Criminal Justice (Scotland) Act 2003

Part 1 — Protection of the public at large

Risk assessment and order for lifelong restriction

Risk assessment and order for lifelong restriction

1

• (1) In Part XI of the 1995 Act (sentencing), after section 210AA (which is inserted into that Act by section 20 of this Act) there is inserted—

(210B) (1) This subsection applies where it falls to the High Court to impose sentence on a person convicted of an offence other than murder and that offence— (a) is (any or all)— (i) a sexual offence (as defined in section 210A(10) of this Act); (ii) a violent offence (as so defined); (iii) an offence which endangers life; or (b) is an offence the nature of which, or circumstances of the commission of which, are such that it appears to the court that the person has a propensity to commit any such offence as is mentioned in sub-paragraphs (i) to (iii) of paragraph (a) above. (2) Where subsection (1) above applies, the court, at its own instance or (provided that the prosecutor has given the person notice of his intention in that regard) on the motion of the prosecutor, if it considers that the risk criteria may be met, shall make an order under this subsection (a “risk assessment order”) unless— (a) the court makes an interim compulsion order by virtue of section 210D(1) of this Act in respect of the person; or (b) the person is subject to an order for lifelong restriction previously imposed. (3) A risk assessment order is an order— (a) for the convicted person to be taken to a place specified in the order, so that there may be prepared there— (i) by a person accredited for the purposes of this section by the Risk Management Authority; and (ii) in such manner as may be so accredited, a risk assessment report (that is to say, a report as to what risk his being at liberty presents to the safety of the public at large); and (b) providing for him to be remanded in custody there for so long as is necessary for those purposes and thereafter there or elsewhere until such diet as is fixed for sentence. (4) On making a risk assessment order, the court shall adjourn the case for a period not exceeding ninety days. (5) The court may on one occasion, on cause shown, extend the period mentioned in subsection (4) above by not more than ninety days; and it may exceptionally, where by reason of circumstances outwith the control of the person to whom it falls to prepare the risk assessment report (the “assessor”), or as the case may be of any person instructed under section 210C(5) of this Act to prepare such a report, the report in question has not been completed, grant such further extension as appears to it to be appropriate. (6) There shall be no appeal against a risk assessment order or against any refusal to make such an order. (210C) (1) The assessor may, in preparing the risk assessment report, take into account not only any previous conviction of the convicted person but also any allegation that the person has engaged in criminal behaviour (whether or not that behaviour resulted in prosecution and acquittal). (2) Where the assessor, in preparing the risk assessment report, takes into account any allegation that the person has engaged in criminal behaviour, the report is to— (a) list each such allegation; (b) set out any additional evidence which supports the allegation; and (c) explain the extent to which the allegation and evidence has influenced the opinion included in the report under subsection (3) below. (3) The assessor shall include in the risk assessment report his opinion as to whether the risk mentioned in section 210B(3)(a) of this Act is, having regard to such standards and guidelines as are issued by the Risk Management Authority in that regard, high, medium or low. (4) The assessor shall submit the risk assessment report to the High Court by sending it, together with such documents as are available to the assessor and are referred to in the report, to the Principal Clerk of Justiciary, who shall then send a copy of the report and of those documents to the prosecutor and to the convicted person. (5) The convicted person may, during the period of his detention at the place specified in the risk assessment order, himself instruct the preparation (by a person other than the assessor) of a risk assessment report; and if such a report is so prepared then the person who prepares it shall submit it to the court by sending it, together with such documents as are available to him (after any requirement under subsection (4) above is met) and are referred to in the report, to the Principal Clerk of Justiciary, who shall then send a copy of it and of those documents to the prosecutor. (6) When the court receives the risk assessment report submitted by the assessor a diet shall be fixed for the convicted person to be brought before it for sentence. (7) If, within such period after receiving a copy of that report as may be prescribed by Act of Adjournal, the convicted person intimates, in such form, or as nearly as may be in such form, as may be so prescribed— (a) that he objects to the content or findings of that report; and (b) what the grounds of his objection are, the prosecutor and he shall be entitled to produce and examine witnesses with regard to— (i) that content or those findings; and (ii) the content or findings of any risk assessment report instructed by the person and duly submitted under subsection (5) above. (210D) (1) Where subsection (1) of section 210B of this Act applies, the High Court, if— (a) it may make an interim compulsion order in respect of the person under section 53 of this Act; and (b) it considers that the risk criteria may be met, shall make such an order unless the person is subject to an order for lifelong restriction previously imposed. (2) Where an interim compulsion order is made by virtue of subsection (1) above, a report as to the risk the convicted person’s being at liberty presents to the safety of the public at large shall be prepared by a person accredited for the purposes of this section by the Risk Management Authority and in such manner as may be so accredited. (3) Section 210C(1) to (4) and (7) (except paragraph (ii)) of this Act shall apply in respect of any such report as it does in respect of a risk assessment report. (210E) For the purposes of sections 195(1), 210B(2), 210D(1) and 210F(1) and (3) of this Act, the risk criteria are that the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large. (210F) (1) The High Court, at its own instance or on the motion of the prosecutor, if it is satisfied, having regard to— (a) a risk assessment report submitted under section 210C(4) or (5) of this Act; (b) any report submitted by virtue of section 210D of this Act; (c) any evidence given under section 210C(7) of this Act; and (d) any other information before it, that, on a balance of probabilities, the risk criteria are met, shall make an order for lifelong restriction in respect of the convicted person. (2) An order for lifelong restriction constitutes a sentence of imprisonment, or as the case may be detention, for an indeterminate period. (3) The prosecutor may, on the grounds that on a balance of probabilities the risk criteria are met, appeal against any refusal of the court to make an order for lifelong restriction. (210G) (1) Where, in respect of a convicted person— (a) a risk assessment order is not made under section 210B(2) of this Act, or (as the case may be) an interim compulsion order is not made by virtue of section 210D(1) of this Act, because the court does not consider that the risk criteria may be met; or (b) the court considers that the risk criteria may be met but a risk assessment order, or (as the case may be) an interim compulsion order, is not so made because the person is subject to an order for lifelong restriction previously imposed, the court shall dispose of the case as it considers appropriate. (2) Where, in respect of a convicted person, an order for lifelong restriction is not made under section 210F of this Act because the court is not satisfied (in accordance with subsection (1) of that section) that the risk criteria are met, the court, in disposing of the case, shall not impose on the person a sentence of imprisonment for life, detention for life or detention without limit of time. (210H) (1) This subsection applies where a person falls to be sentenced— (a) in the High Court for an offence (other than murder) mentioned in section 210B(1) of this Act; or (b) in the sheriff court for such an offence prosecuted on indictment. (2) Where subsection (1) above applies, the court shall, as soon as reasonably practicable, prepare a report in writing, in such form as may be prescribed by Act of Adjournal— (a) as to the circumstances of the case; and (b) containing such other information as it considers appropriate, but no such report shall be prepared if a report is required to be prepared under section 21(4) of the Criminal Justice (Scotland) Act 2003 (asp 7).

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• (2) Schedule 1, which contains amendments consequential upon the provisions of subsection (1), has effect.

Disposal in case of insanity

Disposal of case where accused found to be insane

2

In section 57 (disposal of case where accused found to be insane) of the 1995 Act—

• (a) in subsection (2) after paragraph (b) there is inserted—

(bb) make an interim hospital order;

; and

• (b) for subsection (3) there is substituted—

(3) Where the court is satisfied, having regard to a report submitted in respect of the person following an interim hospital order, that, on a balance of probabilities, the risk his being at liberty presents to the safety of the public at large is high, it shall make orders under both paragraphs (a) and (b) of subsection (2) above in respect of that person.

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The Risk Management Authority

The Risk Management Authority

3

• (1) There is established an authority (to be known as the “Risk Management Authority”) whose functions under this Act and any other enactment are to be exercised for the purpose of ensuring the effective assessment and minimisation of risk.

• (2) For the purposes of subsection (1) and sections 4 to 6, “risk” means, as regards—

• (a) a person convicted of an offence; or

• (b) a person who is subject to a disposal under section 57 (disposal of case where accused found not criminally responsible or unfit for trial ) of the 1995 Act,

the risk the person’s being at liberty presents to the safety of the public at large.

• (3) Schedule 2 has effect with respect to the Authority.

Policy and research

4

In, or as the case may be in relation to, the assessment and minimisation of risk—

• (a) the Risk Management Authority is to—

• (i) compile and keep under review information about the provision of services in Scotland;

• (ii) compile and keep under review research and development;

• (iii) promote effective practice; and

• (iv) give such advice and make such recommendations to the Scottish Ministers as it considers appropriate; and

• (b) the Authority may—

• (i) carry out, commission or co-ordinate research and publish the results of such research; and

• (ii) undertake pilot schemes for the purposes of developing and improving methods.

