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THE LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS (LASPO) ACT
2012 – HOME DETENTION CURFEW (HDC)
This instruction applies to:-
Reference:-
Prisons
PSI 43/2012
Issue Date
25 January 2013
Issued on the
authority of
For action by (Who
is this Instruction
for)
Effective Date
Implementation Date
03 December 2012
Expiry Date
02 December 2016
NOMS Agency Board
All staff responsible for the development and publication of policy and
instructions
NOMS HQ
All prisons
High Security Prisons only
Contracted Prisons*
Probation Trusts
Governors
Heads of Groups
Contract Managers in Probation Trusts
Probation Trust Chief Executives
*If this box is marked, then in this document the term Governor also applies to Directors
of Contracted Prisons
Instruction type
For information
Provide a summary
of the policy aim
and the reason for
its
development/revisi
on
Service improvement / Legal compliance
Staff in prison establishments dealing with release on HDC
The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act
2012 amends the existing legislation to create a single HDC scheme with
effect from 3 December 2012. From that date, all release on HDC is
under the new provisions in the amended Criminal Justice Act 2003
(CJA03) as amended by LASPO and there are no longer slightly different
provisions applying depending on whether the prisoner is subject to the
release provisions of the CJA03 or the Criminal Justice Act 1991
(CJA91).
The changes have been made as part of a package of measures under
LASPO to simplify, consolidate and clarify the law around the release and
recall of prisoners. The main change to HDC is that there is a single set
of statutory exclusions. As a consequence of creating a single statutory
scheme it has also been necessary to make changes to the guidance on
assessing suitability for HDC where prisoners are serving multiple
sentences.
In addition, the opportunity has been taken formally to update the list of
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presumed unsuitable offences to include specified offences motivated by
hatred on the grounds of religion or sexual orientation.
Contact
 Effective Sentencing, Ministry of Justice
 Junior Ogueri 0203 334 5043
 Suleman Qureshi 0203 334 5044
 Verginia Georgieva 0203 334 4689
Email - sppu.early.release@justice.gsi.gov.uk
Associated
documents
PSO 6700 – Home Detention Curfew
PSI 31/2003 - Changes to the Home Detention Curfew Scheme
PSI 31/2006 – Impact of the Criminal Justice Act 2003 on Home Detention
Curfew
Replaces the following documents which are hereby cancelled:
PSI 8/2008 - Terrorism Related Offences - amendment to the Categories of Presumed Unsuitable
Offences for HDC purposes
PSI 55/2010 - Sentence Calculation and HDC / ERS Eligibility Dates - Multiple Sentences
Comprising Mixtures of 1991 Act and 2003 Act Release Provisions
Audit/monitoring:
Deputy Directors of Custody, Commissioners and Controllers will monitor compliance with the
mandatory actions set out in this Instruction.
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CONTENTS
Section
1
1.1
1.6
1.7
1.8
1.9
1.11
2
2.1
2.3
2.5
2.9
2.11
2.12
2.14
Subject
Executive summary
Background
Other sources of guidance
Desired outcomes
Application
Mandatory actions
Resource impact
Operational instructions
Statutory Exclusions
Minimum custodial period before release
on HDC
Presumption of Unsuitability where there
are multiple sentences
“No Separate Penalty” disposals
Update of Presumed Unsuitable Offence
list
Licences
Recall and Re-release
Annex A
HDC Eligibility from 3 December where
there are multiple sentences
Annex B
Examples of current offences for which
prisoners will be presumed unsuitable for
release on HDC
For reference by:
All staff involved in the
calculation of HDC
eligibility dates or
release on HDC.
All staff involved in the
calculation of HDC
eligibility dates or
release on HDC.
EIA
PSI 43/2012
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1.
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Executive Summary
Background
1.1
The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 contains
provisions, principally section 112, which amend the legislation relating to release on
HDC. These provisions came into force on 3 December 2012, meaning that the release
of any prisoner on HDC on or after that date is subject to the HDC changes detailed in
this PSI. A single statutory scheme has been created, together with a policy approach
that applies equally to all releases under that scheme – so it is no longer necessary to
apply different approaches, dependant on whether the prisoner was subject either to
release under the Criminal Justice Act 2003 (CJA03) or under the Criminal Justice Act
1991 (CJA91).
1.2
The principal change is to the statutory eligibility criteria. From 3 December 2012, the
LASPO Act has amended the CJA03 HDC provisions so that the following categories of
prisoner are now statutorily excluded from HDC:
 Those serving 4 years or more;
 Those who have previously breached the curfew condition of HDC; and
 Those who have previously been ‘returned’ to prison under s40 CJA 1991 or s116 of the
Powers of Criminal Courts (Sentencing) Act 2000.
1.3
Such prisoners were already excluded under the CJA91 scheme but under the CJA03
scheme they were ‘presumed unsuitable’. Making them all statutorily ineligible forms part of
creating a single HDC scheme that applies equally to all.
1.4
The minimum period to be served in custody before release on HDC can occur is now 28
days, and the minimum sentence on which HDC may be considered is now 12 weeks, in all
cases. These were already the minimum periods for CJA03 Act prisoners but, under the
CJA91 scheme it was 30 days and 3 months respectively. Again, the change is about
harmonising the two previous schemes into a single scheme under the 2003 Act.
1.5
In addition to these statutory changes, and as part of the move to a single HDC scheme,
the guidance on determining the impact of “presumed unsuitable” offences where multiple
sentences are being served has also changed so that the same approach is adopted for all
prisoners. From 3 December 2012, a prisoner is presumed unsuitable for HDC if any
sentence forming part of the overall sentence envelope currently being served is in respect
of a presumed unsuitable offence. The list of presumed unsuitable offences has also been
updated to include specified offences motivated by hatred on the grounds of religion or
sexual orientation.
