In response to the prison overcrowding crisis, the UK government introduced two early release schemes: the ECSL Scheme in October 2023 and the SDS40 Scheme in September 2024. This legal update considers how and when it applies to children in the criminal legal system
Details
End of Custody Supervised Licence (ECSL)
ECSL was introduced in October 2023 by the previous Government as an emergency lever to alleviate the prison capacity crisis. Only certain offenders serving a standard determinate sentence (SDS) and due for automatic release from custody on licence at the halfway point in their sentence were considered for release under ECSL. Those who were released through this measure were subject to licence conditions as identified by probation in their risk management release plan.
Children were not in scope of ECSL.
ECSL ended on the 9 September 2024 to allow for SDS40 to begin on the 10 September.
Changes to Standard Determinate Sentences
The government introduced a measure to temporarily reduce the proportion of certain custodial sentences served in prison from 50% to 40%, which applies only to those serving Standard Determinate Sentences (the “SDS40 Scheme”). Exclusions apply, e.g. sentences for serious violent offences of four years or more and sex offences are automatically excluded. The SDS40 Scheme applies to sentences imposed on people who are at least 18 but under 21. It also applies to children between 12 and 17 sentenced to longer sentences of detention for certain serious offences.
Impact on children
Although ECSL did not apply to the youth custodial sentences, the SDS40 Scheme applies to some. Children aged 12-17 subject to longer sentences under section 250 of the Sentencing Act 2020 (the “Sentencing Act”) are eligible, although the length of the sentence in such cases is likely to be such that the individual will have transferred to an adult prison. It does not apply to Detention and Training Orders.
Commentary
The restrictions to the ECSL Scheme mean that younger, and arguably more vulnerable, people are required to serve a larger proportion of a sentence in custody. More care must be taken to ensure adequate protections and measures are in place to protect children.
The SDS40 Scheme has a broader application. As it does apply to the youth estate, people aged 18-20 will benefit. However, the nascency of the scheme means there are not yet any statistics on the number of young people who have benefited from it.
Written by
Macario Chung , Associate, Paul Hastings LLP