5 September 2025

The delayed Sentencing Bill 2025, responding the Independent Review on Sentencing was published on 2 September 2025. What follows is my initial analysis of the Bill – it is very much a work in progress…

The Bill is extensive (90 pages) and will amend the Sentencing Code (Sentencing Act 2020) – the beautiful comprehensive sentencing code will now, as Joshua Rosenberg has pointed out, be littered with inserted As and Zs – and, in respect of release and recall arrangements, the already extremely revised and complicated Criminal Justice Act (CJA) 2003.

In addition to the Bill and explanatory notes, the government has also published a series of helpful fact sheets and additional information on various aspects of the Bill.

First, the Bill is a practical measure to implement the proposals that have been accepted and therefore the detail of how some of the measures will work, such as the “progression measures”, are not found in the legislation itself but elsewhere.

Second, while the Bill broadly reflects the Gauke proposals, there are many that are not accepted and others that have been significantly tweaked so that there are significant carve outs and exceptions that will create increased complexity: for example, both the presumption against short sentences and the 56 day recalls schemes contain lists of instances where they will not apply. Further, the “progression model” appears to be much less focused on rewards for making progress and more on incentives not to behave badly, through the threat of increased use of different days. The Government has not formally responded to the Gauke review other than a statement on 22 May 2025 and the new Bill so it is not immediately clear what has been rejected. However, it is notable that proposals to earn the opportunity for early release for those serving extended determinate sentences (currently around 10% of the population) have been completely excluded.

Third, there are some missed opportunities and some additional matters, including changes to bail, the Parole Board rules, new types of licence conditions (including a new licence condition restricting offenders to certain geographical areas) and changes for foreign nationals in prison (some of which are not yet settled). The Bill fails to implement the recommendation of the Gauke review to implement an overarching purpose for sentencing of reducing crime, which might have gone some way to taking a principled approach to sentencing inflation. Instead, it seeks to curtail the independence of the Sentencing Council by requiring both the Lady Chief Justice and the Secretary of State for Justice to approve new guidelines, which raises significant concerns about the separation of the powers and the independence of the Sentencing Council.

Fourth, children are entirely excluded from the opportunity to earn early release and remain, for the most part, under the release regimes that were in force prior to recent emergency changes. There is a real risk that in the absence of careful thought and attention to this group, they will be disadvantaged compared with adults, due to the desire to deal with the prison capacity crisis as a priority.

The reality of key measures: presumption against short sentences and an increase in the use of deferred and suspended sentences, “earned release” and 56 day recalls

The three hard-edged proposals by the Gauke review on sentencing appear to have been squarely accepted. However, the legislation needs to be read with care as it contains a range of specific carve outs and exceptions. The first two clauses dealing with these changes take up nine pages alone of the Bill.

However, two of the key proposals by the Gauke review – the much hailed “progression model” and the changes to recall in determinate cases appear to have been implemented with significant modifications to the original proposals.

The Progression model

When the Gauke review was published, the proposed progression model was mooted as one which where “good behaviour opens the door for earlier release, and bad behaviour for extended prison time.” When these proposals were announced, there were serious question marks about how such a scheme would work in practice: there was a concern that they were overly complex and, if release decisions were to be made by prison service staff, they could create inconsistency and unfairness. There was a worry about the risk of discrimination in light of the high number of people in prison with protected characteristics who may not be able to achieve progress equally.

The resulting scheme looks quite different from that. In short, the Bill reduces the automatic release points for adults on determinate sentences but prisoners who breach prison rules resulting in awards of additional days following adjudications will not benefit from those provisions.

The single clause that introduces the changes (clause 20) proposes to amend the CJA 2003. The CJA 2003 requires the SSJ to release prisoners not subject to special provision (i.e. standard determinate sentences that are not for violent or sexual offences over four years) after the requisite custodial period has passed, provided certain exceptions do not apply which are essentially where a case has Parole Board involvement. The existing law already provides that where additional days added by the independent adjudicator, this will delay release (see Prison Rules 1999 55A (1) (b) / YOI Rules 2000 60A (1) (b) for the authority to impose additional days on fixed term prisoners).

The requisite period represents proportions of the sentence have passed (depending on the sentence-type and length) and will now be, at its lowest, one-third of the sentence. The proposed wording suggests a greater level of certainty than the initial Government response had indicated.

Although the Bill itself is silent on the progression model, it is clear from a combination of the press release, impact assessment, progression fact sheet and the explanatory notes is that it is proposed that a strengthened adjudication system will be used to extend release dates through the imposition of additional days for infractions of the prison rules. The only part of the Bill that relates to the intensive licence phase is a clause that will permit new restrictive licence conditions.

