Prisons (Scotland) Act 1989

41 Unlawful introduction of tobacco, etc., into prison. S

[F1 (1) Any person who without reasonable excuse brings or introduces, or attempts by any means to bring or introduce, into a prison -

(a) any drug;

(b) any firearm or ammunition;

(c) any offensive weapon;

(d) any article to which section 1 of the M1 Carrying of Knives etc. (Scotland) Act 1993 applies; or

(e) without prejudice to paragraphs (a) to (d) above, any article which is a prohibited article within the meaning of rules under section 39 of this Act,

shall be guilty] of an offence and shall be liable on conviction by a court of summary jurisdiction to a fine not exceeding level 3 on the standard scale or to imprisonment for any period not exceeding 30 days.

(2) For the purposes of the foregoing subsection a person shall be deemed to introduce an article into a prison if he conveys it to a prisoner outside the prison or places it anywhere outside the prison with intent that it shall come into the possession of a prisoner.

[F2 (2A) Where an officer of a prison has reasonable grounds for suspecting that a person who is in or is seeking to enter a prison has in his possession any article mentioned in paragraphs (a) to (e) of subsection (1) above he shall, without prejudice to any other power of search under this Act, have power to search that person and any article in his possession and to seize and detain any article mentioned in those paragraphs found in the course of the search.

(2B) The power conferred by subsection (2A) above—

(a) shall be exercised in accordance with rules under section 39 of this Act;

(b) shall not be construed as authorising the physical examination of a person’s body orifices;

(c) so far as relating to any article mentioned in paragraph (c), (d) or (e) of subsection (1) above (and not falling within paragraph (a) or (b) of that subsection), shall not be construed as authorising an officer of a prison to require a person to remove any of his clothing other than an outer coat, jacket, headgear, gloves and footwear; and

(d) shall include power to use reasonable force where necessary.]

[F3 (3) Where an officer of a prison has reasonable grounds for suspecting that any person has committed or is committing an offence under subsection (1) above he may, for the purpose of facilitating investigation by a constable into the offence, detain that person in any place in the prison in question and may, where necessary, use reasonable force in doing so.

(4) Detention under subsection (3) above shall be terminated not more than six hours after it begins or (if earlier)—

(a) when the person is detained in pursuance of any other enactment or subordinate instrument;

(b) when the person is arrested by a constable; or

(c) where the governor of the prison or a constable investigating the offence concludes that there are no such grounds as are mentioned in subsection (3) above or the officer of the prison concludes that there are no longer such grounds,

and the person detained shall be informed immediately upon the termination of his detention that his detention has been terminated.

(5) Where a person has been released at the termination of a period of detention under subsection (3) above he shall not thereafter be detained under that subsection on the same grounds or on any grounds arising out of the same circumstances.

(6) At the time when an officer of a prison detains a person under subsection (3) above he shall inform the person of his suspicion, of the suspected offence and of the reason for the detention; and there shall be recorded—

(a) the place where and the time when the detention begins;

(b) the suspected offence;

(c) the time when a constable or an officer of the police authority is informed of the suspected offence and the detention;

(d) the time when the person is informed of his rights in terms of subsection (7) below and the identity of the officer of the prison so informing him;

(e) where the person requests such intimation as is specified in subsection (7) below to be sent, the time when such request is—

(i) made; and

(ii) complied with; and

(f) the time when, in accordance with subsection (4) above, the person’s detention terminates.

(7) A person who is being detained under subsection (3) above, other than a person in respect of whose detention subsection (8) below applies, shall be entitled to have intimation of his detention and of the place where he is being detained sent without delay to a solicitor and to one other person reasonably named by him and shall be informed of that entitlement when his detention begins.

(8) Where a person who is being detained under subsection (3) above appears to the officer of the prison to be under 16 years of age, the officer of the prison shall send without delay to the person’s parent, if known, intimation of the person’s detention and of the place where he is being detained; and the parent—

(a) in a case where there is reasonable cause to suspect that he has been involved in the alleged offence in respect of which the person has been detained, may; and

(b) in any other case, shall,

be permitted access to the person.

(9) The nature and extent of any access permitted under subsection (8) above shall be subject to any restriction essential for the furtherance of the investigation or the well-being of the person.

(10) In this section—

• “ drug ” means any drug which is a controlled drug for the purposes of the M2 Misuse of Drugs Act 1971;

• “ firearm ” and “ ammunition ” have the same meanings as in the M3 Firearms Act 1968;

• “ offensive weapon ” has the same meaning as in the M4 Prevention of Crime Act 1953; and

• “ parent ” includes a guardian and any person who has actual custody of a person under 16 years of age. ]

Textual Amendments

F1 Words in s. 41(1) and the preceding “(1)”inserted (3.2.1995) by 1994 c. 33, s. 153(1)(2); S.I. 1995/127, art. 2(1), Sch. 1

F2 S. 41(2A)(2B) inserted (3.2.1995) by 1994 c. 33 , s. 153(1)(3) ; S.I. 1995/127 , art. 2(1) , Sch. 1

F3 S. 41(3)-(10) substituted for s. 41(3) (3.2.1995) by 1994 c. 33 , s. 153(1)(4) ; S.I. 1995/127 , art. 2(1) , Sch. 1

Modifications etc. (not altering text)

C1 S. 41 excluded (18.9.1998) by S.I. 1998/2251 , art. 16(1)

C2 S. 41(2A) modified (3.2.1995) by 1994 c. 33 , ss. 110(6) , 112(5) ; S.I. 1995/127 , art. 2(1) , Sch. 1

C3 S. 41(2B) modified (3.2.1995) by 1994 c. 33 , ss. 110(6) , 112(5) ; S.I. 1995/127 , art. 2(1) , Sch. 1

C4 S. 41(3) modified (3.2.1995) by 1994 c. 33 , ss. 110(4) , 112(3)(4)(f)(6) ; S.I. 1995/127 , art. 2(1) , Sch. 1

C5 S. 41(4) modified (3.2.1995) by 1994 c. 33 , ss. 110(3)(4) , 112(3)(4)(f)(6) ; S.I. 1995/127 , art. 2(1) , Sch. 1

C6 S. 41(6) modified (3.2.1995) by 1994 c. 33 , ss. 110(4) , 112(3)(4)(f)(6) ; S.I. 1995/127 , art. 2(1) , Sch. 1

C7 S. 41(8) modified (3.2.1995) by 1994 c. 33 , ss. 110(4) , 112(3)(4)(f)(6) ; S.I. 1995/127 , art. 2(1) , Sch. 1

Marginal Citations

M1 1993 c. 13.

M2 1971 c. 38 .

M3 1968 c. 27 .

M4 1953 c. 14.