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Victims and Prisoners Act 2024

Contents

Part 4: Prisoners

Public protection decisions

Section 58: Public protection decisions: life prisoners

  1. Section 58 amends Chapter 2 of Part 2 of the 1997 Act to clarify the meaning and application of the existing statutory release test in the case of a life sentenced prisoner.
  2. Subsection (1) of section 28ZA states that this new section applies when a decision-maker (defined in subsection (11) as the Board or the High Court)) making a public protection decision about a life prisoner. Subsection (10) sets out that the test should be applied:
    1. when the Parole Board is considering a life sentence offender for first release;
    2. when the Parole Board is considering re-releasing a life sentence after they have been recalled on licence; and
    3. where the High Court is considering a case that has been referred to it by the Parole Board at the direction of the Secretary of State.
  3. Subsection (2) of new section 28ZA sets out that a public protection decision is a decision as to whether it is no longer necessary for the protection of the public that a prisoner remains confined. This is the current wording of the public protection test for all life-sentenced offenders releases, no matter if first-instance or on a recall.
  4. Subsection (3) sets out the new, more specific release test - that, when making a public protection decision, the decision maker must be satisfied that there would be no more than a minimal risk that the prisoner would commit a further offence that would cause serious harm if they were to be released, in order to release the offender.
  5. Subsection (4) relates to the offences that are presumed to cause serious harm. Schedule 18B, which is inserted into the 2003 Act by subsection (9) of section 59, provides for offences which are considered under the criminal justice regime to be serious in nature, for which offenders must or may currently receive serious or restrictive sentencing and release measures. This list turns a decision-maker’s mind to the types of offences which may be sufficient to meet the threshold of serious harm in the release test, should the decision-maker consider that the offender poses a risk of committing that offence. This deeming provision allows the decision-maker to take the circumstance of the case into account when deciding if commission of the offence would truly cause serious harm. It also does not preclude the decision-maker from considering other offences which may cause serious harm, which are not contained in the list, when determining if the offender should be released or not. New section 237A(13), and Section 59(8), enables this list to be amended by affirmative order.
  6. Subsection (5) sets out specific criteria that must be taken into account by the decision-maker when assessing the prisoner for release. These provisions do not change in practice how the Board takes public protection decisions, or the Board’s discretion as to the weight to give to each consideration. The list set out express considerations to underpin the question of whether the prisoner meets the threshold in subsection (3), for clarity. Subsection (6) ensures that the decision-maker must in particular have regard for the protection of any victim of the prisoner (restricted to the victim or victims of the offence to which the relevant sentence relates). Subsection (9) enables the decision-maker to take account of matters in addition to those covered in section 28ZA.
  7. Subsection (12) is a minor, technical provision that glosses new section 28ZA(1) for the release test for recalled life offenders. The test has the same meaning but is cast slightly differently. A ‘gloss’ is a non-textual modification that changes the effect of a provision, without changing the main text.
  8. Section 58 (3) and (4) ensure that the new meaning and application applying to public protection decisions is referenced and applies in sections 28A and 28B of the 1997 Act, which govern the release of offenders who have committed murder, manslaughter or indecent image offences and have not provided information about their victims.
  9. Section 58(5) applies the new public protection to the new executive re-release power for Imprisonment for Public Protection sentences set out in in Section 66(5)

