Criminal Procedure (Scotland) Act 1975

Imprisonment, etc. S

[F1 205 Punishment for murder. S

(1) Subject to subsections (2) and (3) below, a person convicted of murder shall be sentenced to imprisonment for life.

(2) Where a person convicted of murder is under the age of 18 years he shall not be sentenced to imprisonment for life but to be detained without limit of time and shall be liable to be detained in such place, and under such conditions, as the Secretary of State may direct.

(3) Where a person convicted of murder has attained the age of 18 years but is under the age of 21 years he shall not be sentenced to imprisonment for life but to be detained in a young offenders institution and shall be liable to be detained for life.]

Textual Amendments

F1 S. 205, 205A substituted for s. 205 by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 43

205A Recommendation as to minimum period of detention for person convicted of murder. S

(1) On sentencing any person convicted of murder a judge may make a recommendation as to the minimum period which should elapse before, under section [F2 26 of the Prisons (Scotland) Act 1989], the Secretary of State releases that person on licence.

(2) When making a recommendation under subsection (1) above, the judge shall state his reasons for so recommending.

(3) Notwithstanding the proviso to subsection (1) of section 228 of this Act it shall be competent to appeal under paragraph (b) or (c) of that subsection against a recommendation made under subsection (1) above; and for the purposes of such appeal (including the High Court’s power of disposal under section 254(3)(b) of this Act) the recommendation shall be deemed part of the sentence passed on conviction.

Textual Amendments

F2 Words substituted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 11

[F3 206 Detention of children convicted on indictment. S

-

(1) Subject to section 205 of this Act, where a child is convicted and the court is of the opinion that no other method of dealing with him is appropriate, it may sentence him to be detained for a period which it shall specify in the sentence; and the child shall during that period be liable to be detained in such place and on such conditions as the Secretary of State may direct .

(2)—(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F4 ]

Textual Amendments

F3 S. 206 substituted for s. 206(1) by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 12

F4 S. 206(2)–(7) repealed by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(2), Sch. 3

206A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5 S

Textual Amendments

F5 S. 206A which was inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 39:1), s. 45(1) is now repealed by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(2), Sch. 3

[F6 207 Detention of young offenders. S

(1) It shall not be competent to impose imprisonment on a person under 21 years of age.

(2) Subject to section 205(2) and (3) of this Act and to subsections (3) and (4) below a court may impose detention (whether by way of sentence or otherwise) on a person, who is not less than 16 but under 21 years of age, where but for subsection (1) above the court would have power to impose a period of imprisonment; and the period of detention imposed under this section on any person shall not exceed the maximum period of imprisonment which might otherwise have been imposed.

(3) The court shall not under subsection (2) above impose detention on a person unless it is of the opinion that no other method of dealing with him is appropriate; and the court shall state its reasons for that opinion, and, except in the case of the High Court, those reasons shall be entered in the record of proceedings.

(4) To enable the court to form an opinion under subsection (3) above, it shall obtain (from an officer of a local authority or otherwise) such information as it can about the offender’s circumstances; and it shall also take into account any information before it concerning the offender’s character and physical and mental condition.

[F7 (5) A sentence of detention imposed under this section shall be a sentence of detention in a young offenders institution.]

(11) [F8 Section 18 (functions of Parole Board), section 24 (remission for good conduct) and sections 22, 26, 28 and 29 (release on licence) of the Prisons (Scotland) Act 19889 shall apply] to a person sentenced under this section as those enactments apply to a person sentenced to a period of imprisonment.]

Textual Amendments

F6 S. 207 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 45(1), Sch. 6 para. 5 and S.I. 1983/1580 art. 3

F7 S. 207(5) substituted for s. 207(5)–(10) by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 124(1)

F8 Words substituted as provided by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 13

Modifications etc. (not altering text)

C1 S. 207 extended by Contempt of Court Act 1981 (c. 49, SIF 39:3), s. 15(3)

208–211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F9 S

Textual Amendments

F9 Ss. 204, 208–211 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 5, Sch. 8 and S.I. 1983/1580, art. 3

212 Recall to young offenders institution on re-conviction. S

(1) Where a person sentenced to detention . . . F10 [F11 under section 207 of this Act], being under supervision after his release from such [F12 detention], is convicted of an offence punishable with imprisonment, the court may, [F13 , except where the person convicted is subject to a licence granted under section 60(1) or section 61 of the M1 Criminal Justice Act 1967 [F14 or section 22(1) or section 26 of the Prisons (Scotland) Act 1989], make an order for his recall.]

(2) An order for the recall of a person made as aforesaid shall have the like effect as an order for recall made by the Secretary of State under section [F14 32 of the said Act of 1989].

Textual Amendments

F10 Words repealed by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 11(a)

F11 Words from “under” to “Act” substituted for words “young offenders institution” by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 38(i) and S.I. 1983/1580, art. 3

F12 Word substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 11(b)

F13 Words from “, except” to “recall” substituted for “instead” to “recall” by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 38(ii) and S.I. 1983/1580, art. 3

F14 Words inserted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 14

Marginal Citations

M1 1967 c. 80(39:1).

