2A

In deciding whether to appeal under subsection (1) in any case, the Lord Advocate must have regard to any sentencing guidelines which are applicable in relation to the case.

4C

In deciding whether to appeal under subsection (4) in any case, the prosecutor must have regard to any sentencing guidelines which are applicable in relation to the case.

Community payback orders

227ACommunity payback orders

1

Where a person (the “offender”) is convicted of an offence punishable by imprisonment, the court may, instead of imposing a sentence of imprisonment, impose a community payback order on the offender.

2

A community payback order is an order imposing one or more of the following requirements—

a

an offender supervision requirement,

b

a compensation requirement,

c

an unpaid work or other activity requirement,

d

a programme requirement,

e

a residence requirement,

f

a mental health treatment requirement,

g

a drug treatment requirement,

h

an alcohol treatment requirement,

i

a conduct requirement.

3

Subsection (4) applies where—

a

a person (the “offender”) is convicted of an offence punishable by a fine (whether or not it is also punishable by imprisonment), and

b

where the offence is also punishable by imprisonment, the court decides not to impose—

i

a sentence of imprisonment, or

ii

a community payback order under subsection (1) instead of a sentence of imprisonment.

4

The court may, instead of or as well as imposing a fine, impose a community payback order on the offender imposing one or more of the following requirements—

a

an offender supervision requirement,

b

a level 1 unpaid work or other activity requirement,

c

a conduct requirement.

5

A justice of the peace court may only impose a community payback order imposing one or more of the following requirements—

a

an offender supervision requirement,

b

a compensation requirement,

c

an unpaid work or other activity requirement,

d

a residence requirement,

e

a conduct requirement.

6

Subsection (5)(c) is subject to section 227J(4).

7

The Scottish Ministers may by order made by statutory instrument amend subsection (5) so as to add to or omit requirements that may be imposed by a community payback order imposed by a justice of the peace court.

8

An order is not to be made under subsection (7) unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament.

9

In this section and sections 227B to 227ZK, except where the context requires otherwise—

• “court” means the High Court, the sheriff or a justice of the peace court,

• “imprisonment” includes detention.

227BCommunity payback order: procedure prior to imposition

1

This section applies where a court is considering imposing a community payback order on an offender.

2

The court must not impose the order unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant the imposition of such an order.

3

Before imposing a community payback order imposing two or more requirements, the court must consider whether, in the circumstances of the case, the requirements are compatible with each other.

4

The court must not impose the order unless it has obtained, and taken account of, a report from an officer of a local authority containing information about the offender and the offender's circumstances.

5

An Act of Adjournal may prescribe—

a

the form of a report under subsection (4), and

b

the particular information to be contained in it.

6

Subsection (4) does not apply where the court is considering imposing a community payback order—

a

imposing only a level 1 unpaid work or other activity requirement, or

b

under section 227M(2).

7

The clerk of the court must give a copy of any report obtained under subsection (4) to—

a

the offender,

b

the offender's solicitor (if any), and

c

the prosecutor.

8

Before imposing the order, the court must explain to the offender in ordinary language—

a

the purpose and effect of each of the requirements to be imposed by the order,

b

the consequences which may follow if the offender fails to comply with any of the requirements imposed by the order, and

c

where the court proposes to include in the order provision under section 227X for it to be reviewed, the arrangements for such a review.

9

The court must not impose the order unless the offender has, after the court has explained those matters, confirmed that the offender—

a

understands those matters, and

b

is willing to comply with each of the requirements to be imposed by the order.

10

Subsection (9)(b) does not apply where the court is considering imposing a community payback order under section 227M(2).

227CCommunity payback order: responsible officer

1

This section applies where a court imposes a community payback order on an offender.

2

The court must, in imposing the order—

a

specify the locality in which the offender resides or will reside for the duration of the order,

b

require the local authority within whose area that locality is situated to nominate, within two days of its receiving a copy of the order, an officer of the authority as the responsible officer for the purposes of the order,

c

require the offender to comply with any instructions given by the responsible officer—

i

about keeping in touch with the responsible officer, or

ii

for the purposes of subsection (3),

d

require the offender to report to the responsible officer in accordance with instructions given by that officer,

e

require the offender to notify the responsible officer without delay of—

i

any change of the offender's address, and

ii

the times, if any, at which the offender usually works (or carries out voluntary work) or attends school or any other educational establishment, and

f

where the order imposes an unpaid work or other activity requirement, require the offender to undertake for the number of hours specified in the requirement such work or activity as the responsible officer may instruct, and at such times as may be so instructed.

3

The responsible officer is responsible for—

a

making any arrangements necessary to enable the offender to comply with each of the requirements imposed by the order,

b

promoting compliance with those requirements by the offender,

c

taking such steps as may be necessary to enforce compliance with the requirements of the order or to vary, revoke or discharge the order.

4

References in this Act to the responsible officer are, in relation to an offender on whom a community payback order has been imposed, the officer for the time being nominated in pursuance of subsection (2)(b).

5

In reckoning the period of two days for the purposes of subsection (2)(b), no account is to be taken of a Saturday or Sunday or any day which is a local or public holiday in the area of the local authority concerned.

227DCommunity payback order: further provision

1

Where a community payback order is imposed on an offender, the order is to be taken for all purposes to be a sentence imposed on the offender.

2

On imposing a community payback order, the court must state in open court the reasons for imposing the order.

3

The imposition by a court of a community payback order on an offender does not prevent the court imposing a fine or any other sentence (other than imprisonment), or making any other order, that it would be entitled to impose or make in respect of the offence.

4

Where a court imposes a community payback order on an offender, the clerk of the court must ensure that—

a

a copy of the order is given to—

i

the offender, and

ii

the local authority within whose area the offender resides or will reside, and

b

a copy of the order and such other documents and information relating to the case as may be useful are given to the clerk of the appropriate court (unless the court imposing the order is that court).

5

A copy of the order may be given to the offender—

a

by being delivered personally to the offender, or

b

by being sent—

i

by a registered post service (as defined in section 125(1) of the Postal Services Act 2000 (c.26)), or

ii

by a postal service which provides for the delivery of the document to be recorded.

6

A community payback order is to be in such form, or as nearly as may be in such form, as may be prescribed by Act of Adjournal.

227ERequirement to avoid conflict with religious beliefs, work etc.

1

In imposing a community payback order on an offender, the court must ensure, so far as practicable, that any requirement imposed by the order avoids—

a

a conflict with the offender's religious beliefs,

b

interference with the times, if any, at which the offender normally works (or carries out voluntary work) or attends school or any other educational establishment.

2

The responsible officer must ensure, so far as practicable, that any instruction given to the offender avoids such a conflict or interference.

227FPayment of offenders' travelling and other expenses

1

The Scottish Ministers may by order made by statutory instrument provide for the payment to offenders of travelling or other expenses in connection with their compliance with requirements imposed on them by community payback orders.

2

An order under subsection (1) may—

a

specify expenses or provide for them to be determined under the order,

b

provide for the payments to be made by or on behalf of local authorities,

c

make different provision for different purposes.

