By Sarah Elliott QC

April 1^st 2020 saw the commencement of The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 statutory instrument 2020 No 158.[i]

This change got little publicity compared to the suspension of early release provisions for those convicted of terrorism offences, but it will significantly lengthen the time spent in prison for those convicted of serious sexual offences or offences of violence by providing for automatic release two-thirds of the way through the custodial term, rather than the current halfway point.

There are 4 important criteria:

1. It only applies to sentences passed on or after 1^st April 2020
2. The offence must be an offence listed in Schedule 15 CJA 2003[ii]
3. The custodial term passed must be 7 years or more
4. The offender must be 18 or over at the time of the sentence

Sexual offences listed in schedule 15 include:

• Rape
• Sexual assault
• Sexual offences against children
• Also like offences under the 1956 Act such as buggery, indecent assault and Indecency

What are the practical effects of this change?

By looking at the sentencing council guidelines for sexual offences[iii] we can see that:

Rape

Only rapes categorised with the least harm and culpability (Category 3B) have a sentence starting point less than 7 years.

Any rapes involving an abuse of trust, use of alcohol, recording of the offence (to cite just 3 of the raised culpability factors) have a starting point of 7 years (category 3A).

Any rapes falling into category 2 - as many do because, for example, of the incidence of severe psychological harm to the victim or their particular vulnerability - have a starting point of 8 years (category 2A).

Sexual assault of an adult (section 3 SOA 2003)

For a single offence the starting point of the highest category 1A is 4 years so the changes will most likely apply only where there are a number of assaults or a number of victims.

Sexual offences against children

Rape and other penetrative offences against the under 13s are already subject to the sentences for ‘Offenders of particular concern’ legislation (section 236A CJA 2003) in force since 2015 meaning offenders are not subject to the early release provisions and can only be released by the Parole Board after serving half or more of the custodial term.

Sexual assaults of children under 13

Likely to affect sentences for the most serious of those assaults, (Category 1A and B and Category 2A), these offences all having a sentencing range of up to (at least 7 years) for a single contested offence. No single offence has a starting point of 7 years or more therefore more likely to affect sentences for more than one offence or more than one victim, (neither of which is uncommon).

Sexual activity with a child

The most serious offences in category 1A have a starting point for a single offence of 6 years  but a range of up to 10 years. This offence typically reflects repeated sexual activity with those between 13 and 16, often including penetrative sexual activity, grooming behaviour, significant disparity in age and abuse of trust which would usually place the offending in the highest category and potentially over the 7 year mark.

Historic offences usually charged as indecent assault

These obviously mirror the sentence for the offence that would be charged under the current legislation but given many historic offence prosecutions involve multiple offences and often more than one victim many of these are likely to attract offences of 7 years or more.

[Worth noting the legislation also applies to any consecutive sentences that fulfil the criteria].

Indecent Images of Children (IILOC)

Unlikely to be affected unless an offence of production of images of the most serious kind involving penetrative sexual activity, animals or sadism where the category range is 4-9 years.

What will sentencing Judges do ?

It is a long established principle of sentencing that release provisions should play no part in the determination of the appropriate custodial term. Therefore the additional length of time spent in custody ought not be taken into account. This will result in increases to the actual length of time an offender spends in prison of a minimum of  14 months for a 7 year sentence and, for example, 2 years for a 12 year sentence.

In summary those likely to be affected by the change:

Many of those convicted of rape :  typical example - offender convicted of vaginal and oral rape of very drunk young woman where photographs taken.

Historic sexual offenders where there has been a number of offences over the years or a number of victims : typical example -  school teacher convicted of repeated genital touching over years of many pupils.

Offenders who have repeated sexual intercourse with underage girls who they have groomed over a period of time and/or where there is a significant age difference: typical example - the family friend who over time sexually grooms a 14 year old and commits an escalating series of offences culminating in intercourse.

Sarah Elliott QC is one of the leading silks at the Bar for defending sexual allegations. To read more about Sarah, click here.