Part 7: Sentencing and release Chapter 1: Custodial sentences Section 132: Power to refer high-risk offenders to Parole Board in place of automatic release
Section 132 inserts new provision into the CJA 2003 for high-risk offenders who would otherwise be due for automatic release at the halfway or two-thirds point of their sentence. This section will also apply to service prisoners by virtue of sections 237(1) and (1B) of the CJA 2003.
	The Secretary of State has a duty under the CJA 2003 to automatically release certain fixed term prisoners from custody. Under section 243A, prisoners must be released unconditionally before the end of their sentence. Under section 244 and new 244ZA (inserted by section 132, prisoners must be released once they have served the requisite custodial period to serve the remainder of their sentence on licence. The date on which this would occur is known as their automatic release date. The new provision, to be inserted as sections 244ZB and 244ZC of the CJA 2003, would enable the Secretary of State to refer certain prisoners to the Parole Board instead of automatically releasing them. The prisoner would then not be released until the Board decides it is safe to do so or the offender reaches the end of their sentence. The power may be exercised if the Secretary of State believed on reasonable grounds that the release of the prisoner 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).
	New section 244ZB(4)-(8) provide for the notice procedure, which has the effect of overriding the automatic release date whilst in force. This procedure places a duty on the Secretary of State to notify the prisoner of the intention to refer the prisoner to the Board instead of automatically releasing them. Under new section 244ZB(5), such notice must be given before their automatic release date. New section 244ZB(6) specifies that the notice must explain the effect of the referral in relation to the prisoner’s release, the Secretary of State’s reasons for making the referral and the prisoner’s right to make representations, which can be made at any time up until the Board decides on the prisoner’s case under new section 244ZB(11).
	Under new section 244ZB(7), the notice takes effect from when it is received by the prisoner (or when it would ordinarily be expected to be received by the prisoner) and remains in force until the Secretary of State refers the case to the Parole Board, or the notice is revoked.
	In a case where the Secretary of State no longer believes that the prisoner would pose a significant risk of harm to the public if released, new section 244ZB(8) places a duty on the Secretary of State to revoke the notice, in which case the prisoner’s automatic release entitlement will be restored and they will be automatically released under the relevant section of the CJA 2003.
	Under new section 244ZB(9), a prisoner to whom this mechanism applies will be able to apply to the High Court if their automatic release date has passed and their release has been delayed for longer than is reasonably necessary for the Secretary of State to carry out the referral to the Board. The High Court must revoke the notice if unreasonable delay is made out.
	New section 244ZB(10) and (11) provide that the Secretary of State may cancel a referral to the Board, and must do so if they no longer consider the prisoner to pose a significant risk to the public. This may happen at any time until the Parole Board has concluded its consideration of the prisoner’s case. As with a revoked notice, if the Secretary of State rescinds a referral, the prisoner is to be treated as if they were never referred and will be automatically released under the relevant section of the CJA 2003.
	New section 244ZB(12) provides for the prisoner to make representations to the Secretary of State following the notice under new section 244ZB(4). It also makes it clear that if representations have not been received from the prisoner, this will not delay the referral to the Board.
	Section 132 also inserts new section 244ZC which provides for offenders referred to the Board under new section 244ZB. New section 244ZC(2) states that where the Board do not release a prisoner referred under new section 244ZB, the Secretary of State must refer them to the Board again no later than a year after the last referral and then annually thereafter.
	New subsections 244ZC(3)-(6) provide for the release of a prisoner referred under new section 244ZB from custody. New section 244ZC(3) places a duty on the Secretary of State to release these offenders on licence once the requisite custodial period has been served (defined in new section 244ZC(6) as the period which the prisoner would have been eligible for release had they not been referred under new section 244ZB), and the Board has directed it. New section 244ZC(4) provides the Board must not direct release unless it is no longer necessary for the protection of the public that the prisoner should be confined.
	New section 244ZC(5) excludes prisoners who have been referred to the Parole Board under new section 244ZB from early release subject to home detention curfew.
	New section 244ZC (6) and (7) exclude prisoners who have been recalled from being considered for automatic release under section 255A(2) of the CJA 2003. This means that ‘re-release’ will be considered by the Parole Board under section 255C.
	New section 244ZC(8) provides that an offender who has been removed from prison as part of the early removal scheme for foreign national offenders remains subject to new section 244ZB whilst in the UK.
	New section 244ZC(9) provides that an offender who has already been removed from the UK for deportation purposes who would have fallen into scope of new section 244ZC if they had not been removed is subject to those provisions if they return before the end of the sentence.
	New section 244ZC(10) establishes the definition of "the requisite custodial period" in the Interpretation provision for Chapter 6 of Part 12 of the CJA 2003.
	New section 244ZC(11) ensures that new sections 244ZB and 244ZC continue to apply to prisoners who are transferred on a restricted basis to Scotland or Northern Ireland, in keeping with other relevant provisions of the CJA 2003.
	New section 244ZC(12) adds new sections 244ZB and 244ZC to the list of provisions in section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which allows for the tests to be applied by the Parole Board when considering initial release on licence to be altered by secondary legislation.