3

An order under subsection (1) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

Offender supervision requirement

227GOffender supervision requirement

1

In this Act, an “offender supervision requirement” is, in relation to an offender, a requirement that, during the specified period, the offender must attend appointments with the responsible officer or another person determined by the responsible officer, at such time and place as may be determined by the responsible officer, for the purpose of promoting the offender's rehabilitation.

2

On imposing a community payback order, the court must impose an offender supervision requirement if—

a

the offender is under 18 years of age at the time the order is imposed, or

b

the court, in the order, imposes—

i

a compensation requirement,

ii

a programme requirement,

iii

a residence requirement,

iv

a mental health requirement,

v

a drug treatment requirement,

vi

an alcohol treatment requirement, or

vii

a conduct requirement.

3

The specified period must be at least 6 months and not more than 3 years.

4

Subsection (3) is subject to subsection (5) and section 227ZE(4).

5

In the case of an offender supervision requirement imposed on a person aged 16 or 17 along with only a level 1 unpaid work or other activity requirement, the specified period must be no more than whichever is the greater of—

a

the specified period under section 227L in relation to the level 1 unpaid work or other activity requirement, and

b

3 months.

6

In this section, “specified”, in relation to an offender supervision requirement, means specified in the requirement.

Compensation requirement

227HCompensation requirement

1

In this Act, a “compensation requirement” is, in relation to an offender, a requirement that the offender must pay compensation for any relevant matter in favour of a relevant person.

2

In subsection (1)—

• “relevant matter” means any personal injury, loss, damage or other matter in respect of which a compensation order could be made against the offender under section 249 of this Act, and

• “relevant person” means a person in whose favour the compensation could be awarded by such a compensation order.

3

A compensation requirement may require the compensation to be paid in a lump sum or in instalments.

4

The offender must complete payment of the compensation before the earlier of the following—

a

the end of the period of 18 months beginning with the day on which the compensation requirement is imposed,

b

the beginning of the period of 2 months ending with the day on which the offender supervision requirement imposed under section 227G(2) ends.

5

The following provisions of this Act apply in relation to a compensation requirement as they apply in relation to a compensation order, and as if the references in them to a compensation order included a compensation requirement—

a

section 249(3), (4), (5) and (8) to (10),

b

section 250(2),

c

section 251(1), (1A) and (2)(b), and

d

section 253.

Unpaid work or other activity requirement

227IUnpaid work or other activity requirement

1

In this Act, an “unpaid work or other activity requirement” is, in relation to an offender, a requirement that the offender must, for the specified number of hours, undertake—

a

unpaid work, or

b

unpaid work and other activity.

2

Whether the offender must undertake other activity as well as unpaid work is for the responsible officer to determine.

3

The nature of the unpaid work and any other activity to be undertaken by the offender is to be determined by the responsible officer.

4

The number of hours that may be specified in the requirement must be (in total)—

a

at least 20 hours, and

b

not more than 300 hours.

5

An unpaid work or other activity requirement which requires the work or activity to be undertaken for a number of hours totalling no more than 100 is referred to in this Act as a “level 1 unpaid work or other activity requirement”.

6

An unpaid work or other activity requirement which requires the work or activity to be undertaken for a number of hours totalling more than 100 is referred to in this Act as a “level 2 unpaid work or other activity requirement”.

7

The Scottish Ministers may by order made by statutory instrument substitute another number of hours for any of the numbers of hours for the time being specified in subsections (4) to (6).

8

An order under subsection (7) may only substitute for the number of hours for the time being specified in a provision mentioned in the first column of the following table a number of hours falling within the range set out in the corresponding entry in the second column.

Provision	Range
	No fewer than	No more than
Subsection (4)(a)	10 hours	40 hours
Subsection (4)(b)	250 hours	350 hours
Subsections (5) and (6)	70 hours	150 hours

9

An order under subsection (7) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

10

In this section, “specified”, in relation to an unpaid work or other activity requirement, means specified in the requirement.

227JUnpaid work or other activity requirement: further provision

1

A court may not impose an unpaid work or other activity requirement on an offender who is under 16 years of age.

2

A court may impose such a requirement on an offender only if the court is satisfied, after considering the report mentioned in section 227B(4), that the offender is a suitable person to undertake unpaid work in pursuance of the requirement.

3

Subsection (2) does not apply where the court is considering imposing a community payback order—

a

imposing only a level 1 unpaid work or other activity requirement, or

b

under section 227M(2).

4

A justice of the peace court may impose a level 2 unpaid work or other activity requirement only if—

a

the Scottish Ministers by regulations made by statutory instrument so provide, and

b

the requirement is imposed in such circumstances and subject to such conditions as may be specified in the regulations.

5

Regulations are not to be made under subsection (4) unless a draft of the statutory instrument containing them has been laid before and approved by resolution of the Scottish Parliament.

227KAllocation of hours between unpaid work and other activity

1

Subject to subsection (2), it is for the responsible officer to determine how many out of the number of hours specified in an unpaid work or other activity requirement are to be allocated to undertaking, respectively—

a

unpaid work, and

b

any other activity to be undertaken.

2

The number of hours allocated to undertaking an activity other than unpaid work must not exceed whichever is the lower of—

a

30% of the number of hours specified in the requirement, and

b

30 hours.

3

The Scottish Ministers may by order made by statutory instrument—

a

substitute another percentage for the percentage for the time being specified in subsection (2)(a),

b

substitute another number of hours for the number of hours for the time being specified in subsection (2)(b).

4

An order is not to be made under subsection (3) unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament.

227LTime limit for completion of unpaid work or other activity

1

The number of hours of unpaid work and any other activity that the offender is required to undertake in pursuance of an unpaid work or other activity requirement must be completed by the offender before the end of the specified period beginning with the imposition of the requirement.

2

The “specified period” is—

a

in relation to a level 1 unpaid work or other activity requirement, 3 months or such longer period as the court may specify in the requirement,

b

in relation to a level 2 unpaid work or other activity requirement, 6 months or such longer period as the court may specify in the requirement.

227MFine defaulters

1

This section applies where—

a

a fine has been imposed on an offender in respect of an offence,

b

the offender fails to pay the fine or an instalment of the fine,

c

the offender is not serving a sentence of imprisonment, and

d

apart from this section, the court would have imposed a period of imprisonment on the offender under section 219(1) of this Act in respect of the failure to pay the fine or instalment.

2

Instead of imposing a period of imprisonment under section 219(1) of this Act, the court—

a

where the amount of the fine or the instalment does not exceed level 2 on the standard scale, must impose a community payback order on the offender imposing a level 1 unpaid work or other activity requirement,

b

where the amount of the fine or the instalment exceeds that level, may impose such a community payback order.

3

The court, in imposing a community payback order under subsection (2) on a person aged 16 or 17, must also impose an offender supervision requirement.

4

Where the amount of the fine or the instalment does not exceed level 1 on the standard scale, the number of hours specified in the requirement must not exceed 50.

5

On completion of the hours of unpaid work and any other activity specified in an unpaid work or other activity requirement imposed under this section, the fine in respect of which the requirement was imposed is discharged (or, as the case may be, the outstanding instalments of the fine are discharged).

6

If, after a community payback order is imposed on an offender under this section, the offender pays the fine or the full amount of any outstanding instalments, the appropriate court must discharge the order.

