCA’) 2022

The PCSCA received Royal Assent on 28th April 2022. It was intended to have a number of outcomes, including the introduction of “tougher sentencing for the worst offenders and end automatic halfway release from prison for serious crimes”.

Section 244ZA of the Criminal Justice Act 2003 (‘CJA 2003’) was inserted by s130 PCSCA, and sets out circumstances under which an offender will be required to serve two thirds of their sentence (instead of being released on licence at the half-way point).

S244ZA(4) – 7+ YEARS FOR SPECIFIED VIOLENT/SEXUAL OFFENCES CARRYING LIFE SENTENCE

Firstly, under s244ZA(4), a defendant will serve two thirds when they are sentenced:

  1. to a term of imprisonment (or detention, if over 18 but under 21) of 7 years or more;
  2. for a an offence which appears in Part 1 or Part 2 of Schedule 15 CJA 2003; and 
  3. for an offence which a life sentence could have been imposed

This includes certain specified violent offences such as manslaughter, kidnapping, false imprisonment, wounding with intent, as well as specified sexual offences including rape, assault by penetration, causing a person to engage in sexual activity involving penetration without consent, rape of a child under 13, and causing a child under 13 to engage in sexual activity.

This reflects the position as it already was prior to 28th June 2022.

S244ZA(5) – 4-7 YEARS FOR SPECIFIED VIOLENT OFFENCES AND SEXUAL OFFENCES CARRYING A LIFE SENTENCE

Secondly, under s244ZA(5), a defendant will serve two thirds when they are sentenced:

  1. to a term of imprisonment (or detention, if over 18 but under 21) which is at least 4 years but less than 7 years;
  2. after 28th June 2022 (the date upon which s130 PCSCA 2022 came into force);
  3. for an offence listed in s244ZA(7).

Section s244ZA(7) sets out specific offences to which this section applies. 

In relation to specified violent offences (which appear in Part 1 of Schedule 15 CJA 2003), s244ZA(7) specifies manslaughter, soliciting murder, wounding with intent to cause grievous bodily harm, ancillary offences for any of those, and inchoate offences in relation to murder. There is no specified proviso here that the offences must be ones for which a life sentence could have been imposed.

In relation to specific sexual offences which appear in Part 2 of Schedule 15 CJA 2003, s244ZA(7) specifies that it applies to any of those sexual offences for which a life sentence could have been imposed.

This expands the requirement to serve two thirds of a sentence to offences which might attract a shorter sentence than those to which s244ZA(4) might apply, but applies to fewer offences.

S244ZA(6) – YOUTH, 7+ YEARS FOR SPECIFIED VIOLENT OFFENCES AND SEXUAL OFFENCES CARRYING A LIFE SENTENCE

Thirdly, under s244ZA(6), a defendant will serve two thirds when they are under 18 and sentenced:

  1. to a sentence of detention under s250 Sentencing Act 2020 (as opposed to a detention and training order from the Youth Court);
  2. for 7 years or more;
  3. after 28th June 2022; and
  4. for an offence listed in s244ZA(7) mentioned above.

This expands the requirement to serve two thirds to cases in which the defendant, being a youth, receives a sentence of detention. A sentence of detention is a sentence that is available to the Crown Court when sentencing a youth for serious offences (i.e. those where, in the case of an adult, the maximum sentence would be 14 years or more, a number of sexual offences, and certain firearms offences).

When it comes to prosecuting youths, it is generally encouraged to keep the case at the Youth Court, as they are a specialist court designed to safeguard and look after the welfare of the children involved. However, the maximum sentence a Youth Court can impose is a 2-year detention and training order. As a result of s244ZA(6), youths facing a sentence under s244ZA(6), who are already facing an extended sentence beyond the remit of the Youth Court, will also be required to serve two-thirds of that sentence. It is not hard to see how this may inhibit rehabilitation and impact the welfare of those young defendants affected.

DELAY

This legislation was passed in mid-2022 and came into effect on 28th June 2022. Despite this, we have only recently started to see these provisions have an impact on defendants. Why?

It may have something to do with delays in the investigation and charging process as a result of years of under-resourced policing, the overwhelming backlog of cases awaiting trial, the lack of courtrooms available for trial, and the lack of available prosecution counsel, defence counsel and judges to conduct cases. All of these factors appear to be contributing to substantial delay in reaching the stage at which defendants fall to be sentenced for their crimes. 

One would think that a government that purports to be “tough” on crime would want the wheels of justice to turn far quicker, given that substantial unjustified delay in waiting for proceedings to reach a conclusion can and should be taken into account by sentencing judges as mitigation (further to cases such as Beattie-Milligan [2019] EWCA Crim 2367).

CONCLUSION

At a time when our prisons are at bursting point and are already under pressure due to lack of funding, one would think the last thing we need is more prisoners serving longer sentences. The logic of extending the time that must be served to capture even more defendants will inevitably only exacerbate the problem. 

Regardless of the logic behind this legislation or its workability, clients facing trial and/or custodial sentences falling into any of the situations described above will need to be fully advised as to the time they are likely to serve – particularly where credit may make a difference to the true impact of the sentence.

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