Other sources of guidance
1.6
This instruction should be read in conjunction with guidance in new or amended instructions
on the relevant areas that have been affected by the LASPO Act, as follows:




Sentence Calculation (PSI 39/2012)
Recall, Review and Re-release (tbc)
Licences and Licence Conditions (PSI 40/2012)
Release arrangements for determinate sentences (tbc)
Desired outcomes
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1.7
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This instruction is intended to ensure that prison staff are aware of the statutory and policy
changes, and that prisoners are considered for HDC under the provisions of the Criminal
Justice Act 2003, as amended by the LASPO Act 2012.
Application
1.8
All staff responsible for calculation of HDC eligibility dates and consideration of release on
HDC must be aware of these changes and their effect on prisoners.
Mandatory Actions
1.9
Governors must ensure that all relevant staff are aware of the content of this instruction as
prisoners’ sentences must be administered in accordance with the legislation as it applies
following the changes made by the LASPO Act 2012 and attendant policy.
1.10
All prisoners affected by the changes in the PSI must be identified and their eligibility reassessed in line with the operational instructions below and at annex A; and they must be
notified of how the changes affect them.
Resource impact
1.11
There will be some initial resource impact in order to identify and notify those prisoners
whose eligibility status changes. The initial focus will be on those with imminent HDC
eligibility dates but a staggered approach to notifying the rest may be incorporated within
the usual HDC process going forward. The biggest impact will be in relation to the change
in approach to presumed unsuitable policy. It is estimated that this may require a review of
the notification to the prisoner as to eligibility – but not a recalculation of dates – in several
hundred cases nationally over the course of a year. In the longer term, the overall impact
of the changes is to make for more straightforward assessment of HDC eligibility.
(approved for publication)
Digby Griffith
Director of National Operational Services, NOMS
PSI 43/2012
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2.
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Operational instructions
Statutory Exclusions
2.1
From 3 December 2012, all releases on HDC will be governed by section 246 of the
Criminal Justice Act 2003 as amended by the Legal Aid, Sentencing and Punishment of
Offenders Act 2012. Under the amended section 246(4) – amendments in bold - the
following are not eligible for HDC:
(i)
prisoners serving a sentence for a term of 4 years or more (determined by the
aggregate of the terms with consecutive sentences, and by the period from the start
of the first to the end of the last term with concurrent sentences);
2.2
(ii)
violent and sexual offenders currently serving an extended sentence imposed under
section 226A, 227 or 228 of the CJA03;
(iii)
prisoners currently serving a sentence for an offence under section 1 of the
Prisoners (Return to Custody) Act 1995 (for failure to return to custody following a
period of temporary release);
(iv)
prisoners currently subject to a hospital order, hospital direction or transfer direction
under section 37, 45A or 47 of the Mental Health Act 1983;
(v)
prisoners currently serving a sentence imposed under paragraph 9(1)(b) or (c) or
10(1)(b) or (c) of Schedule 8 of the CJA03 in a case where the prisoner has failed to
comply with a curfew requirement of a community order;
(vi)
prisoners subject to the notification requirements of Part 2 of the Sexual offences
Act 2003;
(vii)
prisoners currently liable to removal from the United Kingdom;
(viii)
prisoners who have been released on HDC and have, at any time, been recalled to
prison under section 255(1)(a) CJA03 or 38A(1) CJA91 (breach of the HDC curfew
condition), unless the prisoner has successfully appealed the revocation;
(ix)
prisoners who have been released on licence under section 248 (compassionate
early release from custody) during the currency of the sentence, and have been
recalled to prison under section 254;
(x)
prisoners who have, at any time been returned to prison under section 40 of
the Criminal Justice Act 1991 or section 116 of the Powers of the Criminal
Courts (Sentencing) Act 2000; and
(xi)
prisoners who have less than 14 days remaining between the date of sentence and
the date on which the prisoner will have served the requisite custodial period
Changes will be made to NOMIS as soon as possible to take account of the new statutory
exclusions (ie those now covered by paragraph 2 (i), (viii) and (x) above). In the meantime
staff calculating HDC eligibility dates for prisoners will need to take account of the change
and make the appropriate notification. Prisoners with previously notified HDCEDs falling on
or after 3 December 2012 and who have been advised that they were eligible but presumed
unsuitable for HDC because of: length of sentence, previous recall for breach of curfew
condition or return to prison for offending during the “at risk” period of a previous (CJA91)
sentence must be advised that the law now precludes their release on HDC. In terms of
making the notification, staff should use the HDC eligibility report function on NOMIS and
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prioritise on the basis of proximity to HDCED. The change from being presumed
unsuitable to being statutorily excluded will make little practical difference to most prisoners
but the notifications will help to avoid prisoners formulating exceptional circumstances
representations unnecessarily.
Minimum custodial period before release on HDC
2.3
From 3 December 2012, the minimum period to be served in custody before release on
HDC is 28 days in all cases. In addition, the minimum sentence on which HDC may be
considered is now 12 weeks in all cases. These were already the minimum periods for
CJA03 Act prisoners but, under the CJA91 scheme there was a 30 day minimum period to
be served in custody and a 3 months minimum sentence. These minimum periods only
impact upon sentences of less than 16 weeks so, because all sentences under 12 months
were previously considered under the CJA91 scheme, the CJA91 minimum periods have
effectively applied to all prisoners until 3 December 2012. Amendments will be made as
soon as possible to NOMIS to take account of these changes. In the meantime, they will
need to be taken into account in manual HDCED calculations.
2.4
No additional action is required in cases affected by the changes to the minima where an
HDCED has already been notified and HDC assessment is underway. Such consideration
will already be proceeding at an accelerated rate given the length of sentence, and the
additional 2 days HDC eligibility may be taken into account if there is time to do so. In
cases where HDC assessment has not begun, a decision needs to be taken whether there
is time to consider HDC. In line with PSO 6700, no HDC assessment should be started in
cases where the Governor responsible for authorising releases on HDC judges that the
time remaining until the half way point of sentence is insufficient to enable an assessment
to be undertaken and a curfew of at least 14 days to be imposed. Given that the changes
add only 2 days to the maximum eligibility period, it will likely remain impracticable in many
cases to conduct the necessary assessments to allow release on HDC in relation to any
prisoners already serving such a short sentence.
