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Chapter 3.
3.1
Chapter 3 Page 1
PUNITIVE PERIODS OF AN INDETERMINATE SENTENCE
Background
The formal setting of punitive periods for lifers, within life sentences, was introduced in
1983 by the then Home Secretary, Leon Brittan. Under those arrangements, Home Office
Ministers set a minimum period of imprisonment – known colloquially as the “tariff” - to
satisfy the requirements of retribution and deterrence and to specify that period which had
to be served in full before a lifer’s release could be considered by the Parole Board.
However, this period did not provide an automatic release date, as lifers could be detained
beyond the tariff expiry date on grounds of risk for as long as was necessary. Therefore, life
sentences normally contain a ‘punitive’ period, represented by the tariff length and a
‘preventative’ period during which release and liberty on licence is dependent on the
assessment of risk.
3.1.1
Over the years, the Ministerial power to set punitive periods has gradually passed to the
courts. As a result, the judges now set a “specified” or “relevant” part for all life sentence
prisoners which reflects the appropriate punitive period to be served from the date of
sentence. Under the Criminal Justice Act 2003, the trial judges became responsible for
setting the “specified part” for adult mandatory lifers (also known as the “minimum term”)
and, from 4 April 2005, those sentenced to imprisonment, or detention, for public protection
(IPP or DPP). Transitional arrangements in the 2003 Act allow those adult mandatory lifers
whose tariffs had either been set previously by Ministers, or had not been set when the
relevant provisions in the Act came into force on 18 December 2003, to apply to have the
minimum term set or re-set by a High Court judge.
3.1.2
The terminology and calculation of punitive periods has altered over the years, but this
Manual uses the generic term “tariff” to represent the punitive period, given its widespread
usage by prisoners, prison staff and probation officers. However, as highlighted later in this
Chapter, it is important that staff recognise the distinction between the term “tariff” and the
“specified parts” of sentences now set by the judiciary which run from the date of sentence
and exclude time spent in custody on remand.
3.2
Mandatory lifers
3.2.1
A mandatory life sentence is the only sentence which can be passed following a conviction
for murder. ‘Mandatory lifer’ therefore refers to anyone convicted of murder and the age
variances are:



3.2.2
life imprisonment (for those aged over 21);
custody for life (for offences and convictions between the ages of 18 and 21); or
detention during Her Majesty’s pleasure (HMP) (for offences committed when aged
under 18).
Cases sentenced prior to 18 December 2003.
The minimum period of imprisonment in such cases takes the form of a “tariff” period set by
Ministers. The tariff period runs from the date of first remand in custody and includes all
periods spent in custody on remand. The tariff period thus set represents the full punitive
period to be served. It does not take into account any concerns over the lifer’s potential risk.
In November 2002, as the result of a judicial review, the House of Lords decided in the
case of Anderson that tariff-setting was a sentencing exercise that should be performed by
a judge. Tariffs set by ministers were found to be incompatible with the European
(Replacement chapter for PSO 4700 ISP Manual)
Issue date 12/04/2010
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Chapter 3 Page 2
Convention on Human Rights (ECHR), but not illegal. This distinction was important
because it meant that tariffs which had already been set were still enforceable.
3.2.3
After the Anderson judgment ministers stopped setting new tariffs and the judgment was
given effect by the Criminal Justice Act 2003 (CJA2003), which came into force on 18
December 2003. Since that date, all newly convicted lifers have had their minimum terms
set in open court by the trial judge. CJA2003 allows existing prisoners with an unexpired
ministerial set tariff to apply to the High Court to have a new minimum term set. If they do
not apply, then the original tariff will remain the effective punitive period for that lifer.
3.2.4
There were over 700 transitional cases where the mandatory lifer was sentenced prior to 18
December 2003 who did not have tariff set before the Anderson judgment. All such cases
were been referred to the High Court by Public Protection Casework Section (PPCS) in the
NOMS Public Protection and Mental Health Group for a minimum term to be set by a single
judge. The majority of these cases have now been set but a small number remain
outstanding and so still do not have tariffs.
3.2.5
Cases sentenced on or after 18 December 2003
In these cases, the trial judge, when passing a mandatory life sentence, normally specifies
a period of imprisonment for punitive purposes – referred to in the 2003 Act as the
“minimum term”. (Where the offence is so serious that the offender should never be
released the judge must make a ‘whole life order’ to that effect). The minimum term differs
from a tariff set by Ministers in that it runs from the date of sentence and is calculated by
the judge to give the prisoner credit for time already spent in custody on remand. To set a
minimum term under the provisions of Section 269 and Schedule 21 of the Criminal Justice
Act 2003, the trial judge must first choose the appropriate starting point based on the broad
circumstances of the murder, examples of which are set out in Schedule 21. The starting
points are:




whole life
30 years
15 years
12 years (for HMP detainees)
Once the starting point has been chosen, the trial judge must weigh up any aggravating or
mitigating factors not covered by the starting point to decide if the minimum term should be
set higher or lower. The final step in the process is to deduct any time spent in custody on
remand to reach the minimum term which runs from the date of sentence. There are no
minimum or maximum tariff lengths.
