Prisoners and Criminal Proceedings (Scotland) Act 1993

1993 CHAPTER 9

An Act to amend the law of Scotland with respect to the detention, transfer and release of persons serving sentences of imprisonment etc. or committed or remanded in custody; to make further provision as regards evidence and procedure in criminal proceedings in Scotland; and for connected purposes.

[29th March 1993]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Extent Information

E1 This Act extends to Scotland only except as provided by s. 48(5)(6) and (7).

Modifications etc. (not altering text)

C1 Act amended (S.) (3.2.1995) by 1994 c. 33, s. 134(2); S.I. 1995/127, art. 2(1), Sch. 1 (with transitional provisions in Sch. 2)

Act extended (1.10.1997) by 1997 c. 43, ss. 41, 56(1), Sch. 1 para. 11, Sch. 5 para. 12(1)(d); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of said S.I.) (which said amendment fell (30.9.1998) by reason of the repeal of Sch. 5 para. 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8))

Certain functions of Act made exercisable in or as regards Scotland (30.6.1999) by S.I. 1999/1748, art. 4(1)(2), Sch. 3 Pt. I paras. 1-4, Pt. II paras. 5-8, Pt. III para. 10(2)

Commencement Information

I1 Act partly in force at Royal Assent see s. 48(2)(3) Act wholly in force at 1.1.1994 by S.I. 1993/2050

Part I E+W+S Detention, Transfer and Release of Offenders

Modifications etc. (not altering text)

C2 Pt. I (ss. 1-27) modified (S.) (20.10.1997) by 1997 c. 48, s. 16(2)(3) (with s. 33); S.I. 1997/2323, art. 3, Sch. 1

C3 Pt. I (ss. 1-27) applied (S.) (8.10.2001) by Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), ss. 4, 15(2), Sch. paras. 29, 66, 67, 77 (with Sch. para. 65); S.S.I. 2001/274, art. 3(3) (and by that para. 67 as substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 39(b)(v), 89(2); S.S.I. 2003/288, art. 2, Sch.)

C4 Pt. I (ss. 1-27) applied (S.) (8.10.2001) by 2001 asp 7, ss. 4, 5, Sch. Pt. 2 para. 29; S.S.I. 2001/274, art. 3(3)

Early release E+W+S

1 Release of short-term, long-term and life prisoners. S

(1) As soon as a short-term prisoner has served one-half of his sentence the Secretary of State shall, without prejudice to any supervised release order to which the prisoner is subject, release him unconditionally.

(2) As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him on licence

(3) After a long-term prisoner has served one-half of his sentence the Secretary of State may, if recommended to do so by the Parole Board under this section, release him on licence.

(4) If recommended to do so by the Parole Board under this section, the Secretary of State may, after consultation with—

(a) the Lord Justice General, whom failing the Lord Justice Clerk; and

(b) if available, the trial judge,

release on licence a life prisoner who is not a discretionary life prisoner.

(5) The Parole Board shall not make a recommendation under subsection (4) above unless the Secretary of State has referred the case to the Board for its advice.

(6) Notwithstanding the foregoing provisions of this section, the Secretary of State shall not release a person who is serving—

(a) a sentence of imprisonment for a term and one or more sentences of imprisonment for life; or

(b) more than one sentence of imprisonment for life,

unless and until the requirements of those provisions are satisfied in respect of each of those sentences.

(7) A person to whom subsection (6) above applies shall, when released on licence under this section, be released on a single licence under subsection (4) above.

(8) Schedule 1 to this Act, which makes special provision as respects the release of persons serving both a sentence of imprisonment imposed on conviction of an offence and a term of imprisonment or detention referred to in section 5(1)(a) or (b) of this Act, shall have effect.

Modifications etc. (not altering text)

C5 Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2, 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)(4), Sch. 5 paras. 11(1)(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

Ss. 1, 1A, 2(4), 3A, 5, 6(1)(a)(b)(i)(iii), 7, 9, 16, 20, 21, 26A, 27, Schs. 2, 6 extended (30.9.1998) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6) (subject to art. 5) (as amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(5)(a)(d)(f)(6)(a)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

S. 1(4) applied (with modifications) (1.10.1997) by S.I. 1997/1776, arts. 1, 2, Sch. paras. 5, 6, 7; S.I. 1997/2200, art. 2(1)(g)

C6 S. 1(2)(3) modified (retrospectively) by 1984 c. 47, Sch. para. 2(5) (as inserted (1.10.1997) by 1997 c. 43, s. 42, Sch. 2 para. 6(1)(2); S.I. 1997/2200, art. 2(1)(h) (subject to art. 5))

S. 1(2)(3) modified (1.10.1997) by 1984 c. 47, Sch. para. 2(5) (as inserted (1.10.1997) by 1997 c. 43, s. 42, Sch. 2 para. 7(1)(2); S.I. 1997/2200, art. 2(1)(h) (subject to art. 5))

C7 S. 1(3) modified (1.4.1995) by S.I. 1995/911, art. 3(a)

C8 Ss. 1(4), 2, 2(4), 3, 11-13, 15, 17, 18, 19 extended (1.10.1997) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6); S.I. 1997/2200, art. 2(1)(g) (subject to art. 5) (which amending provisions were amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(a)(i)(d)(6)(a)(i)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

S. 1(4) applied (with modifications) (1.10.1997) by S.I. 1997/1776, arts. 1, 2, Sch. 1 paras. 5, 6, 7; S.I. 1997/2200, art. 2(1)(g)

Yn ddilys o 08/02/2006

[F1 1AA Release of certain sexual offenders S

(1) As soon as a prisoner to whom this section applies has served one-half of his sentence the Scottish Ministers are to release him on licence.

(2) This section applies to any short-term prisoner—

(a) sentenced to a term of 6 months or more; and

(b) who, by virtue of the conviction in respect of which that sentence was imposed, is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42).

(3) It is immaterial, for the purposes of subsections (1) and (2) above, when the offence of which the prisoner was convicted was committed.

(4) But this section does not apply to a prisoner who was released under section 1(1) of this Act in relation to the sentence mentioned in subsection (2)(a) above before the date on which section 15(3) of the Management of Offenders etc. (Scotland) Act 2005 (asp 14) came into force (except that where the prisoner is serving terms which by virtue of section 27(5) of this Act fall to be treated as a single term, the reference in the preceding provisions of this subsection to his being released in relation to the sentence mentioned in subsection (2)(a) above is to be construed as a reference to his being released in relation to the single term).

(5) Section 17 of this Act applies to such short-term prisoners as are mentioned in subsection (2) above as that section applies to long-term prisoners.

(6) Where a prisoner is released on licence under this section, the licence (unless revoked) remains in force until the entire period specified in his sentence (reckoned from the commencement of the sentence) has elapsed; but this subsection is subject to subsections (7) and (8) below.

(7) Where the prisoner is serving terms which by virtue of section 27(5) of this Act fall to be treated as a single term the licence (unless revoked) remains in force until the relevant period (reckoned from the commencement of the single term) has elapsed.

