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The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 – Home Detention Curfew (HDC)This instruction applies to:- / Reference:-
Prisons / PSI 43/2012
Issue Date / Effective Date
Implementation Date / Expiry Date
25 January 2013 / 03 December 2012 / 02 December 2016
Issued on the authority of / NOMS Agency Board
For action by (Who is this Instruction for) / All staff responsible for the development and publication of policy and instructions
NOMS HQ
All prisons
High Security Prisons only
Contracted Prisons*
Probation Trusts
Governors
Heads of Groups
Contract Managers in Probation Trusts
Probation Trust Chief Executives
*If this box is marked, then in this document the term Governor also applies to Directors of Contracted Prisons
Instruction type / Service improvement / Legal compliance
For information / Staff in prison establishments dealing with release on HDC
Provide a summary of the policy aim and the reason for its development/revision / The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012amends the existing legislation to create a single HDC scheme with effect from 3 December 2012. From that date, all release on HDC isunder the new provisionsin the amended Criminal Justice Act 2003 (CJA03) as amended by LASPO and there are no longer slightly different provisions applying depending on whether the prisoner is subject to the release provisions of the CJA03 or the Criminal Justice Act 1991 (CJA91).
The changes have been made as part of a package of measures under LASPO to simplify, consolidate and clarify the law around the release and recall of prisoners. The main change to HDC is that there is a single set of statutory exclusions. As a consequence of creating a single statutory scheme it has also been necessary to make changes to the guidance on assessing suitability for HDC where prisoners are serving multiple sentences.
In addition, the opportunity has been taken formally to update the list of presumed unsuitable offences to include specified offences motivated by hatred on the grounds of religion or sexual orientation.
Contact /
- Effective Sentencing, Ministry of Justice
- Junior Ogueri 0203 334 5043
- Suleman Qureshi 0203 334 5044
- Verginia Georgieva 0203 334 4689
Associated documents / PSO 6700 – Home Detention Curfew
PSI 31/2003 - Changes to the Home Detention Curfew Scheme
PSI 31/2006 – Impact of the Criminal Justice Act 2003 on Home Detention Curfew
Replaces the following documents which are hereby cancelled:
PSI 8/2008 - Terrorism Related Offences - amendment to the Categories of Presumed Unsuitable Offences for HDC purposes
PSI 55/2010 - Sentence Calculation and HDC / ERS Eligibility Dates - Multiple Sentences Comprising Mixtures of 1991 Act and 2003 Act Release Provisions
Audit/monitoring:
Deputy Directors of Custody, Commissioners and Controllers will monitor compliance with the mandatory actions set out in this Instruction.
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CONTENTS
Section / Subject / For reference by:1 / Executive summary
1.1 / Background / All staff involved in the calculation of HDC eligibility dates or release on HDC.
1.6 / Other sources of guidance
1.7 / Desired outcomes
1.8 / Application
1.9 / Mandatory actions
1.11 / Resource impact
2 / Operational instructions
2.1 / Statutory Exclusions / All staff involved in the calculation of HDC eligibility dates or release on HDC.
2.3 / Minimum custodial period before release on HDC
2.5 / Presumption of Unsuitability where there are multiple sentences
2.9 / “No Separate Penalty” disposals
2.11 / Update of Presumed Unsuitable Offence list
2.12 / Licences
2.14
Annex A
AnnexB / Recall and Re-release
HDC Eligibility from 3 December where there are multiple sentences
Examples of current offences for which prisoners will be presumed unsuitable for release on HDC
EIA
1.Executive Summary
Background
1.1The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 contains provisions, principally section 112, which amend the legislation relating to release on HDC. These provisions came into force on 3 December 2012, meaning that the release of any prisoner on HDC on or after that date is subject to the HDC changes detailed in this PSI. A single statutory scheme has been created, together with a policy approach that applies equally to all releases under that scheme – so it is no longer necessary to apply different approaches, dependant on whether the prisoner was subject either to release under the Criminal Justice Act 2003 (CJA03) or under the Criminal Justice Act 1991 (CJA91).
