“When will I get out…?”  The current law on release provisions for adults – by Phil Barnes KC

Like everything that seems to come out of the Home Office these days in the criminal justice sphere, Parliament haven’t half made the release from custody provisions complicated.  

When a defendant asks you, immediately after sentence, “when will I get out?”, it’s no longer a case of chopping the sentence in half, taking off the time on remand and giving them a number.  Oh no, these days you have to wade through several Acts, a few statutory instruments and countless schedules.  And have a calculator handy.

But this is stuff that we all need to know, and be able to access fairly quickly, often in a hearing.

There is a duty imposed upon judges – by virtue of s52(3) of the Sentencing Act 2020 – to explain the effect of their sentence to the person upon whom it is imposed.  And, as we all know, if there is a duty on a judge to do anything, then there is a duty on counsel to make sure they do that thing correctly.  And my experience, in recent years, both on the Bench and at the Bar, is that plenty of people are struggling with that.  

So, in an effort to make it just a little easier, I have had a go at demystifying these provisions for you, but I do so with a few very important caveats…

• Firstly, this is an overview of the law as it relates to adults.  The youth provisions are different and more complex, and if you find yourself dealing with a young person then you’re going to have to go and delve into those books for yourselves.  
• Secondly, I am not even going to attempt to list all the offences in the various schedules – there are just too many of them to go in this short briefing note. I will give you the general categories and the most common offences within them.  If you’re in any doubt, go and have a look to see whether your particular offence is in the schedule referred to.  
• Thirdly, I have not attempted to cover the terrorism offences, where the release provisions are different again.  They are vanishingly rare in the day-to-day business of the courts. If you find yourself with an offence with a national security angle, you’re going to have plenty of research on your hands already, so just add the release provisions to the pile.
• Finally, be aware that any reference to a sentence of a particular length (four years, seven years etc) is a reference to the sentence for an individual offence.  A series of shorter consecutive sentences adding up to the threshold does not count.  This is something to bear very well in mind when the sentencing exercise might justify consecutive sentences of shorter duration or one longer sentence on all counts, taking account of totality – from a release provisions point of view, the defendant will almost always be better off with cumulative shorter sentences than they will with a single, longer one. 

So, with those out of the way, let’s get into it.  

A recap of the non-standard sentences

Hopefully we don’t need too much reminding of the types of sentences to which particular and bespoke release provisions apply.  But let’s do a twenty-second recap on those anyway, just as a reminder, and get them out of the way before we get into the more ‘regular’ sentences that cause all the real trouble.  

Life sentence prisoners serve the stated minimum term and are then eligible for release if the parole board says they are fit for release.  If not, they remain in custody until such time as the parole board releases them (if ever).  Then they are on licence for life.

Offenders of particular concern are those convicted of penetrative sexual offences committed against under 13s, and of some terrorism offences.  They receive the appropriate custodial sentence, then get an extra year of licence added on.  They always serve two-thirds of the custodial term before being eligible for release. They are not released automatically.  If the parole board does release them, they are on licence for the balance of the custodial term, plus the extra year.  If the parole board doesn’t release them, they serve the full custodial term and then come out with the additional year of licence still to do.  See s278 Sentencing Act 2020 if you need to.  

Dangerous offenders on extended determinate sentences are dealt with in a very similar way to offenders of particular concern.  They are given a custodial term and an extended licence period.  They serve two-thirds of the custodial term and then are eligible for release, at the discretion of the parole board.  If they are released then they serve the balance of the custodial period, plus the extension, on licence.  If the parole board doesn’t let them out after two-thirds, then they serve the full custodial period inside and the extension period on licence.  

Standard determinate sentences

With those out of the way, let’s turn to the real focus of this note, which is the ‘standard’ determinate sentences which are most commonly encountered in practice, especially at the junior criminal Bar.

We start here….

The (new) general rule – serve 40% before automatic release on licence

According to s244 of the CJA 2003, the general rule is that an offender serving a standard determinate sentence of any length will be automatically released after having served no more than one-half of that sentence. 

