Prison overcrowding has dominated headlines since day one of the new administration. Yet the practical impact on people in custody resulting from various measures to deal with the crisis has received little attention.
For any solicitor working with clients in prison, 'when can I get out?' is usually the most burning and frequent question. Unfortunately, the answer now is far from simple and the complex array of different provisions that could result in either automatic release or discretionary release earlier than had been anticipated is bound to lead to confusion and stress for all concerned.
Gone are the days when sentences either required release by the parole board or release at a standard point in all sentences.
There are now many more instances where cases can be referred to the parole board. As well as all indeterminate and extended sentences, s132 of the Police Crime, Sentencing and Courts Act 2022 introduced a power to detain standard determinate sentence prisoners beyond their conditional release date where the Secretary of State for Justice believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public. The 2022 Act also extended the circumstances in which people serving sexual and violent offences are released automatically at the two-thirds point rather than the halfway point.
New release rules – SDS40
The much-publicised new release rules will now result in automatic release in certain cases at the 40% stage. The rules, known as SDS40, will only affect some sentences that would previously have resulted in release automatically at the halfway point.
The rules apply to sentences only and not categories of prisoner: if a person is serving concurrent sentences, it is possible that the rules will apply to one sentence but not another, and therefore the person may not be able to benefit from the provision.
They do not apply to Detention and Training Orders or to civil sentences. The rules do apply to all offence types unless the offence is expressly excluded. The statutory instrument sets out 56 offences that are excluded in its schedule to the order which include:
- Sexual offences
- Domestic abuse offences, including stalking, controlling and coercive behaviour in an intimate or family relationship and breach of a non-molestation order
- National security offences
- Violent offences with a sentence of four years or more
The rules are being introduced in two phases. They will apply to anyone serving a relevant sentence of under four years as of 10 September 2024. They will then be applied to anyone serving a relevant sentence of four years or more as of 22 October 2024.
They are not designed to be permanent and will be reviewed in 18 months’ time. Therefore, somebody in the early stages of a long sentence needs to know that it may no longer apply to them at the relevant time.
Impact of the changes on other release mechanisms
The new release rules simply bring the 50% rule forward to 40% where they apply. It is not a discretionary scheme which is subject to any kind of risk assessment. However, it does mean that anyone who is eligible for early discretionary release on Home Detention Curfew (HDC) on electronic tag and eligible for release under SDS40 will now find that the discretionary release date on HDC is likely to be earlier.
In a little publicised but important change, HDC eligibility was extended on 17 June 2024 to cover some sentences of four years or more, all of whom had previously been statutorily excluded from consideration. This means that some long-term prisoners could find themselves released significantly earlier than originally anticipated.
Early release but a longer recall?
As with all releases from prison, the person will be on licence and liable to recall. The recall rules remain exactly as they are for anyone released prior to the instruction of SDS40. 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.
What to do if it all goes wrong?
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.
An application can be made to the High Court for a writ of habeas corpus, which is essentially an order for the person to be released from detention or produced at court. Ideally, wherever possible, the application should be made in working hours.
However, there is always a judge on duty, and it can be made at any time. Legal aid funding is available under both civil and criminal legal aid contracts and the process is relatively straightforward. It is really important that criminal practitioners appraise themselves of the practical steps that need to be taken to secure a writ of habeas corpus contained in Part 87 of the Civil Procedure Rules and Practice Direction RSC 54.
The inevitable confusion around how the new provisions will operate is likely to increase the need for familiarity with this remedy. A recent example in anticipation of the new rules involved a young adult who was unlawfully detained on the basis that, as he would in due course be eligible under the SDS 40 rules, he could not be released until 10 September 2024. It is worth always having the relevant legal aid forms with you and taking instructions, in case the prison does not respond to correspondence. In this case, the young adult received a sentence that meant even under the current rules he should have been released several months ago, and yet he was taken back to custody and further detained.
The young adult was lucky to be represented in his criminal case by Claire Dissington of GT Stewart solicitors, who sought to challenge the failure to immediately release him. Unfortunately, despite being alerted to the judgment in Kim v HMP Wandsworth, the prison refused to reconsider its position and, working with Kate O’Raghallaigh of Doughty Street Chambers, Claire obtained a writ of habeas corpus out of hours. The prison then refused to comply with it until the next day and would not put the solicitor through to the duty governor.
Prisons are required to have an on-call duty governor who is contactable by telephone at all times. The duty governor has a responsibility to ensure that High Court orders are complied with. The young adult was eventually released the following morning and a judgment giving the reasons for the decision is expected later this year.
Laura Janes is a member of the Law Society’s criminal law committee
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