Paragraphs 20-21 of the Impact Assessment state:

“20. The Sentencing Bill introduces a new earned release model for individuals serving Standard Determinate Sentences (SDS) known as ‘the progression model’. The Progression model sets a minimum release point of 33% for standard determinate sentences (SDS). Release may be later if they have been given added days by an Independent Adjudicator for serious rule breaking. Similarly, those who were formerly released at the two-thirds point will now become eligible for release no earlier than the halfway stage, with the same approach to added days.

21.This progression model is designed to ensure that custodial sentences are carried out in a way that is fair and transparent for victims, offenders and the public. It is intended to incentivise positive behaviour in prison, support rehabilitation and helps reduce the risk of reoffending. By linking release to conduct, the model will also help restore public confidence in the justice system and provide greater clarity for victims.”

The fact sheet on the earned progression model states that the number of additional days that can be imposed will be doubled:

“Release eligibility is conditional on offenders not behaving badly in prison. If an offender seriously breaches prison rules, an Independent Adjudicator may impose additional custodial days, delaying their release. The number of days that can be added for each adjudication is being doubled.”

This approach at least will avoid concerns about non-judicial decision making by prison service staff being made in inconsistent and discriminatory ways.

However, the adjudication system will need to be considerably strengthened and measures will need to be put in place to ensure that they are administered fairly. Some years ago, the Howard League published reports in 2016 and 2017 on the imposition of additional days through adjudications. The reports highlighted how the system had expanded significantly with prisons using the mechanism inconsistently, often resulting in unfairness for prisoners with protected characterises. Since COVID, these have all been conducted remotely, which can pose serious problems, especially for vulnerable individuals.

The new “intensive” phase of the licence will be supported by the ability to impose new restrictive licence conditions provided for in the Bill, which are explained in the explanatory notes as follows:

“196.The Bill amends section 250 to include specific powers to set new restrictive licence conditions. These include a prohibition on driving, a ban on attendance at public events, restriction zones (where an offender’s movements are restricted to a specific area) and a prohibition on entering drinking establishments. The Bill also amends the power to set a drug testing condition such that it can be applied to all offenders.”

As trailed by the Justice Secretary when the Gauke review was published, the Bill introduces a completely new type of licence condition that, instead of defining places where an offender on licence cannot go, will restrict where they can be in the community. On 22 May 2025, the Justice Secretary stated:

“Exclusion zones are an important protective tool, preventing offenders from enering areas where victims might be, but these can place greater limits on victims than they do offenders. I want to change this: locking offenders down to specific areas so that victims know that they are safe wherever else they want to go.”

This represents a significant change and creates a new form of geographical restrictions of liberty in the community, previously on persevered for very specific orders. Notably there are no safeguards outlined in the legislation itself which states:

“250D Restriction zone condition

(1) A restriction zone condition is a condition requiring a person to remain in one or more areas specified in the condition.

(2) A restriction zone condition may require a person to remain in different areas at different times.

(3) Where a restriction zone condition specifies different areas which do not adjoin each other, it may include provision for the person to whom the condition applies to travel between any of those areas.”

The only check on this will be provided by the requirements for necessity and proportionality as required by Article 8 of the European Convention on Human Rights.

Recall on standard determinate sentences

The proposal to remove the Parole Board involvement in standard determinate recalls is firmly in the Bill. It is notable that the concerns raised by the Justice Committee in an evidence session on 1 July 2025 do not appear to have been addressed in terms of the lack of involvement in the parole board for multiple and successive recalls.

In short, the new regime will effectively mirror the temporary arrangements prepared for “FTR48” which resulted in a presumption that all adults recalled on sentences of 12 months or more but less than 4 years will be recalled for a fixed period of 28 days unless exclusions apply. The exclusions include a long list of just under 50 offences, as well as where the individual is managed at MAPPA levels 2 or 3 and is charged with a new offence. As such, the new Bill will extend fixed term recalls from 28 days to 56 days to qualifying standard determinate sentences of any length (as opposed to only those under 4 years). The rationale for extension of the recall period from 28 days to 56 days is to give probation officers more time to prepare for release (as recommended by the review), although it remains unclear what evidence there is that preparation within this period will be any more feasible or effective than within 28 days and whether that outweighs the harm of short spells in prison acknowledged by the Gauke review.

