Release Provisions for Offenders – Maria Karaiskos KC and Guy Cecil
Following a recent Crown Court sentencing hearing, Maria Karaiskos KC and Guy Cecil outline why the Crown Court Compendium Part II needs to be updated in line with legislative changes on release provisions, and provide a summary of the current provisions for offenders.
I recently had the pleasure of shadowing Maria Karaiskos KC at a Crown Court sentencing hearing where she represented “D”, an 18-year-old, following his conviction for manslaughter. D had been acquitted by the jury of murder. At the time of the offence, D was 17 years old.
The Judge imposed a determinate sentence of 7 years detention in a Young Offenders’ Institution for the offence of manslaughter. When pronouncing sentence, the Judge indicated that D would serve half in detention and half in the community, on licence. Reliance was placed on wording in the Crown Court Compendium Part II that “all children are released having served no more than half their sentence.”[1]
This pronouncement was incorrect. Maria rectified the position and all parties, including the Judge, agreed that D would, in fact, serve two-thirds of this sentence in detention with one-third on licence. As Maria and I later discovered, by researching the matter, the above reference in the Compendium needed to be updated in line with recent legislative changes on release provisions.
This article sets out the current position on those release provisions, in the hope that busy practitioners will be able to find a quick response to the question which inevitably arises at sentence from lay clients: how long until I am released?
GENERAL RULE: release after serving 40% if requirements are met
It is s.244 Criminal Justice Act 2003 (CJA 2003) that imposes a duty on the Secretary of State to release a fixed-term prisoner on licence and that general duty is to apply once the prisoner has served half of the sentence. Urgent changes in shorter sentences have been introduced recently by the new government’s SDS40[2] policy to overcome the cumulative issues with prison overcrowding; under most circumstances where a sentence aggregates to less than five years and subject to certain date restrictions, a prisoner will be released on licence after serving only 40% of their sentence rather than one half[3].
This comes only a few years after legislation was enacted to keep prisoners in custody for more time rather than less time. The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 amended s.244 CJA 2003 such that for sentences of seven years or more for a relevant violent or sexual assault, two thirds of the sentence would be served in custody rather than one half. The relevant offences were those in Schedule 15 CJA 2003 which carried a potential life sentence, and the provision would only apply to adult offenders.
SENTENCES COVERED BY S.244ZA CJA 2003
The 2020 Order was fully repealed by s.130(9) Police, Crime, Sentencing and Courts Act 2022 (PCSCA 2022) and the PCSCA 2022 amended CJA 2003 by replacing the provisions of the Order with a more complex matrix of conditions[4] that consider not only the nature of the offence, but the offender and the sentence. This was achieved by inserting a new section into CJA 2003, section 244ZA.
General applicability of the new section is to prisoners on a fixed-term sentence that have not been released on licence, that are not of “particular concern”[5], not on an extended sentence[6], and not a terrorist prisoner[7]; see below for provisions relating to these categories. S.244ZA(1) requires the Secretary of State to release a prisoner on licence once they have served the requisite custodial period for their fixed-term sentence. The section then goes on to list three sets of circumstances where the provisions of the section apply, and where they do apply requires that the requisite custodial period is two thirds the sentence rather than a half[8]. The exceptions to the general rule created by s.244ZA are described below.
SENTENCES OF 7 YEARS OR MORE: OFFENDERS 18 OR OVER: entitled to be released after two-thirds if requirements are met
The first set of circumstances refer to Schedule 15 CJA 2003; where this is the case only Parts 1 (Specified Violent Offences) and 2 (Specified Sexual Offences) are relevant to s.244ZA.
Subsection (4) applies for a sentence of 7 years or more imposed after 1st April 2020 where the offence is one specified in either Part 1 or Part 2 of Schedule 15 and where a life sentence could have been imposed at the time of sentencing. The subsection can apply to adult offenders as well as those of age 18-21 serving detention under s.262 SA 2020.
SENTENCES OF FOUR YEARS OR MORE, BUT LESS THAN SEVEN YEARS: OFENDERS 18 OR OVER: entitled to be released at two-thirds if requirements are met
Subsection (5) applies for sentences of at least 4 years but less than 7 years, imposed on or after the 28th June 2022[9]. It applies to adult offenders as well as those of age 18-21 serving detention under s.262 SA 2020. Perhaps because it applies to shorter sentences, the subsection does not apply to the same broad range of offences in Schedule 15, but instead only to those listed in subsection (7). The violent and sexual offences included in the list are:
(a) manslaughter;
(b) soliciting murder;
(c) wounding with intent to cause grievous bodily harm;
(d) ancillary offences in connection with (a)–(c);
(e) inchoate offences in relation to murder; or
(f) specified in Part 2 of Schedule 15 (Specified Sexual Offences), and for which a life sentence was available at the time the sentence was imposed.
In the above circumstances, the offender is entitled to be released at the two-thirds point of the sentence. In multiple offence cases, this applies only where the individual sentence is seven years or more (and not to shorter consecutive sentences each less than seven years but where the cumulative total is more than seven years)[10].
