Criminal Justice Act 2003, section 255A

Further release after recall: introductory

Part 12 Sentencing

[F448 (1)This section applies for the purpose of identifying which of sections 255B and 255C governs the further release of a person who has been recalled under section 254.

(2)The Secretary of State must, on recalling a person other than an extended sentence prisoner [F449 , a serious terrorism prisoner or a prisoner whose case was referred to the Board under section 244ZBF449] , consider whether the person is suitable for automatic release.

F450(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F451 (4)A person is suitable for automatic release only if—

(a)[F452 the person meets the conditions in subsection (4ZA),F452]

(b)where paragraph (a) does not apply, the Secretary of State is satisfied that the person will not present a risk of serious harm to members of the public if released at the end of the automatic release period.

[F453 (4ZA)The conditions referred to in subsection (4)(a) are—

(a)that the person is aged 18 or over;

(b)that the person is serving a sentence of less than four years;

(c)that the person is not serving a sentence in respect of an offence listed in Schedule 19AA (offences where offender not suitable for automatic release);

(d)that the person is not serving a fixed-term sentence imposed in respect of an offence within section 247A(2) (terrorist prisoners);

(e)that the person does not fall within paragraph (aa) or (c) of section 325(2) (relevant terrorist offenders, etc);

(f)that the person has not been recalled on account of being charged with an offence;

(g)that the person is not being managed at level 2 or 3, as specified in guidance for the time being issued under section 325(8), by a responsible authority under arrangements made under that section (arrangements for assessing etc risks posed by certain offenders).F453]

F454(4A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F451]

(5)The person must be dealt with—

(a)in accordance with section 255B if suitable for automatic release;

(b)in accordance with section 255C otherwise.

[F455 but that is subject, where applicable, to section 243A(2) (unconditional release).F455]

(6)For the purposes of this section, a person returns to custody when that person, having been recalled, is detained (whether or not in prison) in pursuance of the sentence.

(7) An “extended sentence prisoner” is a prisoner serving an extended sentence imposed under—

(a)section [F456 226A, 226B,F456] 227 or 228 of this Act, F457...

[F458 (aa)section 254, 266 or 279 of the Sentencing Code, orF458]

(b)section 85 of [F459 the PCC(S)A 2000F459] ;

and paragraph (b) includes (in accordance with paragraph 1(3) of Schedule 11 to [F459 the PCC(S)A 2000F459] ) a reference to section 58 of the Crime and Disorder Act 1998.F448]

[F460 (7A) A “serious terrorism prisoner” is a prisoner serving a serious terrorism sentence imposed under section 268A or 282A of the Sentencing Code. F460]

[F461 (8)Automatic release” means release at the end of the automatic release period.

(9) In the case of a person recalled under section 254 while on licence under a provision of this Chapter other than section 246, “the automatic release period” means—

(a)where the person is serving a sentence of less than 12 months, the period of 14 days beginning with the day on which the person returns to custody;

(b)where the person is serving a sentence of 12 months or more, the period of 28 days beginning with that day.

(10) In the case of a person recalled under section 254 while on licence under section 246, “the automatic release period” means whichever of the following ends later—

(a)the period described in subsection (9)(a) or (b) (as appropriate);

(b)the requisite custodial period which the person would have served under section 243A or 244 but for the earlier release.F461,F447]]

[F448 (1)This section applies for the purpose of identifying which of sections 255B, 255BA and 255C governs the further release of a person who has been recalled under section 254.

(2)In this section—

(a) subsections (3) to (6) apply to a person who is serving only one or more sentences imposed under section 250 of the Sentencing Code or section 91 of the PCC(S)A 2000 (a “relevant young offender”);

(b)subsections (7) and (8) apply to other persons.

(3)The Secretary of State must, on recalling a relevant young offender other than an offender whose case was referred to the Board under section 244ZB, consider whether the offender is suitable for release at the end of the section 255B automatic release period (see section 255B(1A) and (1B) for the meaning of this period).

(4)A relevant young offender is suitable for release at the end of the section 255B automatic release period only if—

(a)the offender—

(i)is aged 18 or over,

(ii)is serving a sentence of less than 12 months,

(iii)has not been recalled on account of being charged with a serious offence, and

(iv)is not being managed at level 2 or 3, as specified in guidance for the time being issued under section 325(8), by a responsible authority under arrangements made under that section (arrangements for assessing etc risks posed by certain offenders), or

(b)where paragraph (a) does not apply, the Secretary of State is satisfied that the offender will not present a risk of serious harm to members of the public if released at the end of the section 255B automatic release period.

(5) For the purposes of subsection (4)(a)(iii), “serious offence” means—

(a)murder, or

(b)an offence listed in Schedule 18 to the Sentencing Code.

