Criminal Justice Act 2003, section 246

Power to release prisoners on licence before required to do so

Part 12 Sentencing

(1)Subject to subsections (2) to (4), the Secretary of State may—

(a)F314,F316release on licence under this section a fixed-term prisoner[F313 , other than one to whom section 244ZA, 244A, 246A, 247, 247A or 247B or paragraph 4 or 24 of Schedule 20B applies,F313] ... at any time during the period of [F315365F315] days ending with the day on which the prisoner will have served the requisite custodial period, ...

F316(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Subsection (1)(a) does not apply in relation to a prisoner unless—

(a)the length of the requisite custodial period is at least 6 weeks, [F317and

(b)he has served—

(i)at least 4 weeks of that period, and

(ii)at least one-half of that period.F317]

F318(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsection (1) does not apply where—

F319(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F319(aa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F319(ab). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F320 (ac)the prisoner is one to whom section 244ZA would apply if—

(i)section 244ZA(4)(c), (5)(c) and (6)(c) were omitted,

(ii)the reference in section 244ZA(5)(a) to section 262 of the Sentencing Code were read as including a reference to section 96 of the PCC(S)A 2000, and

(iii)the reference in section 244ZA(6)(a) to section 250 of the Sentencing Code were read as including a reference to section 91 of the PCC(S)A 2000,F320]

(b)the sentence is for an offence under section 1 of the Prisoners (Return to Custody) Act 1995 (c. 16),

(c)the prisoner is subject to a hospital order, hospital direction or transfer direction under section 37, 45A or 47 of the Mental Health Act 1983 (c. 20),

(d)the sentence was imposed by virtue of paragraph 9(1)(b) or (c) or 10(1)(b) or (c) of Schedule 8 [F321, or paragraph 10(5)(c) or (d) or 11(2)(c) or (d) of Schedule 10 to the Sentencing Code,F321] in a case where the prisoner has failed to comply with a curfew requirement of a community order,

(e)the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42),

(f)the prisoner is liable to removal from the United Kingdom,

[F322 (fa)the prisoner’s case has been referred to the Board under section 244ZB,

(fb)a notice given to the prisoner under subsection (4) of that section is in force,F322]

(g)the prisoner has been released on licence under this section [F323during the currency of the sentenceF323] , and has been recalled to prison under section 255(1)(a) [F324(and the revocation has not been cancelled under section 255(3))F324] ,

[F325 (ga)the following apply—

(i)the prisoner has been released on licence under this section in relation to a previous sentence and has been recalled to prison under section 255(1)(a) (and the revocation of the licence has not been cancelled under section 255(3)), and

(ii)the requisite custodial period in relation to the previous sentence ended less than 2 years before the day on which the current sentence began,

(gb)the following apply—

(i)the prisoner has been released on licence under section 34A of the Criminal Justice Act 1991 in relation to a previous sentence and has been recalled to prison under section 38A(1)(a) of that Act (and the revocation of the licence has not been cancelled under section 38A(3) of that Act), and

(ii)the requisite custodial period in relation to the previous sentence ended less than 2 years before the day on which the current sentence began,F325]

(h)F326the prisoner has been released on licence under section 248 during the currency of the sentence, and has been recalled to prison under section 254, ...

(ha)F327. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . or

(i)F330in the case of a prisoner[F328 to whom section 240ZA applies or a direction under section 240A [F329 or under section 325 of the Sentencing CodeF329] relatesF328] , the interval between the date on which the sentence was passed and the date on which the prisoner will have served the requisite custodial period is less than 14 days ... .

F331(4ZA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F332 (4A)In subsection (4)—

(a)the reference in paragraph (d) to a community order includes a service community order or overseas community order under the Armed Forces Act 2006; and

(b)the reference in paragraph (i) to [F333 section 240ZA includesF333] section 246 of that Act.F332]

(5)The Secretary of State may by order—

(a)F334amend the number of days for the time being specified in subsection (1)(a) ... or (4)(i),

(b)amend the number of weeks for the time being specified in subsection (2)(a) or (b)(i), and

(c)F335amend the fraction for the time being specified in subsection (2)(b)(ii) ... .