Guidelines and standards

5

• (1) The Risk Management Authority is to—

• (a) prepare and issue guidelines as to the assessment and minimisation of risk; and

• (b) set and publish standards according to which measures taken in respect of the assessment and minimisation of risk are to be judged.

• (2) Any person having functions in relation to the assessment and minimisation of risk is to have regard to such guidelines and standards in the exercise of those functions.

Risk management plans

6

• (1) A plan (a “risk management plan”) must be prepared in respect of—

• (a) any offender who is subject to an order for lifelong restriction made under section 210F (order for lifelong restriction) of the 1995 Act; and

• (b) any offender falling within such other category as may be prescribed.

• (2) Before making an order by virtue of subsection (1)(b), the Scottish Ministers are to consult—

• (a) the Risk Management Authority; and

• (b) such other persons as they consider appropriate.

• (3) The risk management plan must—

• (a) set out an assessment of risk;

• (b) set out the measures to be taken for the minimisation of risk, and how such measures are to be co-ordinated; and

• (c) be in such form as is specified under subsection (5).

• (4) The risk management plan may provide for any person who may reasonably be expected to assist in the minimisation of risk to have functions in relation to the implementation of the plan.

• (5) The Risk Management Authority is to specify and publish the form of risk management plans.

• (6) The Risk Management Authority may issue guidance (either generally or in a particular case) as to the preparation, implementation or review of any risk management plan.

Preparation of risk management plans

7

• (1) Where the offender is serving a sentence—

• (a) of imprisonment in a prison;

• (b) of detention in a young offenders institution; or

• (c) by virtue of section 208 (detention of children convicted on indictment) of the 1995 Act, of detention in some other place,

the risk management plan is to be prepared by the Scottish Ministers.

• (2) Where the offender is detained . . . in a hospital by virtue of—

• (a) a compulsion order under section 57A (compulsion order) of the 1995 Act;

• (b) a hospital direction under section 59A (hospital directions) of the 1995 Act;

• (c) Part 5 (emergency detention), 6 (short term detention) or 7 (compulsory treatment orders) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (“the 2003 Act”);

• (d) a transfer for treatment direction under section 136 of the 2003 Act,

the risk management plan is to be prepared by the managers of the hospital in which the offender is detained (or liable to be detained).

• (3) Where the risk management plan does not require to be prepared by the Scottish Ministers or the managers of a hospital under subsections (1) and (2), the plan is to be prepared by the local authority in whose area the offender resides.

• (4) In this section, the expressions “managers of a hospital” and “hospital” are to be construed in accordance with section 329 (interpretation) of the 2003 Act.

• (5) Whoever is required by virtue of this section to prepare the risk management plan is referred to in sections 8 and 9 as the “lead authority”.

Preparation of risk management plans: further provision

8

• (1) Preparation of the risk management plan is to be completed no later than 9 months after the offender is sentenced or detained (or becomes liable to be detained) in hospital; but if there is an appeal under subsection (7), it may be completed within such longer period as the Risk Management Authority may reasonably require.

• (2) In preparing the risk management plan, the lead authority is to consult—

• (a) any person on whom, by virtue of section 6(4), the lead authority is considering conferring functions; and

• (b) such other persons as it considers appropriate.

• (3) Any person so consulted is to provide such assistance to the lead authority as it may reasonably require for the purposes of preparing the plan.

• (4) The lead authority is to submit the risk management plan to the Risk Management Authority and the Risk Management Authority is to—

• (a) approve it; or

• (b) where it considers that a plan does not comply with section 6(3) or that the lead authority has, in preparing the plan, disregarded any guideline or standard under section 5 or any guidance under section 6(6), reject it.

• (5) Where any plan is rejected, the lead authority is to prepare a revised plan and submit it to the Risk Management Authority by such time as the Authority may reasonably require.

• (6) Where the Risk Management Authority—

• (a) rejects a revised plan; and

• (b) considers that, unless it exercises its power under this subsection to give directions, subsection (1) would not be complied with,

the Authority may give directions to the lead authority and any other person having functions under the plan as to the preparation of a revised plan; and the lead authority and such other person must, subject to subsection (7), comply with any such direction.

• (7) The lead authority or any other person to whom any direction is given under subsection (6) may appeal to the sheriff against the direction on the grounds that it is unreasonable.

Implementation and review of risk management plans

9

• (1) The lead authority and any other person having functions under the risk management plan are to implement the plan in accordance with their respective functions.

• (2) Where the Risk Management Authority considers that the lead authority or any such other person is failing, without reasonable excuse, to implement the plan in accordance with those functions, the Authority may give directions to the lead authority or, as the case may be, the person as to the implementation of the plan; and the lead authority and the person must, subject to subsection (3), comply with any such direction.

• (3) The lead authority or any other person to whom any direction is given under subsection (2) may appeal to the sheriff against the direction on the grounds that it is unreasonable.

• (4) The lead authority is to report annually to the Risk Management Authority as to the implementation of the plan.

• (5) Where there has been, or there is likely to be, a significant change in the circumstances of the offender, the lead authority is to review the plan.

• (6) Where a review has been carried out under subsection (5), and the lead authority considers that the plan for the time being in force is, or is likely to become, unsuitable, either—

• (a) the lead authority is to prepare an amended plan; or

• (b) if it is not appropriate for it to continue as lead authority, a different lead authority (determined in accordance with section 7) is to prepare an amended plan,

within such period as the Risk Management Authority may reasonably require.

• (7) Sections 6(3) and (4), 8(2) to (7) and this section apply to the preparation of an amended plan under subsection (6) as they do to the preparation of a plan under sections 6 to 8 but as if, in subsection (6)(b) of section 8, the reference to subsection (1) of that section were a reference to subsection (6).

Grants to local authorities in connection with risk management plans

10

• (1) The Scottish Ministers may make to any local authority grants of such amount, and subject to such conditions, as they may determine in respect of expenditure incurred by the authority in preparing and implementing any risk management plan.

• (2) Before making any such grant, the Scottish Ministers must consult such local authorities and such other persons as they consider appropriate.

Accreditation, education and training

11

• (1) The Scottish Ministers may by order make a scheme of accreditation as to—

• (a) any manner of assessing and minimising risk (being accreditation in recognition of the effectiveness of any methods and practices which may be employed in the assessment and minimisation of risk); and

• (b) persons having functions in relation to the assessment and minimisation of risk (being accreditation in recognition of education or training received, or of any expertise relevant to those functions otherwise held or acquired, by them).

• (1A) The order may authorise—

• (a) decisions as to cases arising in relation to a scheme of accreditation to be taken by a committee; and

• (b) any appeal as to such a decision to be determined by a committee,

in accordance with such procedure as may be prescribed; and without prejudice to the generality of this subsection the order may make provision as to the membership of the committees and as to any quorum.

• (2) The Risk Management Authority—

• (a) is to administer any scheme of accreditation made under subsection (1) (including awarding, generally or for any particular purpose, suspending or withdrawing accreditation where it considers that to be appropriate); and

• (b) may provide, or secure the provision of, education and training in relation to the assessment and minimisation of risk for any person having functions in that regard.

Functions: supplementary

12

• (1) The Risk Management Authority may, subject to subsection (3), do anything it considers necessary or expedient for the purpose of or in connection with the exercise of its functions.

• (2) In particular, the Authority may—

• (a) acquire and dispose of land;

• (b) enter into contracts;

• (c) charge for goods and services;

• (d) with the consent of the Scottish Ministers, invest and borrow money.

• (3) The Scottish Ministers may for the purpose of or in connection with the exercise of the Risk Management Authority’s functions give directions to the Authority; and the Authority is to comply with any such direction.

Accounts and annual reports

13

• (1) The Risk Management Authority is to—

• (a) keep proper accounts and accounting records;

• (b) prepare for each financial year (the financial year being the period of 12 months ending with 31st March) an account of its expenditure and receipts; and

• (c) send the account to the Scottish Ministers,

and the Scottish Ministers are to send the account to the Auditor General for Scotland for auditing.

• (2) The Authority is, as soon as practicable after the end of each financial year, to prepare a report on its activities during that year and send a copy of the report to the Scottish Ministers.

• (3) The Scottish Ministers are to lay a copy of the report before the Parliament and publish the report.

Part 2 — Victims' rights

Victim statements

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• (1) This section applies only where proceedings in respect of an offence are to be taken, or are likely to be taken, in a prescribed court or class of court.