(6)A relevant young offender must be dealt with—

(a)in accordance with section 255B if suitable for release at the end of the section 255B automatic release period;

(b)in accordance with section 255C otherwise,

but that is subject, where applicable, to section 243A(2) (unconditional release).

(7)A person who is not a relevant young offender must be dealt with—

(a)in accordance with section 255BA if—

(i)the person is eligible for release at the end of the section 255BA automatic release period (see section 255BA(2) for the meaning of this period), and

(ii)the Secretary of State has not made a determination under subsection (5) of that section in relation to the person;

(b)in accordance with section 255C otherwise,

but that is subject, where applicable, to section 243A(2) (unconditional release).

(8)A person who is not a relevant young offender is eligible for release at the end of the section 255BA automatic release period except where the person—

(a)is an extended sentence prisoner,

(b)is serving a sentence imposed under section 236A or under section 265 or 278 of the Sentencing Code (prisoners serving sentences for offenders of particular concern),

(c)is serving a sentence imposed in respect of an offence within section 247A(2) (terrorist prisoners),

(d)is serving a sentence for an offence listed in Schedule 19ZB (offences involving or connected with terrorism or a threat to national security),

(e)is serving a sentence for an offence listed in Part 3 of Schedule 13 to the Sentencing Code (offences involving or connected with a threat to national security),

(f)is a relevant terrorist offender for the purposes of section 325(2)(aa) (see section 327),

(g)falls, immediately before being recalled, within section 325(2)(c) (persons considered to be persons who may be at risk of involvement in terrorism-related activity),

(h)is, immediately before being recalled, a person who is considered by the Secretary of State to be a person who may be at risk of involvement in foreign power threat activity within the meaning of Part 1 of the National Security Act 2023 (see section 33 of that Act),

(i)is being managed, immediately before being recalled, at level 2 or 3, as specified in guidance for the time being issued under section 325(8), by a responsible authority under arrangements made under that section (arrangements for assessing etc risks posed by certain offenders),

(j)is a person whose case was referred to the Board under section 244ZB (referral of high-risk offenders),

(k)has been recalled on account of being charged with an offence, or

(l)is a person to whom Part 2 or 3 of Schedule 20B applies (transitional cases).

(9) For the purposes of subsection (8)(a), an “extended sentence prisoner” is a prisoner serving an extended sentence imposed under—

(a)section 226A, 226B, 227 or 228 of this Act,

(b)section 254, 266 or 279 of the Sentencing Code, or

(c)section 85 of the PCC(S)A 2000,

and paragraph (c) includes (in accordance with paragraph 1(3) of Schedule 11 to the PCC(S)A 2000) a reference to section 58 of the Crime and Disorder Act 1998.

(10)The Secretary of State may by order—

(a)amend subsection (8) so as to—

(i)add a description of person;

(ii)alter or remove a description of person for the time being mentioned in the subsection;

(b)further amend this Act for the purpose of making provision which is consequential on provision made under paragraph (a).

(11)An order under subsection (10) may confer a function (including the exercise of a discretion) on the Secretary of State or another person, or description of person, specified in the order.F448]

Definitions used in section 255A 7

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 Board

“the Board” means the Parole Board;

Defined in s.268(1) · see it in the full Act
fixed-term sentence

and “fixed-term sentence” means a sentence falling within paragraph (a) or (b).

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
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
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
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

Cases considering section 255A 14

Oakes, R (on the application of) v Secretary of State for Justice & Ors

[2010] EWCA Civ 1169 · 22 October 2010Interprets

The court interprets section 255A as requiring an initial decision on eligibility and suitability for automatic release. Once a prisoner is lawfully found unsuitable, the statutory scheme moves to section 255C. (see paras [6]; [8]; [17]) The court treats subsection (1) as identifying which statutory provisions govern further release after recall. (see para [6]) The court notes that serious harm means death or serious personal injury, whether physical or psychological. This supports the distinction between the automatic-release test and the broader protection-of-the-public test. (see paras [9]; [19]) The court uses subsection (2) as part of the statutory process for identifying whether a recalled prisoner is eligible to be considered for automatic release. (see paras [6]; [8]) The court leaves open whether subsection (3) confers a general discretion, or whether satisfaction of subsection (5) is the only relevant criterion for suitability. The issue was unnecessary to decide. (see paras [12]; [17]) The court applies the 28-day period governing automatic release after recall as part of the statutory sequence. (see paras [6]; [8]; [17]) The court treats subsection (5) as the narrower suitability test for automatic release, concerning risk of serious harm to members of the public. It cannot be reapplied after a lawful decision to proceed under section 255C. (see paras [6]; [9]; [17]; [21]) The court applies subsection (6) as directing the statutory route to be followed after the suitability decision. A prisoner not found suitable for automatic release is dealt with under section 255C. (see paras [6]; [17]) The court holds that a recalled prisoner who is eligible but unsuitable for automatic release must be dealt with under section 255C. That statutory consequence prevents reassessment under section 255A(5). (see para [17])

Costello v R.

