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Legal Aid, Sentencing and Punishment of Offenders Act 2012

New section 246A

676.Subsection (1) of new section 246A provides that the section applies to a prisoner (“P”) who is serving an extended sentence under new section 226A or 226B. It therefore applies to both adults and juveniles.

677.Subsection (2) of new section 246A provides that the Secretary of State must automatically release the prisoner after the requisite custodial period has been served. The requisite custodial period is defined in subsection (8) as two-thirds of the appropriate custodial term. But subsection (2) does not apply where the prisoner’s appropriate custodial term is 10 years or more or the sentence was imposed in respect of an offence listed in Parts 1 to 3 of Schedule 15B.

678.Subsection (3) of new section 246A provides that where the prisoner’s appropriate custodial term is 10 years or more or the prisoner’s sentence was imposed in respect of an offence listed in Parts 1 to 3 of Schedule 15B, the Secretary of State must release the prisoner on licence in accordance with subsections (4) to (7) ., Those provisions provide for the Parole Board to be able to direct release after the requisite custodial period. There is no automatic release until the appropriate custodial term is completed.

679.Subsection (4) of new section 246A provides that the Secretary of State must refer P’s case to the Parole Board when the two-thirds point of the appropriate custodial term has been reached. Where the Parole Board declines to direct P’s release, the Secretary of State must refer his case to the Parole Board for further consideration at least every 2 years.

680.Subsection (5) of new section 246A provides that the Secretary of State must release the prisoner in accordance with a direction from the Parole Board, provided that the prisoner has reached the two-thirds point of the appropriate custodial term.

681.Subsection (6) of new section 246A sets out the test to be applied by the Parole Board when considering whether to direct a prisoners’ release. The test replicates the release test currently applied by the Parole Board to indeterminate sentences for public protection and life prisoners (see section 28 of the Crime (Sentences) Act 1997).

682.Subsection (7) of new section 246A provides for the automatic release of P at the end of the appropriate custodial term where P has not previously been released automatically or released on a direction by the Parole Board. Where P has previously been released and recalled to custody the automatic release provision at the end of the appropriate custodial term will not apply (and P’s further release will be dealt with under section 255C of the 2003 Act).

683.Subsection (8) of new section 246A provides that the “appropriate custodial term” means the term imposed by the court as the custodial element of the new extended sentence. This is the sentence imposed by the court excluding the extended licence period. This subsection further defines the “requisite custodial period” as two-thirds of the appropriate custodial term, where a single sentence is imposed. Where a prisoner is serving consecutive or concurrent sentences the requisite custodial term is calculated in accordance with the aggregation of the sentences under sections 263(2) and 264(2).

684.Subsection (4) introduces introduces Schedule20, which makes consequential amendments to the release and recall provisions in Chapter 6 of Part 12 of the 2003 Act. These amendments add references to extended sentence and the new section 246A , so that the appropriate provision in Chapter 6 of Part 12 applies to prisoners released under the new arrangements (for example to allow licences to be set for such offenders and for them to be recalled once released).

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