7

Subsection (2) is subject to sections 227J(1) and 227N(2), (3) and (7).

8

In this section, “court” does not include the High Court.

227NOffenders subject to more than one unpaid work or other activity requirement

1

This section applies where—

a

a court is considering imposing an unpaid work or other activity requirement on an offender (referred to as the “new requirement”), and

b

at the time the court is considering imposing the requirement, there is already in effect one or more community payback orders imposing such a requirement on the same offender (each referred to as an “existing requirement”).

2

The court may, in imposing the new requirement, direct that it is to be concurrent with any existing requirement.

3

Where the court makes a direction under subsection (2), hours of unpaid work or other activity undertaken after the new requirement is imposed count for the purposes of compliance with that requirement and the existing requirement.

4

Subsection (5) applies where the court does not make a direction under subsection (2).

5

The maximum number of hours which may be specified in the new requirement is the number of hours specified in section 227I(4)(b) less the aggregate of the number of hours of unpaid work or activity still to be completed under each existing requirement at the time the new requirement is imposed.

6

In calculating that aggregate, if any existing requirement is concurrent with another (by virtue of a direction under subsection (2)), hours that count for the purposes of compliance with both (or, as the case may be, all) are to be counted only once.

7

Where that maximum number is less than the minimum number of hours that can be specified by virtue of section 227I(4)(a), the court must not impose the new requirement.

227ORules about unpaid work and other activity

1

The Scottish Ministers may make rules by statutory instrument for or in connection with the undertaking of unpaid work and other activities in pursuance of unpaid work or other activity requirements.

2

Rules under subsection (1) may in particular make provision for—

a

limiting the number of hours of work or other activity that an offender may be required to undertake in any one day,

b

reckoning the time spent undertaking unpaid work or other activity,

c

the keeping of records of unpaid work and any other activity undertaken.

3

Rules under subsection (1) may—

a

confer functions on responsible officers,

b

contain rules about the way responsible officers are to exercise functions under this Act.

4

Rules under subsection (1) are subject to annulment in pursuance of a resolution of the Scottish Parliament.

Programme requirement

227PProgramme requirement

1

In this Act, a “programme requirement” is, in relation to an offender, a requirement that the offender must participate in a specified programme, at the specified place and on the specified number of days.

2

In this section, “programme” means a course or other planned set of activities, taking place over a period of time, and provided to individuals or groups of individuals for the purpose of addressing offending behavioural needs.

3

A court may impose a programme requirement on an offender only if the specified programme is one which has been recommended by an officer of a local authority as being suitable for the offender to participate in.

4

If an offender's compliance with a proposed programme requirement would involve the co-operation of a person other than the offender, the court may impose the requirement only if the other person consents.

5

A court may not impose a programme requirement that would require an offender to participate in a specified programme after the expiry of the period specified in the offender supervision requirement to be imposed at the same time as the programme requirement (by virtue of section 227G(2)(b)).

6

Where the court imposes a programme requirement on an offender, the requirement is to be taken to include a requirement that the offender, while attending the specified programme, complies with any instructions given by or on behalf of the person in charge of the programme.

7

In this section, “specified”, in relation to a programme requirement, means specified in the requirement.

Residence requirement

227QResidence requirement

1

In this Act, a “residence requirement” is, in relation to an offender, a requirement that, during the specified period, the offender must reside at a specified place.

2

The court may, in a residence requirement, require an offender to reside at a hostel or other institution only if the hostel or institution has been recommended as a suitable place for the offender to reside in by an officer of a local authority.

3

The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the residence requirement (by virtue of section 227G(2)(b)).

4

In this section, “specified”, in relation to a residence requirement, means specified in the requirement.

Mental health treatment requirement

227RMental health treatment requirement

1

In this Act, a “mental health treatment requirement” is, in relation to an offender, a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a registered medical practitioner or a registered psychologist (or both) with a view to improving the offender's mental condition.

2

The treatment to which an offender may be required to submit under a mental health treatment requirement is such of the kinds of treatment described in subsection (3) as is specified; but otherwise the nature of the treatment is not to be specified.

3

Those kinds of treatment are—

a

treatment as a resident patient in a hospital (other than a State hospital) within the meaning of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (“the 2003 Act”),

b

treatment as a non-resident patient at such institution or other place as may be specified, or

c

treatment by or under the direction of such registered medical practitioner or registered psychologist as may be specified.

4

A court may impose a mental health treatment requirement on an offender only if the court is satisfied—

a

on the written or oral evidence of an approved medical practitioner (within the meaning of the 2003 Act), that Condition A is met,

b

on the written or oral evidence of the registered medical practitioner or registered psychologist by whom or under whose direction the treatment is to be provided, that Condition B is met, and

c

that Condition C is met.

5

Condition A is that—

a

the offender suffers from a mental condition,

b

the condition requires, and may be susceptible to, treatment, and

c

the condition is not such as to warrant the offender's being subject to—

i

a compulsory treatment order under section 64 of the 2003 Act, or

ii

a compulsion order under section 57A of this Act.

6

Condition B is that the treatment proposed to be specified is appropriate for the offender.

7

Condition C is that arrangements have been made for the proposed treatment including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the hospital proposed to be specified in the requirement.

8

The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the mental health treatment requirement (by virtue of section 227G(2)(b)).

9

In this section, “specified”, in relation to a mental health treatment requirement, means specified in the requirement.

227SMental health treatment requirements: medical evidence

1

For the purposes of section 227R(4)(a) or (b), a written report purporting to be signed by an approved medical practitioner (within the meaning of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)) may be received in evidence without the need for proof of the signature or qualifications of the practitioner.

2

Where such a report is lodged in evidence otherwise than by or on behalf of the offender, a copy of the report must be given to—

a

the offender, and

b

the offender's solicitor (if any).

3

The court may adjourn the case if it considers it necessary to do so to give the offender further time to consider the report.

4

Subsection (5) applies where the offender is—

a

detained in a hospital under this Act, or

b

remanded in custody.

5

For the purpose of calling evidence to rebut any evidence contained in a report lodged as mentioned in subsection (2), arrangements may be made by or on behalf of the offender for an examination of the offender by a registered medical practitioner.

6

Such an examination is to be carried out in private.

227TPower to change treatment

1

This section applies where—

a

a mental health treatment requirement has been imposed on an offender, and

b

the registered medical practitioner or registered psychologist by whom or under whose direction the offender is receiving the treatment to which the offender is required to submit in pursuance of the requirement is of the opinion mentioned in subsection (2).

2

That opinion is—

a

that the offender requires, or that it would be appropriate for the offender to receive, a different kind of treatment (whether in whole or in part) from that which the offender has been receiving, or

b

that the treatment (whether in whole or in part) can be more appropriately given in or at a different hospital or other institution or place from that where the offender has been receiving treatment.

3

The practitioner or, as the case may be, psychologist may make arrangements for the offender to be treated accordingly.

4

Subject to subsection (5), the treatment provided under the arrangements must be of a kind which could have been specified in the mental health treatment requirement.

5

The arrangements may provide for the offender to receive treatment (in whole or in part) as a resident patient in an institution or place even though it is one that could not have been specified for that purpose in the mental health treatment requirement.