[2010] EWCA Crim 371 · 2 March 2010Defines

The court applied the eligibility structure for further release after recall. It showed that recall does not necessarily continue for the balance of the earlier sentence (see paras [15]-[17]). The court used the definition of automatic release as release after 28 days following return to prison. This demonstrated why the duration of administrative recall could not be assumed (see paras [15]-[17]).

King, R (on the application of) v The Parole Board

[2014] EWHC 564 (Admin) · 4 March 2014Interprets

Interprets the provision as requiring the Secretary of State to decide whether a recalled prisoner is suitable for automatic release by asking whether release would present a risk of serious harm to members of the public. This is a higher and distinct threshold from the later re-release test (see paras [42]-[45], [60]).

What each judgment says about section 255A is in the case-law panel in the full Act.

Amendments and notes

17 notes from legislation.gov.uk

Amendments

  1. F447Ss. 255A-255C and cross-heading substituted for ss. 255A-255D (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), ss. 114(1), 151(1) (with Sch. 15); S.I. 2012/2906, art. 2(d)
  2. F448S. 255A substituted (22.1.2026 for enabling the exercise of power to make regulations, 31.3.2026 for specified purposes and otherwise coming into force in accordance with reg. 4 of the commencing S.I.) by Sentencing Act 2026 (c. 2), ss. 30(2), 49(3)(c) (with s. 33(14)); S.I. 2026/86, regs. 3(b)(i), 4 text substituted for certain specified purposes only, see the commentary. Note: in some cases two versions of the measure may be present: the original version and substituted version.
  3. F449Words in s. 255A(2) substituted (28.4.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 132(6), 208(4)(p)
  4. F450S. 255A(3) omitted (1.2.2015) by virtue of Offender Rehabilitation Act 2014 (c. 11), ss. 9(4)(a), 22(1) (with Sch. 7 para. 5); S.I. 2015/40, art. 2(i)
  5. F451S. 255A(4)(4A) substituted for s. 255A(4) (2.4.2024) by The Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2024 (S.I. 2024/408), arts. 1(2), 2(2) (with art. 3)
  6. F452S. 255A(4)(a) substituted (2.9.2025 with application in accordance with art. 1(3) and with effect in accordance with art. 2(2)-(4) of the amending S.I.) by The Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2025 (S.I. 2025/833), arts. 1(3), 2(1), 3(3)
  7. F453S. 255A(4ZA) inserted (2.9.2025 with application in accordance with art. 1(3) and with effect in accordance with art. 2(2)-(4) of the amending S.I.) by The Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2025 (S.I. 2025/833), arts. 1(3), 2(1), 3(4)
  8. F454S. 255A(4A) omitted (2.9.2025 with application in accordance with art. 1(3) and with effect in accordance with art. 2(2)-(4) of the amending S.I.) by virtue of The Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2025 (S.I. 2025/833), arts. 1(3), 2(1), 3(5)
  9. F455Words in s. 255A(5) inserted (1.2.2015) by Offender Rehabilitation Act 2014 (c. 11), ss. 9(4)(c), 22(1) (with Sch. 7 para. 5); S.I. 2015/40, art. 2(i)
  10. F456Words in s. 255A(7)(a) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 20 para. 7; S.I. 2012/2906, art. 2(r)
  11. F457Word in s. 255A(7)(a) omitted (1.12.2020) by virtue of Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 228(a) (with Sch. 27); S.I. 2020/1236, reg. 2
  12. F458S. 255A(7)(aa) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 228(b) (with Sch. 27); S.I. 2020/1236, reg. 2
  13. F459Words in s. 255A(7) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 228(c) (with Sch. 27); S.I. 2020/1236, reg. 2
  14. F460S. 255A(7A) inserted (29.6.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(2)(v), Sch. 13 para. 9(6)(b)
  15. F461Ss. 255A(8)-(10) inserted (1.2.2015) by Offender Rehabilitation Act 2014 (c. 11), ss. 9(4)(d), 22(1) (with Sch. 7 para. 5); S.I. 2015/40, art. 2(i)

Modifications

  1. C37S. 255A(7) modified (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3); S.I. 2012/1236, reg. 2
  2. C38S. 255A(10) modified (10.9.2024 for specified purposes, 22.10.2024 in so far as not already in force) by The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 (S.I. 2024/844), arts. 1(2), 4