Insights

Release after half or two-thirds of a sentence? Examples from a year in the criminal courts

09/08/2023

Summary

1. A little over a year ago, further changes came into force affecting the automatic release provisions for offenders sentenced to custodial sentences in England and Wales.

2. Criminal practitioners have needed to be mindful of those changes when advising clients, who are understandably keen to know how long they can expect to serve in custody if convicted.

3. This article briefly recaps the changes made and explores some worked examples from the last year in the criminal courts.

What changed?

4. S.130 of the Police, Crime, Sentencing and Courts Act 2022 made amendments to the automatic release provisions (by inserting 244ZA into the Criminal Justice Act 2003).

When did this change happen?

5. This legislation came into force on 28^th June 2022 (PCSCA 2022 s208(5)(m)) and applies to anyone sentenced on or after that date.

Pre-28 June 2022

6. Before 28 June 2022 offenders were only required to serve two-thirds of their sentence rather than being automatically released half-way through their sentence if three conditions were met:

a) A determinate sentence of 7 years or more was imposed;

b) The offence was a specified offence within Parts 1 or 2 of Schedule 15 of the CJA 2003;

c) The offence attracted a maximum sentence of life imprisonment.

Post 28 June 2022

7. From 28^th June 2022, this provision was amended for those specified sexual offences listed in Part 2 of Schedule 15 (CJA 2003 s244ZA(5)).

8. If the offence is listed in Part 2 of Schedule 15, any sentence of 4 years or more, for an offence which attracts a life sentence, will mean that the offender will only be released after serving two-thirds of their sentence.

9. This change also applies to a limited number of violent offences falling within Part 1 of Schedule 15:

a) Manslaughter (paragraph 1);

b) Soliciting murder (paragraph 4);

c) Wounding with intent to cause grievous bodily harm (paragraph 6);

d) Ancillary offences related to offences listed in paragraph 1, 4 or 6 (paragraph 64);

e) Inchoate offences in relation to murder (paragraph 65).

10. For all other violent offences listed in Part 1 of Schedule 15, the 7-year threshold remains the same. This provision is now set out at: CJA 2003 s244ZA (4).

11. The above provisions are also set out at: ‘S8 Passing Sentence’ of the Crown Court Compendium Part II – Sentencing (paras 2-4).

12. CJA 2003 s244ZA is also covered at 5A-1465a of Archbold.

Examples

The following examples are cases that have come before the courts in the last year.

Example 1:

OM receives a sentence of 7 years’ imprisonment for supplying class A drugs, contrary to s.4(3) of the Misuse of Drugs Act 1971. OM needs to be advised on whether he will serve two-thirds of his sentence.

a) Is it an offence for which a sentence of life imprisonment could have been imposed? Yes.

b) Is the sentence imposed over 7 years? Yes.

c) Is the offence specified in Part 1 or 2 of Schedule 15? No

Outcome: Drugs offences are not specified offences in Schedule 15. OM will not be required to serve two-thirds of his sentence.

Example 2:

DM receives a sentence of 4 years and 6 months’ imprisonment for assault by penetration, contrary to s2 of the Sexual Offences Act 2003. DM needs to be advised on whether he will serve two-thirds of his sentence.

a) Is the sentence imposed over 7 years? No.

b) Is the offence specified in Part 1 or 2 of Schedule 15? Yes, Part 2 – Sexual Offences, paragraph 103.

c) Is the sentence imposed over 4 years? Yes

d) Is it an offence for which a sentence of life imprisonment could have been imposed? Yes.

Outcome: DM was sentenced for an offence specified in Part 2 of Schedule 15, for which a sentence of life imprisonment could have been imposed. Defendants will need to serve two-thirds of their sentence where these two criteria apply, and the sentence imposed is one of over four years. DM will need to serve two-thirds of his sentence.

