Extended Determinate Sentences

Previously people who were deemed to be dangerous but did not meet the threshold for a life sentence were sentenced, the Court imposed IPP sentences. These were introduced in 2006 but abolished in 2012 for being inhumane.

The Extended Determinate Sentence (EDS) was introduced as the replacement to the IPP sentence.

The Problems with Extended Determinate Sentences

Since coming into force, this sentence has caused a lot of confusion and frustration. Although EDSs are determinate sentences, they are different from normal determinate sentences mainly due to their automatic release dates and the provision for early release by the Parole Board.

Many Judges were not familiar with the law relating to these sentences and made incorrect comments at sentence as to how long would be served. This has obviously caused distress and frustration. Sadly, despite the Judge making incorrect comments in sentencing, when calculating release dates, it is the law that has to be followed. People have gone as far as to try and bring Appeals on this basis, but the Court of Appeal has dismissed them.

EDS Explained

An EDS sentence is made up of a custodial element and an extended licence element. This is very similar to a standard determinate sentence whereby a prisoner serves a portion of it in prison and the remainder on licence in the community.

However, if someone is serving an EDS, they will not automatically be released at the halfway point of the custodial term. Instead, they will usually have their suitability for release considered by the Parole Board. However, whether this happens or at what point this happens depends on the index offence, when they were sentenced and the sentence length.

On top of the custodial element, an EDS also carries an extended licence element which is an extra period on licence in the community.

For example, if someone was sentenced before 13 April 2015 to an EDS of 9 years, made up of 6 years custodial period and 3 years extended licence,

they will be released automatically at two-thirds of the custodial part
they will then serve five years on licence which is made up of the rest of their custodial element (2 years) plus the extended period (3 years) on licence.

If someone was sentenced on or after 13 April 2015, they will not be released automatically after two thirds of the custodial element but instead will be eligible for Parole on that date known as the Parole Eligibility Date (PED). The Parole Board will then decide if they can be released, this will usually be following an Oral Hearing.

After release, they will be subject to licence until the end of what is left of the custodial period plus the extension period. If they breach their licence conditions, they are liable to be recalled to prison. Many think, wrongly, that if they are recalled within what would have been their custodial period, they will be automatically released on the date that would have been their CRD. This is incorrect. The only way release can be achieved after recall is by an application to the Parole Board.

Similar provisions apply to prisoners sentenced to EDS before 13 April 2015 with a custodial period of ten years or more or for a specified offence on Schedule 15B.

Parole Board Processes

The key date for an EDS prisoner is the Parole Eligibility Date (PED). The Parole Board procedure can be daunting and complex especially when it is their first review. The process is a two stage one.

In the first stage, the dossier will be complied and served on the imprisoned and their legal representative. They will take instructions from the offender and also discuss the general process and what is likely to happen. The legal representative will then prepare written representations and send these to the Parole Board. This will be done within 28 days of receiving the dossier. The Parole Board will then consider the matter on the papers. They will then have a number of options open to them:

Direct the re-release on the papers, if this is their decision, arrangements will be made for the prisoner’s release to the accommodation agreed.
Conclude that they should remain in custody. If this happens there will be a further review in 12 months, if there is time for this to happen prior to the CRD.
Direct further reports and adjourn the paper review. Once the further reports are received, they will consider the matter on the papers again and make a further decision.
Directing a hearing. This is often the most likely for these kinds of sentences. The Parole Board often also want a psychological risk assessment to inform them on risk and release. If a hearing is Directed, it can take six to eight months to get a hearing date.

If a Hearing is Directed, this will then require all parties to meet. This will include professionals i.e. probation, psychologists or anyone else involved in the case, the parole board and also the solicitor. The Panel will question the professional witnesses on their risks. The Solicitor will also have this opportunity.

The imprisoned person will also be given the opportunity to answer questions together. The Solicitor will then give their closing submissions, and the Panel will then end the hearing and make their decision. Following this the Parole Board will make a decision on release. They have 14 days to provide this decision.

However, this decision is not final. EDS prisoners will be subject to a 21-day reconsideration process. This means that if any party wishes to appeal the decision, then they must do so within this time frame. If there have been no appeals lodged, then the decision will become final on the 22^nd day and the PPCS will work with the Community Offender Manager (COM) to set a release date.

We would advise anyone subject to a Parole Board review to seek representations from a specialist Prison Law advisor who can assist with written and oral representations and guide you through a process that can sometimes be complicated and stressful

If you require assistance, please contact the Prison Law Team at Reeds Solicitors on 01865 592670. We have expert advisors all over the Country that are able to assist.