(8) The “relevant period” mentioned in subsection (7) above is—

(a) the single term after deduction of half the number of days (if any) by which that term exceeds what it would be were there disregarded in determining it such terms (if any) as are imposed for a conviction other than one by virtue of which the prisoner is subject to the notification requirements mentioned in subsection (2)(b) above; or

(b) if to disregard such terms as are so imposed would have the consequence—

(i) that there would not remain two or more terms to treat as a single term; or

(ii) that though two or more terms would remain they would no longer be consecutive or wholly or partly concurrent,

the single term after deduction of half the number of days (if any) by which that term exceeds the term imposed for the conviction, or as the case may be the terms imposed for the convictions, by virtue of which the prisoner is subject to those requirements.]

Textual Amendments

F1 S. 1AA inserted after s. 1 (8.2.2006) by Management of Offenders etc. (Scotland) Act 2005 (asp 14), ss. 15(3), 24(2); S.S.I. 2006/48, art. 3(1), Sch. Pt. 1

Yn ddilys o 30/09/1998

[F2 1A Application to persons serving more than one sentence. S

Where a prisoner has been sentenced to two or more terms of imprisonment which are wholly or partly concurrent and do not fall to be treated as a single term by virtue of section 27(5) of this Act—

(a) nothing in this Part of this Act shall require the Secretary of State to release him in respect of any of the terms unless and until the Secretary of State is required to release him in respect of each of the other terms;

(b) nothing in this Part of this Act shall require the Secretary of State or the Parole Board to consider his release in respect of any of the terms unless and until the Secretary of State or the Parole Board is required to consider his release, or the Secretary of State is required to release him, in respect of each of the other terms; and

(c) where he is released on licence under this Part of this Act, he shall be on a single licence which—

(i) shall (unless revoked) remain in force until the date on which he would (but for his release) have served in full all the sentences in respect of which he has been so released; and

(ii) shall be subject to such conditions as may be specified or required by this Part of this Act in respect of any of the sentences.]

Textual Amendments

F2 S. 1A inserted (30.9.1998) by 1998 c. 37, s. 111(1); S.I. 1998/2327, art. 2(1)(x)

Modifications etc. (not altering text)

C9 S. 1A excluded (17.12.2001) by 2001 asp 13, s. 24(c) (with s. 29); S.S.I. 2001/456, art. 2

C10 Ss. 1, 1A, 2(4), 3A, 5, 6(1)(a)(b)(i)(iii), 7, 9, 16, 20, 21, 26A, 27, Schs. 2, 6 extended (30.9.1998) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6) (subject to art. 5) (as amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(5)(a)(d)(f)(6)(a)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

2 Duty to release discretionary life prisoners. S

(1) In this Part of this Act “discretionary life prisoner”, subject to subsection (9)(a) below and except where the context otherwise requires, means a life prisoner—

(a) whose sentence was imposed for an offence the sentence for which is not fixed by law; and

(b) in respect of whom the court which sentenced him for that offence made the order mentioned in subsection (2) below.

(2) The order referred to in subsection (1)(b) above is an order that subsections (4) and (6) below shall apply to the life prisoner as soon as he has served such part of his sentence (“the relevant part”) as is specified in the order, being such part as the court considers appropriate taking into account—

(a) the seriousness of the offence, or of the offence combined with other offences associated with it; and

(b) any previous conviction of the life prisoner.

(3) Where a court which imposes life imprisonment for an offence such as is mentioned in subsection (1)(a) above decides not to make such order as is mentioned in subsection (2) above, it shall state its reasons for so deciding; and for the purposes of any appeal or review, any such order and any such decision shall each constitute part of a person’s sentence within the meaning of the 1975 Act.

(4) Where this subsection applies, the Secretary of State shall, if directed to do so by the Parole Board, release a discretionary life prisoner on licence.

(5) The Parole Board shall not give a direction under subsection (4) above unless—

(a) the Secretary of State has referred the prisoner’s case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

(6) Where this subsection applies, a discretionary l ife prisoner may, subject to subsection (7) below, at any time require the Secretary of State to refer his case to the Parole Board.

(7) No requirement shall be made under subsection (6) above—

(a) where the prisoner is also serving a sentence of imprisonment for a term, before he has served one-half of that sentence; and

(b) where less than two years has elapsed since the disposal of any (or the most recent if more than one) previous reference of his case to the Board under subsection (5)(a) or (6) above or under section 17(3) of this Act.

(8) In determining for the purposes of subsection (4) or (6) above whether a discretionary life prisoner has served the relevant part of his sentence, no account shall be taken of any time during which he was unlawfully at large.

(9) Where a life prisoner is serving two or more sentences of imprisonment for life—

(a) he is a discretionary life prisoner only if the requirements of subsection (1) above are satisfied in respect of each of those sentences;

(b) notwithstanding the terms of any order under subsection (2) above, subsections (4) and (6) above shall not apply to him until he has served the relevant part of each of those sentences; and

(c) he shall, if released on licence under subsection (4) above, be so released on a single licence.

Modifications etc. (not altering text)

C11 S. 2(2)(7) modified (retrospectively) by 1984 c. 47, Sch. para. 2(5) (as inserted (1.10.1997) by 1997 c. 43, s. 42, Sch. 2 para. 6(2); S.I. 1997/2200, art. 2(1)(h) (subject to art. 5))

3 Power to release prisoners on compassionate grounds. S

(1) The Secretary of State may at any time, if satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence.

(2) Before so releasing any long-term prisoner or any life prisoner, the Secretary of State shall consult the Parole Board unless the circumstances are such as to render consultation impracticable.

(3) The release of a person under subsection (1) above shall not constitute release for the purpose of a supervised release order.

Modifications etc. (not altering text)

C12 S. 3 excluded (17.12.2001) by 2001 asp 13, s. 24(c) (with s. 29); S.S.I. 2001/456, art. 2

C13 Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2 & 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)(4), Sch. 5 paras. 11(1)(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

Ss. 1(4), 2, 2(4), 3, 11-13, 15, 17, 18, 19 extended (1.10.1997) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6); S.I. 1997/2200, art. 2(1)(g) (subject to art. 5) (which amending provisions were amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(a)(i)(d)(6)(a)(i)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

S. 3 applied (with modifications) (1.10.1997) by S.I. 1997/1776, arts. 1, 2, Sch. 1 paras. 5, 6, 7 (with transitional provisions in art. 3, Sch. 2); S.I. 1997/2200, art. 2(1)(g)

Yn ddilys o 03/07/2006

[F3 3AA Further powers to release prisoners E+W+S

(1) Subject to subsections (2) to (5) below, the Scottish Ministers may release on licence under this section—

(a) a short-term prisoner serving a sentence of imprisonment for a term of three months or more; or

(b) a long-term prisoner whose release on having served one-half of his sentence has been recommended by the Parole Board.