Section 59: Public protection decisions: fixed-term prisoners

  1. Section 59 provides for the same changes as Section 55 for fixed term (determinate) sentenced offenders released pursuant to Chapter 6 of Part 12 of the 2003 Act by inserting new sections 237A and 237B into the 2003 Act and making consequential changes. The operation of this section is the same as Section 58, adjusted to the different provisions.
  2. New section 237A will apply to all, either in whole or in part, to all public protection decisions taken under the 2003 Act (with the exception of the test as to whether or not a prisoner is suitable for automatic release, under section 255A(4)), as set out in subsection (10) and new section 237B:
    1. 244ZC(4) - where the Secretary of State has referred a standard determinate sentenced offender determined to be dangerous to the Parole Board;
    2. 244ZC(5)(b) - 244ZC offenders, subject to subsequent parole reviews;
    3. 244A(4)(b) - in relation to offenders serving Sentences for Offenders of Particular Concern;
    4. 246A(6)(b) - in relation to offenders serving Extended Determinate Sentences;
    5. 247A(5)(b) - in relation to terrorist prisoners serving determinate sentences;
    6. 255B(4A) - For Parole Board decisions on re-release of offenders who have been recalled to prison following release on licence:
    7. 255C(4A) - for Parole Board decisions on re-release of offenders who have been recalled to prison and are unsuitable for automatic release;
    8. 256A(4) - further annual reviews of offenders who are refused re-release after recall;
    9. 256AZBC(1) - High Court release decision for determinate offenders referred by the Secretary of State;
    10. Para 6(2) of Schedule 20B – discretionary conditional release prisoners sentenced under the Criminal Justice Act 1991;
    11. Para 15(4) of Schedule 20B – old extended sentences imposed under section 226 or 227;
    12. Para 25(3) of Schedule 20B – prisoners serving sentences imposed under the Criminal Justice Act 1967;
    13. Para 28(3) of Schedule 20B - prisoners with an extended sentence certificate serving a sentence imposed under the Criminal Justice Act 1967.
  3. Subsection (12) adds a gloss to subsection (2) so that the new public protection test applies to Parole Board decisions in sections 255B(4A), 255C(4A) or 256A(4) of the 2003 Act, which govern the re-release of recalled fixed-term offenders and subsequent annual reviews.
  4. Section 59(3) and (4) ensure that the new meaning and application applying to public protection decisions is referenced and applies in sections 246B and 246C of the 2003 Act, which govern the release of extended determinate sentenced offenders who have committed manslaughter or indecent image offences and have not provided information about their victims.
  5. Section 59(5) and (6) apply the new public protection threshold in cases where the Secretary of State is deciding whether or not to discretionarily release different categories of recalled determinate offenders (known as executive re-release). The new public protection test applies, but not the list of mandatory considerations, as these are specific executive decisions where different considerations may apply.
  6. Section 59(7) amends section 256AZB, which is the power to change the test for re-release following recall by secondary legislation. It makes provision to clarify that the existing consequential power can be used to amend and modify the release test to be applied by the High Court in making release decisions following referrals.
  7. Section 59(10) to (12) provide for the new public protection application and meaning to apply to the transitional cases where prisoners have committed manslaughter or indecent image offences, but have not provided information about their victims, in Schedule 20B of the 2003 Act.

Section 60: Amendment of power to change test for release on licence of certain prisoners

  1. Section 60 amends section 128 of LASPO which allows for all parole release test provisions in Chapter 6 of Part 12 of the 2003 Act to be altered by secondary legislation. Section 60(2) adds the new statutory release test provisions into section 128(3) so they may be amended by affirmative order. Section 60(3) makes provision to clarify that the existing consequential power in section 128 can be used to amend and modify the application of the release test to be applied by the High Court in taking release decisions following referrals.

