Policy paper

New power to prevent automatic early release for offenders serving standard determinate sentences who become of significant public protection concern: Equalities Impact Assessment

Updated 2 August 2023

This was published under the 2019 to 2022 Johnson Conservative government

Policy summary

The Sentencing White Paper 2020 proposed a new power that will allow the Secretary of State for Justice to prevent the automatic early release of offenders serving a Standard Determinate Sentence (SDS) who become a significant public protection concern whilst imprisoned. The majority of such prisoners are subject to automatic release at the half-way point, under section 244 of the Criminal Justice Act 2003, although for those serving an SDS of 7 years or more for a serious sexual or violent offence with a maximum penalty of life imprisonment, the automatic release point is now at two-thirds of the sentence. (One of the measures in this Bill will extend this further for particular serious offences where an SDS of 4 or more years is given.)

This power is intended to deal with prisoners that, because of the nature of their offence and the assessment of their risk at the point of sentencing, were not assessed to be dangerous and therefore did not meet the threshold for the court to impose an extended determinate sentence (EDS) or life sentence but who are subsequently assessed as presenting a danger to the public whilst in custody. This power would prevent such an offender from being automatically released part-way through their sentence; instead the Secretary of State will be able to refer their case to the Parole Board, who will determine if they can be safely released on licence before the end of their sentence. A prisoner who is serving an SDS will be eligible to be referred to the Parole Board if the Secretary of State has reasonable grounds to believe that an individual, were he or she to be released at their automatic release point, would pose a significant risk of serious harm to the public by committing murder or certain ‘specified’ offences within the meaning of section 306 of the Code (mainly of a violent, sexual or terrorist nature). The Secretary of State will take into account whether supervision on licence would be sufficient to manage those risks as there will not be scope to detain a prisoner beyond the end of the sentence that a court has imposed. The offender would, therefore, remain in custody until the Parole Board considered that their risk could be managed in the community, or until their sentence expires.

The aim of the power is to allow the Secretary of State to better manage cases where an offender’s dangerousness and risk of causing serious harm becomes apparent after sentencing, and the offender would otherwise be subject to automatic release at the half-way or two-thirds point. The power will not apply, therefore, to those who receive an SDS for a terrorism or terrorism-connected offence, as we have already legislated to ensure they are not released before the end of sentence without Parole Board approval through the Terrorist Offenders (Restriction of Early Release) Act 2020. While this power may apply to those who become of serious terrorist concern, those who pose a risk of serious violent or sexual offending will also be in scope. It is expected to be used rarely.

The proposed new power reflects that an offender’s risk of harm and dangerousness can become apparent and escalate after the point of conviction. For example, there are offenders in prison whose extremist views and associations or threatening and dangerous behaviour make them a risk to the public, regardless of the offence for which they were convicted. Some of these offenders are serving Standard Determinate Sentences, meaning they will be released automatically before the end of their sentence, even if we know they pose a terrorism risk or other serious danger to the public. The new power will allow the Secretary of State for Justice to prevent automatic early release where he considers it to be in the interests of national security or public protection.

Identification of risk

Although the provisions will apply potentially to all SDS offenders, for the power to be exercised an offender must at some point post-sentence be identified as posing a significant risk of serious harm to the public by committing murder or certain ‘specified’ offences within the meaning of section 306 of the Code (mainly of a violent, sexual or terrorist nature).

Identification of terrorist risk can take place in a number of ways, but in particular will involve a robust, multi-disciplinary, multi-agency process that governs the identification and management of these types of offenders. Identification of a risk of serious sexual or violent harm will draw upon existing processes and sources of evidence and assessment including the Offender Assessment System (OASys), assessments which determine the level of or need for MAPPA management upon release, and the offender management in custody process. In all cases, there will need to be new evidence that has arisen during the course of the sentence for the Secretary of State to have reasonable belief that the offender poses a significant risk of serious harm and should be referred to the Parole Board.

Ultimately, it will be the role of the Parole Board to independently assess whether an offender who has been referred to them is safe to release before the end of their sentence. As a matter of public protection, we consider that this is a proportionate approach to achieving the legitimate aims of the policy.

