Calculating Prisoner Release Dates
Prison Service Directive 55/2010: “Sentence Calculation and HDC/ERS Eligibility Dates – Multiple Sentences Comprising Mixtures of 1991 and 2003 Act Release Provisions.
On 1 October 1992, the Criminal Justice Act 1991 came into force. This provided that a prisoner sentenced to less than 12 months’ imprisonment should be released unconditionally at the half-way point [Section 33(1)(a)]. It also provided that consecutive terms of imprisonment passed on the same occasion should be treated as a single term, for the purposes of calculation of the release date [Section 51(2)].
On 4 April 2005, the Criminal Justice Act 2003 came into force. This was intended to represent a wholesale codification of sentencing legislation and lead to the repeal of all preceding provisions. It stated that any person serving a term of 12 months’ imprisonment or more should be released on licence at the half-way point of their sentence [Section 244]. It also made provision for consecutive sentences, indicating that where those sentences were passed on the same occasion, the prisoner should not be released on licence until he had served a period equal in length to the aggregate of all requisite custodial terms (i.e. add all the sentences together and release at the half-way point of the total [Section 264]).
Although the 2003 Act made provision for terms of imprisonment of less than twelve months, those sections were never brought into force and the governing law remained the Criminal Justice Act 1991.
Therefore, the position was that sentences of imprisonment of less than twelve months were dealt with under the Criminal Justice Act 1991, whilst the Criminal Justice Act 2003 governed sentences of twelve months or more. This created the obvious difficulty of how to deal with sentences, which combined a term of imprisonment of twelve months or more with a consecutive term of less than twelve months. Which act should govern the calculation of the release date – the Act of 1991 Act or that of 2003?
The position of the National Offender Management Service was that the two sentences should be treated separately and that the prisoner would only become eligible for release after the requisite custodial part of the last sentence had been served. It instructed prison governors that the ‘last sentence’ was to be determined by reference to the order in which sentences were passed in court.
This had a particular effect in relation to the calculation of eligibility for home detention curfew (HDC).
Under the 1991 Act, eligibility for HDC was to be determined on a sliding scale: a prisoner would become eligible at any point between 30 days and 60 days prior to having served half of their sentence (depending on how long that sentence was) [Section 34A]. Under the 2003 Act, a prisoner became eligible for early release (effectively HDC) up to 135 days prior to the half-way point of the sentence [Section 246]. On the basis of the NOMS guidance, when the prisoner became eligible for HDC would depend upon the order in which the court pronounced sentence.
To illustrate the effect of this, take the hypothetical example of a man sentenced to 4 years imprisonment for GBH with a consecutive sentence of four months for possession of heroin that police found on him at the time of his arrest. If sentence was pronounced in that way, he would serve two years in respect of the assault and then two months in respect of the drugs, becoming eligible for HDC one month before his release (as HDC would be calculated under the 1991 Act on the shorter sentence, which was pronounced last). However, if sentence were pronounced the other way around, the man would serve two months for the drugs and then begin to serve two years for the assault, becoming eligible for HDC 135 days before the end of that sentence.
This issue was considered by the Supreme Court in the case of R (on the application of Noone) (FC) v The Governor of HMP Drake Hall and another  UKSC 30. Unsurprisingly, the court came to the decision that NOMS position created wholly arbitrary and unfair results. It determined that where a prisoner was subject to consecutive 2003 and 1991 Act sentences, the proper course was to aggregate all the terms for the purpose of calculating the release date. Judgement in this case was handed down on 30 June 2010 and affected all subsequent release date calculations.
When handing down judgement, Phillips LJ stated that calculating the release date in this way would qualify a prisoner for the maximum amount of HDC release and yet ensure that they were subject to the latest sentence and licence expiry dates. The flip side of this coin is that should a released prisoner breach that licence and be recalled, the term of imprisonment served as a result, would ultimately be longer.
NOMS was, of course, bound to adopt the decision of the Supreme Court and this led to issue of Prison Service Directive 55/2010: “Sentence Calculation and HDC/ERS Eligibility Dates – Multiple Sentence Comprising Mixtures of 1991 Act and 2003 Act Release Provisions.” This directive was effective from 13 August 2010 and provides the way in which release dates should now be calculated.
Those who represent prisoners in such matters will need to be aware of this as there are still cases in which the Prison Service, even after 13 August 2010, persists in calculating release dates on the basis of the pre-Noone guidance (namely treating the sentences separately instead of aggregating the whole term). It is worth bearing in mind, where this happens, that should the Prison Service’s re-calculation of release date prove less favourable to the prisoner, it will not automatically be something capable of judicial review: the Prison Service would not be able to release a prisoner on a date calculated using the pre-Noone equation as to do so would be ultra vires. It would, therefore, be extremely difficult (if not impossible) to argue that the Administrative Court should interfere with a less favourable release date calculated using the equation set out in Prison Service Directive 55/2010.