(2) The power in subsection (1) above is not to be exercised before the prisoner has served whichever is the greater of—

(a) one quarter of his sentence; and

(b) four weeks of his sentence.

(3) Without prejudice to subsection (2) above, the power in subsection (1) above is to be exercised only during that period of 121 days which ends on the day 14 days before that on which the prisoner will have served one half of his sentence.

(4) In exercising the power conferred by subsection (1) above, the Scottish Ministers must have regard to considerations of—

(a) protecting the public at large;

(b) preventing re-offending by the prisoner; and

(c) securing the successful re-integration of the prisoner into the community.

(5) Subsection (1) above does not apply where—

(a) the prisoner's sentence was imposed under section 210A of the 1995 Act;

(b) the prisoner is subject to a supervised release order made under section 209 of that Act;

(c) the prisoner is subject to a hospital direction imposed under section 59A of that Act or a transfer for treatment direction made under section 136(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

(d) the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42);

(e) the prisoner is liable to removal from the United Kingdom (within the meaning of section 9 of this Act);

(f) the prisoner has been released on licence under this Part of this Act or under the 1989 Act but—

(i) has been recalled to prison other than by virtue of section 17A(1)(b) of this Act; or

(ii) before the date on which he would but for his release have served his sentence in full, has received a further sentence of imprisonment; or

(g) the prisoner has been released (whether or not on licence) during the currency of his sentence but has been returned to custody under section 16(2) or (4) of this Act.

(6) The Scottish Ministers may by order do any or all of the following—

(a) amend the number of months for the time being specified in subsection (1)(a) above;

(b) amend the number of weeks for the time being specified in subsection (2)(b) above;

(c) amend a number of days for the time being specified in subsection (3) above;

(d) amend any paragraph of subsection (5) above, add a further paragraph to that subsection or repeal any of its paragraphs.]

Textual Amendments

F3 S. 3AA inserted after s. 3 (3.7.2006 for specified purposes, otherwise 21.3.2008) by Management of Offenders etc. (Scotland) Act 2005 (asp 14), ss. 15(5), 24(2); S.S.I. 2006/331, art 3(4)(5); S.S.I. 2008/21, art. 2(2)

Yn ddilys o 30/09/1998

[F4 3A Re-release of prisoners serving extended sentences. S

(1) This section applies to a prisoner serving an extended sentence within the meaning of section 210A of the 1995 Act (extended sentences) who has been recalled to prison under section 17(1) of this Act.

(2) Subject to subsection (3) below, a prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board—

(a) where his case has previously been referred to the Parole Board under this section or section 17(3) of this Act, not less than one year following the disposal of that referral;

(b) in any other case, at any time.

(3) Where a prisoner to whom this section applies is subject to another sentence which is not treated as a single sentence with the extended sentence, the Secretary of State shall not be required to refer his case to the Parole Board before he has served one half of that other sentence.

(4) Where the case of a prisoner to whom this section applies is referred to the Parole Board under this section or section 17(3) of this Act, the Board shall, if it is satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined (but not otherwise), direct that he should be released.

(5) If the Parole Board gives a direction under subsection (4) above, the Secretary of State shall release the prisoner on licence.]

Textual Amendments

F4 S. 3A inserted (30.9.1998) by 1998 c. 37, s. 88; S.I. 1998/2327, art. 2(1)(s) (subject to arts. 5-8)

Modifications etc. (not altering text)

C14 Ss. 1, 1A, 2(4), 3A, 5, 6(1)(a)(b)(i)(iii), 7, 9, 16, 20, 21, 26A, 27, Schs. 2, 6 extended (30.9.1998) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6) (subject to art. 5) (as amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(5)(a)(d)(f)(6)(a)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

4 Persons detained under Mental Health (Scotland) Act 1984. S

(1) Notwithstanding that a transfer direction and a restriction direction (those expressions having the same meanings as in the M1 Mental Health (Scotland) Act 1984) have been given in respect of a person serving a sentence of imprisonment, this Part of this Act shall apply to the person as if he continued to serve that sentence while detained in, and as if he had not been removed to, hospital.

(2) In section 71(7)(a) of the said Act of 1984 (categories of prisoner who may be transferred to hospital), the words “in criminal proceedings” shall cease to have effect.

(3) For sections 74 and 75 of the said Act of 1984 there shall be substituted the following section—

“74 Further provision as to transfer directions and restriction directions.

(1) This subsection applies where a transfer direction and a restriction direction have been given in respect of a person—

(a) serving a sentence of imprisonment; or

(b) who is detained (other than in respect of a criminal offence) under or by virtue of the Immigration Act 1971,

if the Secretary of State is satisfied, at a time when the person would but for those directions be, by virtue of the circumstance mentioned in paragraph (a) or (b) above, in prison or being detained other than in a hospital, as to the matters mentioned in subsection (2) below.

(2) The matters referred to in subsection (1) above are—

(a) that either—

(i) the person is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

(ii) that it is not necessary for the health or safety of the person or for the protection of other persons that he should receive such treatment; and

(b) that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment.

(3) Where subsection (1) above applies, the Secretary of State shall by warrant direct that the person be remitted to any prison or other institution or place in which he might have been detained had he not been removed to hospital and that he be dealt with there as if he had not been so removed.

(4) Where subsection (1) above does not apply only because the Secretary of State is not satisfied as to the matter mentioned in subsection (2)(b) above, he may either—

(a) by warrant give such direction as is mentioned in subsection (3) above; or

(b) decide that the person shall continue to be detained in hospital.

(5) If a direction is given under subsection (3) or (4)(a) above, then on the person’s arrival in the prison or other institution or place to which remitted by virtue of that subsection the transfer direction and the restriction direction shall cease to have effect.

(6) This subsection applies where a transfer direction and a restriction direction have been given in respect of such person as is mentioned in subsection (1) above and he has thereafter been released under Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

(7) Where subsection (6) above applies—

(a) the transfer direction and the restriction direction shall forthwith cease to have effect; and

(b) the person shall thereupon be discharged from hospital unless a report is furnished in respect of him under subsection (9) below.

(8) A transfer direction or restriction direction given in respect of a person detained (other than in respect of a criminal offence) under or by virtue of the Immigration Act 1971 shall, if it does not first cease to have effect under subsection (5) above or under section 65(2) of this Act, cease to have effect when his liability to be so detained comes to an end.

(9) Not earlier than 28 days before a restriction direction given in respect of a person ceases to have effect other than by virtue of subsection (8) above, the responsible medical officer shall obtain from another medical practitioner a report on the condition of the person in the prescribed form and thereafter shall assess the need for the detention of the person to be continued; and, if it appears to the responsible medical officer that it is necessary in the interests of the health or safety of the person or for the protection of others that the person should continue to be liable to be detained in hospital, the officer shall furnish to the managers of the hospital where the person is liable to be detained and to the Mental Welfare Commission a report to that effect in the prescribed form along with the report of the other medical practitioner.