Referral of release decisions

Section 61: Referral of release decisions: life prisoners

  1. Section 61 amends the Crime (Sentences) Act 1997 to create a ‘top-tier’ cohort of life-sentenced offenders. The Secretary of State can direct the Parole Board to refer a case concerning top-tier offenders to the High Court to determine release, following a release decision from the Board.
  2. Section 61 inserts new sections 32ZAA, 32ZAB and 32ZAC into Part 2 of the 1997 Act.
  3. New section 32ZAA applies where a life sentenced prisoner is having a parole review under section 28 or 32 of the 1997 Act, relating to the sentence imposed for a ‘top tier’ offence defined in new section 32ZAB. These offences are murder, rape, serious terrorism or terrorism connected offences, and causing or allowing the death of a child. They include the Northern Irish and Scottish equivalents of the offences, to capture offenders who are convicted in the devolved administrations but transferred to England and Wales to serve their sentence. Equivalent service offences are also included. Some of the ‘top-tier’ offences do not carry a maximum penalty of life; however, owing to the historic availability of the IPP sentence for all these offences, they are included in this addition to the 1997 Act so as to ensure IPPs who have committed these offences who are being considered for release are treated consistently with those serving life sentences.
  4. Subsections (1) and (2) provide that where the Parole Board directs the release of a prisoner in the top-tier cohort, the Secretary of State may then direct the Parole Board to refer the prisoner’s case to the High Court for review where the release of the prisoner would be likely to undermine public confidence in the parole system and where the Secretary of State considers that, if the case were referred, the High Court may not conclude that the release test has been met.
  5. Subsection (3) provides that the Secretary of State’s duty to release the prisoner is suspended for the time reasonably required to decide whether to refer the case to the High Court, and while the High Court make a decision.
  6. Subsection (4) provides that the Secretary of State must notify the prisoner of the direction and the reasons for giving it.
  7. Subsections (5) and (6) clarify that this section applies to all relevant prisoners, including those currently serving sentences, but not including those who have already had a release decision from the Board before this section comes into force.
  8. New section 32ZAC provides for release decisions to be made by the High Court after referral. If the High Court is satisfied that the public protection test is met (using the same criteria as the Parole Board has used under new section 28ZA), they must order the Secretary of State to release the prisoner on licence pursuant to the Board’s release direction, either subject to the same or different conditions as those imposed by the Board. If they are not so satisfied, they must quash the Parole Board’s direction under 32ZAC(1)(b) and the prisoner will remain confined.
  9. New section 32ZAC(3) means that the date of an order quashing the Board’s direction is to be treated as the date on which the Board disposed of the case, for the purposes of calculating the prisoner’s next parole referral. This provides that, following an order for release by the High Court, the Secretary of State need only give effect to that order as soon as reasonably practicable in all the circumstances, in line with the same practicability requirement applied to Parole Board release decisions, to ensure provision such as accommodation is in place, so as to safely release offenders.

Section 62: Referral of release decisions: fixed-term prisoners

  1. Section 62 provides for the same changes as Section 61, for fixed term (determinate) sentenced offenders released pursuant to Chapter 6 of Part 12 of the 2003 Act by inserting new sections 256AZBA, 256AZBB and 256AZBC into Chapter 6 of Part 12 of the 2003 Act, and making consequential changes. The operation of this section is the same as Section 61, adjusted to the different provisions.
  2. New section 256AZBB, which sets out the top tier offences, does not include murder. This is because murder carries mandatory life sentence, so offenders sentenced for this offence will never be due for release under the 2003 Act. All other aspects of section 256AZBB correspond with provision in new section 32ZAB for life sentenced offenders. New section 256AZBC corresponds with new section 32ZAC for the purposes of the High Court’s decision.
  3. Subsection (5) of section 256AZBC glosses the public protection test set out in section 256AZBC(3) for recalled fixed-term offenders who make representations on their recall and are subsequently referred to the Board by the Secretary of State under section 255B(4A) of the 2003 Act.
  4. Section 62(2) clarifies that, where the release decision is that of the High Court rather than the Parole Board, the requirement for the Secretary of State to release as soon as reasonably practicable provided for in section 256AZC applies.

Licence conditions on release following referral

Section 63: Licence conditions of life prisoners released following referral

  1. When the High Court releases a prisoner, it will be responsible for setting their licence conditions (either in line with the Board’s conditions, or differently if it thinks fit) under new section 32ZAC(2). Where release is directed, new section 31(3A) of the 1997 Act requires the Secretary of State to include the licence conditions directed by the High Court and enables them to subsequently vary and cancel those conditions as part of the normal process of managing an offender’s licence as their circumstances change.

Section 64: Licence conditions of fixed-term prisoners released following referral

  1. Section 64 amends section 250 of the 2003 Act, which prescribes responsibility for setting and varying licence conditions for fixed-term prisoners, on initial release from prison and subsequently in the community. The changes ensure that, on first release following a direction to release by the High Court, the Secretary of State must include only those bespoke conditions directed by the High Court in the offender’s licence under new section 256AZBC(2), consistent with the existing provisions on Board release, but then may subsequently vary and cancel those conditions as part of the offender’s management in the community.

