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Section 236A sentences: what you need to know

by Andrew Morris
31 July 2018

Andrew Morris is a Higher Court Advocate at ITN Solicitors. He specialises in defence advocacy in the Crown and Appellate Courts, including serious and historic sexual offences, terrorism, serious violence and drugs offences.

The Criminal Justice and Courts Act 2015 introduced a new sentence for ‘offenders of particular concern’. This is a form of determinative sentence that has the effect of ensuring that those convicted of certain child sex and terrorism offences are under closer supervision when released. This is an important development that advocates should be aware of.

The Court of Appeal considered the effect of such sentences in the case of R v Fruen & DS [2016] EWCA Crim 561, which is essential reading for the practitioner. In that case, the Court also concluded that there was no reason why consecutive 236A could not be imposed with consecutive license periods.

The effect of the sentence is to (i) add on one extra year of extended licence at the end of the custodial term, and (ii) amend the provisions of automatic release at the halfway point for these prisoners. I discuss below how this can apply also to historic offences.

The announcement of this new sentence was made by the Justice Secretary on 4 October 2013.

The purpose of the new sentence, it was said, was to ensure that those who serve their full determinative custodial terms for these serious offences are not released without supervision.

In contrast, under the regime in force in October 2013, all offenders serving determinative sentences were automatically released at the halfway point of their sentence.

Another purpose of the legislation was to give additional powers to the Parole Board for certain offenders convicted of these specific named offences. With the rise of convictions for child sex and terrorism offences, it is not surprising that this step was taken. It must be remembered that this followed the abolishment of indeterminate sentences for public protection and extended sentences for public protection by virtue of sections 122-128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The new sentences were introduced as a new section 236A of, and schedule 18A to, the Criminal Justice Act 2003 (CJA 2003).

Section 236A states that a person who is sentenced to imprisonment for an offence listed in schedule 18A to the CJA 2003, committed when they were 18 or over, must be sentenced to a special custodial sentence for certain offenders of a particular concern (SOPC). This section does not apply to an offender sentenced to life imprisonment or to an extended sentence.

Section 236A came into force on 13 April 2015 through the passing of part 1 of the CJCA 2015. It applies to both certain historic sexual offences and offences under the CJA 2003. It applies whether or not the offence was committed before or after 13 April 2015.

Schedule 18A lists the offences which are subject to this sentence. Under paragraph 19 of schedule 18A, it lists both rape of a child under 13 and assault of a child under 13 by penetration. These are both current offences under the Sexual Offences Act 2003. Paragraph 23 of the schedule states that abolished offences (ie ones that no longer exist – such as historic sexual offences under the Sexual Offences Act 1956) can also be subject to a SOPC, if they would have constituted an offence currently caught under the schedule.

In other words, if a defendant is found guilty of an offence which committed today would have been equivalent to rape of a child under 13 or assault of a child under 13 by penetration, they must be sentenced under this section, if they do not receive life imprisonment or an extended sentence. It should be noted that the court does not have a discretion if this section applies.

A SOPC is made up of an appropriate custodial term (a term in prison) and an extended licence of one year.

The effect of a SOPC is that the person would no longer be released automatically halfway through the custodial term of the sentence. However, the person would be subject to a discretionary release by the Parole Board between the halfway and end point of the custodial term.

Practitioners are advised to consider the recent guidance released by the Criminal Appeal Office concerning these sentences.