The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024
In accordance with section 330(5) of that Act a draft of this instrument has been laid before, and approved by resolution of, each House of Parliament.
Citation, commencement and extent1.
(1)
This Order may be cited as the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024.
(2)
The Order comes into force on—
(a)
10th September 2024 for the purposes of determining the requisite custodial period or minimum custodial period in relation to—
(i)
a sentence imposed on or after that date, or
(ii)
a relevant sentence imposed before that date;
(b)
22nd October 2024 for the purposes of determining the requisite custodial period or minimum custodial period in relation to a sentence which—
(i)
was imposed before 10th September 2024, and
(ii)
is not a relevant sentence.
(3)
This Order extends to England and Wales only.
Interpretation2.
(1)
In this Order “the 2003 Act” means the Criminal Justice Act 2003.
(2)
A sentence is a “relevant sentence” for the purposes of this Order if—
(a)
in a case where it is one of two or more consecutive sentences, the terms of those sentences are in aggregate less than 5 years,
(b)
in a case where it is one of two or more sentences which are wholly or partly concurrent, the term of each of those sentences is less than 5 years, or
(c)
in any other case, the term of the sentence is less than 5 years.
Modification of sections 243A, 244 and 264 of the Criminal Justice Act 20033.
(1)
Subject to paragraphs (4) to (6), in section 243A of the 2003 Act (duty to release certain prisoners serving less than 12 months) the reference in subsection (3)(a) to one-half of the sentence is to be read as a reference to 40 per cent of the sentence.
(2)
Subject to paragraphs (4) to (6), in section 244 of the 2003 Act (duty to release certain prisoners not subject to special provision for release) the reference in subsection (3)(a) to one-half of the sentence is to be read as a reference to 40 per cent of the sentence.
(3)
Subject to paragraphs (4) to (6), in section 264 of the 2003 Act (consecutive terms) the reference in subsection (6)(d) to one-half of the sentence is to be read as a reference to 40 per cent of the sentence.
(4)
Paragraph (1), (2) or (3) does not apply in relation to a sentence within article 1(2)(a)(ii) if the person serving the sentence was not in custody or detention pursuant to the sentence on 10th September 2024—
(a)
having been released under section 246 (power to release on licence) or 248 (power to release on compassionate grounds) of the 2003 Act, or
(b)
having been removed from prison under section 260 of that Act (early removal of prisoners liable to removal from UK).
(5)
Paragraph (1), (2) or (3) does not apply in relation to a sentence within article 1(2)(b) if the person serving the sentence was not in custody or detention pursuant to the sentence on 22nd October 2024—
(a)
having been released under section 246 or 248 of the 2003 Act, or
(b)
having been removed from prison under section 260 of that Act.
(6)
(a)
a sentence for an offence listed in the Schedule to this Order, or
(b)
(7)
The reference in paragraph (6)(a) to an offence (“offence A”) includes—
(a)
an offence of attempting to commit offence A;
(b)
an offence of conspiracy to commit offence A;
(c)
an offence of incitement to commit offence A;
(d)
an offence under Part 2 of the Serious Crime Act 2007 in relation to which offence A is the offence (or one of the offences) which the person subject to the sentence intended or believed would be committed;
(e)
an offence of aiding, abetting, counselling or procuring the commission of offence A.
F1(7A)
References in paragraph (7)(a) to (e) to offence A do not include the offence of murder.
(8)
A reference in paragraph (6) or F2, (7)(a) to (e) or (7A) to an offence (“offence B”) includes—
(a)
an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 as respects which the corresponding civil offence (within the meaning given by the section in question) is offence B, and
(b)
an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is offence B,
and section 48 of that Act (attempts etc. outside England and Wales) applies for the purposes of paragraph (b) as if the reference in subsection (3)(b) to any of the following provisions of that Act were a reference to that paragraph.
Application of provisions about release after recall to certain persons within article 3(4) or (5)4.
(1)
This article applies to a person (“P”) in relation to whom any of paragraphs (1), (2) and (3) of article 3 would have applied but for the application of paragraph (4) or (5) of that article to P as a result of P’s release under section 246 of the 2003 Act.
(2)
The fact that any of paragraphs (1), (2) and (3) of article 3 would have applied in relation to P but for P’s release is to be disregarded in determining—
(a)
for the purposes of section 255A(10) of the 2003 Act (further release after recall), the requisite custodial period which P would have served under section 243A or 244 of that Act but for P’s earlier release, and
(b)
for the purposes of section 255B(6) or 255C(6) of the 2003 Act (curfew condition), the date on which P would (but for P’s earlier release) have served the requisite custodial period for the purposes of section 243A or 244 of that Act.
SCHEDULEExcluded offences
Sexual offences
1.
2.
3.
4.
5.
An offence under section 5 of that Act (living on earnings of male prostitution).