6

Arrangements may be made under subsection (3) only if—

a

the offender and the responsible officer agree to the arrangements,

b

the treatment will be given by or under the direction of a registered medical practitioner or registered psychologist who has agreed to accept the offender as a patient, and

c

where the treatment requires the offender to be a resident patient, the offender will be received as such.

7

Where arrangements are made under subsection (3)—

a

the responsible officer must notify the court of the arrangements, and

b

the treatment provided under the arrangements is to be taken to be treatment to which the offender is required to submit under the mental health treatment requirement.

Drug treatment requirement

227UDrug treatment requirement

1

In this Act, a “drug treatment requirement” is, in relation to an offender, a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a specified person with a view to reducing or eliminating the offender's dependency on, or propensity to misuse, drugs.

2

The treatment to which an offender may be required to submit under a drug treatment requirement is such of the kinds of treatment described in subsection (3) as is specified (but otherwise the nature of the treatment is not to be specified).

3

Those kinds of treatment are—

a

treatment as a resident in such institution or other place as is specified,

b

treatment as a non-resident at such institution or other place, and at such intervals, as is specified.

4

The specified person must be a person who has the necessary qualifications or experience in relation to the treatment to be provided.

5

The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the drug treatment requirement (by virtue of section 227G(2)(b)).

6

A court may impose a drug treatment requirement on an offender only if the court is satisfied that—

a

the offender is dependent on, or has a propensity to misuse, any controlled drug (as defined in section 2(1)(a) of the Misuse of Drugs Act 1971 (c.38)),

b

the dependency or propensity requires, and may be susceptible to, treatment, and

c

arrangements have been, or can be, made for the proposed treatment including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the institution or other place to be specified.

7

In this section, “specified”, in relation to a drug treatment requirement, means specified in the requirement.

Alcohol treatment requirement

227VAlcohol treatment requirement

1

In this Act, an “alcohol treatment requirement” is, in relation to an offender, a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a specified person with a view to the reduction or elimination of the offender's dependency on alcohol.

2

The treatment to which an offender may be required to submit under an alcohol treatment requirement is such of the kinds of treatment described in subsection (3) as is specified (but otherwise the nature of the treatment is not to be specified).

3

Those kinds of treatment are—

a

treatment as a resident in such institution or other place as is specified,

b

treatment as a non-resident at such institution or other place, and at such intervals, as is specified,

c

treatment by or under the direction of such person as is specified.

4

The person specified under subsection (1) or (3)(c) must be a person who has the necessary qualifications or experience in relation to the treatment to be provided.

5

The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the alcohol treatment requirement (by virtue of section 227G(2)(b)).

6

A court may impose an alcohol treatment requirement on an offender only if the court is satisfied that—

a

the offender is dependent on alcohol,

b

the dependency requires, and may be susceptible to, treatment, and

c

arrangements have been, or can be, made for the proposed treatment, including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the institution or other place to be specified.

7

In this section, “specified”, in relation to an alcohol treatment requirement, means specified in the requirement.

Conduct requirement

227WConduct requirement

1

In this Act, a “conduct requirement” is, in relation to an offender, a requirement that the offender must, during the specified period, do or refrain from doing specified things.

2

A court may impose a conduct requirement on an offender only if the court is satisfied that the requirement is necessary with a view to—

a

securing or promoting good behaviour by the offender, or

b

preventing further offending by the offender.

3

The specified period must be not more than 3 years.

4

The specified things must not include anything that—

a

could be required by imposing one of the other requirements listed in section 227A(2), or

b

would be inconsistent with the provisions of this Act relating to such other requirements.

5

In this section, “specified”, in relation to a conduct requirement, means specified in the requirement.

Community payback orders: review, variation etc.

227XPeriodic review of community payback orders

1

On imposing a community payback order on an offender, the court may include in the order provision for the order to be reviewed at such time or times as may be specified in the order.

2

A review carried out in pursuance of such provision is referred to in this section as a “progress review”.

3

A progress review may be carried out by the court which imposed the community payback order or (if different) the appropriate court, and, where those courts are different, the court must specify in the order which of those courts is to carry out the reviews.

4

A progress review is to be carried out in such manner as the court carrying out the review may determine.

5

Before each progress review, the responsible officer must give the court a written report on the offender's compliance with the requirements imposed by the community payback order in the period to which the review relates.

6

The offender must attend each progress review.

7

If the offender fails to attend a progress review, the court may—

a

issue a citation requiring the offender's attendance, or

b

issue a warrant for the offender's arrest.

8

The unified citation provisions apply in relation to a citation under subsection (7)(a) as they apply in relation to a citation under section 216(3)(a) of this Act.

9

Subsections (10) and (11) apply where, in the course of carrying out a progress review in respect of a community payback order, it appears to the court that the offender has failed to comply with a requirement imposed by the order.

10

The court must—

a

provide the offender with written details of the alleged failure,

b

inform the offender that the offender is entitled to be legally represented, and

c

inform the offender that no answer need be given to the allegation before the offender—

i

has been given an opportunity to take legal advice, or

ii

has indicated that the offender does not wish to take legal advice.

11

The court must then—

a

if it is the appropriate court, appoint another hearing for consideration of the alleged failure in accordance with section 227ZC, or

b

if it is not the appropriate court, refer the alleged failure to that court for consideration in accordance with that section.

12

On conclusion of a progress review in respect of a community payback order, the court may vary, revoke or discharge the order in accordance with section 227Z.

227YApplications to vary, revoke and discharge community payback orders

1

The appropriate court may, on the application of either of the persons mentioned in subsection (2), vary, revoke or discharge a community payback order in accordance with section 227Z.

2

Those persons are—

a

the offender on whom the order was imposed,

b

the responsible officer in relation to the offender.

227ZVariation, revocation and discharge: court's powers

1

This section applies where a court is considering varying, revoking or discharging a community payback order imposed on an offender.

2

The court may vary, revoke or discharge the order only if satisfied that it is in the interests of justice to do so having regard to circumstances which have arisen since the order was imposed.

3

Subsection (2) does not apply where the court is considering varying the order under section 227ZC(7)(d).

4

In varying an order, the court may, in particular—

a

add to the requirements imposed by the order,

b

revoke or discharge any requirement imposed by the order,

c

vary any requirement imposed by the order,

d

include provision for progress reviews under section 227X,

e

where the order already includes such provision, vary that provision.

5

In varying a requirement imposed by the order, the court may, in particular—

a

extend or shorten any period or other time limit specified in the requirement,

b

in the case of an unpaid work or other activity requirement, increase or decrease the number of hours specified in the requirement,

c

in the case of a compensation requirement, vary the amount of compensation or any instalment.

6

The court may not, under subsection (5)(b), increase the number of hours beyond the appropriate maximum.

7

The appropriate maximum is the number of hours specified in section 227I(4)(b) at the time the unpaid work or other activity requirement being varied was imposed less the aggregate of the number of hours of unpaid work or other activity still to be completed under each other unpaid work or other activity requirement (if any) in effect in respect of the offender at the time of the variation (a “current requirement”).