Presumption of unsuitability where there are multiple sentences
2.5
The Secretary of State has determined that, as part of the move to a single HDC scheme,
the guidance on determining the impact of “presumed unsuitable” offences where multiple
sentences are being served should change so that the same approach is adopted for all
prisoners. From 3 December 2012, a prisoner is presumed unsuitable for HDC if any
sentence forming part of the overall sentence envelope currently being served is in respect
of a presumed unsuitable offence. This is similar to the approach formerly taken in respect
of prisoners serving multiple CJA91 sentences forming a single term where one sentence
for a “presumed unsuitable” offence would affect the whole term.
2.6
In relation to CJA03 sentences, where one of the sentences is one that would statutorily
preclude HDC (eg for breach of community order curfew conditions) the prisoner will be
ineligible in relation to that sentence but will additionally be presumed unsuitable whilst
serving the other sentences within the overall sentence envelope. In relation to prisoners
serving sentences imposed before 3 December 2012 which were previously subject to the
CJA91 (provision for which is now contained in Schedule 20B of the CJA03, as inserted by
LASPO), the sentences form a single term and if any sentence within that single term is a
statutorily excluded sentence, the prisoner will be statutorily excluded on the single term.
There will be a diminishing number of such former 1991 Act sentences as releases
gradually take place so going forward, the majority of prisoners will be subject to the ‘pure’
2003 Act provisions and policy.
2.7
The change in approach will not affect eligibility dates but does mean that all prisoners who
are serving multiple sentences will now be presumed unsuitable for release on HDC where
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at least one of the offences attracts the presumption. All such prisoners will therefore need
to demonstrate exceptional circumstances before they may be considered for release and
should be notified of this requirement. Staff should use the HDC eligibility report function
on NOMIS and prioritise on the basis of proximity to HDCED. The immediate focus should
be on any prisoners who have already be invited to submit an HDC address. Thereafter,
staff should review the cases of those prisoners serving multiple sentences which include at
least one sentence of 12 months or more who have previously been notified of an HDCED
to determine whether the information already given as to presumed unsuitability needs to
be altered.
2.8
Annex A sets out in detail the instructions and principles for calculating eligibility for HDC in
multiple sentence cases. It replaces in full Annex B to PSI 55/2010 (which is hereby
cancelled) and applies to all releases on HDC taking place on or after 3 December 2012.
“No separate penalty”
2.9
Where a prisoner has been convicted of a “presumed unsuitable” offence but the court
disposal is recorded as “no separate penalty”, this should not be treated as serving a
sentence of imprisonment for the purposes of considering HDC. This is a change from the
approach that previously applied to prisoners serving CJA91 sentences. Any prisoner who
has been advised that they are presumed unsuitable for HDC solely because of such a
disposal may now be considered for HDC under the normal assessment process and the
behaviour leading to the conviction taken into account in that process alongside other
relevant factors. Where the “no separate penalty” relates to a sexual offence, the effect will
still be to make the prisoner presumed unsuitable because the presumption there applies to
those with any history of sexual offending and arises from any conviction for a sexual
offence rather than solely from a current sentence– see PSI 31/2003.
2.10
There is no change to the guidance and procedure relating to the consideration of
exceptional circumstances representations by prisoners presumed unsuitable for HDC
because of current sentence or history of sexual offending, which are set out in PSI
31/2003 and expanded in para 19 of PSI 31/2006. This policy change affects only the
approach to determining the point at which a prisoner serving multiple sentence cases
should be presumed unsuitable.
Update of “presumed unsuitable” offence list
2.11
Annex B to this PSI comprises an updated list of examples of current offences for which
prisoners will be presumed unsuitable for release on HDC. Annex B replaces in full annex
A to PSI 31/2003 with immediate effect. The change is to add specified offences motivated
by hatred on the grounds of religion or sexual orientation. The new list includes terrorist
offences as added by PSI 8/2008, which is hereby cancelled. (NB. There is no change to
the list of example sexual offences given in annex B to PSI 31/2003 which is used to help
determine history of sexual offending). Any prisoner currently serving a sentence for any of
the specified offences motivated by hatred on the grounds of religion or sexual orientation
must be advised that they are presumed unsuitable for HDC with immediate effect.
Licences
2.12
Full details about changes to licence following commencement of the LASPO release and
recall provisions is contained in PSI 40/2012 on Licences and Licence Conditions. All HDC
releases from 3 December will be on one of the following 3 licence templates offered in that
PSI:


All purpose HDC licence for all sentences of 12 months or more; or
Under 12 months HDC licence; or
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Under 12 months licence for young persons also subject to a 3 month notice of
supervision.
PSI 40/2012 provides Word templates of the licences, although they will be added to
NOMIS as soon as possible. All HDC licence must carry a photograph of the prisoner. The
photograph on NOMIS can be cut and pasted into the Word template.
Recall and Re-release
2.14
Full details of the LASPO changes to recall and re-release provisions will be contained in a
PSI (number tbc) on Recall, Review and Re-release. From 3 December 2012, all recalls
from HDC will be under section 254 (general conditions breach) or 255 (curfew breach) of
the CJA2003, regardless of the licence on which initial release took place.
2.15
Re-release following recall under section 255 will be at the half-way point of the sentence
except where:
a) the recall is under s.255(1)(a) but an appeal against recall has been allowed and the
decision notified to the prison, which may release on HDC provided that there is a suitable
approved curfew address available; or
b) the recall is under s.255(1)(b). If there is a suitable, approved curfew address available,
the prison may release on HDC. There is no need for the prisoner to appeal, nor to await
the outcome of any appeal that is made against such a decision before the prisoner may be
released.
2.16
Re-release following recall during the HDC period under section 254 will be as follows:
Fixed Term Recall (newly available from 3 December 2012 to those on HDC)
Re-release will be after 28 days. If that point is reached before the prisoner’s conditional or
automatic release date (CRD/ARD), release on HDC may take place only if there is a
suitable, approved curfew address available.