Equality duties

Section 149 of the Equality Act 2010 places a duty on Ministers and the Department, when exercising their functions, to have ‘due regard’ to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct under the Equality Act 2010
• advance equality of opportunity between different groups (those who share a relevant protected characteristic and those who do not)
• foster good relations between different groups (those who share a relevant protected characteristic and those who do not)

Paying ‘due regard’ needs to be proportionately considered against the nine “protected characteristics” under the Equality Act 2010 – namely ethnicity, sex, disability, sexual orientation, religion and belief, age, marriage and civil partnership, gender reassignment, pregnancy and maternity.

Sources of information

The main source of information used for this analysis is data on Criminal Justice System (CJS) outcomes (specifically sentencing) by age, sex and ethnicity in the annual Criminal Justice System Statistics Quarterly (CJSQ), which is published every May ^{[footnote 1]}.

Availability of data

Detailed data about sentenced prisoners in the affected cohort is widely available for three of the nine protected characteristics – age, sex and ethnicity. We have used this data for our equality analysis. Although there are some data available on those serving sentences of imprisonment by other protected characteristics (see HM Prison and Probation Service (HMPPS) Offender Equalities 2018/19 report ^{[footnote 2]}) this does not allow us to compare the cohort of prisoners who will be affected by this change as we cannot match offenders by these characteristics to sentence type or offence. We have not presented data where they are not available at sufficient quality and with enough coverage to be meaningful. Data is presented where known, therefore where sex, ethnicity or age are not stated or unknown they are omitted from analysis.

Breakdowns are provided using 2019 data from the published statistics and compared to SDS-serving offenders who would not be in scope of the policy: those that committed terrorism and terrorist-related offences. These cohorts have already been considered for preventing automatic release at the half-way point in other policies: Terrorist Offenders (Restriction of Early Release) Act 2020 and Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 ^{[footnote 3]}.

Any offender serving an SDS sentence for any offence (other than already serving an SDS for a terror offence) is under scope of the policy. However given the breadth of offences this covers and the fact that at the point of sentencing we do not know who will go on to be identified as a terrorism risk or risk of serious violent or sexual offending, we have instead provided a breakdown of those sentenced to an SDS for terror-related offences and for those sentenced to an SDS for specified sexual or violent offences as listed in Schedule 18 (and murder). This may be useful to indicate the prevalence of protected characteristics of those that may have the policy applied, but is not necessarily indicative of those who will be affected.

Protected characteristics

This power could be applied to anyone serving an SDS for any offence (other than terrorist or terrorist-related, which are already subject to Parole Board assessment) with an automatic release date who would pose a significant risk of serious harm to the public. Therefore, those eligible under the new power would likely reflect the same trends for the SDS population. The data suggests that some characteristics may be overrepresented in the population that would be in scope of this change; however, it follows the same trends seen consistently within the Criminal Justice System, specifically:

Sex

Males are consistently more likely to be sentenced to an SDS than females, which reflects the offences generally committed between sex. Of those eligible within the new power, 92% were male and 8% female, a slightly lower proportion of males compared to those sentenced to an SDS for terrorism and terrorist-related offences (96%) or Schedule 18/murder offences (95%), and therefore a higher proportion of females are in scope of the policy and eligible under the new power. This is because males are more likely to be charged, convicted and sentenced for terrorism offences than females, which increases the proportion of females in scope.

Age

The highest proportion of those who would have been in scope of the policy using 2019 Sentencing data were aged 30-39 (35%), which is consistent with the majority of the SDS population, as well as those who were sentenced to an SDS for terrorism or terror-related offences (33%) or Schedule 18/murder offences (32%). The proportion of younger people in scope is higher, as 20% of 18-24 year olds and 19% of 25-29 year olds would be eligible under the new power, compared to those not in scope due to being sentenced for a terrorist offence (12% and 17% respectively). This is due to a higher proportion of older people sentenced to an SDS for terrorism offences; 21% of 40-49 year olds and 16% of Over 50-year olds compared to 18% and 9% respectively. The age group breakdown of those in scope of the policy broadly mirrors a similar proportion of those who were sentenced to an SDS for a Schedule 18/murder offences in 2019, however older, Over-50 year olds tended to be sentenced to an SDS for specified sexual and violent offences (11%) compared to the general SDS population (9%). The policy will only be applied once an individual is identified as becoming a significant threat and cannot be safely managed in the usual way on licence if released at their automatic release point – anticipated to be a very small number of SDS offenders – and therefore, we do not consider it likely that the power will discriminate on the grounds of age.

