Inside Out – How Long Will He Actually Serve?

Can you imagine a world where a 30-month prison sentence results in only six months served?

In the inaugural episode of The Legal Eagle Training podcast we explore the England & Wales sentencing structure. We'll dissect how the upcoming changes to early release policies and the home detention curfew scheme will reshape the way sentences are served, amidst the pressing issue of overcrowded prisons. From the abolition of the four-year rule to the effects of the Offender Rehabilitation Act of 2014, this episode provides a comprehensive look at how serving sentence requirements have evolved, especially for those convicted of serious crimes.

We also analyse the impact of the Police, Crime, Sentencing and Courts Act of 2022, which has profoundly altered the time served for various offenders. Highlighting the stark disparities in sentencing outcomes between adult offenders and youths, and the stringent new rules for those convicted of serious sexual or violent offences. With changes to the home detention curfew (HDC) scheme set to take effect in 2025, the landscape of early release is shifting. Our discussion sheds light on the contrasting experiences of different offenders, and what these legislative shifts mean for the future of sentencing.

As we navigate the maze of eligibility and exclusion criteria for early release schemes, hear about the critical role of good behaviour and community order adherence,  our insights into statutory exclusions, presumptions, and the Parole Board's influence on release outcomes. As we await the consequences of the actions taken in light of the Gauke Report, which promises to further shape future reforms, the episode offers valuable insights for legal professionals and the public alike, equipping listeners with the knowledge to navigate this complex legal terrain.

For more information or to book a place on a forthcoming course please visit legal-eagle-training.com.

What is The Legal Eagle Training Podcast?

Welcome to The Legal Eagle Training Podcast, we are your hosts, Colin Beaumont & Clive Smith. We are both barristers, with over 60 years of experience in criminal law behind them. Colin qualified as a barrister in 1982 and worked as a legal advisor for HMCTS for 12 years before re-qualifying as a solicitor and working for a major criminal firm as a partner and consultant for 20 years. Clive was called to the Bar in 2003 and spent 11 years practising at all levels. Prior to leaving full-time practice, Clive had a busy Crown Court practice dealing with serious crime such as murder, rape and firearms offences. Since 2015, Colin and Clive have shared their extensive experience of criminal law, lecturing experienced practitioners on topics such as court practice and procedure, evidence generally including bad character and hearsay, sexual offences, sentencing and ancillary orders.

Foreign.

Hello, Colin.

Can I say this is the first of
what we hope will be a series of

podcasts.

We haven't given it a title yet.

I always think it'll work.

Title.

How about the Colin and Clive Show?

Well, I think we're calling it
the League and Eagle Podcast, but

as we like to call it the
Colin and Clive Show.

So welcome listeners to the
brand new Colin and Clive Show.

What have you got for us
today, Colin?

I thought today's topic would
be inside out.

How long will he they she
actually serve?

Because it's all change, isn't
it, yet again with the 50% going

down to 40%.

And would you believe from
June 2025 onwards the maximum benefit

you'll be able to achieve from
early release under the home detention

curfew scheme is going up from
six months to a whopping 12 months?

Yeah, as you mentioned Colin,
lots going on, isn't there?

The prisons are rather full at
the moment and indeed the last government,

and indeed this new government
have had to take action and most

of that action has come in the
shape of home detention and curfew,

isn't it letting people
effectively serve their sentence

at home rather than in prison?

Yeah, and I think that's going
to be a trend for the future.

I think we're going to get
more community based penalties.

The requirements of the
community sentence will be just that

much more harsher and we're
also, I think going to get more suspended

sentences.

I think surveys have already
shown that people subject to harsh

community sentences and people
subject to custodial sentences that

have been suspended tend not
to reoffamed quite so often as those

who've had an immediate
custodial sentence imposed upon them.

The way the wind's blowing,
we're yet to receive the Gawke report,

aren't we?

David Gawke, former Lord
Chancellor has been entrusted by

the Labour government to carry
out a review, I think been traveling

around the world to prisons in
Texas and other places, haven't they,

to see what's going on there
and to see what they can recommend.

But certainly in the last 20
years, 20 years or so, we've seen

an increase in sentencing
generally, haven't we Colin, in terms

of how long people go to
prison for?

And I think we're one of the,
probably one of the harshest countries

in Europe, aren't we, in terms
of sending people to prison for long

periods of time?