(6)In this section—

  • F336 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • F337,F337 “the requisite custodial period” in relation to a person serving any sentence ... , has the meaning given by [F338 paragraph (a) or (b) of section 243A(3) or (as the case may be) F338] paragraph (a) ... or (d) of section 244(3);

  • F339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • [F340 “term of imprisonment” includes a determinate sentence of detention under section 91 or 96 of [F341 the PCC(S)A 2000, under section 250, 254, 262, 265, 266, 278 or 279 of the Sentencing Code F341] or under section [F342 226A, 226B, F342] 227 [F343 , 228 or 236A F343] of this Act. F340]

Definitions used in section 246 9

licence

“licence” means a licence under Chapter 6;

Defined in s.305(1) · see it in the full Act
fixed-term prisoner

(1) In this Chapter “fixed-term prisoner” means—

(a)a person serving a sentence of imprisonment for a determinate term, or

(b)a person serving a determinate sentence of detention under section 91 or 96 of the PCC(S)A 2000, under section 226A, 226B, 227 , 228 or 236A of this Act or under section 250 , 252A , 254, 262, 265, 266 or 268A of the Sentencing Code .

Defined in s.237(1) · see it in the full Act

“fixed-term prisoner” and “fixed-term sentence” have the meaning given by section 237(1) (as extended by section 237(1B));

Defined in s.268(1) · see it in the full Act
prisoner

(2) In this Chapter, unless the context otherwise requires, “prisoner” includes a person serving a sentence falling within subsection (1)(b); and “prison” includes any place where a person serving such a sentence is liable to be detained.

Defined in s.237(2) · see it in the full Act

“prison” and “prisoner” are to be read in accordance with section 237(2);

Defined in s.268(1) · see it in the full Act
the requisite custodial period

(1A) In this Chapter, “the requisite custodial period” means (except where it has the meaning given by section 247A(8)) —

(a)in relation to a person serving an extended sentence imposed under section 226A or 226B or under section 254, 266 or 279 of the Sentencing Code , the requisite custodial period for the purposes of section 246A;

(b)in relation to a person serving an extended sentence imposed under section 227 or 228, the requisite custodial period for the purposes of section 247;

(c)in relation to a person serving a sentence imposed under section 236A or under section 252A, 265 or 278 of the Sentencing Code , the requisite custodial period for the purposes of section 244A;

(ca)in relation to a prisoner whose case has been referred to the Parole Board under section 244ZB, the requisite custodial period for the purposes of section 244ZC;

(d)in relation to any other fixed-term prisoner, the requisite custodial period for the purposes of section 243A , 244 or 244ZA (as appropriate).

Defined in s.268(1A) · see it in the full Act
the PCC(S)A 2000

“the PCC(S)A 2000” means the Powers of Criminal Courts (Sentencing) Act 2000 ;

Defined in s.305(1) · see it in the full Act
curfew requirement

“curfew requirement”, in relation to a community order, ... or suspended sentence order, has the meaning given by paragraph 9(1) of Schedule 9 to the Sentencing Code ;

Defined in s.305(1) · see it in the full Act
community order

“community order” has the meaning given by section 200 of the Sentencing Code ;

Defined in s.305(1) · see it in the full Act
the Board

“the Board” means the Parole Board;

Defined in s.268(1) · see it in the full Act
prison

(2) In this Chapter, unless the context otherwise requires, “prisoner” includes a person serving a sentence falling within subsection (1)(b); and “prison” includes any place where a person serving such a sentence is liable to be detained.