1.2The principal change is to the statutory eligibility criteria. From 3 December 2012, the LASPO Act has amended the CJA03 HDC provisions so that the following categories of prisoner are now statutorily excluded from HDC:
- Those serving 4 years or more;
- Those who have previously breached the curfew condition of HDC; and
- Those who have previously been ‘returned’ to prison under s40 CJA 1991 or s116 of the Powers of Criminal Courts (Sentencing) Act 2000.
1.3Such prisoners were already excluded under the CJA91 scheme butunder the CJA03 scheme they were ‘presumed unsuitable’. Making them all statutorily ineligible forms part of creating a single HDC scheme that applies equally to all.
1.4The minimum period to be served in custody before release on HDC can occur is now 28 days, and the minimum sentence on which HDC may be considered is now 12 weeks, in all cases. These were already the minimum periods for CJA03 Act prisoners but, under the CJA91 scheme it was 30 days and 3 months respectively. Again, the change is about harmonising the two previous schemes into a single scheme under the 2003 Act.
1.5In addition to these statutory changes, and as part of the move to a single HDC scheme, the guidance on determining the impact of “presumed unsuitable” offences where multiple sentences are being served has also changed so that the same approach is adopted for all prisoners. From 3 December 2012, a prisoner is presumed unsuitable for HDC if any sentence forming part of the overall sentence envelopecurrently being served is in respect of a presumed unsuitable offence. The list of presumed unsuitable offences has also been updated to include specified offences motivated by hatred on the grounds of religion or sexual orientation.
Other sources of guidance
1.6This instruction should be read in conjunction with guidance in new or amended instructions on the relevant areas that have been affected by the LASPO Act, as follows:
- Sentence Calculation (PSI 39/2012)
- Recall, Review and Re-release (tbc)
- Licences and Licence Conditions (PSI 40/2012)
- Release arrangements for determinate sentences (tbc)
Desired outcomes
1.7This instruction is intended to ensure that prison staff are aware of the statutory and policy changes, and that prisoners are considered for HDC under the provisions of the Criminal Justice Act 2003, as amended by the LASPO Act 2012.
Application
1.8All staff responsible for calculation of HDC eligibility dates and consideration of release on HDCmust be aware of these changes and their effect on prisoners.
Mandatory Actions
1.9Governors must ensure that all relevant staff are aware of the content of this instruction as prisoners’ sentences must be administered in accordance with the legislation as it applies following the changes made by the LASPO Act 2012 and attendant policy.
1.10All prisoners affected by the changes in the PSI must be identified and their eligibility re-assessed in line with the operational instructions below and at annex A; and they must be notified of how the changes affect them.
Resource impact
1.11There will be some initial resource impact in order to identify and notify those prisoners whose eligibility status changes. The initial focus will be on those with imminent HDC eligibility dates but a staggered approach to notifying the rest may be incorporated within the usual HDC process going forward.The biggest impact will be in relation to the change in approach to presumed unsuitable policy. It is estimated that this may require a review of the notification to the prisoner as to eligibility – but not a recalculation of dates – in several hundred cases nationally over the course of a year. In the longer term,the overall impact of the changes is to make for more straightforward assessment of HDC eligibility.
