Extended Determinate Sentences - what they are and when might you receive one?

This article was written by Lucie Hall. 

An Extended Determinate Sentence (EDS) is a custodial sentence for which more stringent rules apply to when a person can be release than a standard sentence of imprisonment.

For all convictions on or after 1^st December 2020, an EDS can be imposed on those who aged 18 or over and are:

1. Convicted of a specified offence (these offences are listed in the statute, includes a wide range of indictable offences)
2. Deemed to be a dangerous offender
3. A sentence of imprisonment for life is not deemed justified
4. The offender has a previous conviction for an offence listed on Schedule 14 Sentencing Act 2020 OR the current offence justifies an appropriate custodial term of at least four years.

1. Specified offences

 Specified offences are listed in Schedule 18 of the Sentencing Act 2020. The Schedule includes a range of serious offending, specifically violent, sexual and terrorism offences. However, these descriptions are non-exhaustive: driving offences, modern slavery offences, and firearms offences are also listed.

2. Dangerousness:

Dangerousness is the key feature of an EDS. The assessment of dangerousness considers:

1. The seriousness of the offence
2. The defendant’s previous convictions
3. The level of danger to the public posed by the defendant, and whether there is a reliable estimate of the length of time they will remain a danger
4. The available alternative sentences

The Probation Service will typically assess offenders against these factors and produce a report, which will guide the sentencing Judge. In such cases, we scrutinise these reports closely. We can submit our own written and oral arguments in Court regarding whether we believe the conditions are met and an EDS can and should be imposed.

3. A sentence of imprisonment for life is not deemed justified

The sentencing Judge must consider whether a life sentence is available for the offence and whether it is justified in the circumstances. Other parts of the Sentencing Act 2020 (section 273 SA 2020 or section 283) SA 2020 govern imposition of life sentences and are not explored here. Provided a life sentence is not justified, the Court will move on to the final condition.

4. Qualifying previous conviction or the current offence justifies an appropriate custodial term of at least four years

To receive and EDS, you must either:

1. Have a previous conviction for an offence listed on Schedule 14 Sentencing Act 2020. These offences include, but areas not limited to, offences against the person, manslaughter, firearms offences, and sexual offences.
2. Or the current offence must justify an appropriate custodial term of at least four years. This will be determined with regard to the circumstances of the case and the relevant sentencing guidelines.

How does an EDS function?

The structure of and EDS sentence is different to a standard custodial term, and so are the conditions that govern when you will be released.

An EDS is a single sentence made up of two parts:

1. Custodial term - this reflects the seriousness of the offence; and
2. Extended licence period - this is an additional period of supervision in the community. This is determined based on what the court considers ‘necessary for the purpose of protecting member of the public from serious harm’. This period lasts up to 5 years for violent offences and 8 years of sexual offences. The total period cannot exceed the maximum penalty for the offence.

Release mechanism:

Offenders who qualify for this type of sentence will not be released at the halfway point but instead serve two thirds of their custodial term. In addition, release at the two thirds point is not automatic. Whether an offender can be released is at the discretion of the parole board. If the Parole Board does not approve your release on or after the two thirds mark, you will be automatically released at the end of the full custodial term.

Post-release:

Once released, the offender is subject to strict licence conditions under probation supervision for the remainder of their sentence. A breach will result in recall to prison.

The EDS replaced the previous Imprisonment for Public Protection (IPP) sentences. The rules regarding release eligibility can vary slightly depending on when the offender was sentenced.

If you are concerned about receiving and EDS, please do not hesitate to contact Sonn Macmillan Walker for more detailed advice.