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Legal Aid, Sentencing and Punishment of Offenders Act 2012

Schedule 17: Restatement of transitional provision

600.Paragraphs 1 to 8 amend various sections in Chapter 6 of Part 12 of the 1991 Act to make clear that those sections are subject to the release, licence and removal provisions of Schedule 20B, which apply to those prisoners who were subject to the release arrangements of the 1991 Act.

601.Paragraph 9 inserts new section 267B (modifications of Chapter 6 in certain transitional cases) into the 1991 Act to give effect to Schedule 20B and paragraph 10 inserts Schedule 20B into the 1991 Act.

602.Paragraph 1 of Schedule 20B sets out the definitions of the various terms referred to in Schedule 20B and determines that, where an offence has been committed between two dates, the offence is deemed to have been committed on the latest of those dates. Schedule 20B applies to those who were sentenced before the commencement date. For sentences of 12 months or more, excluding offences sentenced under section 85 of the PCC(S)A 2000, the offence would also need to be committed prior to 4 April 2005. However, 2003 Act sentences are defined for the purposes of calculating concurrent and consecutive sentences. Where there are no provisions in Schedule 20B for sentences imposed before the commencement date then the provisions in Chapter 6 of Part 12 will apply unmodified.

603.Paragraph 2 of Schedule 20B lists the relevant dates when previous legislation brought changes to release and recall arrangements into effect; this explains the reference to such dates in the rest of the Schedule.

604.Paragraph 3 of Schedule 20B applies the provisions of Part 2 of Schedule 20B to those prisoners subject to:

  • 1991 Act sentences

  • extended sentences imposed under section 85 of the 2000 Act

  • extended sentences imposed under section 227 or 228 of the 1991 Act before 14 July 2008

and disapplies those provisions in respect of those 1991 Act prisoners who have been released on licence from their sentence, recalled, but are unlawfully at large at the date of commencement. Such prisoners, once returned to custody, will no longer retain the 1991 Act re-release arrangements at the three-quarter point of the sentence but will fall to be treated as if recalled under section 254 of the 1991 Act and liable to detention to end of sentence.

605.Paragraph 4 of Schedule 20B identifies the prisoners still in custody at the point of commencement to whom the release provisions in paragraphs 5 and 6 apply. These are commonly referred to as the DCR (Discretionary Conditional Release) prisoners who were long term prisoners under the 1991 Act and not converted to automatic release at the half way point of sentence.

606.Paragraph 5 of Schedule 20B applies a duty to automatically release on licence, at the two-thirds point of the sentence, any of those prisoners serving a sentence (or custodial period of an extended sentence) specified in paragraph 4. The duty to release at the two-thirds point applies in place of section 244 of the 1991 Act.

607.Paragraph 6 of Schedule 20B provides eligibility for release by the Parole Board at one half of the sentence (or one-half of the custodial period of extended sentences) for prisoners falling into the criteria in paragraph 4 (those subject to automatic release on licence at the two thirds point of the sentence under paragraph 5). Paragraph 6 applies the duty to release on the direction of the Parole Board in place of the release provisions of section 244 of the 1991 Act.

608.Paragraph 7 of Schedule 20B applies to those prisoners serving an extended sentence imposed in accordance with section 85 of the PCC(S)A 2000 who do not fall within paragraph 4. Paragraph 8 of Schedule 20B applies a duty on the Secretary of State to release a person to whom paragraph 7 applies automatically on licence at the half way point of the custodial term. The duty to release at the half- way point is in place of section 243A or section 244 of the 1991 Act.

609.Paragraph 10 of Schedule 20B provides the duty on the Secretary of State to re-release a prisoner, to whom paragraph 9 applies, unconditionally at the three-quarter point of the sentence. Prisoners to whom paragraph 9 applies are those who were convicted of an offence committed before the Crime and Disorder Act 1998 came into force who have been released and recalled before the changes made by the 2008 Act came into force. This does not include those sentenced under section 86 of the PCC(S)A 2000 as section 86 requires the offender to be on licence to the end of the sentence on initial release and any subsequent release following recall.

610.Paragraph 12 of Schedule 20B applies the duty on the Secretary of State to re-release a prisoner, to whom paragraph 11 applies, on licence at the three-quarter point of the sentence. Prisoners to whom paragraph 11 applies are those who were convicted of an offence committed after the Crime and Disorder Act 1998 came into force who have been released and recalled before the changes made by the 2008 Act came into force. However, it does not apply to those who have been released and recalled more than once as such prisoners would be liable to detained until the end of sentence in accordance with Chapter 6 of Part 12 of the 1991 Act. Nor does it apply to those prisoners recalled from an extended sentence that had been imposed in accordance with section 85 of the PCC(S)A 2000. Such sentences have their own re-release arrangements in the Schedule.