(10) Where a report has been furnished under subsection (9) above the person shall, after the restriction direction ceases to have effect, be treated as if he had, on the date on which the restriction direction ceased to have effect, been admitted to the hospital in pursuance of an application for admission; but the provisions of sections 30(5) and (6) and 35 of this Act shall apply to the person and that report as they apply to a patient the authority for whose detention in hospital has been renewed in pursuance of subsection (4) of, and to a report under subsection (3) of, the said section 30.

(11) For the purposes of section 40(2) of the Prisons (Scotland) Act 1989 (discounting from sentence periods while unlawfully at large) a person who, having been transferred to hospital in pursuance of a transfer direction from a prison or young offenders institution, is at large in circumstances in which he is liable to be taken into custody under any provision of this Act, shall be treated as unlawfully at large and absent from the prison or young offenders institution.

(12) In this section “prescribed” means prescribed by regulations made by the Secretary of State.”.

Marginal Citations

M1 1984 c. 36.

5 Fine defaulters and persons in contempt of court. S

(1) Subject to section 1(8) of this Act and to subsections (2) and (3) below, this Part of this Act (except sections 1(3), 16 and 27(5)) applies to a person on whom imprisonment, or as the case may be detention in a young offenders institution, has been imposed—

(a) under section 407 of the 1975 Act (imprisonment for non-payment of fine: summary proceedings) or under that section as applied by section 194 of that Act (imprisonment for non-payment of fine: solemn proceedings) or, by virtue of the appropriate one of those sections, under section 415(2) or 207(2) of that Act (detention of young offenders); or

(b) for contempt of court,

as it applies to a person sentenced to imprisonment, or on whom detention has been imposed, on conviction of an offence; and references in this Part of this Act to prisoners (whether short-term or long-term), or to prison, imprisonment, detention or sentences of imprisonment shall be construed accordingly.

(2) Where section 1(1) or (2) of this Act applies to a person by virtue of subsection (1) above, that section shall be construed as requiring the Secretary of State to release the person unconditionally as soon as, in the case of—

(a) a short-term prisoner, he has served one-half of his term of imprisonment; or

(b) a long-term prisoner, he has served two-thirds of his term of imprisonment,

and if during the term in question the prisoner is both released under section 3 of this Act and subsequently recalled under section 17(1) thereof, the period during which he is thereby lawfully at large shall be taken, for the purposes of paragraph (a) or (b) above, to be a period of imprisonment served.

(3) Notwithstanding subsection (1) above, section 11 of this Act shall not apply to a person to whom this Part of this Act applies by virtue of that subsection but whose release on licence is under section 3 of this Act; and that licence shall (unless revoked) remain in force only until the date on which, by virtue of subsection (2) above, his release would have been required had he not been released earlier.

6 Application to young offenders and to children detained without limit of time. S

(1) This Part of this Act applies—

(a) to persons on whom detention in a young offenders institution (other than detention without limit of time or for life) has been imposed under section 207(2) or 415(2) of the 1975 Act as the Part applies to persons serving equivalent sentences of imprisonment; and

(b) to—

(i) persons sentenced under section 205 of that Act to be detained without limit of time or for life;

(ii) children sentenced to be detained without limit of time under section 206 of that Act; and

(iii) persons on whom detention without limit of time or for life is imposed under section 207(2) of that Act,

as the Part applies to persons sentenced to imprisonment for life,

and references in the Part (except in this section, sections 1(8) and 5(1) and paragraph 1(b) of Schedule 1) to prisoners (whether short-term, long-term or life) or to prison, imprisonment or sentences of imprisonment shall be construed accordingly.

(2) A child detained without limit of time under section 206 of the 1975 Act may, on the recommendation of the Parole Board made at any time, be released on licence by the Secretary of State.

(3) The Secretary of State may, after consultation with the Parole Board, by order provide that, in relation to all children detained without limit of time under section 206 of the 1975 Act or to such class of those children as may be specified in the order, this section shall have effect subject to the modification that, in subsection (2), for the word “may” there shall be substituted the word “ shall ”.

Commencement Information

I2 S. 6 not in force at Royal Assent see s. 48(2). S. 6(3) in force for certain purposes on 18.8.1993, S. 6 wholly in force at 1.10.1993 by S.I. 1993/2050 art. 3(2)(4), Sch. 1

7 Children detained in solemn proceedings. S

(1) Where a child is detained under section 206 of the 1975 Act (detention of children convicted on indictment) and the period specified in the sentence—

(a) is less than four years, he shall be released on licence by the Secretary of State as soon as (following commencement of the sentence) half the period so specified has elapsed;

(b) is of four or more years, he shall be so released as soon as (following such commencement) two thirds of the period so specified has elapsed.

(2) A child detained under section 206 of the 1975 Act or in pursuance of an order under subsection (3) below may, on the recommendation of the Parole Board made at any time, be released on licence by the Secretary of State.

(3) If, after release under subsection (1) or (2) above and before the date on which the entire period specified in the sentence elapses (following commencement of the sentence), a child commits an offence in respect of which it is competent to impose imprisonment on a person aged 21 years or more (other than an offence in respect of which imprisonment for life is mandatory) and, whether before or after that date, pleads guilty to or is found guilty of it a court may, instead of or in addition to making any other order in respect of that plea or finding—

(a) in a case other than that mentioned in paragraph (b) below, order that he be returned to detention for the whole or any part of the period which—

(i) begins with the date of the order for his return; and

(ii) is equal in length to the period between the date on which the new offence was committed and the date on which that entire period so elapses; and

(b) in a case where that court is inferior to the court which imposed the sentence, refer the case to the superior court in question; and a court to which a case is so referred may make such order with regard to it as is mentioned in paragraph (a) above.

(4) The period for which a child is ordered under subsection (3) above to be returned to detention—

(a) shall be taken to be a sentence of detention for the purposes of this Act and of any appeal; and

(b) shall, as the court making that order may direct, either be served before and be followed by, or be served concurrently with, any sentence imposed for the new offence (being in either case disregarded in determining the appropriate length of that sentence).

(5) [F5 Without prejudice to section 6(1)(b)(ii) of this Act, sections 3,] 11(1), 12, 17 and 20(2) of this Act apply to children detained under section 206 of the 1975 Act as they apply to long-term prisoners; and references in those sections of this Act to prisoners, or to prison, imprisonment or sentences of imprisonment shall be construed accordingly.

(6) The Secretary of State may, after consultation with the Parole Board, by order provide that, in relation to all children detained under section 206 of the 1975 Act or to such class of those children as may be specified in the order, this section shall have effect subject to the modification that, in subsection (2), for the word “may” there shall be substituted the word “ shall ”.

(7) In the foregoing provisions of this section any reference to a child being detained does not include a reference to his being detained without limit of time.