The explanatory notes explain the intention and operation of the new regime as follows (§101 – 107):

“101.Under the current framework, SDS offenders can be recalled to prison on either a “fixed term” (FTR) or “standard” basis (these are the terms used operationally). Offenders subject to a fixed term recall are automatically released at the end of the recall period. The length of this recall is set in primary legislation (currently 28 days or 14 days for those sentenced to less than 12 months). Offenders subject to a standard recall can be detained until the end of their sentence unless released earlier by either the Lord Chancellor or the Parole Board in accordance with the statutory release test. Pressure on the Parole Board has meant that some offenders experience lengthy delays waiting for review of their recall.

102.The ISR’s review of the sentencing framework included looking at the recall population which has more than doubled over the seven-year period from March 2018 to 2025 from c.6,000 to c.13,600. Recall operates within a wider probation and prison system and is an important response to non-compliance and escalating risk. The ISR and this Bill maintain recall as a public protection measure.

103.The Bill will remove existing short-term recalls and replace them with a longer 56-day recall. This change aims to give probation more time to implement risk management plans and set appropriate licence conditions to ensure their safe re-release into the community. The Bill will also remove standard recall for most SDS offenders but introduces important public protection measures to allow some offenders to be placed on a longer recall in specific circumstances.

104.To protect the public, the Bill will exclude the following offenders from receiving a 56-day recall and instead they will receive a mandatory standard recall should they reach the recall threshold:

Offenders under the highest risk management levels (Multi Agency Public Protection Arrangement “MAPPA” levels 2 or 3).

Offenders who have been convicted of terrorism or terrorism connected offences, as well as those who pose a terrorist risk.

Offenders who have been convicted of certain offences involving or connected with a threat to national security as well as those who may be at risk of involvement in foreign power threat activity.

Offenders who have been recalled on account of being charged with an offence.

105.Additionally, the Bill introduces an accompanying measure that gives the Lord Chancellor a discretion to determine that an offender is not suitable for automatic release where further information is received following the start of a fixed term recall that the offender now meets one or more of the above exclusions.

106.The ISR suggested there could be a mechanism that allows detention beyond the 56 days where further risk management is deemed necessary to prevent dangerous offenders from being automatically released after the 56-day period. The ISR recommended that this should be used exceptionally. The Bill introduces a new power to keep SDS offenders in custody beyond 56 days where they meet the threshold set out in the Bill. This test is that the Lord Chancellor believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of murder or certain specified violent, sexual or terrorist offences.

107.The ISR further suggested that in cases where SDS offenders can be safely re-released into community supervision before the full FTR period, there could be a mechanism to review and re-release these individuals earlier than 56 days to be used exceptionally. There is currently a power for the Lord Chancellor to release offenders at any time following recall (whether fixed term or standard) provided they meet the statutory release test. This power will remain.”

Missed opportunities and additional provisions

No overarching purpose to sentencing

The big missed opportunity is to reset the sentencing framework in its entirety. The Gauke review recommended “introducing “crime reduction” as an overarching principle that governs the five purposes of sentencing”, as well as specific protections for victims and that the framework for sentencing should emphasise that crime reduction is the overall aim of sentencing, with punishment as one factor to be taken into account under that overarching heading. Instead, the Bill simply inserts the words “including victims of crime” after the word “public” so that the protection of the public now specifically includes victims. The Bill does not provide any overarching aim as recommended. This is a missed opportunity: surely what most people want, including victims, is for the system and sentences to be all aimed at achieving a reduction in harm and preventing future crime above all else?

Tacking the overuse of remand

One welcome surprise (largely as it was out of scope of the Gauke review) is a change to the Bail Act which seeks to reduce the availability of exemptions to bail on the basis that there is no real prospect of immediate custody in line with the presumption against short sentences. It also increases the scope for electronic tagging for those on bail on account of the no real prospect test. The Impact Assessment states that (§65): “Across all measures, the monetised impact on electronic monitoring from the legislative measures in the Bill is an increase in average annual costs of £4.2m.”

The Bill also makes specific provision to take into account specific factors that apply to women when considering Bail. The Impact Assessment states (§36):

“Noting the growth in the female remand population, and reflecting the Government’s ambition to reduce the number of women in prison, the Bill will add to the list of factors in the Bail Act 1976 which the court should take into account, where relevant, when deciding whether certain exceptions to the right to bail apply. These factors will include: the defendant is pregnant; the defendant is a primary caregiver; and the defendant has been a victim of domestic abuse.”

An end to the Magistrates Court to prison pipeline?

The Impact Assessment notes:

“The expansion of magistrates’ sentencing powers to bestow sentences of up to and including 12 months (MSP12), in concert with the presumption to suspend short sentences effectively means that magistrates are unable to sentence to immediate custody, other than where exceptions to the duty to suspend apply.”

This, combined with the Bail provisions which should reduce the use of remand to prison should see a significant reduction to Magistrates sending adults to prison. Prison reformers have long argued that Magistrates should simply not have the power to imprison, focusing their efforts instead on community sentences and other more effective alternatives.