611.Paragraph 13 of Schedule 20B identifies the prisoners to whom the release provisions of paragraph 14 apply. These are prisoners in custody at the time of commencement who were sentenced to an extended sentence in accordance with section 85 of the PCC(S)A 2000 and who were recalled before the changes made by the 2008 Act came into force. It does not apply if the prisoner has been released and recalled more than once as such prisoners would be liable to detained until the end of sentence in accordance with Chapter 6 of Part 12 of the 1991 Act.

612.Paragraph 14(1) of Schedule 20B applies a duty on the Secretary of State, in respect of those prisoners to whom paragraph 13 applies, where the custodial period of the extended sentence was one of less than 12 months, to release on licence once the prisoner has served the aggregate of half the custodial term plus the extension period. The licence period would thereafter continue to end of sentence.

613.Paragraph 14(2) of Schedule 20B applies the duty on the Secretary of State, in respect of those prisoners to whom paragraph 13 applies, where the custodial period of the extended sentence was one of 12 months or more, to release on licence once the prisoner has served the aggregate of three-quarters of the custodial term and the extension period. The licence period would thereafter continue to end of sentence.

614.Paragraph 15 of Schedule 20B provides release provisions for those prisoners serving extended sentences in accordance with section 227 or 228 of the 1991 Act that were imposed before changes made by the 2008 Act came into force. Release is in accordance with section 247 of the 1991 Act at the half way point but only where the Parole Board make a direction for release. Such prisoners are only automatically released once the custodial period has been served providing there has been no recall from licence following earlier release by the Parole Board. This paragraph replaces the transitional provision made when parts of section 247 were repealed by the 2008 Act.

615.Paragraph 17 of Schedule 20B provides for a licence to remain in force to the three-quarters point of the sentence for those prisoners identified under paragraph 4 (DCR prisoners) and also to those identified under paragraph 16(2) and (3) – namely, (i) those who were short term prisoners under the 1991 Act who have not previously been released from sentence and (ii) 1991 Act prisoners serving sentences of 12 months or more who have been released and recalled before changes made by the 2008 Act came into force. Paragraph 16(4) and 16(5) exclude from paragraph 16 those prisoners who have been released and recalled more than once, those prisoners serving a section 85 extended sentence and those where the provisions of section 86 have been applied to the sentence. Section 249 of the 1991 Act (duration of licence) is disapplied unless there is a subsequent recall from licence in accordance with section 254 of that Act.

616.Paragraph 16(6) of Schedule 20B provides that release on HDC and a subsequent recall for inability to monitor, will not affect the expiry date of the licence at the three-quarter point when the person is re-released at the half way point of the sentence; such a recall does not count under paragraph 16(4) for the purposes of working out whether a prisoner has been released and recalled more than once.

617.Paragraph 18 of Schedule 20B identifies the prisoners to whom the licence period in paragraph 19 is to apply. These are prisoners serving an extended sentence imposed in accordance with section 85 of the PCC(S)A 2000 where the prisoner has not yet been released on licence. In accordance with paragraph 19 where the custodial term is less than 12 months, the licence shall expire at the end of the aggregate of half the custodial term and the extension period. However, where the custodial term is one of 12 months or more, the licence shall expire at the end of the aggregate of three-quarters of the custodial term and the extension period. Section 249 of the 1991 Act (duration of licence) is disapplied unless there is a subsequent recall from licence in accordance with section 254 of that Act.

618.Paragraph 20 of Schedule 20B applies the concurrent or consecutive term provisions in paragraphs 21 and 22 to those prisoners serving two or more sentences of imprisonment imposed on or after 1 October 1992 (the commencement of the 1991 Act), where the sentences were imposed at the same time or, where they were imposed at different times but there has been no release from one sentence before the imposition of the next.

619.Paragraph 21 of Schedule 20B provides that where there are two or more sentences and all sentences are 1991 Act sentences, the concurrent and consecutive provisions of the 1991 Act are disapplied because the sentences form a single term with one another. Where one of those sentences is a section 85 extended sentence it is the custodial term of the extended sentence that is used to create the single term. In such a case, the licence period of the single terms is defined by paragraph 21(5).

620.Paragraph 22 of Schedule 20B provides that where there are two or more sentences that are imposed consecutively and some of the sentences are 1991 Act sentences and some are 2003 Act sentences, the sentences are aggregated in accordance with section 264 of the 1991 Act, but the aggregation under section 264 does not affect the length of the custodial period in respect of the 1991 Act sentence. Release does not take place until all the custodial periods relevant to each of the sentences have been served. Paragraph 22 is disapplied where one or more of the concurrent or consecutive sentences is subject to the release provisions of the the 1967 Act; for such cases paragraphs 32 and 33 will apply.

621.Paragraph 23 of Schedule 20B sets out the application of Part 3 of Schedule 20B which applies to those prisoners who are subject to sentences imposed prior to 1 October 1992 (“1967 Act sentences”). But that Part does not apply to prisoners who have been released from a 1967 Act sentence, recalled from licence and are unlawfully at large on the date of commencement. Such prisoners, once returned to custody, will no longer retain the 1967 Act re-release arrangements at the two-thirds point of the sentence but will fall to be treated as if recalled under section 254 of the 1991 Act and liable to detention to end of sentence.