Standard Recall
Re-release will be at the sentence and licence expiry date (SLED) (unless the Secretary of
State or the Parole Board releases earlier) except in the following scenario: the prisoner
was subject only to a former CJA91 sentence/single term of 12 months or more and the
licence was revoked before 14 July 2008, and they were returned to custody before 3
December 2012. In which case, re-release will take place on the notional licence expiry
date (LED), plus any unlawfully at large (UAL) time.
Re-release prior to CRD will be an HDC release and so cannot take place, even if directed
by the Parole Board, unless there is a suitable, approved curfew address available.
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ANNEX A
HDC Eligibility from 3 December 2012 where there are multiple sentences
1.
No CJA91 sentences will be created from 3 December 2012. All new standard determinate
sentences of 12 months or more will be subject to CJA03 provisions with automatic release
at the half way point of sentence with a licence to the end of the sentence irrespective of
the date of the offence. Sentences of less than 12 months imposed on or after 3 December
2012 are also subject to the CJA03 provisions and will no longer be single termed.
Concurrent sentences of less than 12 months will run parallel to one another with
unconditional release at the latest half way point of all the sentences. Consecutive
sentences under 12 months will be aggregated. Release will be at the half way point of the
aggregate and will be unconditional where the aggregate is under 12 months, but on
licence to the sentence and licence expiry date (SLED) where the aggregate is one of 12
months or more. There is no longer any “at risk” period after 3 December 2012.
2.
Although no new CJA91 sentences will be created, for some time after 3 December 2012,
there will be a diminishing number of determinate sentence prisoners whose release dates
will still be calculated under former CJA91 principles preserved in Schedule 20B of CJA03.
That is, those serving sentences on 3 December 2012 where i) their offences were
committed before 4 April 2005, or ii) they are serving sentences of less than 12 months.
Throughout this guidance, these will be referred to as “former CJA91 sentences”. The thing
to bear in mind in relation to calculations involving the increasingly few former CJA91
sentences is the application of the single term principle. Although the same approach has
now been adopted in both former CJA91 and CJA03 sentences as to how presumed
unsuitable offences affect multiple sentences, there is still a difference in the effect of an
ineligible sentence.
4.
Paragraphs 11-18, 21-31 and Annex A of PSI 31/2006 (including where amended in Annex
B to PSI 55/2010) do not apply in any case where release on HDC takes place after 3
December 2012. The following principles and instructions are to apply instead.
5
Basic Principles

Custodial periods of consecutive CJA03 and CJA03/former CJA91 combination
sentences/terms are aggregated and HDC eligibility and release dates are calculated by
reference to that period.

Concurrent CJA03 and concurrent CJA03/former CJA91 combination sentences are
calculated separately from one another and run parallel to each other. Each will have its
own HDCED.

Former CJA91 sentences are always single termed with each other. Where there is a
mixture of concurrent CJA03 sentences and former CJA91 sentences, the CJA91
sentence/single terms will run parallel to the CJA03 terms. With consecutive mixtures of
CJA91 sentences/single terms and CJA03 sentences, the CJA91 sentence/single term will
be aggregated with the CJA03 term(s).

For consecutive sentences, the order in which the sentences were imposed by the court
remains immaterial for the purposes of calculating HDC eligibility.

Wherever there is a “presumed unsuitable” offence in the overall sentence envelope
(consecutive or concurrent sentences and any combination of former CJA91 and CJA03
sentences), the prisoner must be presumed unsuitable for release on HDC at any point
within the envelope.
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
Where the prisoner is statutorily excluded from HDC on any one of the sentences/terms
within the overall sentence envelope (that is, excluded by virtue of s.246(4) of the CJA03 –
and not simply because they are serving a sentence under 12 weeks), they must not be
released before the CRD or automatic release date(ARD) (or notional CRD/ARD) in relation
to that particular sentence.

In concurrent CJA03 or mixed Act sentences, where the release date of the statutorily
excluded sentence is not the latest release date, the prisoner will be presumed unsuitable
for release during the remainder of any of the other sentences within the sentence
envelope. If all the sentences are former CJA91 sentences, a single term is formed and the
prisoner will be statutorily excluded for the whole single term.

With consecutive CJA03 or mixed Act sentences, any statutorily excluded sentences/terms
should be deemed to be served first which means that a notional CRD/ARD must be
calculated on the statutorily excluded sentence/term and the prisoner will be presumed
unsuitable for HDC during the remainder of the sentence envelope.

Where a court has given “no separate penalty” for an offence listed in annex B, this will not
affect the sentence envelope to make the prisoner presumed unsuitable but must be taken
into account in the risk assessment. This applies to both former CJA91 and CJA03
sentences in any combination.

Until further notice, staff should manually calculate the HDC eligibility date where
there are mixtures of Acts, or multiple sentences as changes need to be made to
NOMIS before automatic calculation will be possible.
For detailed application of the above principles please see the instructions and examples
immediately below.
6.
Calculation instructions
Concurrent CJA03 or mixed regime sentences:
Where the prisoner is serving concurrent CJA03 sentences (example 1 refers), all sentences will
run in parallel. Where there is a combination of former CJA91 and CJA03 sentences (example 3
refers), the CJA03 sentences will not be single termed with the former CJA91 sentences/terms, but
will run in parallel.
Each sentence will have its own HDC eligibility date (HDCED) and conditional release date (CRD),
and eligibility for HDC will be established upon the sentence or single term with the effective (ie
latest) HDCED.
The prisoner may be released at the effective HDCED, but release must not take place until after
the CRD of any sentence/term for a statutorily excluded offence. The prisoner may be released
on HDC after this point only if there are exceptional circumstances because the presence of a
statutorily excluded offence means that the prisoner is presumed unsuitable for HDC in relation to
the remainder of the sentence envelope.
Where at least one of the sentences is for a presumed unsuitable offence, release must not take
place unless there are exceptional circumstances.
