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Extended Determinate Sentences

A Review of the Practical Issues

Lewis Hazeldine

Last updated: Mar 2024

Summary

We are pleased to publish the paper produced by Lewis Hazeldine during the course of his Kalisher Trust internship with the Sentencing Academy. Lewis chose to explore some of the practical issues that can arise in relation to Extended Determinate Sentences.

Introduction

Extended Determinate Sentences (EDS) became an option for Judges when sentencing offenders deemed to be ‘dangerous’ following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. While not a direct replacement for sentences of imprisonment for public protection (IPP), Extended Determinate Sentences do offer extra protection to the public from dangerous offenders. On 31 December 2023, there were 7,984 prisoners serving extended determinate sentences, a 12% increase compared to the same time the previous year. Prisoners serving an EDS accounted for 9% of the total prison population in 2023 (Ministry of Justice, 2024).

Sentences of imprisonment for public protection were controversial from the outset and remain so; ‘the original intention … was that only those who posed a really serious risk to the population would be subject to such orders [IPPs]’ as described by Lord Blunkett, the Home Secretary at the time IPP sentences were introduced by the Criminal Justice Act 2003.1 However, the drafting and implementation of the legislation was far removed from this intention. Lord Brown of Eaton-Under-Heywood, a former Justice of the Supreme Court, has described the IPP regime as ‘the great single stain on our criminal justice system’ (Edgar et al., 2020, p. ii). Following the abolition of IPP sentences in December 2012 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a new era of extended sentences began. Although these sentences remain less controversial than their predecessor, clear issues remain.

This paper will outline the history of extended sentences, the relevant law and the circumstances in which these sentences may be imposed. It will then examine the issues with the current regime, including claims of incompatibility with the European Convention of Human Rights and the extent to which these sentences provide a safety net in terms of public protection.

Types of sentences

There are broadly three types of custodial sentences for adult offenders:

1. Determinate Sentences: These are the most common type of custodial sentences. A determinate sentence will be passed as a ‘fixed term’ in prison (for example, two years). This will be the maximum time that a person convicted will spend in prison; however, it is likely that they will serve a period less than this in custody (usually half of the duration will be spent in custody, but for more serious offences it may be two-thirds). The remaining period will be spent in the community ‘on licence’ and this will include conditions. Should an offender breach these conditions or commit a further offence during the licence period, they may be subject to being recalled to prison for the remainder of their sentence. 

2. Extended Sentences: Extended Determinate Sentences (EDS) differ from regular determinate sentences as there is a set custodial term and an additional term on licence following release. Offenders will serve two-thirds of their custodial sentence before being considered for release and will not be released unless the Parole Board are satisfied that they no longer pose an unacceptable risk to the public.2 If an offender is not released after the two-third stage of their custodial sentence, they can apply each year and will automatically be released after the full term of their custodial sentence, if not released before then. Once released, an offender will have an additional licence period which can be extended up to a maximum of five years for a specified violent offence and up to eight years for a specified sexual offence.

3. Life Sentences: These sentences are reserved for offenders who commit the most serious crimes and are considered dangerous (they are also the mandatory sentence for murder and are therefore imposed in these cases without consideration of dangerousness). When passing a life sentence, a Judge must set a minimum term that must be served before an offender before they can be considered for release by the Parole Board. If an offender is released by the Parole Board, they will spend the rest of their life on licence and will have to abide by conditions. Should these conditions be broken or they commit any further offences, they can be recalled to prison. Life sentences must be imposed for ‘serious offences’ where the criteria is met in section 2743 or section 2854 of the Sentencing Act 2020 or where an offender has committed a second listed offence and satisfies the criteria in section 273 or 283 of the Sentencing Act 2020.

