Criminal Justice Act 2003, section 255C

Prisoners excluded from automatic release under section 255B or 255BA

Part 12 Sentencing

[F474 (1) This section applies to a prisoner (“P”)—

(a)who is a relevant young offender and—

(i)whose case was referred to the Board under section 244ZB, or

(ii)who is not considered suitable for release at the end of the section 255B automatic release period (see sections 255A(4) and 255B(9)), or

(b)who is not a relevant young offender and—

(i)who is not a prisoner eligible for automatic release at the end of the section 255BA automatic release period (see section 255A(8)), or

(ii)who the Secretary of State has determined should not be released at the end of the section 255BA automatic release period (see section 255BA(5)).F474]

(2)The Secretary of State may, at any time after P is returned to prison, release P again on licence under this Chapter.

(3)The Secretary of State must not release P under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that P should remain in prison.

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

(a)if P makes representations under section 254(2) before the end of the period of 28 days beginning with the date on which P returns to custody, on the making of those representations, or

(b)if, at the end of that period, P has not been released under subsection (2) and has not made such representations, at that time.

[F475 (4A)The Board must not give a direction for P’s release on a reference under subsection (4) unless the Board is satisfied that it is not necessary for the protection of the public that P should remain in prison.F475]

(5)Where on a reference under subsection (4) the Board directs P's F476... release on licence under this Chapter, the Secretary of State must give effect to the direction.

(6)Subsection (7) applies if P is recalled before the date on which P would (but for the earlier release) have served the requisite custodial period for the purposes of section 243A or (as the case may be) section 244.

(7)Where this subsection applies—

(a)if P is released under this section before that date, P's licence must include a curfew condition complying with section 253, and

(b)P is not to be so released (despite subsection (5)) unless the Secretary of State is satisfied that arrangements are in place to enable that condition to be complied with.

(8)For the purposes of this section, P returns to custody when P, having been recalled, is detained (whether or not in prison) in pursuance of the sentence.F447]

[F477 (9) In this section, “relevant young offender” has the same meaning as in section 255A. F477]

Definitions used in section 255C 5

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
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
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 255C 28

King, R (On the Application Of) v The Secretary of State for the Home Department

[2016] EWCA Civ 51 · 9 February 2016Limits

The section’s structure makes the public protection condition applicable to both the Secretary of State and the Parole Board when considering further release after recall. (see paras [21]-[27]; [44]-[47]) The subsection provides the only power to release an extended-sentence prisoner, or a recalled prisoner unsuitable for automatic release, before sentence expiry. The Board’s direction requires the Secretary of State to exercise that power. (see paras [44]-[47]) The public protection condition applies to a Board direction under subsection (5) as well as to a release initiated by the Secretary of State. It requires safeguarding the public and excludes balancing risk against the benefits of early release. (see paras [22]-[27]; [31]-[41]) The subsection does not create a separate, unconditional power of release. A direction under it operates within the section’s scheme and remains subject to the public protection condition governing the subsection (2) power. (see paras [21]-[27]; [44]-[47])

Calder, R (on the application of) v Secretary of State for Justice

[2015] EWCA Civ 1050 · 15 October 2015

The provision governs referral of a recalled prisoner’s case to the Parole Board and the effect of a direction for immediate release (see paras [11]; [35]). The Secretary of State must refer a recalled prisoner’s case to the Parole Board whether or not representations are made within 28 days (see para [35]). Where the Parole Board directs immediate release on licence after a reference, the Secretary of State must implement that direction (see para [35]).

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

[2010] EWCA Civ 1169 · 22 October 2010Interprets

The court interprets section 255C as the governing regime once a prisoner is not found suitable for automatic release. The regime includes a broader release test and referral to the Parole Board. (see paras [7]; [10]; [17]) The court applies subsection (1) to the appellant as the provision making section 255C applicable to a prisoner eligible for automatic release but not considered suitable for it. (see paras [8]; [17]) The court applies subsection (2) as conferring a power to release the recalled prisoner again on licence, subject to the condition in subsection (3). (see paras [7]; [17]) The court interprets protection of the public as a broader test than risk of serious harm. It may include the risk of reoffending, so the narrower test in section 255A(5) cannot be read into subsection (3). (see paras [10]; [17]; [19]; [21]) The court applies subsection (4) as requiring referral of the recalled prisoner’s case to the Parole Board within the statutory timetable, depending on whether representations have been made. (see paras [7]; [8]; [17]) The court recognises that representations made within 28 days require referral to the Parole Board when they are made. (see paras [7]; [8]) The court recognises the alternative referral requirement arising at the end of the 28-day period where the prisoner has neither been released nor made representations. (see para [7])

8 more judgments, and what each says about section 255C, are in the case-law panel in the full Act.

Amendments and notes

9 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. F472S. 255C heading substituted (29.6.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(2)(v), Sch. 13 para. 9(7)(a)
  3. F473Words in s. 255C heading substituted (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. 33(8)(a), 49(1) (with s. 33(14)); S.I. 2026/86, regs. 3(b)(iv), 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.
  4. F474S. 255C(1) substituted (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. 33(8)(b), 49(1) (with s. 33(14)); S.I. 2026/86, regs. 3(b)(iv), 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.
  5. F475S. 255C(4A) inserted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 136(3), 208(1); S.I. 2022/520, reg. 5(o)
  6. F476Word in s. 255C(5) omitted (28.6.2022) by virtue of Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 139(2)(b), 208(1); S.I. 2022/520, reg. 5(o)
  7. F477S. 255C(9) inserted (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. 33(8)(c), 49(1) (with s. 33(14)); S.I. 2026/86, regs. 3(b)(iv), 4 text inserted for certain specified purposes only, see the commentary.

Modifications

  1. C40S. 255C applied (22.3.2026) by 1984 c. 27, Sch. para. 2B(5) (as inserted by Sentencing Act 2026 (c. 2), ss. 41(1), 49(4) (with s. 41(3)(4)))
  2. C41S. 255C(6) 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