Section 65: Assessing etc. risks posed by controlling or coercive offenders

  1. This section makes amendments to the multi-agency public protection arrangements (MAPPA) regime set out in sections 325 to 327 of the Criminal Justice Act 2003. This ensures automatic MAPPA management of individuals convicted of controlling or coercive behaviour in an intimate or family relationship, who are sentenced to 12 months’ imprisonment or more or receive a suspended sentence where the custodial term is 12 months or more. Currently, they can be MAPPA managed on a discretionary basis.
  2. This section amends s. 327(4A) of the Criminal Justice Act 2003 by adding the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 to the list of offences contained within it.

Imprisonment or detention for public protection

Section 66: Imprisonment or detention for public protection

  1. This section amends sections 31A and 32 of the Crime (Sentences) Act 1997 regarding the termination of licence and consequently the ending of the sentence for offenders subject to an imprisonment for public protection (IPP) sentence.
  2. This section gives the Secretary of State the power to insert licence conditions on a prisoner where the Secretary of State makes a release decision under new section 32ZZA.
  3. This section changes the qualifying period for an offender who has been released on licence to have their licence considered for termination by the Parole Board from ten years after first release to three years for those serving an IPP sentence. The qualifying period for those convicted when under the age of 18 is changed to two years. The qualifying period counts from the first release from prison and does not reset if an offender is recalled to prison.
  4. The section defines the term preventative sentence and qualifying period.
  5. This section amends the power to alter the qualifying period by regulations so that both the 3 year qualifying period for IPP’s and the two years for DPP’s can be amended.
  6. This section enables the Secretary of State, when the Parole Board directs the re-release of a preventive sentence prisoner who is recalled to prison, to disregard the revocation of the prisoner’s licence for the purposes of automatic licence termination.
  7. This section creates a power for the Secretary of State to release a recalled IPP or DPP offender following Risk Assessed Recall Review. The Secretary of State can only release a recalled IPP or DPP Offender where satisfied that it is no longer necessary for the protection of the public that they should remain in prison, which is the same test applied by the Parole Board. Re-release from recall by the Secretary of State under this power, or by the Parole Board will reset the automatic period. These amendments also introduce a power for the Secretary of State to disregard the recall of a IPP or DPP offender for the purpose of the automatic period, so as to not disrupt the two year automatic period.
  8. This section applies the new public protection test to the executive re-release power for Imprisonment for Public Protection sentences.

Section 67: Imprisonment or detention for public protection: annual report

  1. This section requires the Secretary of State to prepare and publish a report about the steps taken in the reporting period to support the rehabilitation of IPP prisoners and their progress towards release from prison or licence termination. Subsection (1)(b) requires this report to be laid before Parliament.
  2. Subsection (2)(a) defines ‘release from prison’ and subsection (2)(b) defines ‘licence termination’.
  3. Subsection (3) requires that the report must specifically address the steps taking in relation to IPP and DPP offenders who are female (subsection (3)(a)) and DPP offenders (subsection (3)(b)).
  4. Subsection (4) requires that the Secretary of State sets out who has been consulted in the reporting period in relation to the steps taken on the rehabilitation and progress of preventive sentence prisoners.