Chapter 2: Extended Sentences – History

At the turn of the century, the Home Office commissioned a report, conducted by their former head of criminal justice policy, John Halliday, into the sentencing framework in England and Wales. This was driven by the desire to create a sentencing framework which would send a ‘clear, tough message about sanctions [as]… it must be made far clearer to offenders what the consequences of their actions will be, without ambiguity’ (cited in Fairbairn, 2002, p. 15). Following the Halliday report,5 the Government sought to introduce some of the recommended proposals and further publications were released, most significantly, the Justice for All White Paper. This paper emphasised the importance of the protection of the public and crucially proposed that:

‘Where a defendant is convicted, we will:

Ensure that dangerous, violent and sexual offenders can be kept in custody for as long as they present a risk to the public.’ (Home Office, 2002, p. 13)

The rationale behind this proposal was ‘to ensure that the public is properly protected from dangerous and sexual offenders. We recognise that this issue is of critical importance to the public’ (emphasis added) (Home Office, 2002, p. 95).

Few would take issue with the opinion that the public should be protected from dangerous offenders, and therefore management of this risk is a necessity. Despite this, the introduction of, and subsequent fallout from, the framework that was introduced by the Criminal Justice Act 2003 was something that few could predict. The Act introduced a framework for sentencing ‘dangerous offenders’ and established two completely new sentences: imprisonment for public protection and the extended sentence for public protection (EPP). This paper will focus mainly on the latter and the development of the extended sentence but will make reference to both imprisonment for public protection and also life sentences.

The introduction of the EPP was the first attempt at providing a determinate sentence that could further protect the public. It meant that ‘dangerous’ offenders would serve a custodial period and an extended period on licence following release. If offenders breached the conditions of their licence following release, their offender manager could apply to have a person recalled to prison.

Following the introduction of EPPs in April 2005, those subject to such a sentence would serve half of their custodial period in custody, before being eligible to apply for release to the Parole Board. A person not released by the Parole Board, could apply every year and would be released at the end of their custodial period, if not sooner.

However, if a person was sentenced to an EPP on or after 14 July 2008, they became eligible for automatic release at the halfway point of their custodial period.

In 2010, the Government published a Green Paper proposing substantial reforms to the criminal justice system.6 One of the issues highlighted in the Green Paper was the largely overall failure of the IPP sentence. From this, the Government announced its intention to replace ‘the current IPP regime with a much tougher determinate sentencing framework’ (Ministry of Justice, 2012, p. 3) which would be better understood by the public and command greater confidence.

To further this intention, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished IPP sentence and the previous regime of extended sentences.7 This Act also brought about the introduction of the EDS in its current form. The EDS applies where:

  1. the offence is a specified offence,
  2. the offender is aged 21 or over when convicted of the offence,
  3. the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences […],
  4. the court is not required by section 283 or 285 to impose a sentence of imprisonment for life, and
  5. the earlier offence condition or the 4 year term condition is met.8

For those convicted of an offence between 3 December 2012 and before 13April 2015, with a custodial period of less than 10 years and for an offence not listed in Schedule 15B to the Criminal Justice Act 2003,9 offenders would be released automatically at the two-thirds point of their custodial period.

If, however, an offender was sentenced to (a) a custodial period of more than 10 years or (b) for an offence specified in Schedule 15B, this offender would have to serve two-thirds in custody and then would have to apply to the Parole Board for release after this. If the Parole Board was not satisfied that the offender was safe to release, that offender could apply every year until the end of their custodial period, at which point, they will be released automatically.

Those sentenced to an EDS on or after 13 April 2015, will now always serve two-thirds of their sentence before first being considered for release. If the Parole Board deem that they are not suitable for release, offenders can still reapply every year and will still automatically be released at the end of their custodial period.

Chapter 3: Assessment of Dangerousness

When assessing whether to impose an EDS, a sentencing Judge must determine whether ‘there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences’.10

In making that assessment, the court:

  1. Must take into account all the information that is available to it about the nature and circumstances of the offence,
  2. May take into account all the information that is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,
  3. May take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (b) forms part, and
  4. May take into account any information about the offender which is before it.11

The court, in making its assessment, is likely to request a pre-sentence report to provide further information about the offender, the motivations for their offending and the opinion of the Probation Service on the issue of dangerousness. However, the court is not bound by this opinion.