Textual Amendments

F5 Words in s. 7(5) substituted (27.7.1993) by 1993 c. 36, ss. 75(1), 78(2)

Modifications etc. (not altering text)

C15 S. 7(1) modified (retrospectively) by 1984 c. 47, Sch. para. 2(5) (as inserted (1.10.1997) by 1997 c. 43, s. 42, Sch. 2 para. 6(1)(2); S.I. 1997/2200, art. 2(1)(h) (subject to art. 5))

Commencement Information

I3 S. 7 not in force at Royal Assent see. s. 48(2). S. 7(6) in force for certain purposes at 18.8.1993, S. 7 wholly in force at 1.10.1993 by S.I. 1993/2050, art. 3(2)(4), Sch. 1

8 Children detained in summary proceedings. S

For subsection (6) of section 413 of the 1975 Act (review of case and release of child detained in summary proceedings) there shall be substituted the following subsections—

“(6) Where a child is detained in residential care in pursuance of an order under—

(a) subsection (1) above, he shall be released from such detention not later than the date by which half the period specified in the order has (following commencement of the detention) elapsed but, without prejudice to subsection (6A) below, until the entire such period has so elapsed may be required by the local authority to submit to supervision in accordance with such conditions as they consider appropriate;

(b) subsection (1) above or (6B) below, the local authority may at any time review his case and may, in consequence of such review and after having regard to the best interests of the child and the need to protect members of the public, release the child—

(i) for such period and on such conditions as the local authority consider appropriate; or

(ii) unconditionally.

(6A) Where a child released under paragraph (a) or (b)(ii) of subsection (6) above is subject to a supervision requirement within the meaning of the 1968 Act, the effect of that requirement shall commence, or as the case may be resume, upon such release.

(6B) If, while released under paragraph (a) or (b) of subsection (6) above (and before the date on which the entire period mentioned in the said paragraph (a) has, following commencement of the detention, elapsed), a child commits an offence to which this section applies and (whether before or after that date) pleads guilty to or is found guilty of it a court may, instead of or in addition to making any other order in respect of that plea or finding, order that he be returned to the residential care of the authority which released him and that his detention in their care shall continue for the whole or any part of the period which—

(a) begins with the date of the order for his return; and

(b) is equal in length to the period between the date on which the new offence was committed and the date on which that entire period elapses.

(6C) An order under subsection (6B) above for return to residential care—

(a) shall be taken to be an order for detention in residential care for the purposes of this Act and of any appeal; and

(b) shall, as the court making that order may direct, either be for a period of residential care before and to be followed by, or to be concurrent with, any period of residential care to be imposed in respect of the new offence (being in either case disregarded in determining the appropriate length of the period so imposed).”.

9 Persons liable to removal from the United Kingdom. S

(1) In relation to a long-term prisoner who is liable to removal from the United Kingdom, section 1(3) of this Act shall have effect as if the words “, if recommended to do so by the Parole Board,” were omitted.

(2) In relation to a person who is liable to removal from the United Kingdom, section 12 of this Act shall have effect as if subsection (2) were omitted.

(3) For the purposes of this section, a person is liable to removal from the United Kingdom if he—

(a) is liable to deportation under section 3(5) of the M2 Immigration Act 1971 and has been notified of a decision to make a deportation order against him;

(b) is liable to deportation under section 3(6) of that Act;

(c) has been notified of a decision to refuse him leave to enter the United Kingdom; or

(d) is an illegal immigrant within the meaning of section 33(1) of that Act.

Modifications etc. (not altering text)

C16 S. 9 excluded (17.12.2001) by 2001 asp 13, s. 24(c) (with s. 29); S.S.I. 2001/456, art. 2

C17 Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2, 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)(4), Sch. 5 paras. 11(1)(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

Ss. 1, 1A, 2(4), 3A, 5, 6(1)(a)(b)(i)(iii), 7, 9, 16, 20, 21, 26A, 27, Schs. 2, 6 extended (30.9.1998) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6) (subject to art. 5) (as amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(5)(a)(d)(f)(6)(a)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

Marginal Citations

M2 1971 c. 77.

10 Life prisoners transferred to Scotland. S

(1) In a case where a transferred life prisoner transferred from England and Wales F6 . . . is, by virtue of an order under section 34 of the M3 Criminal Justice Act 1991, a discretionary life prisoner for the purposes of Part II of that Act, this Part of this Act except sections 1(4) and 2(9) shall apply as if—

(a) the prisoner were a discretionary life prisoner within the meaning of section 2 of this Act; and

(b) the relevant part of his sentence within the meaning of that section were the relevant part specified in the order under the said section 34.

(2) In the case of any other transferred life prisoner [F7 , except such case as is mentioned in paragraph 7 of Schedule 6 to this Act,] subsection (3) below applies where the Lord Justice General, whom failing the Lord Justice Clerk, certifies his opinion that, if the prisoner had been sentenced for his offence in Scotland after the commencement of section 2 of this Act, the court by which he was so sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate.

(3) In a case to which this subsection applies, this Part of this Act except sections 1(4) and 2(9) shall apply as if—

(a) the transferred life prisoner were a discretionary life prisoner within the meaning of section 2 of this Act; and

(b) the relevant part of his sentence within the meaning of that section were the part specified in the certificate.

(4) In this section “transferred life prisoner” means a person—

(a) on whom a court in a country or territory outside Scotland has [F8 (whether before or after the commencement of this section)] imposed one or more sentences of imprisonment or detention for an indeterminate period; and

(b) who has been transferred to Scotland [F9 (whether before or after that commencement)], in pursuance of—

(i) an order made by the Secretary of State under section 26 of the M4 Criminal Justice Act 1961 or section 2 of the M5 Colonial Prisoners Removal Act 1884; or

(ii) a warrant issued by the Secretary of State under the M6 Repatriation of Prisoners Act 1984,

there to serve, or to serve the remainder of, his sentence or sentences.

(5) Where a transferred life prisoner has been transferred to Scotland to serve the whole or part of two or more sentences referred to in subsection (4)(a) above—

(a) he shall be treated as a discretionary life prisoner (within the meaning of section 2 of this Act) for the purposes of subsection (3) above only if the requirements of subsection (2) above are satisfied in respect of each of those sentences; and

(b) notwithstanding the terms of any order under section 34 of the said Act of 1991 or of any certificate under subsection (2) above, subsections (4) and (6) of section 2 of this Act shall not apply to him until he has served the relevant part of each of those sentences.

Textual Amendments

F6 Words in s. 10(1) repealed (27.7.1993) by 1993 c. 36, ss. 76(2)(a), 79(14), 78(2), Sch. 6 PtI

F7 Words in s. 10(2) inserted (27.7.1993) by 1993 c. 36, ss. 76(2)(b), 78(2)

F8 Words in s. 10(4)(a) inserted (27.7.1993) by 1993 c. 36, ss. 76(2)(c), 78(2)

F9 Words in s. 10(4)(b) inserted (27.7.1993) by 1993 c. 36, ss. 76(2)(c), 78(2)

Marginal Citations

M3 1991 c. 53.

M4 1961 c. 39.