And I think governments are
realizing they can't simply build

their way out of this crisis
by building more prisons or prison

Places that something more
fundamental needs to happen.

As a society, we've got to
make a decision, haven't we?

We've got to say to ourselves,
which offenders can we actually live

with in the community?

And my view has always been, I
mean, I've been in the law now for

more than 40 years.

My view has always been I live
side by side with most people in

the community, but do please
protect me from those who might want

to injure me in some way, or
those offenders who commit perhaps

sexual offences.

I agree.

I mean, preventing future harm
and public safety has got to be the

first priority, isn't it, of
any government in relation to sentencing.

So forgive me, Clyde, I'm
going to start off with a bit of

a history lesson, because this
all used to be so simple, so simple.

Brief history lesson, if I may.

Once upon a time, offenders
who were given a sentence of 12 months

or less, or 12 months or
fewer, effectively anyone sentenced

in the magistrate court, where
the maximum has always been at 12

months, we called these people
short term prisoners because they'd

been given a sentence of 12
months or less.

The benefit of being a short
term prisoner was that you did your

half inside and then you were released.

You were not subject to any
license conditions or anything of

that nature.

You simply did your half and
out you went.

It was different for those
people who'd been given a custodial

sentence of more than 12 months.

Those people were required to
do half of their sentence inside

and to be licensed for the
remaining half.

Yes.

Quite a simple system if you
think about it.

A system that most people
could get their heads around.

Would you not agree?

Yes.

And just to be clear, what
that license period means is that

if you breach any of your
licence conditions, then you are

liable to be returned to serve
the remainder of your sentence, or.

Perhaps a fixed term of that sentence.

Yeah.

Might not serve all of it,
might you?

No.

So that's where we stood.

And it was all relatively simple.

And then along came the
Offender rehabilitation Act of 2014,

what I will call one of those
stealth bomber pieces of legislation,

bit like the Courts Act 2003.

Why?

Well, because it went under
the radar of most criminal practitioners.

And what did that give us?

Well, it gave us this.

Anyone, I'm Talking adult
offenders 18 or over, anyone given

a custodial sentence of two
days or longer would effectively

serve half the sentence and
would be licensed for the remaining

half of the sentence and then
would be subject to post sentence

supervision if the license
didn't add up to 12 months following

release.

Are you following this, Clive,
give me an example.

Colin, give me some numbers
and figures around that.

Imagine your client in the
local magistrates court, guilty plea,

driving whilst disqualified,
on a bad record for driving whilst

disqualified, entitled to his
third off credit for a timely guilty

plea.

Six months goes down to four,
serve two, be licensed for two, be

subject to post sentence
supervision for 10 months.

Why?

Because the period of license
and post sentence supervision would

Add up to 12 months following
his release.

So you almost have to ignore
the sentence that he served, although

that helps you to calculate
the other half.

Let me give you another one.

Crown Court.

Crown Court.

Imagine the client gets, I
don't know, 18 months at the crown

court, will serve nine, would
be licensed for nine and then would

be subject to post sentence
supervision for three months.

Nine plus three equals 12,
your license and your post sentence

supervision to add up to 12
months following release.

Now, Clyde, you with your O
level maths, you've worked out immediately

that anyone given a sentence
of two years or more prior to the

amendments, prior to the
amendments, anyone given a sentence

of two years or more, there
would be no post sentence supervision.

Why?

Well, because think about it,
the whole of that 12 month following

release would be eaten up by
your license.

So anyone given two years or
more, they'd be subject to their

license of 12 months or more
or whatever and there would be no

post sentence supervision.

For those people, of course,
subject to post sentence supervision

and license, as you say, they
could breach the terms of their license,

in which case they might find
themselves on a fixed term recall

of 14 days or 28 days, or they
might breach the terms of their post

sentence supervision, in which
case they're back in court where

the court could impose upon
them a fine not exceeding £1,000

or something called a
supervision default order, which

would contain effectively
community service, curfew, that sort

of thing.

Yep.

And no doubt solicitors
appearing in the Magistrates court

were in the position of having
to represent people in breach of

their supervision, whereby
they were given whatever a supervision

default order perhaps.

And then further, they were
representing people in breach of

the terms of their supervision
default order.

And on and on it would go.

So that's where we were.

Seriously, that's where we
were from 2014 onwards.

And you've got to keep that in
your mind because that's just a layer

on top of the new stuff that
we've been given fairly recently.