In interpreting the meaning of ‘significant risk to members of the public’, the court is likely to consider the case of R. v Lang & Others,12 the leading authority on the assessment of dangerousness.

In Lang, the Court of Appeal held that ‘significant risk’ must be interpreted as a ‘higher threshold than mere possibility of occurrence and in our view can be taken to mean (as in the Oxford Dictionary) noteworthy, of considerable amount or importance’.13

Further, in assessing the risk, the sentencer should take into account the following factors:

  1. the nature and circumstances of the current offence;
  2. the offender’s history of offending including not just the kind of offence but its circumstances and the sentence passed;
  3. details of which the prosecution must have available;
  4. whether the offending demonstrates any pattern;
  5. social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and
  6. the offender’s thinking, attitude towards offending and supervision and emotional state.14

While Lang provides a useful list of factors that should be consider, the ultimate decision as to dangerousness or otherwise of an offender will lie with the sentencer.

Even in circumstances where a defendant is found to be dangerous, there is not an absolute requirement to impose an extended determinate sentence; it remains discretionary. This point was emphasised by the Court of Appeal in Burinkas, in which it determined:

‘Even where there is a finding of dangerousness, an ordinary determinate sentence is sometimes appropriate. In two of these cases the sentencing judges expressed the view during argument (without correction) that where a finding of dangerousness had been made there were only two sentencing options: life imprisonment or an extended sentence. Where a life sentence is not justified an extended sentence will usually, but not always, be appropriate. The option of a determinate sentence should not be forgotten’ (emphasis added).15

However, Harris and Kelly (2018) have argued that the current subjective nature in which dangerousness is assessed has potentially brought about a presumption towards dangerousness following the decision in R v Smith (Terry).16 In the first instance in Smith, the sentencing Judge remarked that although the pre-sentence report suggested Mr Smith satisfied the ‘dangerousness’ criteria, his lack of previous convictions and absence of similar offending during the intervening period was evidence that only a determinate sentence was necessary.

On appeal, Counsel for the Attorney-General submitted the sentence was unduly lenient in respect of the failure to impose an extended determinate sentence. In allowing the appeal and imposing a 17-year extended determinate sentence (12 years’ custody, plus five years’ extended licence) the Court of Appeal held that too much weight was given to the isolated nature of offending, as there were concerning elements such as the offence had been committed ‘completely out of the blue’ by a man of relatively mature years, without explanation. Quite rightly, Harris and Kelly (2018) argue that the Court of Appeal created a presumption of dangerousness, despite the high threshold; in this case, a significant risk of serious harm occasioned by rape of adults or teenagers. It is argued that this de-facto presumption of dangerousness must be avoided.

Although there is a clear rationale in protecting those who are potentially a danger to the public, we should not categorise somebody as dangerous because we are unable to satisfy that person as safe. This conundrum is particularly important when we consider the pressure that the Probation Service is under, who are required to produce a pre-sentence report which addresses the issue of dangerousness. To this end, Robinson (2017) asserts there is a ‘culture of speed’ in the production of pre-sentence reports and that interviews are now shorter and used to confirm information rather than gather new information. It is therefore suggested that the combination of the decision in Smith and the culture of speed in the Probation Service, has the possibility to increase the number of people being found dangerousness owing to a lack of understanding of why they have offended. Such a situation is undesirable and may not be what the legislation intended.

Chapter 4: Issues with Extended Sentences

While not to the same degree as sentences of imprisonment for public protection, extended determinate sentences have not escaped criticism. Such criticism can be broadly categorised into three sections:

1. Those serving Extended Determinate Sentences serving longer than those subject to life sentences

Before the anomaly was ended in 2022,17 prisoners serving an EDS could find themselves in a disadvantageous position compared to those receiving life sentences. Owing to the release provisions for those serving life sentences (other than murder), a prisoner could be released at the halfway stage of their notional determinate sentence as their minimum term – which had to be served in full before release could first be considered by the Parole Board – was calculated as one-half of the notional determinate sentence length. In contrast, someone sentenced to an EDS would have to serve two-thirds of the notional determinate sentence before their release was first considered by the Parole Board. There was no logical reasoning for this disparity and it appeared to come about as a legislative oversight. Those serving life sentences are likely to have been convicted of more serious offences and are arguably a bigger risk to the public than those sentenced to an EDS, which made their earlier eligibility for release via the Parole Board a curious situation.