• (2) In so far as is reasonably practicable, a natural person against whom a prescribed offence has been (or appears to have been) perpetrated is—

• (a) after a decision has been taken to bring proceedings in respect of that offence; or

• (b) if a procurator fiscal so determines, before any such decision has been taken,

to be afforded an opportunity to make a statement (to be known as a “victim statement”) as to the way in which, and degree to which, that offence (or apparent offence) has affected and as the case may be continues to affect, that person; but this subsection is subject to subsection (6).

• (3) Where a person who has made a victim statement by virtue of subsection (2) (or that subsection and subsection (6)) so requests and sentence may yet fall to be imposed in respect of the offence (or apparent offence), that person is to be afforded an opportunity to make a statement supplementary to, or in amplification of, the victim statement.

• (4) A copy of any—

• (a) victim statement made; or

• (b) statement made by virtue of subsection (3) in relation to a victim statement,

is, if the accused tenders a plea of guilty to, or is found guilty of, the offence in question, to be provided forthwith to the accused by the prosecutor.

• (5) A prosecutor must—

• (a) in solemn proceedings, when or after moving for sentence as respects an offence but before sentence is imposed; and

• (b) in summary proceedings, when or after a plea of guilty is tendered in respect of, or the accused is convicted of, an offence but before sentence is imposed,

lay before the court any victim statement which relates (whether in whole or in part) to the offence in question, and the court must in determining sentence have regard to so much of—

• (i) that statement; and

• (ii) any statement made by virtue of subsection (3) in relation to that statement,

as it considers to be relevant to that offence.

• (6) Where—

• (a) because a person has died no such opportunity as is mentioned in subsection (2) can be afforded that person then subsections (2) and (3) apply as if the references in them to the person and to how the offence (or apparent offence) affected, or continues to affect, the person—

• (i) were references to any or all of the four qualifying persons highest listed in subsection (10) and to how the offence (or apparent offence) affected, or continues to affect, the maker of the statement; and

• (ii) without prejudice to sub-paragraph (i), where the person died a child (that is to say not having attained the age of sixteen years), included references to any other person who, immediately before the offence (or apparent offence) was perpetrated, cared for the child (that expression being construed in accordance with the definition of “person who cares for” in paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8)) and to how the offence (or apparent offence) affected, or continues to affect, that other person; or

• (b) a person who (but for this paragraph and other than by virtue of paragraph (a)) would be afforded such an opportunity as is so mentioned is—

• (i) incapable, by reason of mental disorder or inability to communicate, of making a victim statement, subsections (2) and (3) apply as if the person to be afforded an opportunity were not the incapable person but the qualifying person highest listed in subsection (10) (taking no account of qualifying persons who have not attained the age of 12 years); ...

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and as if the other references in those subsections to a person continued to be to the incapable person ....

• (7) For the purposes of subsection (6)(b)(i), inability to communicate by reason only of a lack or deficiency in a faculty of communication is to be disregarded if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise).

• (8) In subsection (6), “qualifying person” means a person whose relationship to the victim is listed in subsection (10), who is not incapable as mentioned in sub-paragraph (i) of paragraph (b) of subsection (6) ... and who is not a person referred to by subsection (9).

• (9) This subsection refers to a person accused of, or reasonably suspected of being the perpetrator of, or of having been implicated in, the offence (or apparent offence) in question.

• (10) The list is—

• (a) spouse or civil partner;

• (b) cohabitee;

• (c) son or daughter or any person in relation to whom the victim has or had parental responsibilities or rights vested by, under or by virtue of the Children (Scotland) Act 1995 (c. 36);

• (d) father or mother or any person in whom parental responsibilities or rights are or were vested by, under or by virtue of that Act in relation to the victim;

• (e) brother or sister;

• (f) grandparent;

• (g) grandchild;

• (h) uncle or aunt;

• (i) nephew or niece,

and the elder of any two persons described in any one of paragraphs (a) to (i) is to be taken to be the higher listed person, regardless of sex.

• (11) In subsection (10)(b), “cohabitee” means a person who has lived with the victim—

• (a) as if in a married relationship; or

• (b) in a relationship which had the characteristics of the relationship between civil partners,

for at least six months and was so living immediately before the offence (or apparent offence) was perpetrated.

• (11A) Where a child who has not attained the age of 12 years has (but for this subsection) the opportunity to make a statement by virtue of subsection (2), (3) or (6)(a)(i)—

• (a) any statement made by virtue of the subsection must instead be made by a carer of the child, but

• (b) those subsections otherwise apply as if references in them to a person and to the maker of a statement are to the child.

• (11B) For the purposes of subsection (11A), “carer of the child” means—

• (a) a person who cared for the child when the offence (or apparent offence) was perpetrated,

• (b) a person who cares for the child when the statement is made,

• (c) a person who has cared for the child at any other time.

• (11C) If more than one person comes within the meaning of “carer of the child” the persons may agree which carer is to make the statement after, so far as practicable and having regard to the age and maturity of the child—

• (a) giving the child an opportunity to express any views on which carer is to make the statement, and

• (b) taking account of any views expressed by the child.

• (11D) If no agreement is reached in accordance with subsection (11C)—

• (a) the statement may be made by each person coming within the description in subsection (11B)(a), and

• (b) if there is no such person, the statement may be made by each person coming within the description in subsection (11B)(b).

• (11E) In subsection (11B), the expressions “cared for” and “cares for” are to be construed in accordance with the definition of “someone who cares for” in paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010.

• (12) The Scottish Ministers may by order (either or both)—

• (a) amend this section by substituting for the age for the time being specified in any part of this section such other age as they think fit;

• (b) amend the list in subsection (10).

• (13) A victim statement, or a statement made by virtue of subsection (3) in relation to a victim statement, may be made in such form and manner as may be prescribed.

• (14) An order under subsection (13) may—

• (a) include such incidental, supplementary or consequential provision as the Scottish Ministers consider appropriate,

• (b) modify any enactment (including this Act).

• (15) An order under subsection (1), (2) or (13) may make different provision for different purposes including—

• (a) in the case of an order under subsection (1), provision to prescribe a court or class of court only in relation to a specific offence or offences triable in that court;

• (b) in the case of an order under subsection (2), provision to prescribe an offence—

• (i) by reference to the nature of the offence; or

• (ii) only insofar as it is triable in a specific court or class of court;

• (c) in the case of an order under subsection (1), (2) or (13), provision of temporary or local effect.

• (16) An order under subsection (2) may prescribe all offences triable in a prescribed court.

Prohibition of personal conduct of defence in proofs ordered in relation to victim statements in cases of certain sexual offences

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• (1) The 1995 Act is amended as follows.

• (2) In section 288C(1) (prohibition of personal conduct of defence in cases of certain sexual offences), at the end there is added “ or in any proof ordered in relation to a statement made by virtue of subsection (2) (or by virtue of that subsection and subsection (6)) of section 14 of the Criminal Justice (Scotland) Act 2003 (asp 7) ”.

• (3) In section 288D(2)(a) (appointment by court of solicitor in such cases), at the end there is added “ or as the case may be at any proof ordered as is mentioned in section 288C(1) of this Act ”.

Victim’s right to receive information concerning release etc. of offender

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• (1) Subject to subsection (2), the Scottish Ministers must, unless they consider that there are exceptional circumstances which make it inappropriate to do so, give any natural person against whom an offence has been perpetrated such information as is described in subsection (3), being information in relation to any person who has been convicted of that offence and sentenced in respect of it—

• (a) to imprisonment or detention for a period of 18 months or more;

• (b) to life imprisonment or detention for life; or

• (c) under section 205(2) (punishment for murder where convicted person under 18) or 208 (detention of children convicted on indictment) of the 1995 Act, to detention without limit of time,

provided that the person to be given the information wishes to receive it and has so intimated.

• (2) Subsection (1) does not apply where the convicted person is released before attaining the age of sixteen years.

• (3) The information mentioned in subsection (1) is—

• (a) the date on which the convicted person is, under or by virtue of the 1989 Act or the 1993 Act, released (other than by being granted temporary release);

• (aa) the date on which the convicted person is released under or by virtue of regulations made under paragraph 19(1) of schedule 4 of the Coronavirus (Scotland) Act 2020;

• (b) if the convicted person dies before that date, the date of death;

• (c) that the convicted person has been transferred to a place outwith Scotland;

• (d) that the convicted person is for the first time entitled to be considered for temporary release by virtue of rules under section 39(6) of the 1989 Act,

• (e) that the convicted person is unlawfully at large from a prison, young offenders institution or hospital ; ...

• (f) where the convicted person–

• (i) was released as described in paragraph (a) or was unlawfully at large as described in paragraph (e), and

• (ii) subsequently has been returned to a prison, young offenders institution or hospital to continue serving the sentence,

the date of the person's return.