8

In calculating that aggregate, if any current requirement is concurrent with another (by virtue of a direction under section 227N(2)), hours that count for the purposes of compliance with both (or, as the case may be, all) are to be counted only once.

9

The court may not, under subsection (5)(c), increase the amount of compensation beyond the maximum that could have been awarded at the time the requirement was imposed.

10

Where the court varies a restricted movement requirement imposed by a community payback order, the court must give a copy of the order making the variation to the person responsible for monitoring the offender's compliance with the requirement.

11

Where the court revokes a community payback order, the court may deal with the offender in respect of the offence in relation to which the order was imposed as it could have dealt with the offender had the order not been imposed.

12

Subsection (11) applies in relation to a community payback order imposed under section 227M(2) as if the reference to the offence in relation to which the order was imposed were a reference to the failure to pay in respect of which the order was imposed.

13

Where the court is considering varying, revoking or discharging the order otherwise than on the application of the offender, the court must issue a citation to the offender requiring the offender to appear before the court (except where the offender is required to appear by section 227X(6)) or 227ZC(2)(b).

14

If the offender fails to appear as required by the citation, the court may issue a warrant for the arrest of the offender.

15

The unified citation provisions apply in relation to a citation under subsection (13) as they apply in relation to a citation under section 216(3)(a) of this Act.

227ZAVariation of community payback orders: further provision

1

This section applies where a court is considering varying a community payback order imposed on an offender.

2

The court must not make the variation unless it has obtained, and taken account of, a report from the responsible officer containing information about the offender and the offender's circumstances.

3

An Act of Adjournal may prescribe—

a

the form of a report under subsection (2), and

b

the particular information to be contained in it.

4

Subsection (2) does not apply where the court is considering varying a community payback order—

a

so that it imposes only a level 1 unpaid work or other activity requirement, or

b

imposed under section 227M(2).

5

The clerk of the court must give a copy of any report obtained under subsection (2) to—

a

the offender,

b

the offender's solicitor (if any).

6

Before making the variation, the court must explain to the offender in ordinary language—

a

the purpose and effect of each of the requirements to be imposed by the order as proposed to be varied,

b

the consequences which may follow if the offender fails to comply with any of the requirements imposed by the order as proposed to be varied, and

c

where the court proposes to include in the order as proposed to be varied provision for a progress review under section 227X, or to vary any such provision already included in the order, the arrangements for such a review.

7

The court must not make the variation unless the offender has, after the court has explained those matters, confirmed that the offender—

a

understands those matters, and

b

is willing to comply with each of the requirements to be imposed by the order as proposed to be amended.

8

Where the variation would impose a new requirement—

a

the court must not make the variation if the new requirement is not a requirement that could have been imposed by the order when it was imposed,

b

if the new requirement is one which could have been so imposed, the court must, before making the variation take whatever steps the court would have been required to take before imposing the requirement had it been imposed by the order when it was imposed.

9

Subsection (8)(a) does not prevent the imposition of a restricted movement requirement under section 227ZC(7)(d).

10

In determining for the purpose of subsection (8)(a) whether an unpaid work or other activity requirement is a requirement that could have been imposed by the order when the order was imposed, the effect of section 227N(7) is to be ignored.

11

Where the variation would vary any requirement imposed by the order, the court must not make the variation if the requirement as proposed to be varied could not have been imposed, or imposed in that way, by the order when it was imposed.

12

Subsections (4) and (5) of section 227D apply, with the necessary modifications, where a community payback order is varied as they apply where such an order is imposed.

227ZBChange of offender's residence to new local authority area

1

The section applies where—

a

the offender on whom a community payback order has been imposed proposes to change, or has changed, residence to a locality (“the new locality”) situated in the area of a different local authority from that in which the locality currently specified in the order is situated, and

b

the court is considering varying the order so as to specify the new local authority area in which the offender resides or will reside.

2

The court may vary the order only if satisfied that arrangements have been, or can be, made in the local authority area in which the new locality is situated for the offender to comply with the requirements imposed by the order.

3

If the court considers that a requirement (“the requirement concerned”) imposed by the order cannot be complied with if the offender resides in the new locality, the court must not vary the order so as to specify the new local authority area unless it also varies the order so as to—

a

revoke or discharge the requirement concerned, or

b

substitute for the requirement concerned another requirement that can be so complied with.

4

Where the court varies the order, the court must also vary the order so as to require the local authority for the area in which the new locality is situated to nominate an officer of the authority to be the responsible officer for the purposes of the order.

Breach of community payback order

227ZCBreach of community payback order

1

This section applies where it appears to the appropriate court that an offender on whom a community payback order has been imposed has failed to comply with a requirement imposed by the order.

2

The court may—

a

issue a warrant for the offender's arrest, or

b

issue a citation to the offender requiring the offender to appear before the court.

3

If the offender fails to appear as required by a citation issued under subsection (2)(b), the court may issue a warrant for the arrest of the offender.

4

The unified citation provisions apply in relation to a citation under subsection (2)(b) as they apply in relation to a citation under section 216(3)(a) of this Act.

5

The court must, before considering the alleged failure—

a

provide the offender with written details of the alleged failure,

b

inform the offender that the offender is entitled to be legally represented, and

c

inform the offender that no answer need be given to the allegation before the offender—

i

has been given an opportunity to take legal advice, or

ii

has indicated that the offender does not wish to take legal advice.

6

Subsection (5) does not apply if the offender has previously been provided with those details and informed about those matters under section 227X(10) of this Act.

7

Where the order was imposed under section 227A, if the court is satisfied that the offender has failed without reasonable excuse to comply with a requirement imposed by the order, the court may—

a

impose on the offender a fine not exceeding level 3 on the standard scale,

b

where the order was imposed under section 227A(1), revoke the order and deal with the offender in respect of the offence in relation to which the order was imposed as it could have dealt with the offender had the order not been imposed,

c

where the order was imposed under section 227A(4), revoke the order and impose on the offender a sentence of imprisonment for a term not exceeding—

i

where the court is a justice of the peace court, 60 days,

ii

in any other case, 3 months,

d

vary the order so as to impose a new requirement, vary any requirement imposed by the order or revoke or discharge any requirement imposed by the order, or

e

both impose a fine under paragraph (a) and vary the order under paragraph (d).

8

Where the order was imposed under section 227M(2), if the court is satisfied that the offender has failed without reasonable excuse to comply with a requirement imposed by the order, the court may—

a

revoke the order and impose on the offender a period of imprisonment for a term not exceeding—

i

where the court is a justice of the peace court, 60 days,

ii

in any other case, 3 months, or

b

vary—

i

the number of hours specified in the level 1 unpaid work or other activity requirement imposed by the order, and

ii

where the order also imposes an offender supervision requirement, the specified period under section 227G in relation to the requirement.

9

Where the court revokes a community payback order under subsection (7)(b) or (c) and the offender is, in respect of the same offence, also subject to—

a

a drug treatment and testing order, by virtue of section 234J, or

b

a restriction of liberty order, by virtue of section 245D(3),

the court must, before dealing with the offender under subsection (7)(b) or (c), revoke the drug treatment and testing order or, as the case may be, restriction of liberty order.