Consecutive CJA03 or mixed regime sentences
CJA03 sentences that are ordered to be served consecutively are aggregated (example 2). Any
former CJA91 sentences will form a single term with each other and then this term will be
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aggregated with any CJA03 sentences (example 4). The HDCED is calculated on the length of the
aggregate (i.e. the total length of all the sentences/terms).
The order that the sentences were handed down by the court is immaterial to determining HDC
eligibility.
Where any of the sentences is one that would statutorily preclude HDC on that sentence/term then
the length of that sentence/term must be deducted from the length of the aggregate and the
HDCED calculated on the balance of the aggregate remaining. The presence of a statutorily
excluded sentence/term within the aggregate means that the prisoner may be released on HDC
after this HDCED only if there are exceptional circumstances
Where at least one of the sentences is for a presumed unsuitable offence, the HDCED is
calculated on the length of the aggregate (i.e. the total length of all the sentences/terms), but
release must not take place unless there are exceptional circumstances.
Concurrent former CJA91 sentences
Where the prisoner is serving concurrent former CJA91 sentences (example 5 refers), all
sentences will form a single term with a single HDCED. The only difference to the CJA03
approach immediately above, is that if any of the sentences/terms is statutorily excluded, then the
statutory exclusion apples to the whole sentence envelope
Consecutive former CJA91 sentences
Where the prisoner is serving consecutive former CJA91 sentences (example 6 refers), all
sentences will form a single term. The only difference in approach is that if any of the sentences is
statutorily excluded then the statutory exclusion apples to the single term.
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EXAMPLE 1:
30/11/12
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Concurrent CJA03 sentences (all sentences imposed on or after 3/12/12 and sentences of 12 months or more
imposed before that date for offences committed on or after 04/04/05)
16/01/13
18/07/13
03/09/13
29/11/13
15/01/14
3 years
DOS
17/01/14
HDCED
31/05/14
29/11/14
15/01/15
CRD
29/11/15
SLED
2 years (a)
DOS
HDCED
CRD
SLED
2 years (b)
DOS
HDCED
CRD
SLED
EX 1.1 – all offences suitable
Sentences are calculated in parallel and so each sentence has its own HDCED. Eligibility for HDC would be 17/01/2014 based on the first sentence (135 days
before the half way point – CRD) as this provides the latest eligibility date.
EX 1.2 – 2 year offence (a) presumed unsuitable
Will not change the effective HDCED of 17/01/2014 but the prisoner will be presumed unsuitable for HDC.
EX 1.3 – 2 year offence (a) statutorily excluded
Will not change the effective HDCED of 17/01/2014 but the prisoner will be presumed unsuitable by virtue of having a statutorily excluded sentence within the overall
sentence envelope
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EXAMPLE 2:
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Consecutive CJA03 sentences (all sentences imposed on or after 3/12/12 and sentences of 12 months or more
imposed before that date for offences committed on or after 04/04/05)
20/05/13 sentenced to: Count 1 - 12 months
)
Count 2 - 12 months consecutive ) = aggregate of 3 years
Count 3 - 12 months consecutive )
Aggregate looks like:
20/08/14
20/05/13
19/05/14
07/07/14
DOS
18/11/14
HDCED
of aggregate
notional CRD of
counts 2 and 3
19/05/16
CRD
SLED
HDCED of
count 1
EX 2.1 – all offences suitable for HDC
The length of the aggregate determines the HDC eligibility date. The aggregate of the sentences is 3 years which attracts an HDCED of 135 days before the CRD.
18/11/14 less 135 days gives an HDCED of 07/07/14 . The offences of all sentences are suitable and so the prisoner is eligible for HDC at that point.
EX 2.2 – Count 2 offence presumed unsuitable
If Count 2 had been imposed for an offence of child cruelty, this does not affect HDCED of the aggregate- 07/07/14, but the prisoner would be presumed unsuitable
for HDC
EX 2.3 – Count 2 and 3 sentences statutorily excluded
If counts 2 and 3 were statutorily excluded for HDC purposes, those two sentences would be discounted for the purposes of calculating the HDCED. The HDCED
could only be calculated on the length of the remaining 12 month sentence of count 1. Counts 2 and 3 would be deemed as being served first and the notional CRD
of these sentences would have to be calculated – 19/05/14. On the 12 months of Count 1 the prisoner would be eligible for HDC after serving one quarter of that
sentence. One quarter of 12 months (rounded up) is 92 days. 92 days reckoned from the day after the notional CRD of counts 2 and 3 gives an HDCED of 20/08/14.
The prisoner is presumed unsuitable for HDC by virtue of having a statutorily excluded sentence within the overall sentence envelope.
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EXAMPLE 3:
09/06/12
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Concurrent sentences combining 2003 Act (see definition above) and former 1991 Act sentences (sentences
imposed for offences committed prior to 04/0405 and all under 12 month sentences imposed before 03/12/12)
25/01/13
27/04/13
08/06/13
27/0713
08/09/13
08/12/13
24/04/14
08/06/14
08/12/14 08/06/15
12 months (former 91 Act)
S1
2½ years conc (former 91 Act)
S2
HDCED2
CRD2
LED2
SED2
3 years conc (03 Act)
S3
HDCED3
CRD3
SLED3
2 years conc (03 Act)
S4
HDCED4
CRD4
SLED4
EX 3.1 – all offences suitable for HDC - The 12 months and 2½ years form a 91 Act single term. The 3 years and 2 years are calculated as parallel
sentences and run parallel to the single term. Eligibility for HDC is on the latest HDCED of the 3 terms, that being HDCED3 - 27/07/13.
EX 3.2 – 12 months sentence offence presumed unsuitable
If the 12 months sentence had been imposed for an offence of child cruelty, this prisoner would be presumed unsuitable for HDC on 27/07/2013 by virtue of having a
presumed unsuitable sentence within the overall sentence envelope.
