Letter from KEIR HOPLEY, Head of Sentencing Policy and Penalties Unit

I am taking the liberty of writing to you as a senior representative of defence solicitors. If this is not appropriate, I should be grateful for your advice as to who best to contact.

The sentencing provisions contained in Chapter 6 of the Criminal Justice Act 2003 have now been in force for some 10 months. Feedback received through the National Offender Management Service sentence calculation helpline indicates that some solicitors seem not to be fully aware of some of the changes introduced.  The purpose of this letter is to draw your attention to three areas that appear to be causing particular difficulty. You may wish to pass on this information to solicitors so as to assist them when advising their clients about the effect of the new sentences on release dates.

Indeterminate Sentences for Public Protection - sections 225 and 226

This is a new sentence for serious offences. The sentence is indeterminate and the court will set the minimum term to serve. The offender will be eligible to be considered for release by the Parole Board once the minimum term set by the court has been served. On release he will be on licence for a minimum of 10 years after which he can apply to have the licence cancelled.

Extended sentences for certain violent and sexual offences - sections 227 and 228

Although the name is similar, these extended sentences differ from those imposed under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. The court will impose a custodial term and an extended licence period. Release earlier than the full custodial term will be a matter for the Parole Board. Offenders will be eligible to be considered for release by the Parole Board at the half way point of their sentence but there is no automatic release at this point. If release is not approved sooner the prisoner will be released at the end of the custodial term. On release he will be on licence to the end of the extended licence period. 

Crediting periods of remand in custody

The provisions in sections 240 to 242 mark a change in practice from the previous arrangements for crediting remand time against a term of imprisonment or detention. Instead of the remand time being applied to the sentence administratively by prison staff, the court must, when it imposes a custodial sentence, direct in open court the period of remand time sewed to be counted toward the sentence (s240(3) refers).

The new provisions apply to any length of sentence imposed for offences committed on or after 4 April 2005.

These provisions are only relevant where a custodial sentence is imposed and the remand in custody was in connection with the same offence or a related offence (i.e. any other offence founded on the same facts or evidence).  Where the court makes a direction under subsection (3) the sentencer must state in open court:  

• the number of days for which the offender was remanded in custody, and
• the number of days in relation to which the direction is given.

Where the court does not give a direction under subsection (3), or the direction is for fewer days than those for which the offender was remanded in custody, the sentencer must state in open court the reasons for that decision.

Solicitors therefore need to be aware that the counting of remand time is now part of the sentencing process and it is in the interest of their clients that the court makes a direction. A general statement that "all remand time is to count" or some similar does not, we believe, meet the requirements of the law; and prisons have no authority to make deductions as a consequence of it. If they consider that a direction is missing or in error then this should be drawn to the court's attention within 28 days, in accordance with the 'slip rule'. Any challenge beyond this date will need to be brought by way of appeal.

To assist the courts, prisons provide a pro forma giving details as to time served on remand for each offence and information regarding sentences served during the remand period. The National Offender Management Service is considering whether to provide a copy of the pro forma to the defendant so that he can give it to his legal team. We should be very grateful for your views on this proposal.

I hope that this information will of use to you and your colleagues and that it can be circulated as widely as possible.

I am also writing on the issue of remand time to the Magistrates Association, the Justices' Clerks' Society, the Senior District Judge and the Council of Circuit Judges.