So let's deal with the new
stuff in terms of the old 50% going

down to 40%.

We know, don't we?

Was it September and October
of last year that there was a wholesale

release of people at the 40%
stage of their sentence rather than

the 50% stage.

Although it wasn't reported in
the press, it occurred to me that

these were the people, of
course, who had not been released

even earlier than that,
subject to the Home Detention Curfew

scheme.

These were people who truly
served the determinate part of their

sentence.

It just so happened that that
determinate part went down from 50%

to 40%.

Yeah, I'd agree with that.

Good news for them, having to
serve 40% of the sentence rather

than 50%.

And I've given people a link,
a link to the relevant statutory

instrument whereby there was
that reduction from 50% to 40%.

It's statutory instrument
2024, number 844.

We should say at this point,
Colin, that in each of our episodes

we will have show notes.

So if you are walking the dog
at the moment or driving the car

or doing something else where
your hands are not available to write

anything down, then you'll
simply be able download the show

notes and there will be a link
to all the documents that we mentioned

during all our podcasts.

So with this statutory 2024,
number 844, as we know, there's a

schedule in that particular
statutory instrument, and the purport

of that schedule, of course,
is that if you're sentenced for an

offence contained on that
schedule, you don't get the benefit

of the 50% going down to 40%,
you will still have to serve 50%

of your sentence.

Give us a flavor, Colin.

What sort of offenses were
exempted from that list then, going

down from 50 to 40, were they
violent sexual offences?

I would have thought their
offences of a violent sexual nature.

Offenses against.

Going back to that list of
people with whom you said you'd be

happy to live alongside
earlier, Colin.

I think they were the people I
said I would not be happy to.

Yes, those are the ones.

Did you write the list, by any
chance, Colin?

Well, it wouldn't take long,
would it, to compile a list of the

people we don't want to live
alongside in the community.

Exactly, yeah.

So there we are, 50% down to 40%.

So let's do the maths, shall we?

Because of course it's quite
beneficial if not only are you going

to be released at the 40%
stage, but you're also going to benefit

from even earlier release
under the Home Detention Curfew scheme.

So let me just mention that
for a while, shall I?

And the various amendments
we've had to that now we know it's

discretionary, don't we?

So we know you have to behave
yourself in order to be eligible

for early release.

It's discretionary at the
discretion of the governor.

And one can well understand
why we have such a scheme.

Of course, no doubt it helps
to maintain control and discipline

in prisons.

People have an incentive to
behave themselves on the basis that

they might have early release.

And that's Colin.

Just to interpose, that's how
Colin works more generally, isn't

it, in sense that there is
this process, you know, you go in

as on, and you are on basic,
as my clients always used to tell

me, you'd be on the basic regime.

And then if you kept your nose
clean, quite literally for some people,

and behaved yourself, etc,
then you'd be an enhanced prisoner,

wouldn't you?

And you'd be entitled to
certain things, like sometimes I

think you're able to wear your
own clothes or you'd have more visits,

all those sorts of things.

So that's the way the prison
system works isn't in terms of discipline,

in terms of incentives and
privileges, etc.

And this is just another one
of those, isn't it, in terms of incentivizing

people to behave themselves so
that the governor might think, well,

he's worthy, or she's worthy
of perhaps being released early under

home detention and curfew.

Which is effectively an
electronic tag, isn't it, Colin?

It is, it's effectively an
electronic tag, absolutely.

So I can well understand that.

But I don't know.

Do you think there's something
a little disingenuous about the executive

saying, well, you know,
whatever sentence you're given at

the court, be it a magistrate
court or a Crown Court judge, you'll

only actually have to serve
40% of that sentence and you might

be released even earlier under
a tag.

Because it seems to me that
when the sentence is handed out by

the judge, it might, as it
were, seem quite a stern sentence

to general members of the
public or to perhaps the family of

the victim of the particular crime.

But when you fashion in that,
assuming it's not one of those excluded

offences, he or she is going
to be released once they've done

40% of that sentence, then it
becomes a sentence, does it not,

of a much lower order?

Yeah, absolutely.

As you say, I think victims of
crime would be unhappy, to put it

mildly, to find out that their
offender or perpetrator might not

actually serve what it was in court.

The judge said they should serve.

That's a matter for
Parliament, really, isn't it and

government to deal with in
terms of the way that sentencing

is communicated more broadly.