Defined in s.237(2) · see it in the full Act

“prison” and “prisoner” are to be read in accordance with section 237(2);

Defined in s.268(1) · see it in the full Act

Cases considering section 246 34

R v Secretary of State for Justice

[2014] UKSC 39 · 2 July 2014

The provision authorises discretionary release on licence during the period before the requisite custodial period ends. The court treated release under it as part of the administration of the original determinate sentence, not as a basis for a new article 5(4) review. (see paras [5]; [10]; [58])

R (on the application of Noone) v The Governor of HMP Drake Hall and another

[2010] UKSC 30 · 30 June 2010Interprets

The provision permits home detention curfew release up to 135 days before completion of the aggregated requisite custodial period, subject to its statutory restrictions. (see paras [15]; [36]-[37]; [70]) The provision sets the potential home detention curfew period at 135 days ending on completion of the requisite custodial period. It was applied to the aggregate mixed sentence. (see paras [52]; [61]; [70]) For consecutive sentences, the definition links the requisite custodial period for home detention curfew to section 244(3)(d), and therefore to the aggregate under section 264(2). (see para [36])

R v Jordan Ian Linsay

[2026] EWCA Crim 692 · 15 May 2026Defines

The court identifies s 246 as the source of the Secretary of State’s power to order release on Home Detention Curfew. Because the later release decision depends on circumstances assessed at that time, its possibility cannot inform sentencing calculations. (see para [19])

14 more judgments, and what each says about section 246, are in the case-law panel in the full Act.

Explanatory note

576.This section relates to home detention curfew (HDC). The Crime and Disorder Act 1998 amended the Criminal Justice Act 1991 so that certain categories of prisoner, after being risk assessed, could spend the last part of their custodial sentence on HDC. HDC operates as a transitional phase immediately after leaving prison. Under the existing law in section 34A of the Criminal Justice Act 1991, an offender can be released up to 135 days early if he is assessed as suitable for HDC by the Prison Service. A curfew is imposed and the offender is monitored electronically to ensure he keeps to the terms of the curfew. If he violates the curfew or any standard condition of his licence (such as being of good behaviour) he is recalled to prison. HDC came into operation in 1999. Since that time there have been over 80,000 participants (around 3500 at any one time). The successful completion rate of HDC is 90%. The curfew condition is dealt with in section 253.

577.Subsection (1) maintains the maximum period available for HDC at 135 days. Subsection (6)also gives the Secretary of State the power to amend by order the period available for HDC. Not all prisoners are eligible for release under the HDC scheme. Those ineligible include prisoners serving one of the sentences applicable to dangerous offenders, and prisoners who are liable to deportation. Also, prisoners who have less than 14 days to serve of their required custodial period following sentence (e.g. due to remand time being deducted from the required custodial period) are not eligible for HDC. Ineligible categories are specified in subsection (4). Subsections (1), (2) and (3) have the effect of providing for the period spent on HDC to be tapered according to the length of sentence. Subsection (1)(b) provides for prisoners serving a sentence of intermittent custody. As with normal prison sentences, on intermittent custody the offender will spend a number of days on HDC equal to the days he would have spent in custody had he not received HDC.