Repealing the requirement for certain Parole Panels to include law enforcement officers

The Victims and Prisoners Act introduced a provision to make law enforcement a statutory category of membership of the Board, which came into force in February 2025, to enable the Lord Chancellor to prescribe that members with particular expertise must sit on certain Parole Board panels in top-tier cases. This will be repealed on the basis that this power is not necessary. This does not mean that law enforcement officers will not sit in these cases. The Parole Board now has a significant number of law enforcement members following a recruitment drive.

Further tweaks to the duty to refer Parole Board release decision to the High Court

This Bill has been used to close a gap so that where the Parole Board releases a person unconditionally (as is now possible in DPP and IPP cases), the Secretary of State may still refer that decision to the High Court to be retaken. The duty to refer certain “top-tier” cases was introduced in the Victims and Prisoners Act 2024 (ss61 and 62) but has not yet been implemented, although it is anticipated this will happen by the end of 2025.

Repatriated prisoners

The Bill includes clauses to bring prisoners repatriated to England and Wales to serve sentences for murder in a way that is more closely aligned to those sentenced here for the same offence.

Foreign national prisoners – deportation and return

The Bill removes a minimum period that must be served before foreign nationals can return to their country of origin and, unusually and questionably for a Parliamentary Bill, a “placeholder” to enable the Government to make further legislation to deport foreign nationals.

What about the children?

The explanatory notes on the new earned release scheme state:

“92. These changes will not apply to those sentenced under section 250 of the Sentencing Code (or serving historic sentences under section 91 of the Power of Criminal Courts (Sentencing) Act 2000). S250 sentences are distinct from adult SDS – they are a youth sentence available for use in more narrow circumstances i.e., if the offence is punishable with 14 years or more imprisonment for an adult, for sexual offences and offences related to firearms. Youth sentencing has an entirely different framework and must have the primary purpose of preventing future offending and must consider the welfare of the child.

Youth sentences were not considered by the Independent Review of Sentencing and so the recommended changes to release dates were designed for the adult system. Instead, the department will consider what changes may be relevant and appropriate for the youth sentencing framework separately.

…

1. This exclusion from the changes to release points will continue to apply where an individual turns 18 while serving a youth sentence.”

However, unless and until separate arrangements are made, the position created by the Bill is to preserve and (in some cases revert recent progressive changes) for children while making progressive changes for adults. As the sentencing regime will continue based on the sentence imposed, those who turn 18 and transfer to establishments for young adults and adults will find themselves detained with people serving the same sentence for the same offence with much greater opportunities for early release.

For example, a child who is today eligible for release at 40% will go back to 50% (although they will remain eligible for HDC, if it applies to their offence and sentence type) whereas an adult will be able to earn early release at one-third (unless exclusions apply). A child on an SDS+ (i.e, a sentence of 7 years or more for a violent or sexual offence) will be released at the 2/3 point whereas an adult on the same sentence will be eligible to earn release at the half-way point. Thus, the explanatory notes state:

“190… Those formerly released at the two-thirds point of their sentence will instead become eligible at the halfway stage but again could be released later if days are added.

…

192… The Bill will preserve release arrangements for offenders sentenced under section 250 of the Sentencing Act 2020 (or its predecessor, section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. These offenders will not be subject to the new release arrangements for adult standard determinate sentences. The Bill will repeal the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 and offenders sentenced under section 250 or 91 will be subject to automatic release at 50% of their sentence. Those released at the two-thirds point of their sentence under section 244ZA will continue to be subject to this release arrangement.”

The Bill also extends the application of the sentence for offenders of particular concern (SOPC) to children (clause 7) – which has disadvantageous implications for release.

Children will also be excluded from the new 56 day recall arrangements, as they are with the current temporary FTR48. Measures:

“108.These changes will not apply to youth standard determinate sentences – namely those sentenced under section 250 of the Sentencing Code or serving historic sentences under section 91 of the Power of Criminal Courts (Sentencing) Act 2000. Youth sentences were not considered by the Independent Review of Sentencing and the operational challenges mentioned above, namely a significant increase in recall numbers and Parole Board backlogs, are not experienced by the youth justice system.

109.The Bill preserves the existing recall regime for youth sentences, so individuals sentenced as children to a section 250 or section 91 will continue to be eligible for either a fixed term recall of 14 or 28 days, if the requisite test is met, or a standard recall.

110.This exclusion from the new recall model will continue to apply where an individual turns 18 while serving a youth sentence, as long as they are not also subject to a standard determinate sentence received as an adult.”