2. Point of release compared to determinate sentences

One area of divergence between the EDS and determinate sentences is the point at which release is first considered by the Parole Board. Although subject to fluctuation for much of the period since the creation of the extended sentences regime in the Criminal Justice Act 2003, those serving extended sentences have often been required to serve a larger proportion of their sentence before being eligible to apply for release than those serving an equivalent determinate sentence would serve before being automatically released.

R (on the application of Stott) v Secretary of State for Justice18

Mr Stott had sought judicial review of his extended determinate sentence on the basis that there was no justification for the difference in treatment in relation to eligibility for release. In this matter, Mr Stott was convicted at trial of 20 offences, including multiple offences of raping an eight-year-old child. He was sentenced to a custodial term of 21 years, with an extended period of four years. In his case, he would be eligible to apply to the Parole Board for release after serving two-thirds of his custodial sentence (14 years). It was his contention, that other categories of prisoners (both those serving a determinate sentence and those serving a life sentence) are eligible for release after serving only one-half of their custodial sentence, and therefore his release provisions were unlawful discrimination within Article 14 of the European Convention on Human Rights.19

Crucially however, the Court recognised (Lady Hale and Lord Mance dissenting) that while Mr Stott had been treated differently, this was justified as a proportionate means of achieving the government’s legitimate aim: the protection of the public.20

This decision presents an interesting conclusion. It confirms that those serving an EDS are subject to differential treatment to those serving determinate sentences. However, unsurprisingly this treatment is justified in the view of both the domestic and European Courts, as explained in the previous case of Clift in the European Court of Human Rights:

‘[The] Court considers that more stringent early release provisions in respect of some prisoners may be justified where it can be demonstrated that those to whom they apply pose a higher risk to the public upon release’.21

Introduction of the Police, Crime, Sentencing and Courts Act (PCSCA)

Following the introduction of the Police, Crime, Sentencing and Courts Act (PCSCA) 2022, which inserted section 244ZA into the Criminal Justice Act 2003, many prisoners sentenced to the most serious violent and sexual offences will now serve two-thirds of their sentence, rather than being released at the automatic halfway point. The introduction of PCSCA 2022 was intended to have a number of outcomes, including ‘tougher sentencing for the worst offenders and end automatic halfway release from prison for serious crimes’ (Home Office, 2022). 

Section 244ZB: Referral of high-risk offenders to Parole Board in place of automatic release

Another interesting development following the introduction of PCSCA 2022, was the power conferred on the Secretary of State to refer certain determinate sentence prisoners (who would otherwise be eligible for automatic release) to the Parole Board.22 The effect being that the offender would not be released until the Parole Board is satisfied that it is no longer necessary for the protection of the public for the prisoner to be confined or the prisoner reaches the end of their sentence.

Under section 244ZB of the Criminal Justice Act 2003, inserted by section 132 of the PCSCA 2022, an offender may be referred to the Parole Board if the Secretary of State is of the opinion that the prisoner would, if released, pose a significant risk to members of the public of serious harm caused by committing murder or other serious (specified) offences.23

The result of these change is that more people will spend a longer period of their sentence in custody, as opposed to spending half of their sentence in the community on licence. It remains to be seen the effect on how many prisoners will serve longer sentences under the new regimes and whether offenders will pose fewer risks after leaving custody following serving a longer proportion of their sentences. However, critics will argue that, in a time in which some prisons are being described as ‘inhumane’ and ‘seriously overcrowded’ (Independent Monitoring Boards, 2023, p. 3) whether measures to keep offenders in custody for longer are really what is required.