EX 3.3 – 12 month sentence statutorily excluded
As this sentence forms a single term with the 2½ year sentence, the prisoner is statutorily excluded from HDC on the single term of 2½ years. Therefore, the
prisoner cannot be considered for HDC until the day after the CRD of the single term – 09/09/13. The prisoner cannot be released on HDC then unless there are
exceptional circumstances because he is presumed unsuitable by virtue of having a statutorily excluded sentence within the overall sentence envelope.
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EXAMPLE 4:
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Consecutive sentences combining 2003 Act and former 1991 Act sentences (See definitions above)
02/08/12 sentenced to: Count 1 - 15 months (03 Act)
)
Count 2 - 16 months (03 Act) consecutive ) = aggregate of 2 years 9 months
Count 3 - 2 months consecutive
)
Aggregate looks like:
27/08/13
02/08/12
03/05/13
DOS
04/08/13
16/12/13
HDCED
of aggregate
notional CRD of
counts 2 and 3
01/05/15
CRD
SLED
HDCED of
count 1
EX 4.1 – all offences suitable for HDC - The length of the aggregate determines the HDC eligibility date. The aggregate of the sentences is 2 years 9
months which attracts an HDCED of 135 days before the CRD. 16/12/13 less 135 days gives an HDCED of 04/08/13. The offences of all sentences are suitable and
so the prisoner is eligible for HDC at that point.
EX 4.2 – Count 2 offence presumed unsuitable – The prisoner would be presumed unsuitable for HDC on the aggregate’s HDCED of 04/08/13..
EX 4.3 – Count 2 and 3 sentences statutorily excluded - those two sentences would be discounted for the purposes of calculating the HDCED. The
HDCED could only be calculated on the length of the remaining 15 month sentence of count 1. Counts 2 and 3 would be deemed as being served first and the
notional CRD of these sentences would have to be calculated – 03/05/2013. On the 15 months of Count 1 the prisoner would be eligible for HDC after serving one
quarter of that sentence. One quarter of 15 months (rounded up) is 115 days. 115 days reckoned from the day after the notional CRD of counts 2 and 3 gives an
HDCED of 27/08/2013. The prisoner would be presumed unsuitable by virtue of having a statutorily excluded sentence within the overall sentence envelope.
EX 4.4 – Count 1 and 2 sentences statutorily excluded - If counts1 and 2 were statutorily excluded, the prisoner would be completely statutorily
excluded because taking the 15 month and 16 months sentences out of the aggregate would leave a balance of 2 months and the balance would have to be at least
12 weeks before being eligible for HDC.
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EXAMPLE 5:
30/04/10
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Concurrent former CJA91 sentences (see definition above)
16/06/10
3 years
DOS
17/06/11
29/10/11
29/04/13
HDCED
CRD
SED
2 years (a)
DOS
2 years (b)
DOS
EX 2.1 – all offences suitable
Sentences form a single term and there is a single HDCED. Eligibility for HDC would be 17/06/11 based on the first sentence (135 days before the half way point –
CRD) as this provides the latest eligibility date.
EX 2.2 – 2 year offence (a) presumed unsuitable
Will not change the effective HDCED but the prisoner will be presumed unsuitable for HDC.
EX 2.3 – 2 year offence (a) statutorily excluded
Sentences form a single term so the prisoner is statutorily ineligible for HDC.
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EXAMPLE 6:
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Consecutive former CJA91 sentences (See definition above)
20/05/05 sentenced to: Count 1 - 12 months
)
Count 2 - 12 months consecutive ) = single term of 3 years
Count 3 - 12 months consecutive )
Single term looks like:
20/05/05
07/07/06
DOS
HDCED
of single term
18/11/06
19/05/08
CRD
SED
EX 5.1 – all offences suitable for HDC
The length of the single term determines the HDC eligibility date. This is a 3 year single term which attracts an HDCED of 135 days before the CRD. 18/11/06 less
135 days gives an HDCED of 07/07/06. The offences of all sentences are suitable and so the prisoner is eligible for HDC at that point.
EX 5.2 – Count 2 offence presumed unsuitable
If Count 2 had been imposed for an offence of child cruelty, this does not affect HDCED but the prisoner would be presumed unsuitable for HDC
EX 5.3 – Count 3 sentence statutorily excluded
The prisoner is statutorily excluded for the single term
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ANNEX B
Examples of current offences for which prisoners will be presumed unsuitable for release on HDC
Offence Category
Examples:
Homicide
Manslaughter
Attempted Murder
Making Threats to kill
Conspiring or soliciting etc to commit murder
Causing Death by Reckless/Dangerous Driving
Causing Death by careless driving when under the influence
of drink or drugs
Aggravated vehicle taking resulting in death
Explosives
Terrorism
Causing GBH by explosion
Attempting/Causing an explosion with intent
Placing explosives with intent
Making explosives
Possession of explosives with intent to endanger life
Anti-Terrorism, Crime and Security Act 2001:
Use of nuclear weapons
Assisting or inducing certain weapons
Use of noxious substances or things to cause harm and
intimidate
Terrorism Act 2000:
Membership of proscribed organisation
Money laundering, fund raising etc
Weapons training
Directing a terrorist organisation
Possession of articles for terrorist purposes
Collection of information for terrorist purposes Inciting another
person to commit an act of terrorism outside the UK
Committing terrorist related offences outside the UK by a UK
national/resident
Prevention of Terrorism Act 2005:
Breaches of control orders under section 9(1) and (2) (But
not breaches under s9(3))
Terrorism Act 2006:
Encouragement of terrorism
Dissemination of terrorist publications
Preparation of terrorist acts
Training for terrorism Attendance at a place used for terrorist
training
Making and possession of devices or materials
Misuse of devices or material and misuse and damage of
facilities
Terrorist threats relating to devices, materials or facilities
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Offence Category
Possession of offensive
weapons
Examples:
Possession of an offensive weapon
Possessing a sharp bladed instrument
Possession of firearms with
intent
Possession of firearms (including imitation firearms) with
intent to:
 endanger life or commit an offence
 resist arrest
 cause fear of violence
Possession of a firearm whilst committing an offence
Cruelty to Children
Ill treatment or neglect
Child abduction
Abandoning children under 2 years
Other offences, not elsewhere specified, where a person
aged 16 years or more who has the custody, charge or care
of any child or young person under 16 years wilfully assaults
or causes unnecessary suffering (ie this may include those
convicted of, for example, ABH or GBH instead of child
cruelty)
Offences aggravated on the
grounds of race, religion or
sexual orientation
Racially or religiously aggravated offences under the Crime
and Disorder Act 1998 - sections 29 to 32:







malicious wounding or GBH
ABH
common assault
criminal damage
intentional harassment, alarm or distress
harassment
causing fear of violence
Incitement to racial hatred offences under sections 18-23 of
The Public Order Act 1986; and
Incitement to hatred on the grounds of religion or sexual
orientation offences under section 29B to 29G of the Public
Order Act 1986






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use of words or behaviour or display of written
material
publishing or distributing written material
public performance of play
distributing, showing or playing a recording
broadcasting material
possessing material
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EIA – PSI 43/2012
Stage 1 – initial screening
The first stage of conducting an EIA is to screen the policy to determine its relevance to the various
equalities issues. This will indicate whether or not a full impact assessment is required and which
issues should be considered in it. The equalities issues that you should consider in completing this
screening are:
 Race
 Gender
 Gender identity
 Disability
 Religion or belief
 Sexual orientation
 Age (including younger and older offenders).