Home Detention Curfew

Section 68: Extension of home detention curfew

  1. This section provides for an extension of which offenders are eligible for home detention curfews.
  2. Subsection (1) introduces that amendments will be made to section 246 (release of prisoners on licence before required to do so) of the CJA 2003.
  3. Subsection (2) amends existing section 246(1), which sets out that prisoners eligible for HDC must be serving a fixed term sentence (i.e., one that has an automatic release date). The amendment provides that prisoners serving certain fixed term sentences are excluded from HDC. This is so HDC will only apply to those sentences with automatic half-way release. Those subject to the following release provisions are excluded:
    1. sentences for specified serious sexual or violent offences subject to the release provisions of section 244ZA of the CJA 2003 (automatic release at the two thirds point of the sentences, rather than at halfway);
    2. sentences for offenders of particular concern imposed under section 236A of the CJA 2003 (or section 265 or 278 of the Sentencing Code) subject to release under section 244A of the CJA 2003;
    3. extended sentences imposed under section 226A or 226B of the CJA 2003 (or section 254, 266 or 279 of the Sentencing Code) subject to release under section 246A of the CJA;
    4. extended sentences imposed under section 227 or 228 of the CJA 2003 subject to release under section 247 of the CJA;
    5. sentences for an offence described in section 247A(2) of the CJA 2003 (specified terrorist or terrorist connected offences) subject to the release provisions of that section;
    6. sentences of four years or more subject to the release provisions under paragraph 4 of Schedule 20B of the CJA 2003 (previously Criminal Justice Act 1991); and
    7. sentences of 12 months or more subject to the release provisions under paragraph 24 of Schedule 20B of the CJA 2003 (imposed under the Criminal Justice Act 1967).
  4. Subsection (3)(a) amends existing subsection section 246(4) to remove the exclusion from HDC of prisoners serving sentences of 4 years or more and removes existing sentence types that are now excluded from HDC by virtue of subsection (2) of this section. 134 Subsection (3)(b) amends section 246(4) in order to exclude from HDC prisoners serving sentences for specified serious sexual or violent offences that would have been subject to the release provisions of section 244ZA of the CJA 2003 (automatic release at the two thirds point of the sentences, rather than at halfway) if they had been imposed after those provisions came into effect. Those subject to these release provisions (not otherwise excluded, for instance those subject to notification for sexual offences) became eligible by the removal of the four year exclusion. This amendment provides parity with the exclusion of those offenders now subject to the release provisions of section 244ZA.
  5. Subsection (3)(c) amends existing subsection (4)(g) of Section 246, to limit the exclusion from HDC of any prisoner who has previously been recalled to custody under section 255(1)(a) of the CJA 2003 for having breached the curfew conditions of HDC during their current sentence.
  6. Subsection (3)(d) substitutes section 246 (4)(ga), which excludes from HDC any prisoner who has "at any time" previously been recalled to custody under section 38A(1)(a) of the Criminal Justice Act 1991 for having breached the curfew conditions of HDC. In its place are inserted new subsections (4)(ga) and (gb). The combined effect of these new subsections is to replace the current exclusion which applies to those recalled for HDC curfew breach at any time previously, i.e., back to 1999 when HDC was first introduced, with an exclusion that applies only where they were still serving the recall at any point during the two years immediately prior to the start of the current sentence.
  7. Subsection (3)(e) removes existing section 246(4)(ha), which excludes from HDC anyone who has ever been returned to custody by the court under section 40 of the Criminal Justice Act 1991 or section 116 of the Powers of Criminal Courts (Sentencing) 2000. Under these provisions, which only applied to sentences governed by the release provisions of the Criminal Justice Act 1991 and were repealed in 2012, if a person committed a further imprisonable offence between the end of their release licence and the end of the sentence (known as the "at risk period"), the courts could return them to prison to serve a term of imprisonment that was equal to the period between the date of the new offence and the end of the sentence.
  8. Subsection (4) removes section 246(4)(ZA), which sets out how to treat consecutive or concurrent sentences in determining whether the prisoner was serving a term of 4 years or more and would therefore be excluded from HDC by virtue of existing section 246(4)(aa). This will now be redundant as subsection (4)(aa) has been removed by subsection (2) of this section, those serving sentences of 4 years or more will now be eligible for HDC.

Application of Convention rights

Section 69: Section 3 of the Human Rights Act 1998: life prisoners

Section 70: Section 3 of the Human Rights Act 1998: fixed term prisoners

Section 71: Section 3 of the Human Rights Act 1998: powers to change release test