3.2.6
Detainees during Her Majesty’s pleasure (HMP)
The sentence of detention during Her Majesty’s pleasure is the statutory penalty for a
person who commits murder between the ages of 10 and 18. The offender’s actual age at
date of conviction is irrelevant. The trial judge sets a minimum term in the same way as for
an adult murderer but with a single starting point of 12 years. Since June 2008, HMP
detainees whose tariffs have not expired, are entitled to periodic reviews of progress in
custody with the possibility of reduction in tariff. This was prompted by a House of Lords
judgment in the case of Smith (July 2005) which ruled that the Secretary of State had a
duty to keep the tariffs of HMP detainees under review. The purpose of the review is to
determine if the existing tariff is still appropriate in light of the detainee’s progress in
custody. Detainees become eligible for a review once they have reached the halfway point
of their current tariffs. The reviews are not automatic; once the halfway point is reached, the
detainees will be contacted by Team A in PPCS and invited to apply for a review.
(Replacement chapter for PSO 4700 ISP Manual)
Issue date 12/04/2010
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3.3
Chapter 3 Page 3
Discretionary lifers
The specified (or relevant) part of the sentence is determined by the trial judge for
discretionary lifers in order to reflect the seriousness of the offence or the combination of
the offence and other offences connected with it. This should exclude concerns about risk.
The specified part is set by the trial judge in open court at the time of sentencing. It is
normally calculated by deciding on the notional determinate period which would have been
imposed, halving it, and then deducting any time spent in custody on remand.
In very exceptional discretionary lifer cases, the judge may have declined to set a specified
part for the sentence. No Parole Board review date can be set in such cases meaning that
the prisoner will never have an opportunity to be released. Prisoners in this position can
appeal against their sentence to have a specified part set by the Court of Appeal.
3.4
Automatic lifers
The ‘automatic’ or two-strike’ life sentence was introduced on 1 October 1997 for anyone
aged 18 or over who was convicted of a second serious violent or sexual offence. The
automatic life sentence was effectively replaced as a sentencing tool by the indeterminate
sentence of Imprisonment for Public Protection for offences committed on or after 4 April
2005. However, existing automatic life sentences are still enforceable and they can, and
should, still be given to newly convicted prisoners where a qualifying offence was
committed before 4 April 2005, regardless of the date of sentence. The tariffs for automatic
life sentences are set in the same way as discretionary cases described above.
3.5
Imprisonment/Detention for Public Protection
(for offences committed on or after 4 April 2005)
Section 225 of the Criminal Justice Act 2003 introduced, with effect from 4 April 2005, a
new indeterminate sentence of imprisonment for public protection (IPP) for an offender who
is convicted of a serious specified violent or sexual offence for which the maximum
sentence is 10 years or more and who, in the court’s view, poses a significant risk of
serious harm to the public through the commission of a further specified offence. Where the
maximum penalty for a specified violent or sexual offence is a life sentence and the
seriousness of the offence warrants it, a discretionary life sentence must be passed. In
either case, when passing sentence, the court must set a specified part for the purposes of
punishment and deterrence.
Section 226 of the Criminal Justice Act 2003 applies the sentence of detention for life for
public protection (DPP) to those under 18 years of age.
In July 2008 the Criminal Justice and Immigration Act 2008 introduced a minimum tariff of 2
years for IPP and DPP prisoners, except in cases where an offender has previously been
convicted of one of the offences listed in section 15A of the Act. This refers to the full
punishment period before any remand time is deducted.
3.6
Setting the Parole Board review date
Staff in establishments are not required to calculate review dates for indeterminate
sentence prisoners; this task is performed by the Initial Action Team (Team A) in PPCS.
3.6.1
Team A are notified of newly sentenced prisoners through receipt of the LISP1. Court
transcript writers are contracted to provide a copy of the sentencing remarks in all
indeterminate sentence cases to PPCS within 35 working days from date of sentence.
Submitting the LISP1 promptly is important because without it PPCS will not be aware of a
prisoner and will not chase up any over due transcripts.
(Replacement chapter for PSO 4700 ISP Manual)
Issue date 12/04/2010
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3.6.2
Once the transcript is received, PPCS will calculate the tariff expiry date and first Parole
Board review date which will be communicated to the prisoner, the establishment’s
Offender Management Unit and to the National Probation Service in the form of a letter.
3.6.3
Any queries about tariff length or the timing of the first Parole Board review should be
referred to Team A in PPCS. Queries about any other aspects of an ISP’s sentence should be
directed to the relevant casework team in PPCS.
(Replacement chapter for PSO 4700 ISP Manual)
Issue date 12/04/2010