• (g) where the convicted person is liable to be detained in a hospital under a hospital direction or transfer for treatment direction—

• (i) that a certificate has been granted, for the first time, under the Mental Health Act which suspends the person's detention and does not impose a supervision requirement,

• (ii) that the certificate mentioned in sub-paragraph (i) has been revoked.

• (4) The Scottish Ministers may by order—

• (a) amend subsection (1)(a) by substituting, for the period for the time being specified there, a different period; ...

• (b) amend subsection (3) by adding descriptions of information ; or

• (c) modify section 18A, by adding, amending or repealing definitions of terms used in the descriptions of information in subsection (3) of this section.

• (5) Where information would fall to be given to a person under subsection (1) but that person—

• (a) has died, that subsection applies as if references in it to the person to be given the information were to be construed as mentioned in sub-paragraphs (i) and (ii) of paragraph (a) of section 14(6) of this Act (except that, in the case where a qualifying person is a child who has not attained the age of 12 years, paragraph (a)(i) of the said section 14(6) is to be construed as if the reference to the qualifying person were to a person who cares for the child); or

• (b) in a case other than is mentioned in paragraph (a)—

• (i) is incapable as mentioned in sub-paragraph (i) of paragraph (b) of the said section 14(6), that subsection applies as if references in it to the person were to be construed as mentioned in that sub-paragraph (taking him to be the person “afforded an opportunity”); or

• (ii) is a child who has not attained the age of 12 years ... , that subsection applies as if references in it to the person to be given the information were to be construed as references to the person who cares for the child

....

• (6) Subsections (7) to (11) of section 14 apply in relation to paragraphs (a) and (b)(i) of subsection (5) as they apply in relation to subsection (6) of that section.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) In subsection (5)(a) and (b)(ii), the reference to a person who cares for the child is to be construed in accordance with paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8).

• (9) The Scottish Ministers may by order amend this section by substituting for—

• (a) the person for the time being specified in any part of this section to whom information may be made available such other person as they think fit,

• (b) the age for the time being specified in any part of this section such other age as they think fit.

Release on licence: right of victim to receive information and make representations

17

• (1) Subject to subsections (2), (3) and (12), a person entitled to receive information under section 16 of this Act (the “victim”) as respects a convicted person must in accordance with this section, before any decision is taken to release the convicted person on licence,

• (a) be afforded an opportunity to make written representations to the Scottish Ministers as respects such release and as to conditions which might be specified in the licence in question.

• (b) if the convicted person is serving a sentence of life imprisonment, be afforded an opportunity to make oral representations to a member of the Parole Board for Scotland who is not dealing with the convicted person's case as respects such release and as to conditions which might be specified in the licence in question.

• (2) Subsection (1) applies only where the victim wishes to be afforded the opportunity and has so intimated.

• (3) Subsection (1) does not apply where the convicted person has not attained the age of sixteen years by the date on which the case is referred to the Parole Board for Scotland by the Scottish Ministers.

• (4) The Scottish Ministers are to issue guidance as to how written representations under subsection (1) should be framed and how oral representations under that subsection should be made.

• (5) Where it falls to the Board to recommend whether, or direct that, the convicted person be released, the Scottish Ministers must, as soon as practicable after they commence a review of the case for the purposes of referring it to the Board for the Board to consider what recommendation to make or whether to make such a direction, fix a time within which any representations under subsection (1) require to be made to them if they are to be considered by the Board; and they must notify the victim accordingly.

• (6) Whether or not representations are made under subsection (1), in a case to which subsection (5) applies the Board must, subject to subsection (11)—

• (a) inform the victim as to whether or not it has recommended or directed release;

• (b) if it has recommended or directed release, inform the victim as to whether it has also recommended that the person released comply with conditions; and

• (c) inform the victim of the terms of any such conditions which relate to contact with the victim or with members of the victim’s family,

and the Board may provide the victim with such other information as it considers appropriate having regard to the circumstances of the case.

• (7) Where subsection (5) does not apply but it falls to that Board to recommend conditions to be included in the licence, the Scottish Ministers are under the same duties as they are under that subsection.

• (8) Whether or not representations are made under subsection (1), in a case to which subsection (7) applies the Board must inform the victim, subject to subsection (11)—

• (a) as to whether it has recommended that the person released comply with conditions; and

• (b) as is mentioned in subsection (6)(c).

• (9) Where neither subsection (5) nor (7) applies, the Scottish Ministers must fix a time within which any representations under subsection (1) require to be made to them if they are to be considered by them; and they must notify the victim accordingly.

• (10) Whether or not representations are made under subsection (1), in a case to which subsection (9) applies the Scottish Ministers must inform the victim, subject to subsection (11)—

• (a) as to whether the person released is to comply with conditions; and

• (b) as is mentioned in subsection (6)(c).

• (10A) In complying with the duty imposed on them by subsection (5), the Scottish Ministers may fix different times in relation to written and oral representations respectively.

• (11) Subsections (6), (8) and (10) apply only where the victim has intimated a desire to receive the information in question.

• (12) This section does not apply—

• (a) as respects release under section 3 of the 1993 Act (release on compassionate grounds); ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (13) The Scottish Ministers may by order modify the description or descriptions of convicted person for the time being specified in subsection (1)(b).

Disclosure of certain information relating to victims of crime

18

• (1) Where it appears to a constable that an offence has been perpetrated against a natural person the constable may, with the person’s consent, disclose to a prescribed body (being a body which appears to the Scottish Ministers to provide counselling or other support to those who have been victims of crime), with a view to its providing such counselling or support to the person, any or all of the following information—

• (a) the person's—

• (i) name;

• (ii) address;

• (iii) telephone number;

• (iv) e-mail address;

• (v) age;

• (b) such information regarding the offence (or apparent offence) as the constable considers appropriate provided that the information does not include such information in relation to the alleged perpetrator as is mentioned in sub-paragraphs (i) to (v) of paragraph (a) (though it may include information as to whether the case is one likely to be disposed of by a children’s hearing).

• (2) Where the person against whom the offence was perpetrated has died, subsection (1) shall be construed as if it relates not to that person but to any one or more of—

• (a) the qualifying persons (as defined in subsection (8) of section 14); and

• (b) where the circumstances are as mentioned in sub-paragraph (ii) of subsection (6)(a) of that section, any such other person as is mentioned in that sub-paragraph,

who the constable considers would derive benefit from the counselling or support in question.

Part 3 — Sexual offences etc.

Amendments in relation to certain serious and sexual offences

19

• (1) In the Civic Government (Scotland) Act 1982 (c. 45)—

• (a) in section 52 (indecent photographs etc. of children), in subsection (3)(b) for the words “3 years” there is substituted “ 10 years ”;

• (b) in section 52A (possession of indecent photographs of children), in subsection (3) the existing words from “on summary” to the end become paragraph (a), and after that paragraph there is inserted—

(b) on conviction on indictment of such an offence to imprisonment for a period not exceeding 5 years or to a fine or to both.

.

• (2) In the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39)—

• (a) in section 8 (abduction and unlawful detention), subsections (1) and (2) are repealed;

• (b) section 15 (defence to charge of indecent assault) is repealed;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In the Crime and Punishment (Scotland) Act 1997 (c. 48), section 1 (imprisonment for life on further conviction for certain offences) is repealed.

Extended sentences

20

After section 210A of the 1995 Act (extended sentences for sexual or violent offenders) there is inserted—

(210AA) Where a person is convicted on indictment of abduction but the offence is other than is mentioned in paragraph (iii) of the definition of “sexual offence” in subsection (10) of section 210A of this Act, that section shall apply in relation to the person as it applies in relation to a person so convicted of a violent offence.

.

Sexual and certain other offences: reports

21

• (1) This section applies to any case where a person is convicted of—

• (a) a sexual offence (as defined in section 210A(10) of the 1995 Act); or

• (b) an offence the nature and circumstances of which disclose, in the opinion of the court, that there was a significant sexual aspect to the person’s behaviour in committing it.

• (2) In a case to which this section applies, the court must, before passing sentence—

• (a) obtain from a relevant officer a report concerning the person’s circumstances and character; and

• (b) if the conviction is on indictment, obtain from a registered psychologist (that is to say from a person for the time being registered in the part of the register maintained under the Health Professions Order 2001 that relates to practitioner psychologists) a psychological assessment of the person,

and it must also take into account any information before it concerning the person’s physical and mental condition.

• (3) The Scottish Ministers may by order amend paragraph (b) of subsection (2) by adding, to the persons for the time being specified there as persons from one of whom a psychological assessment is to be obtained, such description of psychologist as they think fit.