Example 3:

AT receives a sentence of 5 years and 6 months’ imprisonment for arson being reckless as to whether life is endangered, contrary to section 1(2) and (3) of the Criminal Damage Act 1971. AT needs to be advised on whether he will serve two-thirds of his sentence.

a) Is the offence specified in Part 1 or 2 of Schedule 15? Yes, Part 1 – Violent Offences, paragraph 35.

b) Is it an offence for which a sentence of life imprisonment could have been imposed? Yes.

c) Is the sentence imposed over 7 years? No.

Outcome: AT was sentenced for an offence specified in Part 1 of Schedule 15, for which a sentence of life imprisonment could have been imposed. Where these two criteria apply, Defendants will only need to serve two-thirds of their sentence if the sentence imposed is one of over seven years. AT will not be required to serve two-thirds of his sentence.

Example 4:

JV receives a sentence of 5 years’ imprisonment for sexual activity with a child, contrary to s9 of the Sexual Offences Act 2003. JV needs to be advised on whether he will serve two-thirds of his sentence.

a) Is the offence specified in Part 1 or 2 of Schedule 15? Yes, Part 2 – Sexual Offences, paragraph 110.

b) Is the sentence imposed over 4 years? Yes

c) Is it an offence for which a sentence of life imprisonment could have been imposed? No.

Outcome: Although JV received a sentence of over 4 years for an offence specified in Part 2 of Schedule 15, the offence is not one for which a sentence of life imprisonment could have been imposed. JV will not need to serve two-thirds of his sentence.

Example 5:

MS receives a sentence of 6 years and 6 months’ imprisonment for wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861. MS needs to be advised on whether he will serve two-thirds of his sentence.

a) Is the offence specified in Part 1 or 2 of Schedule 15? Yes, Part 1 – Violent Offences, paragraph 6.

b) Is it an offence for which a sentence of life imprisonment could have been imposed? Yes.

c) Is the sentence imposed over 7 years? No.

d) Is the offence one of the five Part 1 Schedule 15 offences listed at s224ZA(7)(a)? Yes

Outcome: MS was sentenced for an offence specified in Part 1 of Schedule 15, for which a sentence of life imprisonment could have been imposed. As in Example 3 above, where these two criteria apply, Defendants will only need to serve two-thirds of their sentence if the sentence imposed is one of over seven years. However, there are five exceptions to this, set out at paragraph 5 above. For these five offences, Defendants will need to serve two-thirds of their sentence if the sentence imposed is one of over four years. Section 18 offences are one of the five offences. As MS has received a sentence of over 4 years, he will be required to serve two-thirds of his sentence.

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Release after half or two-thirds of a sentence? Examples from a year in the criminal courts

Authors

Jack Barros

Popular Insights

For help or advice please call 0117 930 9000 or complete the form below.

Frequently asked questions

Do barristers at Guildhall Chambers work on a “no win, no fee” basis? Can I fund my case with legal insurance?

Do any of the barristers at Guildhall Chambers work without requiring a fee?

Do barristers at Guildhall Chambers provide their services to clients who are funded by the Legal Aid Agency?

Guildhall Chambers

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Insights

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Release after half or two-thirds of a sentence? Examples from a year in the criminal courts

Authors

Jack Barros

Popular Insights

For help or advice please call 0117 930 9000 or complete the form below.

Frequently asked questions

How do I contact chambers and your clerks?

What services do barristers from Guildhall Chambers provide?

What is Public Access (Direct Access)?

How are fees calculated for different areas of work?

How do quotes and fees at Guildhall Chambers work?

Do barristers at Guildhall Chambers work on a “no win, no fee” basis? Can I fund my case with legal insurance?

Do any of the barristers at Guildhall Chambers work without requiring a fee?

Do barristers at Guildhall Chambers provide their services to clients who are funded by the Legal Aid Agency?

Do you have timescales for the services which you provide?

What will increase the level of fees to be paid on a case?

Who regulates the barristers at Guildhall Chambers?

What is the complaints procedure at Guildhall Chambers?

Where is Guildhall Chambers based?

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