M5 1884 c. 31.

M6 1984 c. 47.

Yn ddilys o 08/10/2001

[F10 10A Transfer of supervision of life prisoners S

(1) This section applies to a life prisoner released on licence in respect of whom, whether before or after the coming into force of section 3 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), an order was made under paragraph 4 of Schedule 1 to the Crime (Sentences) Act 1997 (c.43) transferring responsibility for his supervision to the Scottish Ministers and ordering that the supervision or, as the case may be, the remainder of it be undergone in Scotland, that order being an unrestricted transfer within the meaning of paragraph 6(1) of that Schedule.

(2) This Part of this Act—

(a) shall apply to such a life prisoner, except one released on compassionate grounds, as if that prisoner had served the punishment part of his life sentence and had been released on licence under section 2(4) of this Act;

(b) shall apply to such a life prisoner released on compassionate grounds as if that prisoner had been released on licence under section 3 of this Act.

(3) If, in the case of such a life prisoner released on compassionate grounds—

(a) the Scottish Ministers revoke that life prisoner’s licence and recall him to prison under section 17(1) of this Act; and

(b) the Parole Board does not, under section 17(4) of this Act, direct that he be immediately released on licence,

section 10 of this Act shall apply to the life prisoner as it applies to a transferred life prisoner within the meaning of section 10 whose transfer occurred after the coming into force of section 3 of the Convention Rights (Compliance) (Scotland) Act 2001.

(4) References in this section to a life prisoner’s release on compassionate grounds are references to his release under section 30 of the 1997 Act or under equivalent provision made for Northern Ireland such as is mentioned in subsection (5) below.

(5) The provision referred to in subsection (4) above is—

(a) a provision made by Order in Council under section 85 (provisions dealing with certain reserved matters) of the Northern Ireland Act 1998 (c.47) governing the release of life prisoners on compassionate grounds; or

(b) any provision to that effect, including one made as described in paragraph (a) above, identified by the Scottish Ministers by order made by statutory instrument.]

Textual Amendments

F10 S. 10A inserted (8.10.2001) by 2001 asp 7, s. 3(2); S.S.I. 2001/274, art. 3(3)

11 Duration of licence. S

(1) Where a long-term prisoner is released on licence under this Part of this Act, the licence shall (unless revoked) remain in force until the entire period specified in his sentence (reckoned from the commencement of the sentence) has elapsed.

(2) Where a life prisoner is so released, the licence shall (unless revoked) remain in force until his death.

(3) Without prejudice to any order under section 212A of the 1975 Act, where a short-term prisoner is released on licence—

(a) under section 3(1) of this Act, the licence shall (unless revoked) remain in force until the date on which, but for such release, he would have been released under section 1(1) of this Act;

(b) by virtue of section 16(7) of this Act, the licence shall, unless revoked, remain in force until the entire period specified in his sentence (reckoned from the commencement of the sentence) has elapsed or, if resulting in a later date, until the period for which he was ordered to be returned to prison under or by virtue of subsection (2)(a) of that section has elapsed.

12 Conditions in licence. E+W+S

(1) A person released on licence under this Part of this Act shall comply with such conditions as may be specified in that licence by the Secretary of State.

(2) Without prejudice to the generality of subsection (1) above and to the power of the Secretary of State under subsection (3) below to vary or cancel any condition, a licence granted under this Part of this Act shall include a condition requiring that the person subject to it—

(a) shall be under the supervision of a relevant officer of such local authority, or of a probation officer appointed for or assigned to such petty sessions area, as may be specified in the licence; and

(b) shall comply with such requirements as that officer may specify for the purposes of the supervision.

(3) The Secretary of State may from time to time under subsection (1) above insert, vary or cancel a condition in a licence granted under this Part of this Act; but in the case of a long-term or life prisoner no licence condition shall be included on release or subsequently inserted, varied or cancelled except—

(a) in the case of the inclusion of a condition in the licence of a discretionary life prisoner, in accordance with the recommendations of the Parole Board; and

(b) in any other case, after consulting the Board.

(4) For the purposes of subsection (3) above, the Secretary of State shall be treated as having consulted the Parole Board about a proposal to include, insert, vary or cancel a condition in any case if he has consulted the Board about the implementation of proposals of that description generally or in that class of case.

Extent Information

E2 S.12(1)(2)(3)(4) extends to Scotland, S.12(2) extends also to England and Wales.

Yn ddilys o 08/02/2006

[F11 12AA Conditions for persons released on licence under section 3AA E+W+S

(1) Without prejudice to the generality of section 12(1) of this Act, any licence granted under section 3AA of this Act must include—

(a) the standard conditions; and

(b) a curfew condition complying with section 12AB of this Act.

(2) Subsection (1) above is without prejudice to any power exercisable under section 12 of this Act.

(3) In this section, “the standard conditions” means such conditions as may be prescribed as such for the purposes of this section.

(4) In subsection (3) above, “prescribed” means prescribed by order by the Scottish Ministers.

(5) Different standard conditions may be so prescribed for different classes of prisoner.

(6) Subsection (4) of section 3AA of this Act applies in relation to—

(a) the exercise of the power of prescription conferred by subsection (3) above; and

(b) the specification, variation or cancellation of conditions, other than the standard conditions, in a licence granted under section 3AA of this Act,

as it applies in relation to the exercise of the power conferred by subsection (1) of that section.

Textual Amendments

F11 Ss. 12AA, 12AB inserted after s. 12 (8.2.2006 for specified purposes, 3.7.2006 for further specified purposes, 11.2.2008 for further specified purposes, otherwise 21.3.2008) by Management of Offenders etc. (Scotland) Act 2005 (asp 14), ss. 15(10), 24(2); S.S.I. 2006/48, art. 3(1)(3), Sch. Pt. 1; S.S.I. 2006/331, art. 3(4)(5); S.S.I. 2008/21, art. 2(1)(b)(2)

Yn ddilys o 08/02/2006

12AB Curfew condition E+W+S

(1) For the purposes of this Part, a curfew condition is a condition which—

(a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified; and

(b) may require him not to be in a place, or class of place, so specified at a time or during a period so specified.

(2) The curfew condition may specify different places, or different periods, for different days but a condition such as is mentioned in paragraph (a) of subsection (1) above may not specify periods which amount to less than nine hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).

(3) Section 245C of the 1995 Act (contractual and other arrangements for, and devices which may be used for the purposes of, remote monitoring) applies in relation to the imposition of, and compliance with, a condition specified by virtue of subsection (1) above as that section applies in relation to the making of, and compliance with, a restriction of liberty order.

(4) A curfew condition is to be monitored remotely and the Scottish Ministers must designate in the licence a person who is to be responsible for the remote monitoring and must, as soon as practicable after they do so, send that person a copy of the condition together with such information as they consider requisite to the fulfilment of the responsibility.