Prospective

[F15 212A Supervised release orders. E+W+S

(1) Where a person is convicted of an offence and is sentenced to imprisonment for a term of not less than twelve months but less than four years, the court on passing sentence may, if it considers that it is necessary to do so to protect the public from serious harm from the offender on his release, make such order as is mentioned in subsection (2) below.

(2) The order referred to in subsection (1) above (to be known as a “supervised release order”) is that the person, during a relevant period—

(a) be under the supervision either of a relevant officer of a local authority or of a probation officer appointed for or assigned to a petty sessions area (such local authority or the justices for such area to be designated under section 14(4) or 15(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993); and

(b) comply with—

(i) such requirements as are specified in the order; and

(ii) such requirements as that officer may reasonably specify,

for the purpose of securing the good conduct of the person or preventing, or lessening the possibility of, his committing a further offence (whether or not an offence of the kind for which he was sentenced).

(3) A supervised release order—

(a) shall be as nearly as possible in such form as may be prescribed by Act of Adjournal;

(b) for the purposes of any appeal or review constitutes part of the sentence of the person in respect of whom the order is made; and

(c) shall have no effect during any period in which the person is subject to a licence under Part I of the said Act of 1993.

(4) Before making a supervised release order as respects a person the court shall explain to him, in as straightforward a way as is practicable, the effect of the order and the possible consequences for him of any breach of it.

(5) The clerk of the court by which a supervised release order is made in respect of a person shall—

(a) forthwith send a copy of the order to the person and to the Secretary of State; and

(b) within seven days after the date on which the order is made, send to the Secretary of State such documents and information relating to the case and to the person as are likely to be of assistance to a supervising officer.

(6) In this section—

• “relevant officer” has the same meaning as in Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993;

• “relevant period” means such period as may be specified in the supervised release order, being a period—

  (a)

  not exceeding twelve months after the date of the person’s release; and

  (b)

  no part of which is later than the date by which the entire term of imprisonment specified in his sentence has elapsed; and

• “supervising officer” means, where an authority has or justices have been designated as is mentioned in subsection (2)(a) above for the purposes of the order, any relevant officer or, as the case may be, probation officer who is for the time being supervising for those purposes the person released.]

[F16 (7) The foregoing provisions of this section apply to a person sentenced under section 207 or 415 of this Act as the provisions apply to a person sentenced to a period of imprisonment.]

Textual Amendments

F15 S. 212A inserted (prosp.) by 1993 c. 9, ss. 5, 6, 10, 14(1), 48(2) (with ss. 5(1), 6(1), 10, 27, 47(2), Sch. 6 paras. 1, 2, 6, 7)

F16 S. 212A(7) added (27.7.1993) by 1993 c. 36, s.69

Modifications etc. (not altering text)

C2 S. 212A excluded (prosp.) by 1993 c. 9, ss. 5, 6, 10, 14(2), 48(2) (with ss. 5(1), 6(1), 10, 27, 47(2), Sch. 6 paras, 1, 2, 6, 7)

S. 212A modified (prosp.) by 1993 c. 9, ss. 14(3), 48(2) (with ss. 5(1), 6(1), 10, 27, 47(2), Sch. 6 paras. 1, 2, 6, 7)

[F25 212A Supervised release orders. S

(1) Where a person is convicted of an offence and is sentenced to imprisonment for a term of not less than twelve months but less than four years, the court on passing sentence may, if it considers that it is necessary to do so to protect the public from serious harm from the offender on his release, make such order as is mentioned in subsection (2) below.

(2) The order referred to in subsection (1) above (to be known as a “supervised release order”) is that the person, during a relevant period—

(a) be under the supervision either of a relevant officer of a local authority or of a probation officer appointed for or assigned to a petty sessions area (such local authority or the justices for such area to be designated under section 14(4) or 15(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993); and

(b) comply with—

(i) such requirements as are specified in the order; and

(ii) such requirements as that officer may reasonably specify,

for the purpose of securing the good conduct of the person or preventing, or lessening the possibility of, his committing a further offence (whether or not an offence of the kind for which he was sentenced).

(3) A supervised release order—

(a) shall be as nearly as possible in such form as may be prescribed by Act of Adjournal;

(b) for the purposes of any appeal or review constitutes part of the sentence of the person in respect of whom the order is made; and

(c) shall have no effect during any period in which the person is subject to a licence under Part I of the said Act of 1993.

(4) Before making a supervised release order as respects a person the court shall explain to him, in as straightforward a way as is practicable, the effect of the order and the possible consequences for him of any breach of it.

(5) The clerk of the court by which a supervised release order is made in respect of a person shall—

(a) forthwith send a copy of the order to the person and to the Secretary of State; and

(b) within seven days after the date on which the order is made, send to the Secretary of State such documents and information relating to the case and to the person as are likely to be of assistance to a supervising officer.

(6) In this section—

• “relevant officer” has the same meaning as in Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993;

• “relevant period” means such period as may be specified in the supervised release order, being a period—

  (a)

  not exceeding twelve months after the date of the person’s release; and

  (b)

  no part of which is later than the date by which the entire term of imprisonment specified in his sentence has elapsed; and

• “supervising officer” means, where an authority has or justices have been designated as is mentioned in subsection (2)(a) above for the purposes of the order, any relevant officer or, as the case may be, probation officer who is for the time being supervising for those purposes the person released.]