3. Unlike IPP sentences, there is no ‘safety net’ for those whom remain dangerous

Despite the widely known faults of imprisonment for public protection sentences (IPP),24 this sentencing regime was extremely effective in ensuring that those who were considered ‘dangerous’ at the time of sentencing and were not considered suitable for release by the Parole Board, could not commit further crimes in the community. Where the Parole Board did not deem a prisoner serving an IPP sentence as suitable for release sentence they would not be released and could potentially spend the remainder of their life in prison. Although this sentencing regime was rightly criticised by many owing to the injustice it could cause in practice and its implementation was subsequently found to be incompatible with the European Convention of Human Rights,25 the regime did offer an ultimate, indefinite protection to the community- something that the EDS does not.

It is therefore evident that while extended sentences keep dangerous prisoners in custody for longer, they do not have the power to protect the public indefinitely.26 The whole point of the IPP sentence was to enable detention until a prisoner was rehabilitated and therefore could be considered ‘safe’; if prisoners are still dangerous, simply releasing them automatically even after an extended period in custody can have devasting consequences. Questions must therefore be asked as to the effectiveness of extended determinate sentences in ensuring public protection. For those that become more dangerous while detained, it remains only a matter of time until they are released. By replacing the IPP sentence with the EDS it may be argued that public protection is being sacrificed; however, changes were ultimately required to correct the manifestly unfair situation created by the IPP regime.

Chapter 5: Research Gaps

Effectiveness of the Dangerous Provisions

The rationale behind subjecting an offender to an EDS is to protect the public from an offender committing further specified offences. To assess the effectiveness of these sentences, further research is required to understand how many people commit further specified offences, or indeed lesser offences, following their release after serving an extended sentence. After all, the extended sentence was introduced to keep offenders in custody for longer, owing to their risk to the public; therefore, does keeping dangerous offenders in custody for longer, reduce the risk of their reoffending?

How effective is the extended licence?

Following the introduction of the Police, Crime, Sentencing and Courts Act 2022, there are now a number of offences that will see offenders serve two-thirds rather than one-half in custody. It would therefore be helpful to understand the rate of re-offending between those that have served two-thirds of a determinate sentence owing to the recent legislative changes to determinate sentences for more serious violent and sexual offences and those that have served an EDS for similar offending. This would allow an evaluation of the effectiveness of the EDS – particularly the extended licence period – compared to standard determinate sentences imposed for relatively serious offending.

Further, it would also likely be helpful to understand the recall rates for those subjected to an extended licence period. For example, are those convicted still getting recalled after six or seven years into their licence period?

Are dangerous offenders given more opportunities to be rehabilitated?

Clearly, offenders who are released after serving a custodial sentence and are subjected to an extended licence, should not and cannot be subject to licence conditions indefinitely. An important factor in ensuring public safety, is helping those commit crime to be rehabilitated and therefore to reduce the likelihood of committing further crime, particularly specified offences. Research needs to be carried out as to the intensity and duration of rehabilitative programmes for those who have been deemed to be dangerous, to ensure that mistakes of the past are not repeated.

Conclusion

There can be little complaint that those who pose a tangible risk to members of the public, should be subject to more stringent conditions. Despite the badly implemented sentences of imprisonment for public protection, which led to manifestly unfair circumstances that still haunt the lives of many even today, more stringent sentences for public protection are required. We cannot allow dangerous offenders to leave after serving half of their custodial term and without receiving the rehabilitative measures required; the consequences, as illustrated in the Fishmongers’ Hall attack, can be devasting.

It is interesting that note that there is an upward trend, even for those that are not found dangerous, in people spending a larger proportion of their sentence in custody. Questions need to be asked of this policy and whether, for those that are not found dangerous, what effect the longer custodial period is having on those sentenced. After all, the rationale for dangerous offenders spending a greater period in custody is clear- public protection. Does this same rationale still hold water for those who have committed serious offences but are not deemed dangerous at the point of sentencing?

Research needs to be conducted into the rehabilitative measures and the effectiveness of the extended licence period. Further, despite the immense pressures on the criminal justice system, an increase in expenditure is required to ensure that those who are deemed dangerous get the rehabilitative support required while in custody. We cannot keep offenders in prison forever and therefore while dangerous offenders are in custody, their potential risk needs to be mitigated as much as possible.

