Prisons (Scotland) Act 1989

40 [F1 Arrest of and rules for absent prisoners] S

(1) Any person who, having been sentenced to imprisonment or to detention in a young offenders institution, or having been committed to a prison [F2 or young offenders institution] F3 ..., is unlawfully at large may be arrested by a constable or prison officer without warrant and taken to the place in which he is required [F4 or liable] in accordance with law to be detained.

(2) Where any person sentenced to imprisonment or to detention in a young offenders institution [F5 or committed to a prison [F2 or young offenders institution] F6 ...] is, at any time during the period for which he is liable to be detained in pursuance of the sentence, [F5 or committal], absent, otherwise than with lawful authority, from the prison [F7 , young offenders institution F6 ...], as the case may be, then, unless the Secretary of State otherwise directs, no account shall be taken, in calculating the period for which he is liable to be so detained [F5 or the date on or by which a term or period of imprisonment or detention elapses or has been served,] of any time during which he is so absent:

Provided that this subsection shall not apply to any period during which any such person as aforesaid is detained in pursuance of an order of any court in the United Kingdom in a prison, young offenders institution F6 ....

[F8 (3) In this section—

(a) any reference to a person sentenced to imprisonment shall be construed as including a reference to any person sentenced or ordered to be detained under section 44, 205 [F9 , 205ZC(5)] or 208 of the 1995 Act;

(b) any reference to a prison shall be construed as including a reference to a place where the person is liable to be detained under the sentence or order; and

(c) any reference to a sentence shall be construed as including a reference to an order under the said section 44.]

(4) [F10 A] person who, after being temporarily released in pursuance of rules made under section 39(6) of this Act, is at large at any time during the period for which he is liable to be detained in pursuance of his sentence shall be deemed to be unlawfully at large if the period for which he was temporarily released has expired or if an order recalling him has been made by the Secretary of State in pursuance of the rules.

Textual Amendments

F1 S. 40 title substituted (11.10.2019) by Management of Offenders (Scotland) Act 2019 (asp 14), ss. 60(2), 63(2); S.S.I. 2019/309, reg. 2, sch.

F2 Words in s. 40(1)(2) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 23(2), 89(2); S.S.I. 2003/288, art. 2, Sch.

F3 Words in s. 40(1) repealed (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), s. 38(3), sch. para. 14(6)(a); S.S.I. 2024/211, reg. 2(j)(ii) (with reg. 3)

F4 Words in s. 40(1) inserted (11.10.2019) by Management of Offenders (Scotland) Act 2019 (asp 14), ss. 60(2)(a), 63(2); S.S.I. 2019/309, reg. 2, sch.

F5 Words in s. 40(2) inserted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 6(7)(a)(b)(d) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4).

F6 Words in s. 40(2) repealed (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), s. 38(3), sch. para. 14(6)(b); S.S.I. 2024/211, reg. 2(j)(ii) (with reg. 3)

F7 Words in s. 40(2) substituted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 6(7)(c) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4).

F8 S. 40(3) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 75(5)

F9 Word in s. 40(3)(a) inserted (30.4.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(1)(i), Sch. 13 para. 51(3)

F10 Word in s. 40(4) substituted (11.10.2019) by Management of Offenders (Scotland) Act 2019 (asp 14), ss. 60(2)(b), 63(2); S.S.I. 2019/309, reg. 2, sch.

Modifications etc. (not altering text)

C1 S. 40 excluded (18.9.1998) by S.I. 1998/2251, art. 16(1)

C2 S. 40(1) modified (3.2.1995) by 1994 c. 33, ss. 110(4), 112(3)(4)(e)(6); S.I. 1995/127, art. 2(1), Sch. 1

S. 40(1) extended (1.10.1997) by 1997 c. 43, s. 41, Sch. 1 Pt. III para. 17(1)(b); S.I. 1997/2200, art. 2(1)(g) (with art. 5))

C3 S. 40(2) amended (1.10.1993) by 1993 c. 9, s. 4(3) (with ss. 5(1), 6(1), 10, 27 and 47(2), Sch. 6 paras. 1, 2, 6 and 7) (which substituted ss. 74 and 75 of 1984 C. 36); S.I. 1993/2050, art. 3(4).

C4 S. 40(2) excluded (17.12.2001) by 2001 asp 13, s. 24(b) (with s. 29); S.S.I. 2001/456, art. 2

C5 S. 40(2): proviso amended (1.10.1997) by 1997 c. 43, s. 41, Sch. 1 Pt. III para. 17(6)(b); S.I. 1997/2200, art. 2(1)(g) (with art. 5)