622.Paragraph 25 of Schedule 20B provides for automatic unconditional release at the two-thirds part of the sentence to persons to whom paragraph 24 applies - 1967 Act prisoners who have not already been released or have been released and recalled before changes made by the 2008 Act came into force. Where a prisoner has served six months or one third of the sentence (whichever is longer) the Parole Board can direct release. These paragraphs do not apply where an extended sentence certificate was issued when the 1967 Act sentence was imposed – release from such sentences is as provided by paragraph 27.

623.For the purposes of working out whether a person has been recalled paragraph 24(4) provides that release on HDC and a subsequent recall for inability to monitor are to be discounted.

624.Paragraph 26 of Schedule 20B applies where a person, identified in paragraph 24, is released on licence by the Parole Board. The licence will expire at the two-thirds point of the sentence, provided that there is no recall from licence in accordance with section 254 of the 1991 Act (in which case the provisions of the 1991 Act will apply without modification). Paragraph 26 applies in place of the provisions of section 249 of the 1991 Act in respect of the duration of the licence.

625.Paragraph 27 of Schedule 20B identifies prisoners who are subject to an extended sentence certificate. Such a certificate extended the licence period to the end of sentence.

626.Paragraph 28 of Schedule 20B provides for the automatic release of prisoners identified under the criteria of paragraph 27 after they have served two thirds of their sentence. They will be eligible for release by the Parole Board once they have served six months or one third of the sentence, whichever is longer.

627.Paragraph 29 of Schedule 20B provides for Prison Rules to be able to provide for the loss of remission awarded against 1967 Act sentences to be treated in the same way as added days awarded against the 1991 Act and the 1991 Act sentences - so that any date on which the offender becomes entitled to or eligible for release and any licence expiry date will be deferred by the number of days so awarded.

628.Paragraph 30 of Schedule 20B applies the concurrent or consecutive terms provisions in paragraphs 31 to 33 to those prisoners serving two or more sentences of imprisonment where at least one of those sentences is a 1967 Act sentence and either the sentences were imposed at the same time or they were imposed at different times but there has been no release from one sentence before the imposition of the next.

629.Paragraph 31 of Schedule 20B provides that where there are two or more sentences that are all 1967 Act sentences, the concurrent and consecutive provisions of the 1991 Act are disapplied because the sentences form a single term with one another.

630.Paragraph 32 of Schedule 20B disapplies the concurrent and consecutive provisions of the 1991 Act where there are concurrent and consecutive sentences where one or more sentence is a 1967 Act sentence and one or more sentence is a 1991 Act sentence, because the sentences form a single term with one another and the single term is treated as though it was a 1967 Act sentence. Where one of the sentences is a section 85 extended sentence, it is the custodial term of the extended sentence that is used to create the single term. In such a case, the licence period of the single term is defined by paragraph 32(5).

631.Paragraph 32(6) of Schedule 20B provides that where a prisoner is subject to a sentence comprising a 1967 Act sentence, a 1991 Act sentence and a 2003 Act sentence, the 1967 Act sentence and the 1991 Act sentence must be single termed before either the provisions of section 263(2)(c) of the 1991 Act are applied to determine how long the licence period will be on release or paragraph 33(3) is applied to determine how long the prisoner must remain in custody before being entitled to release.

632.Paragraph 33 of Schedule 20B provides for the treatment of consecutive sentences where one or more of the sentences are 1967 Act sentences and one or more of the sentences are 2003 Act sentences. The Secretary of State cannot release the prisoner until the aggregate of the custodial periods in respect of each sentence have been served. The length of the custodial period that must be served in respect of the 1967 Act sentence is not affected by the application of section 264 of the 1991 Act.

633.Paragraph 34 of Schedule 20B provides that where a prisoner is granted discretionary release by the Parole Board (that is, before any automatic obligation to release), it is the Parole Board who have the responsibility for setting, varying or cancelling any licence conditions. It also provides that where the Board had responsibility for a prisoner’s licence conditions before 2 August 2010, that responsibility continues.

634.Paragraph 35 of Schedule 20B provides that a person who is committed to prison before 4 April 2005 for a term of 12 months or more in respect of default of payment of a fine, or for contempt of court, is to be unconditionally released at the two- thirds point of the term.

635.Paragraph 36 of Schedule 20B sets the criteria for application of paragraph 37 - referring to those prisoners who are in custody at the time of commencement, who have passed the half way point of their sentence (or the half way point of the custodial term in respect of those serving extended sentences), but not yet been released.

636.Paragraph 37 provides a power for the Secretary of State in respect of those prisoners identified in paragraph 36, who are liable to removal from the UK, but have not been removed under the Early Removal Scheme, to be removed after the half way point of the sentence (or of the custodial term in the case of extended sentences). The Secretary of State has the power to remove such prisoners with or without a release direction from the Parole Board.

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