References

  1. Hansard, HL col.122, 12 April 2016 ↩︎
  2. The statutory release test for prisoners serving an EDS is contained in section 246A of the Criminal Justice Act 2003: ‘The [Parole] Board must not give a direction [for release] … unless the Board is satisfied that it is no longer necessary for the protection of the public that P should be confined.’ ↩︎
  3. The criteria set out is: a) the offender is aged 18 or over but under 21 when convicted of the offence, b) the offence is a Schedule 19 offence, and c) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. ↩︎
  4. The criteria set out is: a) the offender is aged 21 or over at the time of conviction, b) the offence is a Schedule 19 offence, c) the offence was committed on or after 4 April 2005, and d) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.

    For both section 274 and section 285, if the court considers that the seriousness of a) the offence, or b) the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life. ↩︎
  5. Home Office (2001) Making Punishments Work: A Review of the Sentencing Framework for England and Wales. Available at: https://webarchive.nationalarchives.gov.uk/ukgwa/+/http:/www.homeoffice.gov.uk/documents/halliday-report-sppu/. ↩︎
  6. Ministry of Justice, ‘Breaking the Cycle; effective punishment and rehabilitation and sentencing of offenders’ December 2010, Cm.7972. Available at: https://assets.publishing.service.gov.uk/media/5a74b433e5274a3cb2866813/breaking-the-cycle.pdf. ↩︎
  7. Both IPP and EPP sentences were abolished by section 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. ↩︎
  8. Section 280(1) of the Sentencing Act 2020. Offenders under 18 can be sentenced to an EDS by virtue of section 255 of the Sentencing Act 2020 and offenders aged 18-20 can be sentenced to an EDS by virtue of section 267 of the Sentencing Act 2020. ↩︎
  9. Schedule 15B to the Criminal Justice Act 2003 contained some of the most serious offences. ↩︎
  10. Section 308(1) of the Sentencing Act 2020. ↩︎
  11. Section 308(2) of the Sentencing Act 2020. ↩︎
  12. R. v Lang & Others [2005] EWCA Crim 2864. ↩︎
  13. [2005] EWCA Crim 2864 at para. 17 (i). ↩︎
  14. [2005] EWCA Crim 2864 at para. 17 (ii). ↩︎
  15. R. v Burinkas [2014] EWCA Crim 334 at para. 25. ↩︎
  16. R. v Smith (Terry) [2017] EWCA Crim 252. ↩︎
  17. This loophole was closed by section 129 of the Police, Crime, Sentencing and Courts Act 2022. ↩︎
  18. R (on the application of Stott) v Secretary of State for Justice [2018] UKSC 59. ↩︎
  19. Article 14 of the European Convention on Human Rights is the ‘Prohibition of Discrimination’: ‘The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ ↩︎
  20. [2018] UKSC 59 at para. 155. ↩︎
  21. Clift v United Kingdom (Application no.7205/07) at para. 74. ↩︎
  22. Section 244ZB Criminal Justice Act 2003. ↩︎
  23. Guidance on the use of section 244ZB was helpfully provided in R (on the application of Jody Simpson) v Secretary of State for Justice [2022] EWHC 3181 (Admin). In this matter, Mrs Justice Williams reinforced that the Secretary of State must have ‘reasonable grounds’ for belief that an offender posed a serious risk of harm occasioned by the commission of further serious offences. ↩︎
  24. Many of the criticisms are summarised in House of Commons Justice Committee (2022). ↩︎
  25. James, Wells and Lee v. the United Kingdom (application nos. 25119/09, 57715/09 and 57877/09) ↩︎
  26. A poignant example of this issue is provided by the Fishmongers’ Hall tragedy in November 2019.  This tragedy was perpetrated by Usman Khan, who had previously been imprisoned for eight years after being convicted of terrorism offences, lastly at HMP Whitemoor, a category A maximum security prison. In December 2018, owing to the extended determinate sentence he had received upon appeal, having initially had an IPP sentence imposed, there was no option to keep Khan in custody longer, despite evidence that he was still dangerous. ↩︎