Yes, but I think it would be
fair to say that the average member

of the public would assume
that if you were given something

like, I don't know, 30 months
by a crown court judge, two and a

half years, that you would
serve a substantial period of that

two and a half years in your.

You're nodding in agreement,
of course.

The reality is, if you get out
your slide rule, that dates me, doesn't

it, Clive?

Slide rule.

Is it sat next to your abacus
by any chance, Colin?

Gosh, I remember.

I remember as a child being
given a slide rule and I thought,

what, what sorcery is this?

Hey, this will surely unlock
the secrets of the universe.

Well, it didn't, but it did
help me with the old maths.

So let's have an example then.

30 months.

A sentence of 30 months has
been imposed by the Crown Court judge,

taking down 30 months.

40% of 30 months, of course
becomes 12 months.

Now you're also entitled to a
maximum benefit at all present by

way of early release home
detention curfew scheme, six months.

So that 12 months determinate
part of the sentence goes down to

six.

You're effectively serving six
months of a 30 month sentence handed

down by the Crown Court judge.

You know I know you've got
odable maths, Clive, and I know you

know that six months as a
percentage of 30.

Yeah, it ain't 40%, it's 20%,
it's the fifth.

Yeah.

And the reality of the
situation is that anyone given a

sentence of 30 months or
fewer, 30 months or less, if they

also benefit from early
release under the home detention

curfew scheme, you can do the maths.

It works for any sentence of
30 months or less.

If you get the full benefit of
early release, you're doing a fifth

of your sentence rather than 40%.

That's the position we have at
the moment.

And in relation to early
release, once upon a time your early

release maximum benefit was
capped at 135 days.

Well, again you will find
you've been given a link to a statutory

instrument whereby that 135
days went up to effectively six months,

180 days.

The maximum benefit that you
can accrue at present from early

release, 180 days, which is
near enough six months, is it not?

If you divide 365 by two, you
get to 182.5.

So you're benefiting there by
the best part of six months.

They've also and you've got
the link to Statutory Instrument

2024, number 755.

They've also abolished what's
called the four year rule.

And before the abolition of
the four year rule, you were only

entitled to be entered for the
scheme if your sentence was between

effectively 3 months and 48 months.

Well, the 4 year rule has now gone.

It matters not how long you're sentenced.

It could be five years, it
could be six years.

We've had that.

That four year rule comes and
goes, doesn't it, Colin?

In the sense that I remember
very vividly when I first started

in practice some 20 or so
years ago, that when you went down

to see the client, you know,
the client was desperate to get a

sentence of under four years
rather than four years or more.

Because the old rule used to
be that if you got less or fewer

than four years then you would
serve half, but if you got four years

or more, then you had to serve
two thirds.

So, you know, clients were at
pains to try and squeeze in a three

year and nine month sentence,
for example, and that was always

the easy way, you know, and
even, even defendants, clients that,

you know, before you even went
to see them in the cells, they knew

about that.

They come and say to you,
without you even saying anything,

am I going to get, am I going
to get under or over four years?

Because they were worried
about how long they were going to

have to serve, you know, that
did the rounds on the wings in prison.

You don't want to get four
years or more because you'll be in

here for 2/3 of it.

Let's just clarify that point
now, shall we?

Because you have raised it.

So the position is that in
relation to your 50% going down to

40% doesn't apply to anyone
who would not otherwise have been

eligible for release at the
50% stage.

And as you say, Clyde, there
are more and more, more and more

prisoners for whom release is
now not possible until they've done

2/3 of their sentence.

Well, for those people,
they're still going to have to do

their 2/3.

They won't benefit from the
50% going down to 40%.

So just quickly compiling a
list of those people who have to

do 2/3.

It's a fairly complicated list.

It used to be much simpler,
but as we all know, the law is far

more complicated now.

It used to consist of
offenders who were sentenced under

the dangerous offender
provisions of the Criminal justice

Act of 2003.

Those people having to serve
2/3 of the determinate part of their

sentence before being eligible
to apply for parole.

No change there, no change at all.

Ditto for what we call
offenders of particular concern.

These people also have to do
2/3 of their sentence and then they

become eligible to apply to
the parole board for Release at the

2 3rd stage.

That much was simple.

The waters began to muddy
somewhat with effect from 1 April

2020 when the law was amended,
whereby adult offenders, those people

18 or over, given a term of
seven years or more for an offence

within Schedule 15 of the
Criminal Justice Act 2003, Part 1

or Part 2, in other words,
those specified offences of violence

and specified sexual offence
that would otherwise carry life.