Age group	all SDS sentences	In scope	Terror offences	Sch18 (including murder) offences
18-24	19%	20%	12%	21%
25-29	19%	19%	17%	19%
30-39	35%	35%	33%	32%
40-49	18%	18%	21%	16%
Over 50	9%	9%	16%	11%
Total	73,895	72,352	1,543	17,610

Ethnicity

The ethnicity breakdowns for those in scope of the policy are broadly in line with those sentenced to an SDS in general and therefore the policy is considered proportionate as this power could be applied to anyone serving an SDS. There was a slightly higher proportion of Black (12%) and Asian (9%) people sentenced to an SDS for terrorism offences in 2019 (and therefore not in scope), than those in scope of the policy (10% and 6% respectively). What we know from ethnicity (where known) of people who were sentenced to an SDS in 2019 for a specified violent or sexual offence (Schedule 18/murder offences), is that a higher proportion were White (81%) than those in scope of the policy (79%) or the general SDS population (78%); this drives a lower proportion of those who were sentenced to an SDS for Schedule 18 offences or murder across all other ethnic groups.

Ethnicity (where known)	all SDS sentences	In scope	Terror offences	Sch18 (including murder) offences
White	78%	79%	74%	81%
Black	11%	10%	12%	9%
Asian	6%	6%	9%	5%
Mixed	3%	3%	3%	3%
Chinese and other	2%	2%	2%	1%
Total	47,240	46,080	1,160	12,651

Disability

We do not currently have data on disability. In so far as this policy extends to disabled offenders serving SDS, we believe that the policy is proportionate, having regard to its aim. It would not be reasonable to make an adjustment for disabled offenders so that they are out of scope of the proposals, but it remains important to make reasonable adjustments for disabled offenders to ensure appropriate support is given.

Gender reassignment

We do not currently have data on gender reassignment.

Marriage and civil partnership

We do not currently have data on marriage and civil partnership.

Pregnancy and maternity

This power could be applied to anyone serving an SDS. It does not discriminate on the grounds of pregnancy or maternity. We will continue to ensure Mother and Baby Units are available in custodial settings.

Religion or belief

We do not currently have data on religion or belief.

Sexual orientation

We do not currently have data on sexual orientation.

Equality considerations

Direct discrimination

The law in England and Wales applies to all members of the public. Similarly, these provisions will apply to all members of the public who are convicted and sentenced to a Standard Determinate Sentence with an automatic early release point, if the Secretary of State considers that they would pose a significant risk of serious harm to the public. There is, therefore, no direct discrimination within the meaning of the Equality Act as the law applies equally to all offenders serving these types of sentences. We do not consider that this results in people being treated less favourably because of protected characteristics. This power will apply to youth offenders as well, although only in cases where they turn 18 prior to reaching the automatic release point of their sentence and are assessed to be dangerous. We would expect it to be used even more rarely with youth offenders.

Indirect discrimination

The proposed new power would potentially apply to all people who are sentenced to an SDS with an automatic release point, but the criteria and threshold for making use of the power will be so specific and so high that it is likely to be used in only a very small number of cases. The vast majority of SDS offenders do not present a significant danger or terrorist threat to the public and will continue to be released at their normal automatic release date. It is difficult to predict which offenders who receive an SDS might subsequently go on to become a significant danger to the public, to the extent that their risk cannot be managed in the normal way through release subject to licence conditions and supervision. We know that, in some cases, that risk will manifest itself through evidence of extremist behaviour or terrorist connections – which enables some comparison to be made, in terms of the characteristics of such cases, with offenders who have been convicted of terrorist or terrorist-connected offending. But there is no evidence or data which enables us to assess what the characteristics will be of the (expected very few) offenders for whom use of the power will be considered necessary. Males, those aged 30-39, and BAME individuals are over represented in the overall SDS group to whom the power may potentially apply.