But that general rule has been amended so much recently, almost beyond logic now, that it applies to fairly few sentences.  In fact, I find it is easier to think of the general rule as being that a prisoner serving a standard determinate sentence will be released after serving no more than 40% of the sentence declared in court, and then to think about exceptions to that rule.

That is 40%, regardless of the sentence length.  If your offending is non-violent, non-sexual, non-terrorism and non-domestic in nature, then you are almost certainly going to be serving 40% before automatic release, no matter how long the sentence is. So that includes all your drugs offences, all your non-violent dishonesty etc.   

Exception group 1 – offences which are always excluded – serve 50% before automatic release on licence

There are a number of offences which our lawmakers have decided should not benefit from release at 40% in any circumstances.  Those offences are listed in the schedule to the snappily-titled Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024.  

There are quite a lot of them, but generally they are sexual offences, domestic violence offences and racially/religiously aggravated offences.  They include breaches of non-molestation and restraining orders, stalking, controlling and coercive behaviour, everything under the Sexual Offences Acts 1956 and 2003 and strangulation.  

If your offence is sexual in nature, involves domestic control, or is in that general sphere, go and look at the schedule to the Order.  If the offence is in that schedule, then, regardless of the sentence length, you are serving 50% before automatic release.  

Exception group 2 – sentences of 4 years+ for violent offences – serve 50% before automatic release

There is a further category of offences where the offender must serve 50% before being automatically released if they receive a sentence of 4 years or more.   

Those offences are listed in part 1 of Schedule 15 to the Criminal Justice Act 2003.  This is a long list of offences, but it includes all violence at and above s47 level, threats to kill, child cruelty, robbery, criminal damage (not just arson), burglary with intent to do GBH or cause damage, riot, violent disorder and affray, the s4 and s4A harassment/stalking offences, strangulation and suffocation.  For any offence in that schedule, if you get 4 years+, you are serving 50%.  

If this list looks familiar, that will be because it is – it is the same list which defines those offences of a violent nature for which a defendant might be found dangerous and therefore receive an extended sentence.  It is worth recognising that the schedule was drafted for that purpose, and has then been re-deployed as a convenient list of offences for the exceptions to the 40% rule, so there are some anomalies to be found – nobody is getting 4 years or more for an affray, for example.

But wait, there’s more.   We haven’t dealt with the two-thirds release provisions yet….

Exception group 3 – sentences of 4 years+ for homicide, s18 and life-max sexual offences – serve 2/3rds before automatic release

You are staying in custody until you reach the two-thirds point if you get 4 years or more for an offence listed in s244ZA(7) of the Criminal Justice Act 2003 – manslaughter, soliciting murder and (much more commonly-encountered) s18 wounding/GBH with intent, as well as the ancillary and inchoate offences related to them.  This also applies to any sexual offence listed in part 2 of Schedule 15 which has a statutory maximum of life imprisonment.   In such a case, the defendant will serve 2/3rds before being automatically released on licence.

Exception group 4 – sentences of 7 years+ for life-max violence/sexual offending – serve 2/3rds before automatic release

And finally… an offender is also serving two-thirds before being automatically released if they receive a sentence of 7 years or more for an offence which is listed in part 1 or part 2 of Schedule 15 to the Criminal Justice Act 2003  and which has a maximum of life imprisonment for an adult.  

Takeaways

The key message here is that if your case involves violence, domestic abuse or sexual offending, then it’s likely to fall outside the 40% rules, and you will need to check the fine detail of the legislation before the hearing so you are ready to help the judge get it right, and to advise your client if you’re defending.  

To recap…

• If the sentence is for something non-violent, non-sexual, non-domestic-violence and non-terrorism, it will almost certainly result in the defendant being automatically released after 40% of the sentence.
• If it’s violence, sexual offending or domestic-violence-related, it will be at least 50% to serve.  Get familiar with the offences in Schedule 1 Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 – there are a lot of commonly-encountered offences in there.    
• If the offence is violent or sexual and it has a theoretical life sentence maximum, it will almost certainly be two-thirds to serve before automatic release.