(5) Subject to subsection (6) below, the designated person's responsibility—

(a) commences on that person's receipt of the copy so sent;

(b) is suspended during any period in which the curfew condition is suspended; and

(c) ends when the licence is revoked or otherwise ceases to be in force.

(6) The Scottish Ministers may from time to time designate a person who, in place of the person designated under subsection (4) above (or last designated under this subsection), is to be responsible for the remote monitoring; and on the Scottish Ministers amending the licence in respect of the new designation, that subsection and subsection (5) above apply in relation to the person designated under this subsection as they apply in relation to the person replaced.

(7) If a designation under subsection (6) above is made, the Scottish Ministers must, in so far as it is practicable to do so, notify the person replaced accordingly.]

Textual Amendments

F11 Ss. 12AA, 12AB inserted after s. 12 (8.2.2006 for specified purposes, 3.7.2006 for further specified purposes, 11.2.2008 for further specified purposes, otherwise 21.3.2008) by Management of Offenders etc. (Scotland) Act 2005 (asp 14), ss. 15(10), 24(2); S.S.I. 2006/48, art. 3(1)(3), Sch. Pt. 1; S.S.I. 2006/331, art. 3(4)(5); S.S.I. 2008/21, art. 2(1)(b)(2)

Yn ddilys o 27/06/2003

[F12 12A Suspension of licence conditions S

(1) Where a prisoner, who has been released on licence under this Part of this Act as respects a sentence of imprisonment—

(a) continues, by virtue of any enactment or rule of law, to be detained in prison notwithstanding such release; or

(b) is, by virtue of any enactment or rule of law, detained in prison subsequent to the date of such release but while the licence remains in force,

the conditions in the licence, other than those mentioned in subsection (3) below, shall by virtue of such detention be suspended.

(2) The suspension of the conditions shall have effect for so long as—

(a) the prisoner is so detained; and

(b) the licence remains in force.

(3) The conditions are any conditions, however expressed, requiring the prisoner—

(a) to be of good behaviour and to keep the peace; or

(b) not to contact a named person or class of persons (or not to do so unless with the approval of the person specified in the licence by virtue of section 12(2)(a) of this Act).

(4) The Scottish Ministers may by order amend subsection (3) above by—

(a) adding to the conditions mentioned in that subsection such other condition as they consider appropriate; or

(b) cancelling or varying a condition for the time being mentioned in that subsection.]

Textual Amendments

F12 Ss. 12A, 12B inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 35(3), 89(2); S.S.I. 2003/288, art. 2, Sch.

Yn ddilys o 27/06/2003

[F12 12B Certain licences to be replaced by one S

(1) Subsection (2) below applies where a prisoner—

(a) has been released on licence under this Part of this Act or under the 1989 Act as respects any sentence of imprisonment (“the original sentence”); and

(b) while so released, receives another sentence of imprisonment (whether for life or for a term) (“the subsequent sentence”),

and the licence as respects the original sentence has not been revoked.

(2) Where—

(a) this subsection applies; and

(b) the prisoner is to be released on licence under this Part of this Act as respects the subsequent sentence,

he shall instead be released on a single licence under this Part of this Act as respects both the original sentence and the subsequent sentence.

(3) The single licence—

(a) shall have effect in place of—

(i) the licence as respects the original sentence; and

(ii) any licence on which the prisoner would, apart from this section, be released as respects the subsequent sentence;

(b) shall be subject to such conditions as were in the licence as respects the original sentence immediately before that licence was replaced by the single licence; and

(c) shall (unless revoked) remain in force for so long as any licence as respects the original sentence or as respects the subsequent sentence would, apart from this section (and if not revoked), have remained in force.]

Textual Amendments

F12 Ss. 12A, 12B inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 35(3), 89(2); S.S.I. 2003/288, art. 2, Sch.

13 Supervision of persons released on licence. S

The Secretary of State may make rules for regulating the supervision of any description of person released, under this Part of this Act, on licence.

Modifications etc. (not altering text)

C18 Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2 & 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)(4), Sch. 5 paras. 11(1)(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

Ss. 1(4), 2, 2(4), 3, 11-13, 15, 17, 18, 19 extended (1.10.1997) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6); S.I. 1997/2200, art. 2(1)(g) (subject to art. 5) (which amending provisions were amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(a)(i)(d)(6)(a)(i)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

Ss. 11-13 applied (with modifications) (1.10.1997) by S.I. 1997/1776, arts. 1, 2, Sch. 1 paras. 5, 6, 7 (with transitional provisions in art. 3, Sch. 2); S.I. 1997/2200, art. 2(1)(g)

14 Supervised release of short-term prisoners. E+W+S

(1) After section 212 of the 1975 Act there shall be inserted the following section—

“212A Supervised release orders.

(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.”.

(2) Notwithstanding section 26 of the M7 Criminal Justice Act 1961 and section 212A(1) of the 1975 Act, where a short-term prisoner within the meaning of the M8 Criminal Justice Act 1991, being a prisoner in respect of whom section 44 of that Act (release of sexual offenders) applies, is transferred to a prison in Scotland to serve his sentence or the remainder of his sentence, the sheriff court for the area in which that prison is situated shall, on the application of the Secretary of State supported by any relevant documents or information received by the Secretary of State on the transfer of the prisoner to Scotland, make under this subsection, but subject to section 212A(2) to (6) of the 1975 Act, a supervised release order in respect of the prisoner.

(3) For the purposes of a supervised release order under subsection (2) above the relevant period within the meaning of section 212A(2) of the 1975 Act shall be whichever is the shorter of—

(a) the period of twelve months from the date of the prisoner’s release; and

(b) the period from that date until the date by which the entire term of imprisonment specified in his sentence has (following commencement of the imprisonment) elapsed.

(4) The Secretary of State shall, not later than thirty days before the date of release of a short-term prisoner who is subject to a supervised release order, designate—

(a) the local authority for the area where the prisoner proposes to reside after release;

(b) the local authority for the area where the place from which he is to be released is situated; or

(c) the justices for the petty sessions area where he proposes to reside after release,

as the appropriate authority or, as the case may be, justices for the purposes of the order.

(5) As soon as practicable after designating a local authority or justices under subsection (4) above the Secretary of State shall—

(a) inform the prisoner in writing of the designation; and

(b) end to the authority or, as the case may be, to the clerk to the justices a copy of the supervised release order and of the relevant documents and information received by the Secretary of State by virtue of section 212A(5)(b) of the 1975 Act.

Extent Information

E3 S. 14(1)(2)(3)(4)(5) extends to Scotland, S. 14(4) extends also to England and Wales.

Marginal Citations

M7 1961 c. 39.

M8 1991 c. 53.

15 Variation of supervised release order etc. E+W+S

(1) A person released subject to a supervised release order, or his supervising officer, may request the Secretary of State that a local authority or the justices for a petty sessions area (in this section referred to as the “second” designee) be designated under this subsection as the appropriate authority or justices for the purposes of the order in place of that or those for the time being designated under section 14(4) of this Act or this subsection (the “first” designee) if the person resides or proposes to reside in the area of the second designee.