10

If the court is satisfied that the offender has failed to comply with a requirement imposed by the order but had a reasonable excuse for the failure, the court may, subject to section 227Z(2), vary the order so as to impose a new requirement, vary any requirement imposed by the order or revoke or discharge any requirement imposed by the order.

11

Subsections (7)(b) and (c) and (9) are subject to section 42(9) of the Criminal Justice (Scotland) Act 2003 (asp 7) (powers of drugs courts to deal with breach of community payback orders).

227ZDBreach of community payback order: further provision

1

Evidence of one witness is sufficient for the purpose of establishing that an offender has failed without reasonable excuse to comply with a requirement imposed by a community payback order.

2

Subsection (3) applies in relation to a community payback order imposing a compensation requirement.

3

A document bearing to be a certificate signed by the clerk of the appropriate court and stating that the compensation, or an instalment of the compensation, has not been paid as required by the requirement is sufficient evidence that the offender has failed to comply with the requirement.

4

The appropriate court may, for the purpose of considering whether an offender has failed to comply with a requirement imposed by a community payback order, require the responsible officer to provide a report on the offender's compliance with the requirement.

Restricted movement requirement

227ZERestricted movement requirement

1

The requirements which the court may impose under section 227ZC(7)(d) include a restricted movement requirement.

2

If the court varies a community payback order under section 227ZC(7)(d) so as to impose a restricted movement requirement, the court must also vary the order so as to impose an offender supervision requirement, unless an offender supervision requirement is already imposed by the order.

3

The court must ensure that the specified period under section 227G in relation to the offender supervision requirement is at least as long as the period for which the restricted movement requirement has effect and, where the community payback order already imposes an offender supervision requirement, must vary it accordingly, if necessary.

4

The minimum period of 6 months in section 227G(3) does not apply in relation to an offender supervision requirement imposed under subsection (2).

5

Where the court varies the order so as to impose a restricted movement requirement, the court must give a copy of the order making the variation to the person responsible for monitoring the offender's compliance with the requirement.

6

If during the period for which the restricted movement requirement is in effect it appears to the person responsible for monitoring the offender's compliance with the requirement that the offender has failed to comply with the requirement, the person must report the matter to the offender's responsible officer.

7

On receiving a report under subsection (6), the responsible officer must report the matter to the court.

227ZFRestricted movement requirement: effect

1

In this Act, a “restricted movement requirement” is, in relation to an offender, a requirement restricting the offender's movements to such extent as is specified.

2

A restricted movement requirement may in particular require the offender—

a

to be in a specified place at a specified time or during specified periods, or

b

not to be in a specified place, or a specified class of place, at a specified time or during specified periods.

3

In imposing a restricted movement requirement containing provision under subsection (2)(a), the court must ensure that the offender is not required, either by the requirement alone or the requirement taken together with any other relevant requirement or order, to be at any place for periods totalling more than 12 hours in any one day.

4

In subsection (3), “other relevant requirement or order” means—

a

any other restricted movement requirement in effect in respect of the offender at the time the court is imposing the requirement referred to in subsection (3), and

b

any restriction of liberty order under section 245A in effect in respect of the offender at that time.

5

A restricted movement requirement—

a

takes effect from the specified day, and

b

has effect for such period as is specified.

6

The period specified under subsection (5)(b) must be—

a

not less than 14 days, and

b

subject to subsections (7) and (8), not more than 12 months.

7

Subsection (8) applies in the case of a restricted movement requirement imposed for failure to comply with a requirement of a community payback order—

a

where the offender was under 18 years of age at the time the order was imposed, or

b

where the only requirement imposed by the order is a level 1 unpaid work or other activity requirement.

8

The period specified under subsection (5)(b) must be not more than—

a

where the order was imposed by a justice of the peace court, 60 days, or

b

in any other case, 3 months.

9

A court imposing a restricted movement requirement must specify in it—

a

the method by which the offender's compliance with the requirement is to be monitored, and

b

the person who is to be responsible for monitoring that compliance.

10

The Scottish Ministers may by regulations made by statutory instrument substitute—

a

for the number of hours for the time being specified in subsection (3) another number of hours,

b

for the number of months for the time being specified in subsection (6)(b) another number of months.

11

Regulations are not to be made under subsection (10) unless a draft of the statutory instrument containing the regulations has been laid before and approved by resolution of the Scottish Parliament.

12

In this section, “specified”, in relation to a restricted movement requirement, means specified in the requirement.

227ZGRestricted movement requirements: further provision

1

A court may not impose a restricted movement requirement requiring the offender to be, or not to be, in a specified place unless it is satisfied that the offender's compliance with the requirement can be monitored by the method specified in the requirement.

2

Before imposing a restricted movement requirement requiring the offender to be in a specified place, the appropriate court must obtain and consider a report by an officer of the local authority in whose area the place is situated on—

a

the place, and

b

the attitude of any person (other than the offender) likely to be affected by the enforced presence of the offender at the place.

3

The court may, before imposing the requirement, hear the officer who prepared the report.

227ZHVariation of restricted movement requirement

1

This section applies where—

a

a community payback order which is in force in respect of an offender imposes a restricted movement requirement requiring the offender to be at a particular place specified in the requirement for any period, and

b

the court is considering varying the requirement so as to require the offender to be at a different place (“the new place”).

2

Before making the variation, the appropriate court must obtain and consider a report by an officer of the local authority in whose area the new place is situated on—

a

the new place, and

b

the attitude of any person (other than the offender) likely to be affected by the enforced presence of the offender at the new place.

3

The court may, before making the variation, hear the officer who prepared the report.

227ZIRemote monitoring

Section 245C of this Act, and regulations made under that section, apply in relation to the imposition of, and compliance with, restricted movement requirements as they apply in relation to the imposition of, and compliance with, restriction of liberty orders.

227ZJRestricted movement requirements: Scottish Ministers' functions

1

The Scottish Ministers may by regulations made by statutory instrument prescribe—

a

which courts, or class or classes of courts, may impose restricted movement requirements,

b

the method or methods of monitoring compliance with a restricted movement requirement which may be specified in such a requirement,

c

the class or classes of offender on whom such a requirement may be imposed.

2

Regulations under subsection (1) may make different provision about the matters mentioned in paragraphs (b) and (c) of that subsection in relation to different courts or classes of court.

3

Regulations under subsection (1) are subject to annulment in pursuance of a resolution of the Scottish Parliament.

4

The Scottish Ministers must determine the person, or class or description of person, who may be specified in a restricted movement requirement as the person to be responsible for monitoring the offender's compliance with the requirement (referred to in this section as the “monitor”).

5

The Scottish Ministers may determine different persons, or different classes or descriptions of person, in relation to different methods of monitoring.

6

The Scottish Ministers must notify each court having power to impose a restricted movement requirement of their determination.

7

Subsection (8) applies where—

a

the Scottish Ministers make a determination under subsection (4) changing a previous determination made by them, and

b

a person specified in a restricted movement requirement in effect at the date the determination takes effect as the monitor is not a person, or is not of a class or description of person, mentioned in the determination as changed.

8

The appropriate court must—

a

vary the restricted movement requirement so as to specify a different person as the monitor,

b

send a copy of the requirement as varied to that person and to the responsible officer, and

c

notify the offender of the variation.