• (4) Where in a case to which this section applies the person is tried, the presiding judge is, as soon as is reasonably practicable, to prepare a report in writing, in such form as may be prescribed by Act of Adjournal—

• (a) as to the facts established by the evidence; and

• (b) containing such other information as the judge considers appropriate.

• (5) Where a case to which this section applies does not proceed to trial (or does not proceed to trial as respects part of the complaint or indictment) because a plea of guilty to the complaint, indictment or part in question is accepted by the prosecutor, the narration by the prosecutor, at the diet at which the plea is tendered, of the facts of the case is to be recorded by means of shorthand notes or by mechanical means as is anything said by or on behalf of the person in relation to those facts.

• (6) Subsections (2) to (4) of section 93 of the 1995 Act (certification etc. of notes or record) shall apply in relation to a record made under subsection (5) as they apply in relation to one made under subsection (1) of that section.

• (7) The Scottish Ministers may by order amend subsections (5) and (6) so as to provide for a record so made to be made by such other means as they think fit.

• (8) A copy of any report prepared under subsection (4) or a transcript of any record made under subsection (5) is to be sent to—

• (a) the officer from whom a report is sought under paragraph (a) of subsection (2) when written intimation of the requirement for the report is first given to that officer; and

• (b) any psychologist from whom an assessment is sought under paragraph (b) of that subsection when such intimation of the requirement for that assessment is first given to that psychologist.

• (9) In relation to a case to which this section applies, subsection (3) of section 201 of the 1995 Act (limitation as respects power of court to adjourn case before sentence) shall have effect as if for the words “four weeks” there were substituted “ six weeks ”.

• (10) In that subsection, at the beginning, there is inserted “ Subject to section 21(9) of the Criminal Justice (Scotland) Act 2003 (asp 7), ”.

• (11) In subsection (2)(a), “relevant officer” means an officer—

• (a) of the local authority for the area within which the convicted person resides; and

• (b) employed by them in the discharge of their functions under section 27(1) (supervision and care of persons put on probation or released from prison etc.) or 27AA (advice, guidance and assistance to persons arrested or on whom sentence deferred) of the Social Work (Scotland) Act 1968 (c. 49).

Traffic in prostitution etc.

22

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 4 — Prisoners etc.

Custody and temporary detention

Remand and committal of children and young persons

23

• (1) In section 19(1)(b) of the 1989 Act (construction of expression “young offenders institution”), at the end there is added “ and in which certain such persons as are mentioned in paragraph (a) above may be kept ”.

• (2) In section 40 of that Act (persons unlawfully at large), in each of subsections (1) and (2), after the words “a prison” there is inserted “ or young offenders institution ”.

• (3) In subsection (1) of section 51 of the 1995 Act (remand and committal of children and young persons)—

• (a) in paragraph (a)—

• (i) the words “subject to paragraph (b) below,” are repealed; and

• (ii) for the words “the court shall, instead of committing him to prison,” there is substituted “ but is not a child to whom paragraph (bb) below applies, the court shall ”;

• (b) in paragraph (aa)—

• (i) for the words “is over 16 years of age and” there is substituted “ has attained the age of 16 years and is ”;

• (ii) the words “, instead of committing him to prison,” are repealed; and

• (iii) at the end there is added “ or may commit him either to prison or to a young offenders institution ”;

• (c) for paragraph (b) there is substituted—

(b) if he is a person who has attained the age of 16 years and to whom paragraph (aa) above does not apply, then where— (i) the court has been notified by the Scottish Ministers that a remand centre is available for the reception from that court of persons of his class or description, it shall commit him to a remand centre; or (ii) the court has not been so notified, it may commit him either to prison or to a young offenders institution; (bb) if he is a child who is under 16 years of age but has attained the age of 14 years and is certified by the court to be unruly or depraved, then where— (i) the court has been so notified as is mentioned in paragraph (b)(i) above, it shall commit him to a remand centre; or (ii) the court has not been so notified, it may commit him either to prison or to a young offenders institution.

.

• (4) In subsection (2) of that section the words “or to a remand centre”, “or centre” and “or in the centre” are repealed.

• (5) After subsection (2) of that section there is inserted—

(2A) Subject to subsection (4) below, where any person is committed to a remand centre under any provision of this Act, he shall be detained in a remand centre for the period for which he is committed or until he is liberated in due course of law.

.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) At the end of that section there is added—

(5) Where by virtue of subsection (1)(aa), (b)(ii), (bb)(ii) or (3)(b) of this section a person is committed either to prison or to a young offenders institution, the warrant issued by the court is warrant also, without further application to the court in that regard, for committal to whichever of the two the court does not specify.

.

Legal custody

24

• (1) In section 13 of the 1989 Act (legal custody of prisoners)—

• (a) for the words “A person shall be deemed to be” there is substituted “ Without prejudice to section 295 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (legal custody of persons generally), a prisoner is ”; and

• (b) in paragraph (b), at the end there is added “ , a constable (“constable” having the same meaning as it has, by virtue of paragraph 17(1) and (2) of Schedule 1 to the Crime (Sentences) Act 1997 (c. 43), in section 40(1) of this Act) or a police custody and security officer ”.

• (2) In section 295 of the 1995 Act (legal custody of persons generally)—

• (a) at the beginning there is inserted “ Without prejudice to section 13 of the Prisons (Scotland) Act 1989 (c. 45) (legal custody of prisoners), ”;

• (b) for the word “shall” there is substituted “ is ”; and

• (c) the words “be deemed to be” are repealed.

Temporary detention of person being returned to prison in England and Wales etc.

25

After section 40A of the1989 Act there is inserted—

(40B) Any person absent, otherwise than with lawful authority, from a place outwith Scotland, being a place to which, by virtue of paragraph 17 of Schedule 1 to the Crime (Sentences) Act 1997 (c. 43) (application throughout United Kingdom and Channel Islands of certain enactments relating to the arrest and return of prisoners etc.), he may be taken, may, until the arrangements to take him can be made, be detained in a prison or young offenders institution in Scotland.

.

Consecutive sentences

Consecutive sentences: life prisoners etc.

26

• (1) After section 204A of the 1995 Act (which restricts the ability of a court to impose consecutive sentences in the case of prisoners released on licence etc.), there is inserted—

(204B) (1) This section applies in respect of sentencing for offences committed after the coming into force of this section. (2) Where, in solemn proceedings, the court sentences a person to imprisonment or other detention, the court may— (a) if the person is serving or is liable to serve the punishment part of a previous sentence, frame the sentence to take effect on the day after that part of that sentence is or would be due to expire; or (b) if the person is serving or is liable to serve the punishment parts of two or more previous sentences, frame the sentence to take effect on the day after the later or (as the case may be) latest expiring of those parts is or would be due to expire. (3) Where, in such proceedings, it falls to the court to sentence a person who is subject to a previous sentence in respect of which a punishment part requires to be (but has not been) specified, the court shall not sentence the person until such time as the part is either specified or no longer requires to be specified. (4) Where the court sentences a person to a sentence of imprisonment or other detention for life, for an indeterminate period or without limit of time, the court may, if the person is serving or is liable to serve for any offence— (a) a previous sentence of imprisonment or other detention the term of which is not treated as part of a single term under section 27(5) of the 1993 Act; or (b) two or more previous sentences of imprisonment or other detention the terms of which are treated as a single term under that section of that Act, frame the sentence to take effect on the day after the person would (but for the sentence so framed and disregarding any subsequent sentence) be entitled to be released under the provisions referred to in section 204A of this Act as respects the sentence or sentences. (5) Subsection (4)(a) above shall not apply where the sentence is a sentence from which he has been released at any time under the provisions referred to in section 204A of this Act. (6) In this section, any reference to a punishment part of a sentence shall be construed by reference to— (a) the punishment part of the sentence as is specified in an order mentioned in section 2(2) of the 1993 Act; or (b) any part of the sentence which has effect, by virtue of section 10 of the 1993 Act or the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), as if it were the punishment part so specified, and “the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9). (7) This section is without prejudice to any other power under any enactment or rule of law as respects sentencing.

.

• (2) Section 167 of that Act (forms of finding and sentence) is amended as follows—

• (a) in subsection (7) after the words “any previous sentence” there is inserted “ for a term ”; and

• (b) after that subsection, there is inserted—

(7A) Where the court imposes a sentence as mentioned in paragraph (a) of subsection (7) above for an offence committed after the coming into force of this subsection, the court may— (a) if the person is serving or is liable to serve the punishment part of a previous sentence, frame the sentence to take effect on the day after that part of that sentence is or would be due to expire; or (b) if the person is serving or is liable to serve the punishment parts of two or more previous sentences, frame the sentence to take effect on the day after the later or (as the case may be) latest expiring of those parts is or would be due to expire. (7B) Where it falls to the court to sentence a person who is subject to a previous sentence in respect of which a punishment part requires to be (but has not been) specified, the court shall not sentence the person until such time as the part is either specified or no longer requires to be specified. (7C) In subsections (7A) and (7B) above, any reference to a punishment part of a sentence shall be construed by reference to— (a) the punishment part of the sentence as is specified in an order mentioned in section 2(2) of the 1993 Act; or (b) any part of the sentence which has effect, by virtue of section 10 of the 1993 Act or the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), as if it were the punishment part so specified, and “the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9).

