Criminal defence solicitors should be clued up on what to do if their client is unlawfully detained, a prominent member of the Law Society’s criminal law committee has said, as the government prepares to release 5,500 prisoners earlier than planned to tackle the prison population crisis.

A temporary measure announced by lord chancellor Shabana Mahmood in July - lowering the automatic release point for certain custodial sentences from 50% to 40% - will lead to 5,500 offenders being released between September and October. The scheme, known as ‘SDS40’, will begin on 10 September.

Writing in the Gazette today, solicitor Dr Laura Janes, a member of the Society’s criminal law committee, said the complex array of different provisions that could result in automatic or discretionary release earlier than expected is likely to cause confusion and stress for clients and their solicitors.

Janes said: ‘There is a risk that if a person is released early and then recalled, then they will spend the remaining 60% or more of their sentence in custody. It is therefore really important to ensure that good release planning takes place and people are not released and set up to fail.

‘There is a clear and ancient remedy when a person is deprived of their liberty without any lawful authority. It is the legal principle of habeas corpus, literally meaning possession of your body, and by extension your liberty.

‘It is vital, now more than ever, that criminal practitioners are aware of how to activate this remedy when they think that there is a prima facie case that their clients have been unlawfully detained.’

The forthcoming release of 5,550 prisoners under SDS40 will be Shabana Mahmood’s first major test as lord chancellor. The number of remaining prison places has been dominating recent headlines. Meanwhile, Martin Jones, the chief inspector for probation, told The Times this week that it was realistic to expect that some of those released earlier than planned will reoffend during a period when they would have been in prison.

‘I think it’s inevitable, being realistic about it, that things will go wrong. I wish we could live in a perfect world where that doesn’t happen. What I think you should, you should start to see, at least, is that if people have to focus on those, that they start to identify where things go wrong, and they draw lessons from that quite quickly.’

A Ministry of Justice spokesperson said: 'The new government inherited a prison system in crisis, which is putting pressure on the wider justice system particularly probation staff. Because of this, the government has been forced into taking difficult but necessary action so it can keep locking up dangerous criminals and protect the public.'

'The new lord chancellor announced in July that she was scrapping the old early release scheme introduced by the previous government and replacing it with a system which gives probation staff more time to prepare for a prisoner’s release. The government has also set out plans to recruit over 1,000 new trainee probation officers by March 2025 to meet additional demand.'

 

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