What is a punishment part?
In our recent blogs, we’ve explored when a judge might consider instructing a Risk Assessment Order, and what the Risk Assessment Report involves. When an individual is sentenced to an Order for Lifelong Restriction (OLR), the judge must set a punishment part. This is the minimum length of time that the individual must spend in custody before being considered for parole. Here, we look at how the length of the punishment part is determined, and what happens once it comes to an end.
How does the judge calculate a punishment part?
There’s a complex calculation process in setting the punishment part of the OLR sentence. The following is a simple overview of this process, but if you’d like the detailed version there’s more information in Dr Elaine Ferguson’s PhD thesis ‘A Sentence of Last Resort’, available here.
First, the judge will consider the seriousness of offences the individual has been convicted of and the length of sentence that might have been passed had the OLR not been imposed – this is known as the notional determinate (fixed-term) sentence. For example, 14 years.
The judge will then identify the portion of that period that serves public protection, for example, four years, and that period will be stripped out. There is no need to consider public protection in the punishment part calculation, as that has already been accounted for in imposing the OLR which is a lifelong sentence.
Once the judge has arrived at that number, in our example, ten years, a downward adjustment is made – usually half. This is because, had the judge imposed a determinate sentence of four years or more (the most likely alternative sentence), the individual would have been eligible to apply for parole at the halfway point. For the indeterminate OLR, the individual is eligible for parole when they have served the full punishment part of their sentence. In this example, the punishment part might be set at five years.
Sentencing is a very individual process. Where the judge considers it appropriate, the punishment part may be set at longer than half that ‘stripped down’ period. In our OLR Data Visualisations, you can see the average length of punishment part each year since the sentence was introduced in 2006. For other types of life sentence, the trend has been for increased periods for punishment parts. This is understood to be one of the reasons for the prison population increasing. This is not the case for the OLR, where overall the trend for punishment parts is that they have been reducing, albeit increased in 2023-24. As part of our Corporate Plan, we will be doing research to better understand this.
What happens at the end of a punishment part?
When someone with an OLR has served the full length of their punishment part they become eligible to apply for parole. Becoming eligible for parole doesn’t mean that the individual will be released, it means their case is referred to the Parole Board for Scotland for consideration.
It’s important to be aware that while serving the OLR sentence, individuals may be convicted of further offences too. This means that, while the punishment part of the OLR sentence might have been served, they may then be serving a further sentence and as such they may not be eligible for parole regardless of their punishment part period.
The Parole Board are responsible for directing the release of an individual subject to an OLR. They will only direct a release when they are satisfied that keeping the person in custody is no longer necessary for the protection of the public. In making their decision, the Parole Board will consider the Risk Management Plan that has been prepared and approved by the RMA. Individuals that are still in custody past their punishment part expiry date are assessed as continuing to present an unmanageable risk to the public. They will have further opportunities to apply for parole throughout their time in custody.
The punishment part is only one element of the OLR sentence. One of the things that makes this sentence unique is the lifelong risk management in place. Whether the individual is in custody, or in the community, whether they are serving their punishment part or have passed the expiry date, they will always be subject to a Risk Management Plan.
Next in this blog series we’ll look in more detail at the Risk Management Plan. If you’d like to ask any questions get in touch with the team here.