Textual Amendments

F25 S. 212A inserted (prosp.) by 1993 c. 9, ss. 5, 6, 10, 14(1), 48(2) (with ss. 5(1), 6(1), 10, 27, 47(2), Sch. 6 paras. 1, 2, 6, 7)

Modifications etc. (not altering text)

C3 S. 212A excluded (prosp.) by 1993 c. 9, ss. 5, 6, 10, 14(2), 48(2) (with ss. 5(1), 6(1), 10, 27, 47(2), Sch. 6 paras. 1, 2, 6, 7)

S. 212A modified (prosp.) by 1993 c. 9, ss. 14(3), 48(2) (with ss. 5(1), 6(1), 10, 27, 47(2), Sch. 6 paras. 1, 2, 6, 7)

213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F17 S

Textual Amendments

F17 S. 213 repealed by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(2), Sch. 3

Prospective

214 Return to prison in case of breach of supervision. S

(1) If, on sworn information laid by or on behalf of the Secretary of State, it appears to the sheriff that a person, being under supervision under [F18 section 30 of the Prisons (Scotland) Act 1989], has failed to comply with any of the requirements imposed on him by his notice of supervision, the sheriff may issue a warrant for the arrest of that person or may, if he thinks fit, instead of issuing such a warrant in the first instance, issue a citation requiring the person to appear before him at such time as may be specified in the citation.

(2) If it is proved to the satisfaction of the sheriff before whom a person appears or is brought in pursuance of the last foregoing subsection that the person has failed to comply with any of the requirements of the notice of supervision, the sheriff shall, unless having regard to all the circumstances of the case, he considers it unnecessary or inexpedient to do so, order that he be sent back to prison for such term as may be specified in that order, not exceeding whichever is the shorter of the following, that is to say—

(a) a period of three months;

(b) a period equal to so much of the period of 12 months referred to in [F19 section 30(4) of the said Act of 1989] as was unexpired on the date on which proceedings were commenced.

(3) Subject to the following provisions of this section, Part II of this Act shall apply in relation to proceedings for an order as aforesaid as it applies in relation to proceedings in respect of a summary offence, and references in Part II of this Act to an offence, trial, conviction or sentence shall be construed accordingly.

(4) Proceedings for an order under subsection (2) of this section may be brought before a sheriff having jurisdiction in the area in which the supervising officer carries out his duties.

(5) A warrant issued for the purposes of proceedings for an order under subsection (2) above may, if the person laying the information so requests, bear an endorsement requiring any constable charged with its execution to communicate with the Secretary of State before arresting the person under supervision if the constable finds that that person is earning an honest livelihood or that there are other circumstances which ought to be brought to the notice of the Secretary of State.

(6) Where a person while under supervision under [F20 section 30 of the said Act of 1989] is convicted of an offence for which the court has power to pass sentence of imprisonment, the court may, instead of dealing with him in any other manner, make such an order as could be made by a sheriff under subsection (2) of this section in proceedings for such an order.

(7) The Secretary of State may at any time release from prison a person who has been sent back to prison under subsection (2) or (6) of this section; and the provisions of this section and of [F21 section 30 of the said Act of 1989] shall apply to a person released by virtue of this subsection, subject to the following modifications:—

(a) that the period of twelve months referred to in [F21 subsection (4) of the said section 30] shall be calculated from the date of his original release; and

(b) in relation to any further order for sending him back to prison under this section, the period referred to in subsection (2)(a) of this section shall be reduced by any time during which he has been detained by virtue of the previous order.

(8) In any proceedings, a certificate purporting to be signed by or on behalf of the Secretary of State and certifying—

(a) that a notice of supervision was given to any person in the terms specified in the certificate and on the date so specified; and

(b) either that no notice has been given to him under [F22 subsection (5) of section 30 of the said Act of 1989] or that a notice has been so given in the terms specified in the certificate,

shall be sufficient evidence of the matters so certified; and the fact that a notice of supervision was given to any person shall be sufficient evidence that he was a person to whom [F22 the said section 30] applies.

(9) For the purposes of Part III of the M2 Criminal Justice Act 1961, a person who has been sent back to prison under subsection (2) or (6) of this section, and has not been released again, shall be deemed to be serving part of his original sentence, whether or not the term of that sentence has in fact expired.

Textual Amendments

F18 Words substituted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 15(a)

F19 Words substituted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 15(b)

F20 Words substituted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 15(c)

F21 Words substituted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 15(d)

F22 Words substituted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 15(e)

Marginal Citations

M2 1961 c. 39(39:1).

[F23 215 Legal custody. S

Any person required or authorised by or under this Act or [F24 any other enactment or any subordinate instrument] to be taken to any place, or to be detained or kept in custody shall, while being so taken or detained or kept, be deemed to be in legal custody.]

Textual Amendments

F23 S. 215 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 7 para. 39

F24 Words substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 12