(approved for publication)
Digby Griffith
Director of National Operational Services, NOMS
2.Operational instructions
Statutory Exclusions
2.1From 3 December 2012, all releases on HDC will be governed by section 246 of the Criminal Justice Act 2003 as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Under the amended section 246(4) – amendments in bold - the following are not eligible for HDC:
(i)prisoners serving a sentence for a term of 4 years or more (determined by the aggregate of the terms with consecutive sentences, and by the period from the start of the first to the end of the last term with concurrent sentences);
(ii)violent and sexual offenders currently serving an extended sentence imposed under section226A, 227 or 228 of the CJA03;
(iii)prisoners currently serving a sentence for an offence under section 1 of the Prisoners (Return to Custody) Act 1995 (for failure to return to custody following a period of temporary release);
(iv)prisoners currently subject to a hospital order, hospital direction or transfer direction under section 37, 45A or 47 of the Mental Health Act 1983;
(v)prisoners currently serving a sentence imposed under paragraph 9(1)(b) or (c) or 10(1)(b) or (c) of Schedule 8 of the CJA03 in a case where the prisoner has failed to comply with a curfew requirement of a community order;
(vi)prisoners subject to the notification requirements of Part 2 of the Sexual offences Act 2003;
(vii)prisoners currently liable to removal from the United Kingdom;
(viii)prisoners who have been released on HDC and have,at any time, been recalled to prison under section 255(1)(a) CJA03 or 38A(1) CJA91(breach of the HDC curfew condition), unless the prisoner has successfully appealed the revocation;
(ix)prisoners who have been released on licence under section 248 (compassionate early release from custody) during the currency of the sentence, and have been recalled to prison under section 254;
(x)prisoners who have, at any time been returned to prison under section 40 of the Criminal Justice Act 1991 or section 116 of the Powers of the Criminal Courts (Sentencing) Act 2000; and
(xi)prisoners who have less than 14 days remaining between the date of sentence and the date on which the prisoner will have served the requisite custodial period
2.2Changes will be made to NOMIS as soon as possible to take account of the new statutory exclusions (ie those now covered by paragraph 2 (i), (viii) and (x) above). In the meantime staff calculating HDC eligibility dates for prisoners will need to take account of the change and make the appropriate notification. Prisoners with previously notified HDCEDsfalling on or after 3 December 2012 and who have been advised that they were eligible but presumed unsuitable for HDC because of: length of sentence, previous recall for breach of curfew condition or return to prison for offending during the “at risk” period of a previous(CJA91) sentence must be advised that the law now precludes their release on HDC. In terms of making the notification, staff should use the HDC eligibility report function on NOMIS and prioritise on the basis of proximity to HDCED. The change from being presumed unsuitable to being statutorily excluded will make little practical difference to most prisoners but the notifications will help to avoid prisoners formulating exceptional circumstances representations unnecessarily.
Minimum custodial period before release on HDC
2.3From 3 December 2012, the minimum periodto be served in custody before release on HDC is 28 days in all cases. In addition, the minimum sentence on which HDC may be considered is now 12 weeks in all cases. These were already the minimum periods for CJA03 Act prisoners but, under the CJA91 scheme there was a 30 day minimum period to be served in custody and a 3 months minimum sentence. These minimum periods only impact upon sentences of less than16 weeks so, because all sentences under 12 months were previously considered under the CJA91 scheme, the CJA91 minimum periods have effectively applied to all prisoners until 3 December 2012. Amendments will be made as soon as possible to NOMIS to take account of these changes. In the meantime, they will need to be taken intoaccount in manual HDCED calculations.
2.4No additional action is required in cases affected by the changes to the minima where an HDCED has already been notified and HDC assessment is underway. Such consideration will already be proceeding at an accelerated rate given the length of sentence, and the additional 2 days HDC eligibility may be taken into account if there is time to do so. In cases where HDC assessment has not begun, a decision needs to be taken whether there is time to consider HDC. In line with PSO 6700, no HDC assessment should be started in cases where the Governor responsible for authorising releases on HDC judges that the time remaining until the half way point of sentence is insufficient to enable an assessment to be undertaken and a curfew of at least 14 days to be imposed. Given that the changesadd only2 days to the maximum eligibility period, itwill likely remain impracticable in many cases to conduct the necessary assessments to allow release on HDC in relation to any prisoners already serving such a short sentence.
Presumption of unsuitability where there are multiple sentences
2.5The Secretary of State has determined that, as part of the move to a single HDC scheme, the guidance on determining the impact of “presumed unsuitable” offences where multiple sentences are being served should change so that the same approach is adopted for all prisoners. From 3 December 2012, a prisoner is presumed unsuitable for HDC if any sentence forming part of the overall sentence envelope currently being served is in respect of a presumed unsuitable offence. This is similar to the approach formerly taken in respect of prisoners serving multiple CJA91 sentences forming a single term where one sentence for a “presumed unsuitable” offence would affect the whole term.
