Criminal Justice Act 2003, section 246A

Release on licence of prisoners serving extended sentence under section 254, 266 or 279 of the Sentencing Code etc

Part 12 Sentencing

(1) This section applies to a prisoner (“P”) who is serving an extended sentence imposed under section 226A or 226B [F346 or under section 254, 266 or 279 of the Sentencing Code F346] [F347 , other than a prisoner to whom section 247A applies F347] .

(2)It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the requisite custodial period for the purposes of this section [F348 if—

(a)the sentence was imposed before the coming into force of section 4 of the Criminal Justice and Courts Act 2015,

(b)the appropriate custodial term is less than 10 years, and

(c)the sentence was not imposed in respect of an offence listed in Parts 1 to 3 of Schedule 15B or in respect of offences that include one or more offences listed in those Parts of that Schedule.F348]

(3)[F349 In any other caseF349] , it is the duty of the Secretary of State to release P on licence in accordance with subsections (4) to (7).

(4)The Secretary of State must refer P's case to the Board—

(a)as soon as P has served the requisite custodial period, and

(b)where there has been a previous reference of P's case to the Board under this subsection and the Board did not direct P's release, not later than the second anniversary of the disposal of that reference.

(5)It is the duty of the Secretary of State to release P on licence under this section as soon as—

(a)P has served the requisite custodial period, and

(b)the Board has directed P's release under this section.

(6)The Board must not give a direction under subsection (5) unless—

(a)the Secretary of State has referred P's case to the Board, and

(b)the Board is satisfied that it is no longer necessary for the protection of the public that P should be confined.

[F350 (6A)Sections 246B and 246C contain provision that relates to the Board's function of giving directions under subsection (5) for the release of P.F350]

(7)It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the appropriate custodial term, unless P has previously been released on licence under this section and recalled under section 254 (provision for the release of such persons being made by section 255C).

(8)For the purposes of this section—

  • “appropriate custodial term” means the term determined as such by the court under section 226A or 226B [F351 or under section 254, 266 or 279 of the Sentencing Code F351] (as appropriate);

  • “the requisite custodial period” means—

    (a)

    in relation to a person serving one sentence, two-thirds of the appropriate custodial term, and

    (b)

    in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and [F352 264(2B), (2D) or (2E)F352] .F344]

Definitions used in section 246A 6

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
licence

“licence” means a licence under Chapter 6;

Defined in s.305(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 Board

“the Board” means the Parole Board;

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

“court” (without more), except in Chapter 7, does not include a service court , but this does not apply where a contrary intention appears from any provision of the Armed Forces Act 2006 ;

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

(2) In relation to such an application or reference, any reference to “the court” in section 269(2) to (5) and Schedule 21 is to be read as a reference to the High Court.

Defined in Sch.22 para.11(2) · see it in the full Act

Cases considering section 246A 14

R v Secretary of State for Justice

[2018] UKSC 59 · 28 November 2018

The section generally postpones an extended-sentence prisoner’s parole eligibility until two-thirds of the appropriate custodial term and conditions release on the Parole Board’s public-protection assessment. The majority held that this difference was not unlawful discrimination. (see paras [1]-[3]; [89]; [154]-[156]; [201]) The subsection provided automatic release at the relevant point for certain shorter extended sentences imposed before the specified legislative change. (see para [224]) An extended-sentence prisoner must be released at the end of the custodial term even if the Parole Board has not earlier found release safe. This materially distinguished the regime from life imprisonment. (see para [193]) Lord Mance would have declared the requirement to serve two-thirds of the relevant custodial period incompatible with articles 5 and 14. That was the dissenting conclusion and did not form the court’s order. (see para [248])

Baker & Anor v R.

[2020] EWCA Crim 176 · 19 February 2020Limits

The court held that delayed release after two-thirds of the custodial term must be ignored when deciding whether an extended sentence is appropriate. (see paras [32]-[35])

Solloway & Anor

[2019] EWCA Crim 454 · 8 March 2019

For an extended sentence with a custodial term of ten years or more, completion of two-thirds makes the prisoner eligible for release; the Parole Board decides whether release is appropriate in light of risk. The judge’s contrary explanation did not make the sentence erroneous or excessive. (see paras [57]; [60]; [61])

What each judgment says about section 246A is in the case-law panel in the full Act.

Amendments and notes

9 notes from legislation.gov.uk

Amendments

  1. F344S. 246A inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), ss. 125(3), 151(1); S.I. 2012/2906, art. 2(e)
  2. F345Words in s. 246A heading substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 225(2) (with Sch. 27); S.I. 2020/1236, reg. 2
  3. F346Words in s. 246A(1) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 225(3) (with Sch. 27); S.I. 2020/1236, reg. 2
  4. F347Words in s. 246A(1) inserted (26.2.2020) by Terrorist Offenders (Restriction of Early Release) Act 2020 (c. 3), ss. 2(6), 10(4)
  5. F348Words in s. 246A(2) substituted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 4(2), 95(1); S.I. 2015/778, art. 3, Sch. 1 para. 4
  6. F349Words in s. 246A(3) substituted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 4(3), 95(1); S.I. 2015/778, art. 3, Sch. 1 para. 4
  7. F350S. 246A(6A) inserted (4.1.2021) by Prisoners (Disclosure of Information About Victims) Act 2020 (c. 19), ss. 2(3), 3(2); S.I. 2020/1537, reg. 2
  8. F351Words in s. 246A(8) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 225(4) (with Sch. 27); S.I. 2020/1236, reg. 2
  9. F352Words in s. 246A(8) substituted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 144(6), 208(5)(p)