So essentially a good example,
if you got seven years or more for

a rape offence, a determinate
sentence of seven years or more and

you were an adult, you would
have to serve 2/3 of that particular

sentence.

Don't get me wrong, you
wouldn't have to apply to the parole

board for release, but you
would have to do 2/3 of your sentence.

Ditto for someone given 7
years or more for grievous bodily

harm within 10.

Again, an offence of violence
carrying life.

And this is still true, this
is still the law.

Adult offenders given seven
years or more for a sexual offence

or an offence of violence that
potentially carries life would have

to do 2/3 of their particular sentence.

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Right, back to the episode.

And I'll just interject there.

Colin, you may remember the
name of the case off the top of your

head, but I can't.

But back in 2020 there was a
case that went to the Court of Appeal

because there was a group of
defendants whose case was adjourned

from March 2020 due to Covid
until April 2020, which meant that

had they have been sentenced
at the original sentence date, they

would have had to have served
half their sentence.

But because of that
adjournment, they tipped over that

time, the 1st of April, as
you've mentioned, and it meant they

had to serve two thirds
instead of half.

They went to the Court of
Appeal and the Court of Appeal said,

nothing we can do about it.

It's a matter for Parliament
when they say how long you will serve

and we simply hand out the sentences.

Parliament dictates how long
you actually serve afterwards.

I did have some sympathy for
them, but.

But yeah, you, you'd be.

Gosh, you'd be sat there
counting the extra days you were

doing, wouldn't you?

Counting the days anyway.

But counting the extra days
you were doing, thinking, for goodness

sake, had I just been
sentenced a week or two earlier,

things could have been rather different.

I think the Court of Appeal
have said more than once it is not

for the judge to factor into
the sentence the release gauge of

the particular offender.

That's a matter for the
Executive, that's a matter for the.

For the Governor.

So that's where we stood on
the 1st of April 2020.

We then of course had the
Police Crime Sentencing and Courts

act of 2022, which amended
things slightly in relation to those

people having to serve 2/3.

The position changed somewhat
in that that 7 years for an adult

weight down to 4 years.

The position being that if
you're now as an adult, given a sentence

of four years or more for one
of those specified offences of a

sexual nature that potentially
carries life, you have to do 2/3

of your 4 years rather than half.

The 7 year old still applies,
of course, for all violent offences

that potentially carry life.

But the four year rule doesn't.

The four year rule.

Could you make it any more
complicated if you tried the four

year rule?

Of course, apropos, offences
of violence only applies to those

three offences of violence
that are mentioned in section 130,

subsection 7 of the Peace
Crime, Sentencing and Courts act

of 2022.

So we're talking about
manslaughter, we're talking about

soliciting murder and we're
talking about wounding with intent

to do grievous bodily harm.

So if you're an adult and you
get four years or more but less than

seven years, you will do
effectively two thirds apropos one

of those offences.

But if you get seven years or
more, or for a violent offence or

a sexual offence which
potentially carries life, you will

do two thirds.

Why they've sought to limit it
for those three Offences.

If it's an offence of violence
and your sentence is for four years,

but less than seven, I know not.

They've also, for good
measure, thrown you into the mix.

What have they done with them?

Colin, if you look at section
130, subsection 7 again of the Peace,

Crime, Sentencing and Courts
act of 2022, if you're a youth, someone

aged 17 down to 10,
effectively, and you're given a sentence

of detention at the Crown
court under Section 250 of the Sentencing

Act 2020, for a sexual offence
that would otherwise carry life,

or one of those three violent
offences that I've just mentioned.

But for yous, you have to be
given a sentence of seven years or

more, not four years or more.

So youths are included now,
but it has to be a sentence of seven

years or more.

It's a hefty sentence as a
youth, isn't it, to get seven.

Well, yes, it is a hefty
sentence, absolutely.

And I don't know the feeling
that youths, bless them, are being

left behind, someone.

Yeah.

In terms of the amount of time
they have to serve.

And of course, it will be even
worse after, what, the 3rd of June

this year.

Again, I've put the relevant
statutory instrument in the link

to the relevant statutory instrument.

This is Statutory Instrument
2024, number 1331.

