Early Release Provisions – Who and When

It is important to be aware that this will only apply to prisoners who are serving standard determinate sentences. This means that those defendants who received sentences for violent offences over 4 years, which meant that they were due to serve two thirds, will not be impacted by the reduced term. Since the legislation was published, it has become clear that the maximum sentence to which the 40% release date will apply is 5 years imprisonment, regardless of the structure of the sentence. 

In addition, there are a number of offences which are excluded, predominantly those which are considered to be terror offences or “domestic abuse” offences which are committed in relationships:

- stalking offences

- controlling or coercive behaviours in an intimate or family relationship

- non-fatal strangulation and suffocation

- breach of restraining order, non-molestation order, and domestic abuse protection order

It is unclear exactly how prisoners will be monitored upon their release, it is likely that we will see a combination of supervision and electronically monitored curfews put in place. 

The practical imposition of the reduction was thought to be relatively limited, this is because it was said to only apply to prisoners who are currently past the 40% point of their sentence (but pre-release). For example, if a prisoner has currently served 6 months of an 18 month sentence – where they would automatically be released after 9 months – they will not be considered eligible under the scheme. This was according to the comments of Shabana Mahmood on 12th July 2024. 

However, when one considers the draft legislation it is clear that the reduction will apply to any individual receiving a determinate sentence of fewer than 5 years from 11th September 2024. Furthermore, it appears that the 40% release date will apply to any individual already serving a sentence from 22nd October 2024. 

These changes have been made as a result of the prison estate in England and Wales reaching capacity. This has already led to an increased focus on release on Home Detention Curfew (HDC). This is a release provision for offenders serving a sentence of at least 12 weeks in prison (i.e. a sentence of greater than 24 months). In order to be eligible for release under HDC, the offender must serve at least a quarter of their sentence, or 28 days, whichever is longer, before being released. The maximum period that someone can be released on HDC for is 180 days, so someone with a sentence of at least two years (i.e. serving at least a quarter – six months) but less than four years could be released up to 180 days before the halfway point of their sentence.

The legislation is currently in draft form and is subject to debate by the Houses of Parliament and House of Lords. It may well be that the legislation is subject to further amendment or clarification in due course. Shabana Mahmood promised MPs she would review the changes in 18 months’ time.