227ZKDocumentary evidence in proceedings for breach of restricted movement requirement

1

This section applies for the purposes of establishing in any proceedings whether an offender on whom a restricted movement requirement has been imposed has complied with the requirement.

2

Evidence of the presence or absence of the offender at a particular place at a particular time may be given by the production of a document or documents bearing to be—

a

a statement automatically produced by a device specified in regulations made under section 245C of this Act, by which the offender's whereabouts were remotely monitored, and

b

a certificate signed by a person nominated for the purposes of this paragraph by the Scottish Ministers that the statement relates to the whereabouts of the offender at the dates and times shown in the statement.

3

The statement and certificate are, when produced in evidence, sufficient evidence of the facts stated in them.

4

The statement and certificate are not admissible in evidence at any hearing unless a copy of them has been served on the offender before the hearing.

5

Where it appears to any court before which the hearing is taking place that the offender has not had sufficient notice of the statement or certificate, the court may adjourn the hearing or make any order that it considers appropriate.

Local authorities: annual consultation about unpaid work

227ZLLocal authorities: annual consultations about unpaid work

1

Each local authority must, for each year, consult prescribed persons about the nature of unpaid work and other activities to be undertaken by offenders residing in the local authority's area on whom community payback orders are imposed.

2

In subsection (1), “prescribed persons” means such persons, or class or classes of person, as may be prescribed by the Scottish Ministers by regulations made by statutory instrument.

3

A statutory instrument containing regulations under subsection (2) is to be subject to annulment in pursuance of a resolution of the Scottish Parliament.

Annual reports on community payback orders

227ZMAnnual reports on community payback orders

1

Each local authority must, as soon as practicable after the end of each reporting year, prepare a report on the operation of community payback orders within their area during that reporting year, and send a copy of the report to the Scottish Ministers.

2

The Scottish Ministers may issue directions to local authorities about the content of their reports under subsection (1); and local authorities must comply with any such directions.

3

The Scottish Ministers must, as soon as practicable after the end of each reporting year, lay before the Scottish Parliament and publish a report that collates and summarises the data included in the various reports under subsection (1).

4

In this section, “reporting year” means—

a

the period of 12 months beginning on the day this section comes into force, or

b

any subsequent period of 12 months beginning on an anniversary of that day.

Community payback order: meaning of “the appropriate court”

227ZNMeaning of “the appropriate court”

1

In sections 227A to 227ZK, “the appropriate court” means, in relation to a community payback order—

a

where the order was imposed by the High Court of Justiciary, that Court,

b

where the order was imposed by a sheriff, a sheriff having jurisdiction in the locality mentioned in subsection (2),

c

where the order was imposed by a justice of the peace court—

i

the justice of the peace court having jurisdiction in that locality, or

ii

if there is no justice of the peace court having jurisdiction in that locality, a sheriff having such jurisdiction.

2

The locality referred to in subsection (1) is the locality for the time being specified in the community payback order under section 227C(2)(a).

a

the offender,

b

the offender's solicitor (if any), and

c

the prosecutor.

1A

Where the court imposes a sentence of detention on a child, the court must—

a

state its reasons for the opinion that no other method of dealing with the child is appropriate, and

b

have those reasons entered in the record of the proceedings.

2A

For the purposes of section 94, section 247(1) of the Criminal Procedure (Scotland) Act 1995 (c.46) (convictions deemed not be convictions where offender placed on probation or discharged absolutely) does not apply to a conviction for a violent offence within the meaning of section 94.

5

For the purposes of the provisions of this Act specified in subsection (6), section 247(1) and (2) of the Criminal Procedure (Scotland) Act 1995 (c.46) (convictions deemed not to be convictions where offender placed on probation or discharged absolutely) does not apply to a conviction for a relevant offence.

6

Those provisions are—

a

section 21(4),

b

section 23(6),

c

section 24,

d

section 33(6),

e

sections 41 to 44,

f

section 73(3),

g

section 75,

h

sections 80 to 83,

i

section 89(4) and (5),

j

subsection (3) of this section, and

k

section 130.

5

The court must—

a

state on conviction that the offence was racially aggravated,

b

record the conviction in a way that shows that the offence was so aggravated,

c

take the aggravation into account in determining the appropriate sentence, and

d

state—

i

where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or

ii

otherwise, the reasons for there being no such difference.

8AMeaning of “United Kingdom national” and “United Kingdom resident”

1

In this Part—

• “United Kingdom national” means—

  1. a

     a British citizen, a British Overseas Territories citizen, a British National (Overseas) or a British Overseas citizen,

  2. b

     a person who under the British Nationality Act 1981 (c.61) is a British subject, or

  3. c

     a British protected person within the meaning of that Act,

• “United Kingdom resident” means a person who is resident in the United Kingdom.

2

To the extent that it would not otherwise be the case, the following individuals are to be treated for the purposes of this Part as being resident in the United Kingdom—

a

an individual who has indefinite leave to remain in the United Kingdom,

b

any other individual who has made an application for such leave (whether or not it has been determined) and who is in the United Kingdom,

c

an individual who has leave to enter or remain in the United Kingdom for the purposes of work or study and who is in the United Kingdom,

d

an individual who has made an asylum claim, or a human rights claim, which has been granted,

e

any other individual who has made an asylum claim or a human rights claim (whether or not the claim has been determined) and who is in the United Kingdom,

f

an individual named in an application for indefinite leave to remain, an asylum claim or a human rights claim as a dependant of the individual making the application or claim if—

i

the application or claim has been granted, or

ii

the named individual is in the United Kingdom (whether or not the application or claim has been determined),

g

an individual who would be liable to removal or deportation from the United Kingdom but cannot be removed or deported because of section 6 of the Human Rights Act 1998 (c.42) or for practical reasons,

h

an individual—

i

against whom a decision to make a deportation order under section 5(1) of the Immigration Act 1971 (c.77) by virtue of section 3(5)(a) of that Act (deportation conducive to the public good) has been made,

ii

who has appealed against the decision to make the order (whether or not the appeal has been determined), and

iii

who is in the United Kingdom,

i

an individual who is an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971 or who is liable to removal under section 10 of the Immigration and Asylum Act 1999 (c.33),

j

an individual who is detained in lawful custody in the United Kingdom.

3

When determining for the purposes of this Part whether any other individual is resident in the United Kingdom regard is to be had to all relevant considerations including—

a

the periods during which the individual is, has been or intends to be in the United Kingdom,

b

the purposes for which the individual is, has been or intends to be in the United Kingdom,

c

whether the individual has family or other connections to the United Kingdom and the nature of those connections, and

d

whether the individual has an interest in residential property located in the United Kingdom.