.

Release of prisoners

Release on licence etc. under 1989 Act

27

• (1) The 1989 Act (certain provisions of which, notwithstanding their repeal by the 1993 Act, continue to apply to prisoners sentenced before 1st October 1993 by virtue of section 47(2) of, and paragraph 2(1) of Schedule 6 to, that Act) is amended for the purposes of the existing provisions, within the meaning of that Schedule, as follows.

• (2) In section 22 (which, among other things, enables the Scottish Ministers to release on licence certain prisoners if recommended to do so by the Parole Board and, by virtue of subsection (1A) of that section, requires them to release certain other prisoners if there is such a recommendation)—

• (a) in subsection (1), for the word “may” there is substituted “ shall ”;

• (b) subsection (1A) is repealed; and

• (c) in subsection (7)—

• (i) the words “and by virtue of subsection (1A) above such release is then mandatory”; and

• (ii) the words from “; and in any other case” to the end,

are repealed.

Release on licence etc. under 1993 Act

28

• (1) The 1993 Act (which applies to prisoners sentenced on or after 1st October 1993 and to some prisoners sentenced before that date) is amended as follows.

• (2) In section 1(3) (which enables the Scottish Ministers to release on licence certain prisoners if recommended to do so by the Parole Board and, by virtue of section 20(3)(a), requires them to release certain other prisoners if there is such a recommendation), for the word “may” there is substituted—

(a) shall, except in the case mentioned in paragraph (b) below; or (b) may, in the case of a prisoner who is liable to removal from the United Kingdom (within the meaning of section 9 of this Act),

.

• (3) In section 12 (which enables the Scottish Ministers to insert, vary or cancel conditions in licences and, in certain cases, to do so in accordance with the recommendations of the Parole Board), for subsections (3) and (4) there is substituted—

(3) The Scottish Ministers may under subsection (1) above include on release and from time to time insert, vary or cancel a condition in a licence granted under this Part of this Act; but— (a) in the case of a long-term or life prisoner released by the Scottish Ministers under subsection (1) of section 3 of this Act without consulting the Parole Board, no licence condition shall be inserted, varied or cancelled subsequent to the release except in accordance with the recommendations of the Parole Board; and (b) in the case of any other long-term or life prisoner, no licence condition shall be included on release, or subsequently inserted, varied or cancelled except in accordance with such recommendations.

.

• (4) Section 20(3) (which provides power to modify the effect of section 1(3) in relation to certain classes of case) is repealed.

Release on licence: life prisoners

29

• (1) The 1993 Act is amended as follows.

• (2) In section 2 (which provides, among other things, for consideration by the Parole Board of whether a life prisoner should be released on licence)—

• (a) in subsection (5A)(b), after the word “being” there is inserted “ , subject to subsections (5AB) to (5AD) below, ”;

• (b) after that subsection there is inserted—

(5AB) Where a reference has been made to the Parole Board under any of the provisions mentioned in subsection (5A) above and the prisoner receives another sentence of imprisonment (whether for life or for a term) before a date has been fixed for considering his case, the Board shall, if he would not be eligible for release from the other sentence on the date which would (apart from this subsection) have been fixed for considering his case, fix a date (other than that date) for considering his case. (5AC) Where, at any time after such a reference has been made— (a) a date has been fixed for considering the prisoner’s case; or (b) following the disposal of the reference, a date has been fixed under subsection (5A)(b) above, and, before that date, the prisoner receives any other sentence of imprisonment (whether for life or for a term), the Board shall, if he would not be eligible for release from any such other sentence on that date, fix a different date for considering his case (and where he receives any further sentence of imprisonment from which he would not be eligible for release on that different date, the Board shall fix a further different date). (5AD) Any date fixed under subsection (5AB) or (5AC) above shall— (a) be— (i) the date on which the prisoner would be eligible to be released, or considered for release, from all such other sentences (subject to any change to the date on which he would be so eligible); or (ii) a date as soon as practicable after that date; and (b) replace any date previously fixed for considering the prisoner’s case.

;

• (c) in—

• (i) subsection (5B); and

• (ii) subsection (5C),

after the words “subsection (5A)(b)” there is in each case inserted “ , (5AB) or (5AC) ”;

• (d) for subsection (7) there is substituted—

(7) No requirement shall be made under subsection (6) above by a life prisoner who is also serving or liable to serve a sentence of imprisonment for a term, before he has served the appropriate part of the term. (7A) The appropriate part of the term is— (a) one half, where the term is— (i) less than 4 years; or (ii) 4 years or more and is imposed by a sentence of imprisonment on conviction of an offence; or (b) two thirds, where the term is 4 years or more and is a term of imprisonment or detention mentioned in section 5(1)(a) or (b) of this Act. (7B) Section 5(1) of this Act, in so far as relating to the construction of references to sentences of imprisonment, does not apply to subsection (7A)(b) above.

; and

• (e) in subsection (9), after the word “serving” there is inserted “ or is liable to serve ”.

• (3) In section 5(1) (which applies, with modification, the provisions of the 1993 Act concerning persons sentenced to imprisonment, or detention, on conviction of an offence to persons on whom imprisonment, or detention, has been imposed for non-payment of fine or for contempt of court), for the words “section 1(8)” there is substituted “ sections 1(8) and 2(7B) ”.

Release on licence: certain consecutive sentences

30

In section 1A (application to persons serving more than one sentence) of the 1993 Act—

• (a) the existing words become subsection (1); and

• (b) after that subsection there is added—

(2) Where a prisoner who is serving any term of imprisonment receives a sentence of imprisonment or other detention for life, for an indeterminate period or without limit of time which is to take effect on the day after he would (but for the sentence so received) be entitled to be released from the term, nothing in this Part of this Act shall require— (a) the Scottish Ministers to release him in respect of any such term unless and until they are required to release him in respect of the sentence so received; or (b) the Scottish Ministers or the Parole Board to consider his release in respect of any such term unless and until the Scottish Ministers are or the Parole Board is required to consider his release, or the Scottish Ministers are required to release him, in respect of the sentence so received.

.

Release: prisoners serving extended sentences

31

In section 3A (re-release of prisoners serving extended sentences) of the 1993 Act—

• (a) in subsection (1)—

• (i) at the beginning there is inserted “ Subject to subsection (1A) below, ”; and

• (ii) for the words “who has been recalled to prison under section 17(1)” there is substituted “ and in respect of whom a licence has been revoked under section 17(1) to (1B) ”;

• (b) after subsection (1) there is inserted—

(1A) This section does not apply to such a prisoner if he has, in addition to the sentence in relation to which his recall to prison applies, been sentenced to imprisonment for life and has not been released from that sentence.

;

• (c) in subsection (2), in paragraph (a), for the words “disposal of that referral” there is substituted “ Board’s disposal of his case ”;

• (d) after that subsection there is inserted—

(2A) Where— (a) a prisoner’s case has been referred to the Parole Board under this section or section 17(3) of this Act; and (b) the prisoner receives another sentence of imprisonment before the Board has considered his case, the Board shall not consider his case unless there is a further referral of his case to the Board under this section. (2B) A case which, by virtue of subsection (2A) above, is not considered by the Parole Board shall not, for the purposes of subsection (2)(a) above, be treated as having been disposed of.

; and

• (e) in subsection (3)—

• (i) for the word “sentence” in the second place where it appears there is substituted “ term ”; and

• (ii) for the words “has served one half of” there is substituted “ would be eligible to be released, or considered for release, from ”.

Release etc. under 1993 Act of prisoner serving consecutive or concurrent offence and non-offence terms

32

• (1) The 1993 Act is amended as follows.

• (2) In section 27 (interpretation of Part I), after subsection (4) there is inserted—

(4A) For the purposes of this Part of this Act, a term of imprisonment or detention— (a) is wholly concurrent with another such term (or other such terms) if— (i) it is imposed on the same date as that other term (or terms); and (ii) it expires on the same date as that other term (or terms); and (b) is partly concurrent with another such term (or other such terms) if— (i) it is imposed on the same date as, and expires on a different date from, that other term (or terms); or (ii) it is imposed on a different date from, but before the expiry of, that other term (or terms).