All the explanatory notes for the Act

Amendments and notes

33 notes from legislation.gov.uk

Amendments

  1. F314Words in s. 246(1)(a) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 10 para. 23(2)(a); S.I. 2012/2906, art. 2(h)
  2. F316S. 246(1)(b) and preceding word omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 10 para. 23(2)(b); S.I. 2012/2906, art. 2(h)
  3. F313Words in s. 246(1) inserted (17.6.2024) by Victims and Prisoners Act 2024 (c. 21), ss. 68(2), 81(2); S.I. 2024/755, reg. 2
  4. F315Word in s. 246(1)(a) substituted (3.6.2025) by The Home Detention Curfew and Requisite and Minimum Custodial Periods (Amendment) Order 2024 (S.I. 2024/1331), arts. 1(2), 2
  5. F317S. 246(2)(b) and word substituted (14.7.2008) for s. 246(2)(b) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 24, 153; S.I. 2008/1586, art. 2(1), Sch. 1 para. 11
  6. F318S. 246(3) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 10 para. 23(3); S.I. 2012/2906, art. 2(h)
  7. F319S. 246(4)(a)-(ab) omitted (17.6.2024) by virtue of Victims and Prisoners Act 2024 (c. 21), ss. 68(3)(a), 81(2); S.I. 2024/755, reg. 2
  8. F320S. 246(4)(ac) inserted (17.6.2024) by Victims and Prisoners Act 2024 (c. 21), ss. 68(3)(b), 81(2); S.I. 2024/755, reg. 2
  9. F321Words in s. 246(4)(d) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 224(2)(b) (with Sch. 27); S.I. 2020/1236, reg. 2
  10. F322S. 246(4)(fa)(fb) inserted (28.4.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 132(5), 208(4)(p)
  11. F323Words in s. 246(4)(g) substituted (17.6.2024) by Victims and Prisoners Act 2024 (c. 21), ss. 68(3)(c), 81(2); S.I. 2024/755, reg. 2
  12. F324Words in s. 246(4)(g) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), ss. 112(3)(b), 151(1) (with Sch. 15); S.I. 2012/2906, art. 2(d)
  13. F325S. 246(4)(ga)(gb) substituted for s. 246(4)(ga) (17.6.2024) by Victims and Prisoners Act 2024 (c. 21), ss. 68(3)(d), 81(2); S.I. 2024/755, reg. 2
  14. F326Word in s. 246(4)(h) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), ss. 112(4), 151(1) (with Sch. 15); S.I. 2012/2906, art. 2(d)
  15. F327S. 246(4)(ha) omitted (17.6.2024) by virtue of Victims and Prisoners Act 2024 (c. 21), ss. 68(3)(e), 81(2); S.I. 2024/755, reg. 2
  16. F330Words in s. 246(4)(i) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 10 para. 23(4); S.I. 2012/2906, art. 2(h)
  17. F328Words in s. 246(4)(i) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), ss. 110(9)(a), 151(1) (with Sch. 15); S.I. 2012/2906, art. 2(d)
  18. F329Words in s. 246(4)(i) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 224(2)(d) (with Sch. 27); S.I. 2020/1236, reg. 2
  19. F331S. 246(4ZA) omitted (17.6.2024) by virtue of Victims and Prisoners Act 2024 (c. 21), ss. 68(4), 81(2); S.I. 2024/755, reg. 2
  20. F332S. 246(4A) inserted (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383, Sch. 16 para. 221; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4 this amendment is subject to savings and/or transitional provisions, see the commentary.
  21. F333Words in s. 246(4A)(b) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), ss. 110(9)(b), 151(1) (with Sch. 15); S.I. 2012/2906, art. 2(d)
  22. F334Words in s. 246(5)(a) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 10 para. 23(5)(a); S.I. 2012/2906, art. 2(h)
  23. F335Words in s. 246(5)(c) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 10 para. 23(5)(b); S.I. 2012/2906, art. 2(h)
  24. F336Words in s. 246(6) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 10 para. 23(6)(a); S.I. 2012/2906, art. 2(h)
  25. F337Words in s. 246(6) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 10 para. 23(6)(b); S.I. 2012/2906, art. 2(h)
  26. F338Words in s. 246(6) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 14 para. 7; S.I. 2012/2906, art. 2(l)
  27. F339Words in s. 246(6) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 10 para. 23(6)(c); S.I. 2012/2906, art. 2(h)
  28. F340Words in s. 246(6) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), ss. 112(6), 151(1) (with Sch. 15); S.I. 2012/2906, art. 2(d)
  29. F341Words in s. 246(6) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 224(3) (with Sch. 27); S.I. 2020/1236, reg. 2
  30. F342Words in s. 246(6) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 20 para. 5(3); S.I. 2012/2906, art. 2(r)
  31. F343Words in s. 246(6) substituted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), s. 95(1), Sch. 1 para. 7(3); S.I. 2015/778, art. 3, Sch. 1 para. 72

Modifications

  1. C36S. 246 excluded (1.12.2020) by Sentencing Act 2020 (c. 17), ss. 237(5), 416(1) (with ss. 2, 398(1), 406, Sch. 27); S.I. 2020/1236, reg. 2

Commencement

  1. I103S. 246 wholly in force at 4.4.2005; s. 246 not in force at Royal Assent, see s. 336(3); s. 246(1)(b)(3)(4)(b)-(i)(5)(6) in force for certain purposes at 26.1.2004 by S.I. 2003/3282, art. 2, Sch.; s. 246(5) in force at 7.3.2005 by S.I. 2005/373, art. 2; s. 246 in force in so far as not already in force at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 19 (subject to art. 2(2), Sch. 2)