4

In this section—

• “asylum claim” means—

  1. a

     a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention for the claimant to be removed from, or required to leave, the United Kingdom,

  2. b

     a claim that the claimant would face a real risk of serious harm if removed from the United Kingdom,

• “Convention rights” means the rights identified as Convention rights by section 1 of the Human Rights Act 1998,

• “detained in lawful custody” means—

  1. a

     detained in pursuance of a sentence of imprisonment or detention, a sentence of custody for life or a detention and training order,

  2. b

     remanded in or committed to custody by an order of a court,

  3. c

     detained pursuant to an order under section 2 of the Colonial Prisoners Removal Act 1884 (c.31) or a warrant under section 1 or 4A of the Repatriation of Prisoners Act 1984 (c.47),

  4. d

     detained under Part 3 of the Mental Health Act 1983 (c.20) or by virtue of an order under section 5 of the Criminal Procedure (Insanity) Act 1964 (c.84) or section 6 or 14 of the Criminal Appeal Act 1968 (c.19) (hospital orders etc.),

  5. e

     detained by virtue of an order under Part 6 of the Criminal Procedure (Scotland) Act 1995 (c.46) (other than an order under section 60C) or a hospital direction under section 59A of that Act, and includes detention by virtue of the special restrictions set out in Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) to which a person is subject by virtue of an order under section 59 of the Criminal Procedure (Scotland) Act 1995,

  6. f

     detained under Part 3 of the Mental Health (Northern Ireland) Order 1986 (SI 1986/595) or by virtue of an order under section 11 or 13(5A) of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47),

• “human rights claim” means a claim that to remove the claimant from, or to require the claimant to leave, the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention) as being incompatible with the person's Convention rights,

• “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention,

• “serious harm” has the meaning given by article 15 of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

5

In this section, a reference to having leave to enter or remain in the United Kingdom is to be construed in accordance with the Immigration Act 1971.

6

This section applies in relation to any offence under this Part (whether committed before or after the coming into force of this section).

41ZAFurther provision for communication devices

1

A person commits an offence if, knowing another person to be a prisoner, the person gives a personal communication device to the prisoner while the prisoner is inside a prison.

2

A person commits an offence if, by means of a personal communication device, the person—

a

transmits, from inside a prison, a communication of any kind, or

b

intentionally receives, when inside a prison, a communication of any kind.

3

A person commits an offence if, while inside a prison, the person is in possession of a personal communication device.

4

A person who commits an offence under subsections (1) to (3) is liable to the penalties set out in subsection (5).

5

The penalties are—

a

on conviction on indictment, to imprisonment for a period not exceeding 2 years or to a fine (or to both),

b

on summary conviction, to imprisonment for a period not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both).

6

In this section, “personal communication device” is to be construed in accordance with section 41(9B).

41ZBExceptions as to communication devices

1

No offence—

a

under section 41, where the proscribed article falls within paragraph (a) of subsection (9A) (whether or not also within paragraph (f) of that subsection), or

b

under section 41ZA(1) to (3),

is committed by a person where subsection (2) applies.

2

This subsection applies—

a

if (and in so far as) the act which constitutes the offence is done by the person at or in relation to a designated area at the prison, or

b

if (and in so far as) the person is acting in circumstances to which an authorisation under subsection (8) applies.

3

No offence—

a

under section 41, where the proscribed article falls within paragraph (a) of subsection (9A) (whether or not also within paragraph (f) of that subsection), or

b

under section 41ZA(2) or (3),

is committed by a prison officer (or other prison official) where subsection (4) applies.

4

This subsection applies—

a

if the device is one supplied to the person specifically for use in the course of the person's official duties at the prison, or

b

if (and in so far as) the person is acting in accordance with those duties.

5

No offence under section 41ZA(3) is committed by a person other than a prisoner if in the circumstances there is a reasonable excuse for the possession.

6

The defences mentioned in subsection (7) apply in any proceedings for an offence under—

a

section 41(1), where the proscribed article falls within paragraph (a) of subsection (9A) (whether or not also within paragraph (f) of that subsection), or

b

section 41ZA(1) to (3).

7

In relation to such an offence, it is a defence for the accused person to show that—

a

the person reasonably believed that the person was acting in circumstances to which an authorisation under subsection (8) applied (even though no such authorisation did apply), or

b

in the circumstances there was an overriding public interest which justified the person's actions.

8

An authorisation under this subsection is a written authorisation that is given—

a

in favour of any person specified in the authorisation (or person of a specified description),

b

for a specified purpose, and

c

by—

i

the governor or director of a prison in relation to activities at that prison, or

ii

the Scottish Ministers in relation to activities at any specified prison.

9

A designated area referred to in subsection (2)(a) is any part of the prison, used solely or principally for an administrative or similar purpose, that is specified as such by a written designation given under this paragraph by the governor or director of the prison.

10

Prison officers (or other prison officials) who are Crown servants or agents do not benefit from Crown immunity in relation to an offence under—

a

section 41, where the proscribed article falls within paragraph (a) of subsection (9A) of that section (whether or not also within paragraph (f) of that subsection), or

b

section 41ZA.

1ADefences

1

It is a defence for a person charged with an offence under section 1 (referred to in this section as “the accused”) to show that—

a

the accused believed the person to whom the crossbow or part was sold or let on hire (referred to in this section as “the purchaser or hirer”) to be aged 18 or over, and

b

either—

i

the accused had taken reasonable steps to establish the purchaser or hirer's age, or

ii

no reasonable person could have suspected from the purchaser or hirer's appearance that the purchaser or hirer was under the age of 18.

2

For the purposes of subsection (1)(b)(i), the accused is to be treated as having taken reasonable steps to establish the purchaser or hirer's age if and only if—

a

the accused was shown any of the documents mentioned in subsection (3), and

b

the document would have convinced a reasonable person.

3

Those documents are any document bearing to be—

a

a passport,

b

a European Union photocard driving licence, or

c

such other document, or a document of such other description, as the Scottish Ministers may by order made by statutory instrument prescribe.

4

A statutory instrument containing an order under subsection (3)(c) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

3ATest purchasing

1

A person under the age of 18 who buys or hires, or attempts to buy or hire, a crossbow or a part of a crossbow does not commit an offence under section 2 or 3 if the person is authorised to do so by the chief constable for the purpose of determining whether an offence is being committed under section 1.

2

A chief constable may authorise a person under the age of 18 to buy or hire, or attempt to buy or hire, a crossbow or a part of a crossbow only if satisfied that all reasonable steps have been or will be taken to—

a

ensure the person's safety, and

b

avoid any risk to the person's welfare.

4

It is a defence for a person charged with an offence under subsection (1) (referred to in this section as “the accused”) to show that—

a

the accused believed the person to whom the article was sold or let on hire (referred to in this section as “the purchaser or hirer”) to be of or above the relevant age, and

b

either—

i

the accused had taken reasonable steps to establish the purchaser or hirer's age, or

ii

no reasonable person could have suspected from the purchaser or hirer's appearance that the purchaser or hirer was aged under the relevant age.

4A

For the purposes of subsection (4)(b)(i), the accused is to be treated as having taken reasonable steps to establish the purchaser or hirer's age if and only if—

a

the accused was shown any of the documents mentioned in subsection (4B), and

b

the document would have convinced a reasonable person.

4B

Those documents are any document bearing to be—

a

a passport,

b

a European Union photocard driving licence, or

c

such other document, or a document of such other description, as the Scottish Ministers may by order prescribe.

4C

In subsection (4), “the relevant age” is—

a

in the case where the article is a knife or knife blade designed for domestic use, 16 years, and

b

in any other case, 18 years.