.

• (3) In Schedule 1 (which makes special provision as respects eligibility for early release from consecutive or wholly or partly concurrent offence and non-offence terms of imprisonment or detention)—

• (a) for paragraph 2 (consecutive terms) there is substituted—

(2) (1) Where his offence term and his non-offence term are consecutive, whichever term follows the other shall be taken as beginning on the day after he is released as respects the other term. (2) For the purposes of sub-paragraph (1) above, where his offence term and his non-offence term are imposed on the same date, his non-offence term shall be taken to follow his offence term. (2A) Where his offence term and his non-offence term are wholly or partly concurrent, section 1(1) to (3) of this Act (so far as relevant to the term in question and whether or not modified by section 5(2) of this Act or as read with section 220 of the 1995 Act (reduction of term in certain circumstances)) shall apply separately to each term (that is to say, in particular, he may be released as respects one of the terms even if he is not for the time being eligible for release as respects the other term).

; and

• (b) paragraphs 3 (wholly concurrent terms) and 4 (partly concurrent terms) are repealed.

Prisoners repatriated to Scotland

33

• (1) In the Repatriation of Prisoners Act 1984 (c. 47)—

• (a) in subsection (9) of section 3 (transfer into the United Kingdom), the words “or section 10 of the Prisoners and Criminal Proceedings (Scotland) Act 1993” and “or, as the case may be, Scotland” are repealed; and

• (b) in the Schedule (operation of certain enactments in relation to the prisoner)—

• (i) for paragraph 2 there is substituted—

(2) (1) In determining, for the purposes of sections 1(1) to (3), 2(2) and (7) and 7(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9), in their application to prisoners repatriated to Scotland (eligibility for early release from a sentence), whether the prisoner has at any time served a particular proportion or part of the sentence, the sentence shall, subject to sub-paragraph (2) below, be deemed to begin with the day on which the relevant provisions take effect. (2) If the warrant specifies a period to be taken into account for the purposes of section 1(3) or 2(2) or (7) of that Act (eligibility of long-term and life prisoners as respects release on licence)— (a) the amount of time the prisoner has served; and (b) where the sentence is a determinate one, the sentence, shall, so far only as the question whether he has served any particular proportion or part of the sentence is concerned, be deemed to be increased by that period. (3) The question whether the prisoner is a short-term or a long-term prisoner for the purposes of any of the sections mentioned in sub-paragraph (1) above shall be determined by reference to the length of the sentence imposed in the country or territory from which he is transferred. (4) For the purposes of Schedule 6 to that Act, a prisoner’s sentence shall be deemed to have been imposed on the day on which the relevant provisions take effect. (5) In this paragraph, “sentence”, except in sub-paragraph (3) above, means the provision included in the warrant which is equivalent to a sentence.

; and

• (ii) paragraph 3 is repealed.

• (2) Subsection (1)(b)(i) applies in relation to prisoners repatriated to Scotland on or after the coming into force of this section any of whose sentences in the country or territory from which they are transferred were imposed on or after 1st October 1993.

• (3) In paragraph 1 of Schedule 6 (transitional provisions and savings) to the 1993 Act, in the definition of “new provisions”, after the words “1997” there is inserted “ and section 33 of the Criminal Justice (Scotland) Act 2003 (asp 7) ”.

• (4) In paragraph 7 of Schedule 2 (repatriation of prisoners to the British Islands) to the Crime (Sentences) Act 1997 (c. 43), in sub-paragraph (1), for the words from “for” to the end there is substituted “ but before the commencement of section 33 of the Criminal Justice (Scotland) Act 2003 (asp 7) ”.

Suspension of conditions and revocation of licences under 1989 Act

34

• (1) The 1989 Act is amended for the purposes of the existing provisions (within the meaning of Schedule 6 to the 1993 Act) as follows.

• (2) In subsection (6) of section 22 (which requires a person released on licence under that section to comply with such conditions as may be specified in the licence), after the word “shall” there is inserted “ , subject to section 22A below, ”.

• (3) After that section there is inserted—

(22A) (1) Where a prisoner, who has been released on licence under section 22 of this Act as respects a sentence of imprisonment— (a) continues, by virtue of any enactment or rule of law, to be detained in prison notwithstanding such release; or (b) is, by virtue of any enactment or rule of law, detained in prison subsequent to the date of such release but while the licence remains in force, the conditions in the licence, other than those mentioned in subsection (3) below, shall by virtue of such detention be suspended. (2) The suspension of the conditions shall have effect for so long as— (a) the prisoner is so detained; and (b) the licence remains in force. (3) The conditions are any conditions, however expressed, requiring the prisoner— (a) to be of good behaviour and to keep the peace; or (b) not to contact a named person or class of persons (or not to do so unless with the approval of a person specified in the licence by virtue of section 22(7) of this Act). (4) The Scottish Ministers may by order amend subsection (3) above by— (a) adding to the conditions mentioned in that subsection such other conditions as they consider appropriate; or (b) cancelling or varying a condition for the time being mentioned in that subsection.

.

• (4) In section 28 (which, among other things, enables the Scottish Ministers to revoke the licence of, and recall to prison, certain prisoners if recommended to do so by the Parole Board and, by virtue of subsection (1A) of that section, requires them to revoke the licence of and recall to prison certain other prisoners if there is such a recommendation)—

• (a) in subsection (1), for the word “may” there is substituted “ shall ”; and

• (b) subsection (1A) is repealed.

Suspension of licence conditions under 1993 Act

35

• (1) The 1993 Act is amended as follows.

• (2) In section 12 (which requires a person released on licence under Part I of that Act to comply with the conditions specified in the licence), in subsection (1), after the word “shall” there is inserted “ , subject to section 12A below, ”.

• (3) After that section there is inserted—

(12A) (1) Where a prisoner, who has been released on licence under this Part of this Act as respects a sentence of imprisonment— (a) continues, by virtue of any enactment or rule of law, to be detained in prison notwithstanding such release; or (b) is, by virtue of any enactment or rule of law, detained in prison subsequent to the date of such release but while the licence remains in force, the conditions in the licence, other than those mentioned in subsection (3) below, shall by virtue of such detention be suspended. (2) The suspension of the conditions shall have effect for so long as— (a) the prisoner is so detained; and (b) the licence remains in force. (3) The conditions are any conditions, however expressed, requiring the prisoner— (a) to be of good behaviour and to keep the peace; or (b) not to contact a named person or class of persons (or not to do so unless with the approval of the person specified in the licence by virtue of section 12(2)(a) of this Act). (4) The Scottish Ministers may by order amend subsection (3) above by— (a) adding to the conditions mentioned in that subsection such other condition as they consider appropriate; or (b) cancelling or varying a condition for the time being mentioned in that subsection. (12B) (1) Subsection (2) below applies where a prisoner— (a) has been released on licence under this Part of this Act or under the 1989 Act as respects any sentence of imprisonment (“the original sentence”); and (b) while so released, receives another sentence of imprisonment (whether for life or for a term) (“the subsequent sentence”), and the licence as respects the original sentence has not been revoked. (2) Where— (a) this subsection applies; and (b) the prisoner is to be released on licence under this Part of this Act as respects the subsequent sentence, he shall instead be released on a single licence under this Part of this Act as respects both the original sentence and the subsequent sentence. (3) The single licence— (a) shall have effect in place of— (i) the licence as respects the original sentence; and (ii) any licence on which the prisoner would, apart from this section, be released as respects the subsequent sentence; (b) shall be subject to such conditions as were in the licence as respects the original sentence immediately before that licence was replaced by the single licence; and (c) shall (unless revoked) remain in force for so long as any licence as respects the original sentence or as respects the subsequent sentence would, apart from this section (and if not revoked), have remained in force.

.

Revocation of licences under 1993 Act

36

• (1) The 1993 Act is amended as follows.

• (2) In section 5(2) (fine defaulters and persons in contempt of court), for the words from “both” to “17(1)” there is substituted “ released on licence under section 3 of this Act and, subsequently, the licence is revoked under section 17(1), (1A) or (1B) ”.

• (3) In section 16(7) (which provides that a court order that a long-term or short-term prisoner released on licence be returned to prison has the effect of automatically revoking the licence), paragraph (a), and the word “and” immediately following that paragraph, are repealed.