But just to finish, before I
look at this statutory instrument,

just to finish on the topic,
that was just really, Clive, a current

list of those people who have
to serve 2/3 of their sentence, whereby

the reduction from 50% to 40%
is of no use to them whatsoever,

they're ineligible because
they have to do 2/3.

So it seems that we're going
in opposite directions almost, Colin,

isn't it, depending what
offence you're sentenced for, you're

going to serve.

On the one hand, you're going
to serve less and less, whereas if

you're sentenced for something
serious and you get quite long, you're

going to be inside for more
and more.

So there's a gulf, isn't
there, depending on what the nature

of your offending is in terms
of how much you're actually going

to serve inside or out.

Yes.

And of course the position
will change again as regards early

release under the Home
Detention Curfew Scheme.

It's statutory instrument
there, 2024, number 1331, whereby

your benefit, if you're given
the maximum benefit of early release,

will go from six months, six
months to 12 months.

Now that will be a great
benefit, I would have thought, to

people given long sentences at
the Crown Corps I gave an example

earlier, didn't I, of the
person given a 30 month sentence,

two and a half years.

Well, let's just do the math,
shall we?

Of the person at the Crown
Court who's now being given a sentence

by the Crown court judge of 60 months.

Yeah.

That's five years.

Well, 40% of 60 months is 24 months.

Now, when the person will be
entitled to early release, they'll

get 12 months off the 24 months.

So they're now doing 12 months
of a five year sentence.

They're doing one year.

They're doing one year of a
five year sentence, assuming they're

not on the schedule of people,
as it were, who will still have to

do their 50% rather than 40%.

And assuming they get the
whole entitlement of the 12 months

by way of early release, that
entitlement to 12 months coming into

force 3rd of June this year, 2025.

You get five years, you
behave, you're not on the schedule,

you'll do one year.

Yeah, that's staggering, isn't it?

And again, the maths are the
same if you think about it, in the

once 6 months by way of early
release goes up to 12 months, the

maths are that anyone given a
sentence of five years or less will

effectively end up serving 20%
of their sentence, 1/5.

Now you compare and contrast
that with the poor juvenile.

He or she only has to get a 24
month detention and training order

in order to be locked up for a
period of 12 months.

Quite different to the adult
offender who's looking at a sentence

of something in the term of
five years.

Yeah, yeah.

Father and son.

One gets 12, 24 month
detention, training or the other

gets five years.

And as you say, they both end
up spending the same time inside,

don't they?

Yeah.

Of course the 20% rule only
works at the moment.

Remember, the maths only work
at the moment if you're given a sentence

of 30 months or fewer.

Because of course the maximum
benefit you can obtain is at the

moment six months.

And of course the sentence
will rise.

In terms of the maximum
benefit being 12 months, that sentence

will rise whereby you'll get a
sentence if you do, of 60 months

or less.

And assuming you get your
whole 12 months early release, you'll

do 20%.

Of course, the higher your
sentence, the less you will benefit

because you still have to do a
half of the determinate part of your

sentence before you can be
released early.

Let me give you a simple example.

Imagine you get, I know, 120
months at the crown court.

That is a 10 year sentence.

Firstly, you have to work out
what's 40% of 10 years.

Well, that's 48 months, that's
effectively four years.

So what's your maximum benefit?

Well, your maximum benefit is
one year, 12 months.

So you take, of course, one
year from the four years and you

end up with a three year sentence.

Well, we know, don't we, a
three year sentence is more than

20% of a 10 year sentence, but
that's because you cannot benefit

by more than 12 months or
won't be able to benefit by more

than 12 months by way of early
release for those people effectively

sentenced after the 3rd of
June this year.

Just dealing with home
detention curfew scheme, if I may

for a moment giving you a link
to a very important document, the

revised home detention curfew scheme.

This document was revised in
June 2024 to coincide with all the

changes that have been
recently brought about.

And it's fair to say that the
presumption is that if you can enter

the scheme, you should enter
the scheme.

The Executive wants people to
be released early, but of course,

if you look at that particular
document, you will see that certain

people are excluded from
entering the scheme.

They're excluded by statute.

Yeah.

And the top of that list of
people excluded by statute is, would

you believe those people who
have to serve 2/3 of their sentence?

So it really is bad news of you.

If you have to serve 2/3, you
don't get the benefit of 50% down

to 40% normal.

Can you enter the early
release scheme, the home detention

curfew scheme?

