More prisoners to be released two thirds of the way through sentence than halfway

“For the most serious violent and sexual offenders, I’m announcing this Conservative Government will abolish automatic early release at the halfway point.

“These criminals will be required to serve two-thirds of their sentence behind bars.”

Robert Buckland MP, 1 October 2019

At the Conservative party conference last week, justice secretary Robert Buckland pledged to make it mandatory for the most serious violent and sexual offenders to serve two thirds of their sentence in prison (and not half the sentence as is normal). 

The Ministry of Justice told us this would apply to “the most serious sexual and violent offenders where the offence carries a maximum life sentence.”

However, to suggest that the most serious criminals are automatically released from prison halfway through their sentences obscures the fact that judges already have discretion to keep serious criminals in prison for longer.

How sentencing works

There are various sentences a judge can hand down and in most cases sentences are non-custodial (where no time is served in prison). By far the most common sentence for crimes in England and Wales is a fine, but what’s of interest here are sentences which carry mandatory prison time. 

Typically in these cases a criminal will be given a standard determinate sentence. This usually requires them to spend half of their sentence in prison and the other half on license in the community, supervised by the probation service. For example, a standard two year sentence would involve one year in prison and one year on license. Being on licence means you can be recalled to prison if you breach the terms of your licence.

As well as standard sentences, judges in England and Wales can hand down what are called ‘extended determinate sentences’ to criminals who commit any of over 100 serious offences.

The judge can make this decision if:

• The criminal is sentenced to at least four years in prison or has a previous conviction for a serious offence
• A sentence of imprisonment for life is not available or justified
• The judge thinks they pose a significant risk to the public.

These offenders are either entitled to be released two thirds of the way through their sentence, or can apply for parole at that point.

Life sentences work slightly differently. With a life sentence a criminal is required to spend a minimum time in prison and is then able to apply for parole. If they are released, they remain on license for the rest of their life.

How does the new policy differ from what is already in place?

Compared to existing extended sentences, the Conservatives’ proposal appears to apply to criminals who commit a slightly different group of offences (those that carry a maximum of life rather than this list of serious offences). There is also apparently no requirement for a judge to determine if a criminal poses a risk to the public when giving this new kind of sentence.

While the current sentencing procedure does not dramatically change the ability to put serious criminals in prison for two thirds  of their term, it would, in practice, significantly increase the number of criminals receiving two thirds sentences. That’s because judges rarely hand down extended sentences.

The Ministry of Justice says that in 2018 there were around 4,000 standard sentences with halfway  release handed down to criminals who committed sexual or violent offences which carry the maximum penalty of life.

By comparison, in 2018 judges in England and Wales handed down 398 extended sentences.

There is an open question over whether the policy would in fact lead to serious criminals spending more time in prison, because it’s possible that judges could change how they currently sentence.

Criminal barrister and author of definitive sentencing guide Banks on Sentence Harry O’Sullivan told us: “The availability of automatic release at the halfway point, rather than the possibility of release on licence after two-thirds, subject to Parole Board approval, is clearly a factor which judges consider when sentencing…

“For the proposed policy to have any impact, judges will be required to continue sentencing exactly as before, with no (numerical) regard to the fact that certain offenders would now effectively serve longer.

“This would be contrary to the long-trusted principle that the sentencing judge should be afforded broad discretion to determine the fair, just and proportionate sentence in the circumstances.

“Some sentencers may feel duty- bound to adjust the numerical sentence they impose to achieve a just result if release eligibility is entirely lifted from the scope of their decision in these cases.”