  1. Sections 69, 70 and 71 section 3 of the Human Rights Act 1998 (HRA) in relation to Chapter 2 of Part 2 of the 1997 Act, Chapter 6 of Part 12 of the 2003 Act, section 128 of LASPO, and all secondary legislation made under these provisions (‘the release legislation’). These provisions span the legislative framework in England and Wales relating to release, licences, supervision, and recall of indeterminate and determinate sentenced offenders.
  2. Section 3 of the HRA requires primary and secondary legislation to be read and given effect to in a way that is compatible with the Convention rights, "so far as it is possible to do so".
  3. When operated by the courts, section 3 requires them to go further than they usually would when interpreting legislation. This has required, at times, the courts to depart from the unambiguous meaning of the legislation. It has also required the courts to adopt interpretations of legislation which depart from the intention of Parliament when that legislation was passed – see, eg, Ghaidan v Godin-Mendoza [2004] UKHL 30, para 31).
  4. Further, the requirement in section 3 is not merely for courts. Anyone, including public authorities, applying legislation has a duty under section 3 to interpret it in a compatible way.
  5. By removing this duty in respect of the release legislation, it ensures that, should the courts – or others – find these provisions incompatible, they will apply the section as it is intended to be applied, and not use section 3 to alter the interpretation. In such cases, declarations of incompatibility under section 4 HRA will be available.

Section 72: Application of certain convention rights in prisoner release cases

  1. Section 72 sets out the approach courts should take when considering a decision that has been made concerning the release of a prisoner and where that decision has been challenged on human rights grounds.
  2. When considering such a challenge, which could arise via a judicial review, a habeas corpus application, a private law damages claim or any other legal challenge where a Court is required to consider the Convention rights of a person in relation to a release decision, the court must give the greatest possible weight to the importance of reducing the risk to the public from those persons who have been convicted of a criminal offence. Requiring the courts to give the greatest possible weight to this factor reinforces the precautionary approach and means that public protection will be given appropriate consideration in any balancing exercise.

The Parole Board

Section 73: Parole Board rules

  1. Section 73(2) amends the power in section 239(5) of the 2003 Act to make procedural rules about how the Board conducts proceedings (the Parole Board Rules) to add the power to prescribe via the Rules that parole cases to be dealt with by Parole Board members with particular skills or experience.
  2. Subsection (3) allows the Secretary of State to make Parole Board Rules that will allow the delegation of functions usually exercised by Board members (including some judicial functions) to employees of the Board secretariat. The power cannot be used to make provision for staff to decide whether to release a prisoner; whether to terminate the licence of an IPP or DPP prisoner’s licence; or whether to reconsider or set aside a decision.

Section 74: Parole Board membership

  1. Section 74 amends paragraph 2 of Schedule 19 of the 2003 Act which deals with membership of the Parole Board. It adds a member with law enforcement experience (defined as the "prevention, detection or investigation of offences") to the statutory membership of the Board.

Whole life prisoners prohibited from forming a marriage or civil partnership

Section 75: Whole life prisoners prohibited from forming a marriage

  1. Section 75(1) amends the Marriage Act 1949 by inserting a new section to prohibit whole life prisoners from marrying unless they have permission from the Secretary of State.
  2. New section 2A(1) sets out which prisoners may not marry, with more detail as to the meaning and interpretation of specific terms provided in paragraph 2A (5) and (6). To be in scope an individual must fulfil two criteria.
  3. Firstly, they must be serving a life sentence in a prison or other place of detention (such as a Young Offender Institution or secure hospital). This would exclude prisoners released on licence on compassionate grounds under section 30(1) of the Crime (Sentences) Act 1997.
  4. Secondly, they must be subject to either:
    1. A court order that they should not be eligible for release by the Parole Board under the usual release arrangements for life sentence prisoners; or
    2. A mandatory life sentence received before December 2003, having been notified in writing before that date that the Secretary of State did not intend that they should ever be released on licence; and the High Court must have not since ordered that the early release provisions should instead apply.
    3. New subsections 2A(2) and (3) set out a process for exemptions to be granted by written permission from the Secretary of State. The Secretary of State may only give permission for a whole life prisoner to marry if satisfied that this is justified by exceptional circumstances
    4. New subsection 2A(4) establishes that if a whole life prisoner does manage to marry without written permission from the Secretary of State, their marriage will not be legally valid.

Section 76: Whole life prisoners prohibited from a forming a civil partnership

  1. This section amends the Civil Partnership Act 2004 to prohibit whole life prisoners from forming civil partnerships unless they have permission from the Secretary of State.
  2. Subsection (2) adds whole life prisoners to the list of people not eligible to register as civil partners.
  3. The other provisions of this section replicate provisions set out in section 75 as to the exemptions process and prisoners in scope.

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