Nor can you enter the scheme
if you're a sex offender forced to

register as a sex offender,
which is fair enough.

Nor can you enter the scheme
if you're serving a sentence for

being in breach of the
requirements of your community order,

where the breach was breach of
your curfew.

So we, yeah, we don't trust you.

Quite exactly.

Quite exactly.

You've shown yourself to be a
person who cannot be trusted to abide

by a curfew.

That's important advice to be
giving your client, isn't it, Colin?

That's important advice as an
advocate, say, look, you've got a

curfew, but you know what, if
you come back here and breach it,

you'll go inside and you won't
be allowed out on a curfew because

you breached your curfew.

So if you're going to breach
any of this, don't breach your curfew

because you're going to get a
double Whammy one, you'll go back

inside until you won't be able
to get out early.

Never was it quite so
important to make sure you comply

with your community sentences,
particularly if one of the requirements

of that community sentence is
that you abide by a curfew.

Yep.

So there's a whole list of
people who are excluded by statute

for mentoring the early
release scheme.

And.

And then, of course, there are
people for who there is a presumption

of ineligibility.

It's all set out in the
document, which I found was a very

interesting read, but as we
know, Clive, I don't get out very

much.

I've never known someone to be
so enthusiastic about statutory instruments.

Colin.

Absolutely.

What?

When the Sentencing Act 2020
came out and was introduced in its

entirety with Reuters said I
thought it was Christmas Day and

my birthday rolled into one.

The Joy of 420 sections.

And when you'd read those, you
got 29 schedules to look forward

to.

There you go.

Meanwhile, back at these
people who are presumed ineligible

for entering the scheme.

There's a whole host of them,
of course.

Anyone with a history of
sexual offences but who is not required

to register as a sex offender.

These people aren't excluded
by statute, but there is a presumption

whereby they ought not to be
permitted to enter the scheme for

early release.

And with that presumption, the
document says that they may submit

representations to the
governor to the effect that they

are an exceptional case
whereby they should be permitted

entry to the scheme.

Yeah.

And just to be clear to people
listening that if you are required

to register as a sex offender
in certain circumstances, that will

mean you need to register for
the rest of your life in other circumstances,

depending on how long you get.

So we've just been talking
about what sentence you receive,

dictates how long you'll
necessarily need to serve and for

what offense you've been
convicted of.

It's the same in relation to
sexual offences, isn't it, Colin?

Depending how long you are
sentenced to in terms of the custodial

element of the offence,
dictates how long you need to register

for.

So it might be that in your
early 20s, you commit a sexual offence

and you're required to
register for seven years, maybe because

you received six months or
more, and then it might be that some

20 years later you're inside
for a bit of burglary and as you

say, in those circumstances,
that person wouldn't be registering

anymore.

Under the sex offenders
provisions, however, there would

be that presumption and it
would be for them to displace that

presumption before the
governor and say, look, I'm actually

a good bet for home detention
and curfew despite that conviction

on my record.

Yeah, absolutely.

And of course, none of what
we've said at all during this podcast

will affect those people who
are effectively given life, be it

mandatory life or
discretionary life.

Because we know, don't we,
that those people are given a tariff

sentence, every day of which
must be served.

And when they've done their
tariff sentence, they can apply to

the parole board for release.

And if they are released,
they'll be subject to life license.

And if they're not released,
they'll be entitled to an annual

review before the parole board
in order to assess whether or not

they should ever be released.

Yeah, I don't know what the
latest figures are, Colin, but I

think the overwhelming
majority of people who are receive

a life sentence are not
released at their first review.

It's very unusual for somebody
to be released on their first review.

Yes.

Yeah.

So how can we sum it up?

We can sum it up, can't we, by
saying that the sentence you're given

is not necessarily the
sentence you're going to serve.

Certainly the 50% down to 40%
is very beneficial.

Clients, I suspect, will know
quicker than their lawyer what they're

released at the 40% stages.

And of course, if they're
eligible for even earlier release

under the home detention
curfew scheme, clients will also

be able to calculate, well, my
maximum benefit is 12 months, so

that could be not off the
determinate part of the sentence.

Bearing in mind you must
always serve a half of the determinate

part of your sentence before
being released under the home detention

curfew scheme.

That's why the maths work.

If the determinant part of
your sentence that you would serve

ends up at being 12 months,
but you can be released six months

earlier because at six months
you've done half of the determinate

part of your sentence.