Aims
What are the aims of the policy?
Until 3 December 2012, prisoners have been considered under two almost identical home
detention curfew (HDC) schemes, depending upon whether their release fell under the Criminal
Justice Act 1991 (CJA91) or 2003 (CJA03). The Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (LASPO) has created a single statutory scheme with effect from 3 December
2012. From that date, the release of any prisoner on HDC must be on the new scheme under
which the following categories of prisoner will be statutorily excluded from HDC:
•
•
•
Those serving 4 years or more;
Those who have previously breached the curfew condition of HDC; and
Those who have previously been ‘returned’ to prison under s.40 CJA 1991 or
s.116 Sentencing Act.
2.
Such prisoners were already excluded under the CJA91 scheme but under the CJA03
scheme they would be ‘presumed unsuitable’ and could be assessed, provided that they first
demonstrated that there are exceptional circumstances in their case.
3.
By bringing all prisoners within the CJA03 scheme from 3 December 2012, the minimum
period to be served in custody before release on HDC will be 28 days and the minimum
sentence on which HDC may be considered will be 12 weeks. These were already the minimum
periods for CJA03 prisoners but, under the CJA91 scheme there was a 30 day minimum period
to be served in custody and a 3 months minimum sentence. The minimum periods only impact
upon sentences of less than 4 months so, because all sentences under 12 months are currently
considered under the CJA91 scheme, the CJA91 minimum periods have effectively applied to all
prisoners until 3 December 2012. The changes will have a very small impact: bringing what will
be a tiny number of prisoners serving between 12 weeks and just under 3 months into the
scheme, and adding a potential 2 days eligibility for eligible prisoners serving sentences of less
than 16 weeks.
4.
In addition, and as part of the move to a single HDC scheme, the Secretary of State has
decided that, from 3 December 2012, where a prisoner is serving multiple sentences, they
should be presumed unsuitable for HDC if one or more of the sentences is in respect of a
presumed unsuitable offence. This is the position already in CJA91 cases but in some CJA03
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cases, prisoners may be assessed in relation to the other “clean” sentences without first having
to pass the exceptional circumstances test. The purpose of the presumption – maintaining
public confidence in HDC – will be served better by this approach to the custodial term currently
being served.
5.
Findings of “no separate penalty” for a presumed unsuitable offence no longer trigger the
presumption on the basis that it cannot be certain the relevant behaviour would have attracted
custody in its own right.
6.
The list of presumed unsuitable offences has also been updated to include specified
offences motivated by hatred on the grounds of religion or sexual orientation. This last change is
not related to LASPO but reflects a decision made by ministers in the Summer and rectifies an
omission whereby racially aggravated offences were presumed unsuitable but not these newer,
similar offences. There is no justification for a difference in treatment.
Overall, the changes will make for a single, clearer HDC scheme in keeping with the
consolidating purpose of the general release provision changes in LASPO.
Effects
What effects will the policy have on staff, offenders or other stakeholders?
There will be some work for prison staff in order to identify the relevant prisoners and notify any
change in their eligibility status. The initial focus will be on those with imminent HDC eligibility
dates but a staggered approach to identifying and notifying the rest may be incorporated within
the usual HDC process going forward. The biggest impact will be in relation to the change in
approach to presumed unsuitable policy. It is estimated that this may require a review of the
notification to the prisoner as to eligibility – but not a recalculation of dates – in several hundred
cases nationally over the course of a year. In the longer term, the overall impact of changes is to
make for more straightforward assessment of HDC eligibility.
The change to the statutory exclusions will have little impact on offenders because the current
policy presumption against release meant that very few of those who will newly be statutorily
excluded were released under the previous arrangements. The main impact for offenders will be
on those who are now presumed unsuitable over the whole of their multiple sentences because
one is for a presumed unsuitable offence. They may now be released only where there are
exceptional circumstances and it is estimated that this change will lead to around 400 – 450
fewer releases per year on HDC. A small number of short term prisoners will become eligible or
eligible slightly earlier than under the previous arrangements.
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Evidence
Is there any existing evidence of this policy area being relevant to any equalities issue?
Identify existing sources of information about the operation and outcomes of the policy, such as operational
feedback (including local monitoring and impact assessments)/Inspectorate and other relevant
reports/complaints and litigation/relevant research publications etc. Does any of this evidence point towards
relevance to any of the equalities issues?