SENTENCES OF 7 YEARS OR MORE: OFFENDERS UNDER 18: entitled to be released at two-thirds if requirements are met
The final set up circumstances, set out in subsection (6), apply to those sentenced under s.250 SA 2020, i.e. youth detention for an under-18-year-old. S.250 is only available for certain offences: those where the corresponding adult sentence is at least 14 years’ imprisonment, a handful of sexual offences, and some firearms offences listed in Schedule 20 SA 2020. For subsection (6) to bite, the sentence must be 7 years or more, must have been imposed on or after 28th June 2022, and there is a further restriction to the types of offences covered, on top of those prescribed by s.250 SA 2020, as the offence must also be listed in subsection (7), as previously described.
OTHER SENTENCING TYPES
CJA 2003 provisions contain other types of sentence and these have their own particular defined requisite custodial terms.
EXTENDED SENTENCES: consideration for release at two-thirds, not entitlement, if requirements are met
Offenders serving sentences imposed under ss.254 (under 18), 266 (18–20) and 279 (over 20) will serve two-thirds of the custodial term before being considered for release by the Parole Board. The offender must be released at the expiry of the custodial term[11]. The balance of the sentence will be served on licence. This is subject to the exception in relation to certain terrorist offences.
OFFENDERS OF PARTICULAR CONCERN ‘OPC’: consideration for release at two-thirds, not entitlement, if requirements are met
Offenders serving sentences imposed under ss.252A (under 18), 265 (18-20), or 278 (over 20) will serve two-thirds of the custodial term before being considered for release by the Parole Board. The offender must be released at the expiry of the custodial term[12]. The balance of the sentence will be served on licence. This is subject to the exception in relation to certain terrorist offences.
TERRORIST OFFENDERS: consideration for release at two-thirds, not entitlement, if requirements are met
The general rule is also subject to an exception created by the Terrorist Offenders (Restriction of Early Release) Act 2020, which inserted a new s.247A into the CJA 2003. This applies to offences listed in Parts 1 or 2 of Schedule 19ZA of the CJA 2003. Unless the offender’s sentence was:
(a) an extended sentence or serious terrorism sentence;
(b) imposed on or after 29 June 2021; and
(c) imposed for an offence specified in Part 1 of Schedule 19ZA, or Part 3 and determined to have a terrorist connection,
the offender must serve two-thirds of the custodial period before consideration for release by the Parole Board and must be released at the expiry of the custodial term: s.247A(2A) – (8).
EXTENDED SENTENCES FOR TERRORIST OFFENDERS: no eligibility for release
For offenders who are serving extended determinate sentences for offences listed in Part 1 of Schedule 19ZA CJA 2003 or offences listed in Part 2 of that Schedule in respect of which the court has determined a terrorist connection, there is no eligibility for release; release is automatic at the expiry of the custodial term: s.247A(2A) and (7).
SERIOUS TERRORISM SENTENCE OFFENDERS: no eligibility for release
For offenders who are serving serious determinate sentences for offences listed in Part 1 of Schedule 19ZA CJA 2003 or offences listed in Part 2 of that Schedule in respect of which the court has determined a terrorist connection, under s.268A (under-18) or s.282A, there is no eligibility for release; release is automatic at the expiry of the custodial term: s.247A(2A) and (7).
LIFE SENTENCES: no eligibility for release
Offenders serving life sentences in respect of which the court imposed a minimum term order will be considered for release by the Parole Board at the expiry of the minimum term. There is no entitlement to release. If released, the offender will spend the remainder of their life on licence: C(S)A 1997 s.28.
Practitioners need to be aware that where determinate sentences are at least 7 years then these extended requisite custodial periods are likely to apply for a wide range of violent and sexual offences, and may also apply for sentences of just 4 years for the most serious offences within those categories. The provisions can also apply to youths, again where the offences are of the most serious types.
Maria and Guy are available to be instructed on all matters of criminal law.
SOURCE MATERIAL: Archbold 2025, Blackstone’s 2025, Sentencing Referencer 2025
[1] July 2024 version, paragraph 4-8
[2] The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024
[3] The SDS40 provisions are beyond the scope of this paper.
[4] S.130(1) PCSCA 2022
[5] S.278 Sentencing Act 2020 (SA 2020)
[6] SS.254, 266 or 279 SA 2020
[7] SS.254, 266, 268A, 279 or 282A SA 2020
[8] S.244ZA(8). Where there is a single custodial sentence. Where there are two or more custodial sentences then the period is determined under sections 263(2) and 264(2B) or (2E).
[9] The day that the PCSCA 2022 came into force.
[10] AB [2021] EWCA Crim 692; [2022] 1 Cr App R(S) 13; [2021] Crim LR 706, decided in relation to SI 2020/158
[11] S.246 A CJA 2003
[12] S.244A CJA 2003