That's why it will work.

The maths will work if the
percentage you have to serve happens

to be 24 months, but you're
eligible for early release under

the scheme after 12 months,
because after 12 months you will

have served a half of the
determinate part of your sentence.

Remembering that rule is very
important in working out how long

a client will actually have to serve.

Yeah.

And once, once prisoners are,
you know, once your client is taken

from court to prison, usually
within the first week or so, they

are given a sentence plan, you
know that the prison will do the

maths that you've just been
describing, and then that will be

given to your client.

Because I often had that
question from my client and, you

know, it was a classic
lawyer's answer, wasn't it?

How long will I serve?

And it will always be because,
well, it depends.

And it.

It depends on whether the
governor likes you or not.

It will depend what sentence,
what previous conviction you've got,

all those sorts of things.

And it's, you know, there's a
lot going on in the aftermath of

a sentence when you're a court
and it's impossible to advise your

clients on everything.

But one thing that I felt put
their minds at rest just a tiny bit

was just to explain to them,
look, in the first week or so, you

will get your sentence plan
and you'll know the answers to all

of this in terms of when you
might first be eligible for release

and all those sorts of things.

And so they had that to hold
onto at least in the first week in

terms of getting an idea of
how long they would be inside or

how long they would be out.

Yes.

But I'd say this, Clive, on a
sort of more serious note, if you're

a practicing criminal lawyer,
you really need to have a working

knowledge of the offences on
that ship schedule contained in Statutory

Instrument 2024, number 844,
whereby you just simply don't get

the benefit of 40% because
it's an offence on that schedule.

So you need to know that.

And you also should have a
working knowledge of the revised

home detention curfew scheme
and how it works.

So you'll know immediately
which of your clients are excluded

by statute from even entering
the scheme, and which clients have

a presumption of ineligibility
whereby they have to make out a case

concerning an exceptional case
whereby they should enter the scheme.

I don't wish to be critical of
criminal practitioners.

You know, I speak from the
benefit of being retired.

I've got the time and the
inclination to read all of this,

but there's an awful lot being
thrown at criminal practitioners

and it must be very difficult
to keep up with all of this.

Yeah, absolutely, Colin.

I agree.

I don't envy those still at
the coal face having to deal with

all these issues on a daily basis.

No, I think it's fair to say
that generally.

Generally, the law used to be.

Used to be simpler.

It used to be simpler when I
was in practice.

It seems that every document,
every piece of legislation and every

statutory instrument is a
layer on top that people have to

take into Account.

Remember, you must factor into
all of this, of course, the Offender

rehabilitation Act of 2014 and
license and post sentence supervision.

None of that's gone away.

That's just a layer on top.

Colin, was it Lord Wolf some
years ago now, former Lord Chief

justice, who described the
sentencing provisions as labyrinth?

Yes, yes, they're fond of that
word in the court repeal.

They said the other day that
certain sections of the Sentencing

Code 2020, were labyrinthy in
their complexity.

Quite.

And the Sentencing Code was
supposed to decode all of that, wasn't

it, and help us to make this
all a lot more straightforward?

I think they missed a trick,
didn't they, on the Sentencing Code?

They could have used this as
an opportunity to simplify the law,

but they didn't.

They used it as an opportunity
to codify the law.

They said, look, we brought
all of these various statutes into

one easy read.

Yeah, one easy read.

420 sections and 29 schedules.

Yeah.

So it's far easier to find all
these complicated sections now than

it ever was before.

Well, that's a.

It's a start, I suppose, isn't
it, Colin?

Indeed.

You won't understand it, of
course, but you will be able to find.

Find it.

Exactly.

There we go, Colin, on that bombshell.

We could go on, but we've got
to stop, haven't we?

Look, I do.

I do hope that.

That people watching this have
got something out of it.

It is essentially aimed,
obviously, criminal practitioners.

There's a strong threat of
criminal law running through all

of these podcasts, but who
knows, people who are not necessarily

criminal practitioners but are
interested in how the criminal law

works, they may find these
podcasts of interest as well.

Time will tell.

It will.

Thanks, Colin.

Cheers live.

Well, thank you for tuning
into this particular edition of the

Legal Eagle podcast.

We do hope that you've enjoyed it.

You can find further episodes
on our website, legal eagle training.com

on behalf of myself and Clive,
thank you.

Say goodbye, Clive.

Goodbye, Clive.