Quantitative data suggests that of individuals arrested, charged and convicted of terrorism; Male, Asian and White individuals made up the majority of this cohort, where trends reflect the terrorist ideologies prevalent in the UK, most notably Islamist Extremist and extreme Far Right terrorism, and this trend may follow for those who may become a threat in prison.

We do not hold equivalent data for individuals convicted for Schedule 18 or murder offences. Moreover, no data is available which would allow us to split the affected group in scope of this policy between religious groups to fully consider the impact. The below table shows the breakdowns of religion (where known) within the general prison population (regardless of sentence type, age or offence type) as at 31 March 2021 ^{[footnote 4]}:

All Christian	38,800	47%
Muslim	13,563	16%
Hindu	354	0%
Sikh	588	1%
Buddhist	1,658	2%
Jewish	521	1%
Other religious group	1,976	2%
Non recognised	8	0%
No religion	25,398	31%

Where a case does meet the threshold for being referred to the Parole Board, it will be for the Board to determine whether it is safe to release that offender. The Parole Board annual report and accounts 2019/20 ^{[footnote 1]} show that a higher proportion of Chinese and Other (60%) and Mixed race prisoners (53%) were released by the Parole Board following an Oral Hearing compared to an average of 51% across all cases, while a higher proportion of Asian prisoners had a remain in custody outcome compared to an average of 36%.

A higher proportion of female prisoners were released following a parole board decision than males (64% versus 50%).

Following the trend from published statistics, there may be a higher proportion of Male or Asian offenders released following an Oral hearing if referred to the Parole Board under the new power. However, since this will apply to cases which would otherwise not be referred to the Parole Board it is not possible to assess the likelihood of this outcome.

Our assessment is that the proposals will not create unlawful discrimination – direct or indirect – within the meaning of the Equality Act as we believe they do not put people with protected characteristics at a particular disadvantage when compared to others who do not share those characteristics. The overrepresentation of some groups within scope of this policy reflect both the characteristics of those who receive SDS sentences and, in respect of those who may pose a terrorist threat, the nature of terrorism in the UK at any given point. The new provisions will apply to all relevant SDS prisoners; regardless of ethnicity, religion, sex or otherwise.

However, we recognise that there may be the potential for unconscious bias through discretion in decision-making in relation to the assessment of risk and dangerousness, leading to the decision on whether to refer the offender to the Parole Board. In order to mitigate this risk, we will closely monitor and record how the power is being used and will regularly review this information to check for any indications of unfairness and disproportionality. Furthermore, we will ensure that we produce a clear HMPPS published policy which clearly outlines the threshold that must be met and the principles which will underpin the Secretary of State’s decision making procedure in determining whether to refer a case to the Parole Board.

Advancing equality of opportunity

We have had regard to this aspect of the equality duty but do not consider this new power is likely to impact on the advancement of equality of opportunity.

Discrimination arising from disability and duty to make reasonable adjustments

In so far as this policy extends to disabled offenders serving SDS, we believe that the policy is proportionate, having regard to its aim. It would not be reasonable to make an adjustment for disabled offenders so that they are out of scope of the proposals, but it remains important to make reasonable adjustments for disabled offenders to ensure appropriate support is given.

We do not consider that any adjustments are required for disabled people over and above the ones already in place in courts and prisons.

Fostering good relations

Our assessment is that this proposed measure is unlikely to impact on fostering good relations between groups with different protected characteristics.

1. https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-2019 ↩ ↩²

2. https://www.gov.uk/government/statistics/hm-prison-and-probation-service-offender-equalities-annual-report-2018-to-2019 ↩

3. https://www.legislation.gov.uk/uksi/2020/158/pdfs/uksipes_20200158_en.pdf ↩

4. Taken from rom the annual HMPPS Offender Equalities report 19/20: https://www.gov.uk/government/statistics/hm-prison-and-probation-service-offender-equalities-annual-report-2019-to-2020 ↩