2.6In relation to CJA03 sentences, where one of the sentences is one that would statutorily preclude HDC (eg for breach of community order curfew conditions) the prisoner will be ineligible in relation to that sentence but will additionally be presumed unsuitable whilst serving the other sentences within the overall sentence envelope. In relation to prisoners serving sentences imposed before 3 December 2012 which were previously subject to the CJA91 (provision for which is now contained in Schedule 20B of the CJA03, as inserted by LASPO), the sentences form a single term and if any sentence within that single term is a statutorily excluded sentence, the prisoner will be statutorily excluded on the single term. There will be a diminishing number of such former 1991 Act sentences as releases gradually take place so going forward, the majority of prisoners will be subject to the ‘pure’ 2003 Act provisions and policy.
2.7The change in approach will not affect eligibility dates but does mean that all prisoners who are serving multiple sentences will now be presumed unsuitable for release on HDC where at least one of the offences attracts the presumption. All such prisoners will therefore need to demonstrate exceptional circumstances before they may be considered for release and should be notified of this requirement. Staff should use the HDC eligibility report function on NOMIS and prioritise on the basis of proximity to HDCED. The immediate focus should be on any prisoners who have already be invited to submit an HDC address. Thereafter, staff should review the cases of those prisoners serving multiple sentences which include at least one sentence of 12 months or more who have previously been notified of an HDCED to determine whether the information already given as to presumed unsuitability needs to be altered.
2.8Annex A sets out in detail the instructions and principles for calculating eligibility for HDC in multiple sentence cases. It replaces in full Annex B to PSI 55/2010 (which is hereby cancelled) and applies to all releases on HDC taking place on or after 3 December 2012.
“No separate penalty”
2.9Where a prisoner has been convicted of a “presumed unsuitable” offence but the court disposal is recorded as “no separate penalty”, this should not be treated as serving a sentence of imprisonment for the purposes of considering HDC. This is a change from the approach that previously applied to prisoners serving CJA91 sentences. Any prisoner who has been advised that they are presumed unsuitable for HDC solely because of such a disposal may now be considered for HDC under the normal assessment process and the behaviour leading to the conviction taken into account in that process alongside other relevant factors. Where the “no separate penalty” relates to a sexual offence, the effect will still be to make the prisoner presumed unsuitable because thepresumption there applies to those with any history of sexual offending and arises from any convictionfor a sexual offence rather than solely from a current sentence– see PSI 31/2003.
2.10There is no change to the guidance and procedure relating to the consideration of exceptional circumstances representations by prisoners presumed unsuitable for HDC because of current sentence or history of sexual offending, which are set out in PSI 31/2003 and expanded in para 19 of PSI 31/2006. This policy change affects only the approach to determining the point at which a prisoner serving multiple sentence cases should be presumed unsuitable.
Update of “presumed unsuitable”offence list
2.11Annex B to this PSI comprises an updated list of examples of current offences for which prisoners will be presumed unsuitable for release on HDC. Annex B replaces in full annex A to PSI 31/2003 with immediate effect. The change is to add specified offences motivated by hatred on the grounds of religion or sexual orientation. The new list includes terrorist offences as added by PSI 8/2008, which is hereby cancelled. (NB. There is no change to the list of example sexual offences given in annex B to PSI 31/2003 which is used to help determine history of sexual offending). Any prisoner currently serving a sentence for any of the specified offences motivated by hatred on the grounds of religion or sexual orientation must be advised that they are presumed unsuitable for HDC with immediate effect.
Licences
2.12Full details about changes to licence following commencement of the LASPO release and recall provisions is contained in PSI40/2012 on Licences and Licence Conditions. All HDC releases from 3 December will be on one of the following 3 licence templates offered in that PSI:
- All purpose HDC licence for all sentences of 12 months or more; or
- Under 12 months HDC licence; or
- Under 12 months licence for young persons also subject to a 3 month notice of supervision.
2.13PSI 40/2012 provides Word templates of the licences, although they will be added to NOMIS as soon as possible. All HDC licence must carry a photograph of the prisoner. The photograph on NOMIS can be cut and pasted into the Word template.