• (4) In section 17 (which enables the Scottish Ministers to revoke the licence of, and recall to prison, certain prisoners if recommended to do so by the Parole Board, enables them to do so in certain circumstances without such a recommendation, and requires them to do so as respects certain prisoners if there is such a recommendation), for subsections (1) to (3) there is substituted—

(1) Where— (a) a long-term prisoner has been released on licence under this Part of this Act and is not detained as mentioned in section 12A(1)(a) or (b) of this Act; or (b) a life prisoner has been so released on licence and is not detained as mentioned in section 12A(1)(b) of this Act, the Scottish Ministers— (i) shall, if recommended to do so by the Parole Board; or (ii) may, if revocation and recall are, in their opinion, expedient in the public interest and it is not practicable to await such a recommendation, revoke the licence and recall the prisoner to prison. (1A) Where a long-term prisoner or a life prisoner has been released on licence as mentioned in subsection (1) above, but is detained as mentioned in that subsection, the Scottish Ministers— (a) shall, if recommended to do so by the Parole Board; or (b) may, if revocation is, in their opinion, expedient in the public interest and it is not practicable to await such a recommendation, revoke the licence. (1B) Where a short-term prisoner has been released on licence under section 3(1) of this Act, the Scottish Ministers may, whether or not he is detained as mentioned in section 12A(1)(b) of this Act— (a) revoke the licence; and (b) where he is not so detained, recall him to prison, if they are satisfied that his health or circumstances have so changed that his release on licence is no longer justified. (2) The Scottish Ministers shall, on the revocation of a person’s licence under subsection (1), (1A) or (1B) above, inform that person of the reasons for the revocation. (3) The Scottish Ministers shall refer to the Parole Board the case of a person whose licence is revoked under subsection (1), (1A) or (1B) above.

.

Extended sentences: recall to prison and revocation of licences

37

• (1) The 1993 Act is amended as follows.

• (2) In section 26A (which applies, with adaptations, the other provisions of Part I of the 1993 Act to prisoners who are subject to an extended sentence), for subsection (9) there is substituted—

(9) In relation to a prisoner subject to an extended sentence, the reference in section 17(5) of this Act to the prisoner being “liable to be detained in pursuance of his sentence” shall be construed as a reference to the prisoner being liable to be detained until the expiry of the extension period.

.

Special provision in relation to children

38

• (1) The 1993 Act is amended as follows.

• (2) In section 7 (which among other things enables the Scottish Ministers to release on licence certain children if recommended to do so by the Parole Board, and which provides that a court order that a child released on licence be returned to detention has the effect of automatically revoking the licence)—

• (a) in subsection (2), for the word “may” there is substituted “ shall ”;

• (b) subsection (4A) is repealed;

• (c) for subsection (5), there is substituted—

(5) Without prejudice to section 6(1)(b)(ii) of this Act— (a) sections 3, 11(1), 12, 12A, 12B, 17 and 20(2) of this Act apply to children detained under section 208 of the 1995 Act as they apply to long-term prisoners; and (b) in those sections of this Act, references to prisoners, or to prison, imprisonment or sentences of imprisonment shall be construed, and sections 1A and 27 shall apply, accordingly.

; and

• (d) subsection (6) is repealed.

Special provision as regards certain life prisoners

Convention rights of certain life prisoners

39

In the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7)—

• (a) in Part 1 (existing life prisoners), after paragraph 7 there is inserted—

(7A) In the case of a prisoner to whom paragraph 6 above applies, Part 1 of the 1993 Act as amended by this Act shall apply as if the part of the prisoner’s sentence specified in the certificate mentioned in paragraph 1(b) above were a punishment part specified under section 2(2) of the 1993 Act as amended by this Act.

; and

• (b) in Part 4 (transferred life prisoners)—

• (i) after paragraph 49 there is inserted—

(49A) This Part of this schedule also applies to— (a) any life prisoner who was transferred— (i) on or after the coming into force of section 10 of the 1993 Act; and (ii) before the relevant date, and to whom, by virtue of the Crime and Punishment (Scotland) Act 1997 (c. 48), subsections (2) and (3) of that section applied subsequent to the prisoner’s transfer; and (b) any other life prisoner who was— (i) transferred to Scotland before the coming into effect of section 10 of the 1993 Act; and (ii) as at the relevant date, a life prisoner such as is mentioned in any of sub-paragraphs (a) to (c) of paragraph 49 above (the references in those sub-paragraphs to that section being construed as references to that section as it had effect on that date).

;

• (ii) in paragraph 50, after the word “49” there is inserted “ or 49A ”;

• (iii) in paragraph 53, after the word “applies” there is inserted “ , to whom sub-paragraph (a) of paragraph 49A above applies (whether or not paragraph 49(b) above also applies to the prisoner) or to whom sub-paragraph (b) of paragraph 49A above applies (in so far as that sub-paragraph relates to paragraph 49(c) above) ”;

• (iv) in paragraph 54, for the words from “to” in the first place where it occurs to “applies” there is substituted “ such as is mentioned in paragraph 52 or 53 above ”; and

• (v) for paragraph 67 there is substituted—

(67) In the case of a prisoner to whom paragraph 53 above applies, Part 1 of the 1993 Act (except subsection (9) of section 2) as amended by this Act shall apply as if— (a) the prisoner were a life prisoner within the meaning of subsection (1) of that section; and (b) the part of the prisoner’s sentence specified in the certificate referred to in sub-paragraph (c) of paragraph 57 above were a punishment part specified under subsection (2) of that section.

.

Monitoring on release

Remote monitoring of released prisoners

40

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Parole Board to have regard to risk management plans

Parole Board to have regard to risk management plans

41

In the 1993 Act, after section 26A, there is inserted—

(26B) The Parole Board shall, whenever it is considering the case of a person in respect of whom there is a risk management plan, have regard to the plan.

.

Part 5 — Drugs courts

Drugs courts

42

• (1) It may be prescribed that a court, or class of court, is designated as a “drugs court”; that is to say, as a court especially appropriate to deal with cases involving persons dependent on, or with a propensity to misuse, drugs.

• (2) It may be prescribed that there is to be a drugs court within a sheriffdom or sheriff court district, in which case the sheriff principal is, subject to subsection (1), to nominate a court within that sheriffdom or, as the case may be, sheriff court district to be a drugscourt.

• (3) Any designation under subsection (1) or nomination under subsection (2) is without prejudice to the powers and jurisdiction of any court; but only a drugs court is to have the powers provided for in subsection (4), being powers—

• (a) additional to any other powers the court may have; and

• (b) exercisable only as respects such persons as the court is satisfied are persons such as are mentioned in subsection (1).

• (4) The powers are, that where an offender has failed to comply with the requirements of a drug treatment and testing order or a community payback order, the court may, subject to subsections (6) and (7), on one, or more than one, occasion—

• (a) sentence that person to imprisonment, or as the case may be detention, so however that the total of all periods so imposed in respect of the order is not to exceed twenty-eight days (and accordingly any one such period may be less than any minimum sentence which, but for this paragraph, would fall to be imposed); or

• (b) in the case of a failure to comply with the requirements of a drug treatment and testing order, make a community payback order imposing a level 1 unpaid work or other activity requirement, so however that the total hours of unpaid work or other activity thus required in respect of the order is not to exceed forty hours (and accordingly any one such requirement will be for a period less than that which, but for this paragraph, would fall to be specified),

but the imposition of a sentence under paragraph (a) or making of an order under paragraph (b) does not of itself affect the drug treatment and testing order or community payback order.

• (5) The Scottish Ministers may by order amend—

• (a) paragraph (a) of subsection (4) by substituting, for the period of days; or

• (b) paragraph (b) of that subsection, by substituting for the period of hours,

for the time being specified there as a period not to be exceeded, such other period of days, or as the case may be hours, as they think fit.

• (6) Where it is—

• (a) alleged at—

• (i) a review hearing by a drugs court; or

• (ii) a diet of such a court to which an offender has been cited under section 234G(1) of the 1995 Act (court actings in respect of breach of drug treatment and testing order),

that the offender has failed to comply with a requirement of a drug treatment and testing order; or

• (b) alleged at—

• (i) a progress review carried out by such a court in relation to a community payback order; or

• (ii) a diet of such a court to which an offender has been cited under section 227ZC(2) of that Act (breach of community payback order),

that the offender has failed to comply with a requirement imposed by a community payback order,

that person shall forthwith be provided with written details of the alleged failure and informed that there is an entitlement to be legally represented and that no answer need be given as respects that allegation before an opportunity has been afforded the person to take legal advice in that regard or the person has indicated that there is no wish to take such advice.

• (7) If the offender ... denies the allegation, then only if, in accordance with section 227ZC or as the case may be 234G of the 1995 Act, that person’s failure to comply is proved is the drugs court entitled to proceed as is mentioned in paragraph (a) or (b) of subsection (4).

• (8) If under section 234H of the 1995 Act (disposal on revocation of drug treatment and testing order) a drug treatment and testing order is revoked, the court (whether or not a drugs court) must, in imposing any sentence by virtue of subsection (1) of that section, take into account any—