6.
7.
8.
9.
10.
11.
12.
13.
14.
F314A.
An offence under section 33 of the Criminal Justice and Courts Act 20154 (disclosing, or threatening to disclose, private sexual photographs and films with intent to cause distress).
15.
16.
Domestic abuse etc
F416A.
An offence under section 354 of the Sentencing Code5 (breach of a sexual harm prevention order).
17.
18.
19.
F519A.
An offence under section 56 of that Act (restraining orders on conviction).
19B.
An offence under section 5A7 of that Act (restraining orders on acquittal).
20.
21.
22.
An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).
23.
F623A.
An offence under section 8 of the Stalking Protection Act 20198 (breaching a stalking protection order etc.).
24.
25.
National security
26.
27.
28.
29.
30.
31.
An offence under section 36 of that Act (failure to comply with an order, prohibition or restriction).
32.
An offence under section 51(2) of that Act (failure to move a vehicle when required to do so).
33.
An offence under section 116 of that Act (failure to stop a vehicle when required to do so).
34.
35.
36.
An offence under paragraph 14 of Schedule 5 to that Act (making a false or misleading statement).
37.
38.
An offence under paragraph 16 of Schedule 5 to that Act (failure to comply with an urgent explanation notice: England and Wales and Northern Ireland).
39.
An offence under paragraph 32 of Schedule 5 to that Act (failure to comply with an urgent explanation notice: Scotland).
40.
41.
An offence under paragraph 21 of Schedule 5A to that Act (failure to comply with disclosure order or making false or misleading statement in purported compliance: Scotland).
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
An offence to which section 16 of that Act applies where the foreign power condition F9or the designated body condition (within the meaning of that Act) was met in relation to the conduct of the person which constituted the offence (foreign interference in elections).
53.
An offence in relation to which the foreign power condition F10or the designated body condition has been determined to have been met in relation to the conduct that constituted the offence under section 20 of that Act (offences where foreign power F11or designated body condition met: Northern Ireland).
54.
An offence proved to have been aggravated by reason of the foreign power condition F12or the designated body condition being met in relation to the conduct that constituted the offence under section 21 of that Act (aggravating factor where foreign power F13or designated body condition met: Scotland).
F14Violent Offences
55.
Murder.
This Order modifies the application of sections 243A, 244 and 264 of the Criminal Justice Act 2003 (“the 2003 Act”).
The Secretary of State is required to release on licence prisoners serving fixed-term sentences once they have served the requisite custodial period, which is set by sections 243A(3) and 244(3) of the 2003 Act. Section 264 sets out the rules that apply to the calculation of the requisite custodial period where a prisoner is serving consecutive sentences.
Article 3(1), (2) and (3) of the Order modifies the application of sections 243A, 244(3)(a) and 264(6)(d) of the 2003 Act so that applicable prisoners are released from a sentence of imprisonment when they have served 40 per cent of an applicable sentence as opposed to the current 50 per cent.
The Order applies to prisoners who have not passed the current release point under sections 243A and 244 at the point of commencement, so will apply to existing prisoners serving qualifying sentences as well as any new sentences imposed after commencement. Unless the sentence is imposed after the first commencement date, the coming into force of this order under article 1(2) is staggered by sentence length. Article 1(2) read with the interpretation of “relevant sentence” in article 2(2) provides for the first commencement date on the 10th September 2024 to apply to sentences of less than 5 years. Where prisoners are serving concurrent sentences then all sentences will need to be less than 5 years for commencement to apply. Consecutive sentences are treated as one sentence and the overall length of all the consecutive sentences added together will need to be less than 5 years for the first commencement date to apply.
The second commencement date on 22nd October 2024 applies to prisoners with sentences of 5 years or more which were imposed before the first commencement date.
Article 3(4) and (5) excludes prisoners where they have been released under section 246 (early release on home detention curfew) or 248 (compassionate release) and those removed under section 260 (early removal scheme) from the ambit of the Order on the relevant commencement date, unless such prisoners are back in custody before commencement having been recalled and not re-released, or returned and not re-removed.
Article 3(6) excludes sentences for certain sexual, violent, domestic abuse, terrorism and national security offences from the change.
Article 3(7) provides that all inchoate offences of those that come under article 3(6) (including those listed in the Schedule) are also excluded.
Whilst the release provisions under Chapter 6 of Part 12 of the 2003 Act apply in relation to a sentence of imprisonment passed by a service court, article 3(8) is added in respect of the list of excluded offences in article 3(6) so there is parity with service offences.
Article 4 ensures that for those recalled from home detention curfew the calculation of whether they have served the requisite custodial period for the purposes of re-release after recall is as modified by this Order, only in relation to those to whom the modification applied.
A full Impact Assessment has been prepared for this instrument and will be published on the legislation.gov.uk website.