Published Offender Management Caseload Statistics indicate some difference in rates of release
on HDC. Women are released at a much higher rate than men whilst there is little difference
according to age but a tendency for offenders over 50 to be released at a higher rate that those
under 50. Asian/British Asian prisoners receive higher rates of release on HDC than average
whilst Chinese and “other” groups receive a considerably lower rate of release. The reasons for
these variations are not established: ie whether and to what degree the differences flow from
anything inherent in the HDC policy itself or how it is implemented Or, whether the differences
derive from other factors, such as types of offence, length of sentences being served by different
groups, comparative levels of risk, liability to removal from the UK (which precludes HDC) - in
which case, differential release rates may arise regardless of what the HDC policy says or how it
is implemented. This will be explored further, in the context of a full EIA when the HDC policy
and guidance as a whole is next reviewed and updated – but we do not envisage that the
particular changes in this PSI will have any impact on the current, different HDC release rates.
Stakeholders and feedback
Describe the target group for the policy and list any other interested parties. What contact have
you had with these groups?
The move to a single HDC scheme is intended to provide greater clarity to all those working in
and involved with the criminal justice system. Beyond that there is no specific target group. The
statutory changes contained in the LASPO Act were the subject of a wide public consultation
before the provisions were introduced to Parliament. Broad proposals for change – including the
plans to simplify the current release and recall legislation – were set out in the Government’s
Green Paper ‘Breaking the Cycle: Effective punishment, rehabilitation and sentencing of
offenders’.
The proposals on the release legislation were generally welcomed by those who responded. The
senior judiciary were also involved in the development of these changes – given their interest in
and concerns with the current legislation – and they also supported the approach.
The provisions were taken through Parliament and approved by both Houses, without
amendment.
This instruction has been developed in consultation with MoJ Legal Directorate, Finance and
Analytical Services and relevant NOMS and MoJ policy leads
Do you have any feedback from stakeholders, particularly from groups representative of the
various issues, that this policy is relevant to them?
The changes to HDC have to be understood in the context of the general changes being made to
release provision under LASPO. Practitioners working in the Criminal Justice System – in
particular prison staff responsible for calculating and administering prisoners’ sentences and the
judiciary who have had to consider challenges brought before them by prisoners – have
complained about the complexity of the exiting provisions. We have talked to them about how
greater clarity could be achieved and taken on board their views.
The changes to HDC will impact adversely on some prisoners. Some (eg those with previous
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HDC breaches) will find that they are now precluded entirely from HDC as opposed to being
presumed unsuitable with an opportunity for release in exceptional circumstances. In fact, the
presumption meant few were released under the previous arrangements. In other cases (about
400-450 per year) prisoners will find that they are not released because they are serving multiple
sentences including one which makes them presumed unsuitable.
Impact
Could the policy have a differential impact on staff, prisoners, visitors or other stakeholders on
the basis of any of the equalities issues?
No. The changes will apply equally to all prison sentences and all prisoners. There is no reason
or evidence to suggest that the changes will have a differential impact on different groups.
Local discretion
Does the policy allow local discretion in the way in which it is implemented? If so, what
safeguards are there to prevent inconsistent outcomes and/or differential treatment of different
groups of people?
No, these are either statutory or mandatory policy changes that apply to all prisoners – they must
be applied consistently to all prisoners in England and Wales and there is no scope for local
discretion.
Summary of relevance to equalities issues
Strand
Race
Gender (including
gender identity)
Disability
Religion or belief
Sexual orientation
PSI 43/2012
Yes/No
Rationale
Yes
Data indicates some differential rates of HDC across ethnic
groups. The reasons for this are not established, ie
whether and to what degree the policy itself, how it is
implemented or other factors, play a part. The changes
covered in this guidance should not affect this.
Data indicates differential rates of HDC between men and
women the genders. The reasons for this are not
established; ie whether and to what degree the policy itself
or how it is implemented, as opposed other factors, play a
part. The changes covered in this guidance should not
affect this.
Yes
No
No evidence of differential impact. The changes covered in
this guidance should not affect this.
No
No evidence of differential impact. The changes covered in
this guidance should not affect this.
No
No evidence of differential impact. The changes covered in
this guidance should not affect this.
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Strand
Age (younger offenders)
Age (older offenders)
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Yes/No
Rationale
No
No evidence of differential impact. The changes covered in
this guidance should not affect this.
No
No evidence of differential impact. The changes covered in
this guidance should not affect this.
If you have answered ‘Yes’ to any of the equalities issues, a full impact assessment must be completed. Please
proceed to STAGE 2 of the document.
There is no indication that the changes to the HDC policy issued via this Prison Service Instruction
will lead to different outcomes for any particular group. Therefore, this Instruction has been issued
before proceeding to stage 2. But the data which indicates differential rates of HDC across ethnic
groups and between the genders requires further work to establish the reasons behind the data
and what action may be required to improve practice and/or policy on HDC. A full impact
assessment will be issued alongside the planned consolidation/revision of the general HDC policy.
Therefore, we believe this instruction can be issued without proceeding to stage 2 of the EIA.
If you have answered ‘No’ to all of the equalities issues, a full impact assessment will not be required, and this
assessment can be signed off at this stage. You will, however, need to put in place monitoring arrangements to
ensure that any future impact on any of the equalities issues is identified.
Monitoring and review arrangements
Describe the systems that you are putting in place to manage the policy and to monitor its
operation and outcomes in terms of the various equalities issues.
The MOJ runs very active release policy and sentence calculation helplines taking calls and
correspondence from prisoners and their representatives and from practitioners. We will monitor
overall how implementation of these changes is achieved and respond to any unforeseen issues
or difficulties. This will primarily be done through the helplines which enable us swiftly to receive
feedback and questions from staff and will identify any areas that may require further work or raise
equalities issues.
We will also monitor any litigation arising from the changes and will be closely involved in
responding to any challenges or JRs – this will enable us to review whether such challenges
indicate the changes are having a particular impact on equalities issues.
State when a review will take place and how it will be conducted.
Feedback via the helplines will be ongoing, as will monitoring of any litigation arising from the
changes. A review of progress and success with implementation of the LASPO Act changes will be
considered if that feedback indicates that such a review is necessary.
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Policy lead
Head of group
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Name and signature
Date
Chris Potter
5 December 2012
Helen Judge
5 December 2012
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