(2) The Secretary of State shall, if he designates the second designee in accordance with the request, determine the date from which the designation shall have effect.

(3) As soon as practicable after a designation is made under subsection (1) above—

(a) the Secretary of State shall—

(i) inform the person subject to the supervised release order, the first designee and the second designee that the designation has been made and of the date determined under subsection (2) above; and

(ii) send a copy of the supervised release order to the second designee; and

(b) the first designee shall send to the second designee the relevant documents and information received by the first designee by virtue of section 14(5)(b) of this Act (or by virtue of this paragraph).

(4) The court which made a supervised release order may, on an application under this subsection by a person subject to the order (whether or not he has been released before the application is made) or by his supervising officer (or, if the person is not yet released, but a local authority stands or justices stand designated as the appropriate authority or justices in respect of the order, by a relevant officer of that authority or, as the case may be, a probation officer appointed for or assigned to the petty sessions area)—

(a) amend, vary or cancel any requirement specified in or by virtue of the order;

(b) insert in the order a requirement specified for the purpose mentioned in section 212A(2)(b) of the 1975 Act,

whether or not such amendment, variation, cancellation or insertion accords with what is sought by the applicant; but the period during which the person is to be under supervision shall not thereby be increased beyond any period which could have been specified in making the order.

(5) If an application under subsection (4) above is by the supervising officer (or other relevant officer or probation officer) alone, the court shall cite the person who is subject to the order to appear before the court and shall not proceed under that subsection until it has explained to the person, in as straightforward a way as is practicable, the effect of any proposed amendment, variation, cancellation or insertion.

(6) The clerk of the court by which an amendment, variation, cancellation or insertion is made under subsection (4) above shall forthwith send a copy of the resultant order to the person subject to it and to the supervising officer.

16 Commission of offence by released prisoner. E+W+S

(1) This section applies to a short-term or long-term prisoner sentenced to a term of imprisonment (in this section referred to as “the original sentence”) by a court in Scotland and released under this Part of this Act or Part II of the M9 Criminal Justice Act 1991 if—

(a) before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment (other than an offence in respect of which imprisonment for life is mandatory); and

(b) whether before or after that date, he pleads guilty to or is found guilty of that offence (in this section referred to as “the new offence”) in a court in Scotland or England and Wales.

(2) Where the court mentioned in subsection (1)(b) above is in Scotland it may, instead of or in addition to making any other order in respect of the plea or finding—

(a) in a case other than that mentioned in paragraph (b) below, order the person to be returned to prison for the whole or any part of the period which—

(i) begins with the date of the order for his return; and

(ii) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1)(a) above; and

(b) in a case where that court is inferior to the court which imposed the sentence mentioned in the said subsection (1)(a), refer the case to the superior court in question; and a court to which a case is so referred may make such order with regard to it as is mentioned in paragraph (a) above.

(3) Where the court mentioned in subsection (1)(b) above is in England and Wales it may, instead of or in addition to making any other order in respect of the plea or finding, refer the case to the court which imposed the original sentence and shall, if it does so, send to that court such particulars of that case as may be relevant.

(4) The court to which a case is referred under subsection (3) above may make such an order as is mentioned in subsection (2)(a) above in respect of the person.

(5) The period for which a person to whom this section applies is ordered under subsection (2) or (4) above to be returned to prison—

(a) shall be taken to be a sentence of imprisonment for the purposes of this Act and of any appeal; and

(b) shall, as the court making that order may direct, either be served before and be followed by, or be served concurrently with, any sentence of imprisonment imposed for the new offence (being in either case disregarded in determining the appropriate length of that sentence).

(6) In exercising its powers under section 254(3) or 453C(1) of the 1975 Act, the court hearing an appeal against an order under subsection (2) or (4) above may, if it thinks fit and notwithstanding subsection (2)(a), substitute for the period specified in the order a period not exceeding the period between the date on which the person was released and the date mentioned in subsection (1)(a) above.

(7) Where an order under subsection (2) or (4) above is made in respect of a person released on licence and he is sentenced in respect of the new offence to a term of imprisonment of less than four years, section 1(1) of this Act shall apply in respect of that sentence as if for the word “unconditionally” there were substituted the words “ on licence ”.

Extent Information

E4 S.16(1)(2)(3)(4)(5)(6)(7) extends to Scotland, S.16(1)(3) also extends to England and Wales.

Marginal Citations

M9 1991 c. 53.

17 Revocation of licence. S

(1) Where—

(a) a long-term or life prisoner has been released on licence under this Part of this Act, the Secretary of State may revoke that licence and recall him to prison—

(i) if recommended to do so by the Parole Board; or

(ii) if revocation and recall are, in the opinion of the Secretary of State, expedient in the public interest and it is not practicable to await such recommendation;

(b) a short-term prisoner has been so released, the Secretary of State may revoke his licence and recall him to prison if satisfied that his health or circumstances have so changed that were he in prison his release under section 3(1) of this Act would no longer be justified.

(2) A person recalled under subsection (1) above shall, on his return to prison, be informed of the reasons for his recall and that he has the right to make written representations to the Secretary of State in that regard.

(3) The Secretary of State shall refer to the Parole Board the case of—

(a) a person recalled under subsection (1)(a)(i) above who makes representations under subsection (2) above; or

(b) a person recalled under subsection (1)(a)(ii) above.

(4) Where on a reference under subsection (3) above the Parole Board directs a prisoner’s immediate release on licence, the Secretary of State shall under this section give effect to that direction.

(5) On the revocation of the licence of any person under the foregoing provisions of this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.

(6) A licence under this Part of this Act, other than the licence of a life prisoner, shall be revoked by the Secretary of State if all conditions in it have been cancelled; and where a person’s licence has been revoked under this subsection the person shall be treated in all respects as if released unconditionally.

Modifications etc. (not altering text)

C19 Ss. 1(4), 2, 2(4), 3, 11-13, 15, 17, 18, 19 extended (1.10.1997) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6); S.I. 1997/2200, art. 2(1)(g) (subject to art. 5) (which amending provisions were amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(a)(i)(d)(6)(a)(i)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2 & 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)(4), Sch. 5 paras. 11(1)(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

C20 S. 17(1)(a) modified (1.4.1995) by S.I. 1995/911, art. 3(c)

Yn ddilys o 03/07/2006

[F13 17A Recall of prisoners released under section 3AA E+W+S

(1) If it appears to the Scottish Ministers as regards a prisoner released on licence under section 3AA of this Act that—

(a) he has failed to comply with any condition included in his licence; or

(b) his whereabouts can no longer be monitored remotely at the place for the time being specified in the curfew condition included in the licence,

they may revoke the licence and recall the person to prison under this section.

(2) A person whose licence is revoked under subsection (1) above—

(a) must, on his return to prison, be informed of the reasons for the revocation and of his right under paragraph (b) below; and

(b) may make representations in writing with respect to the revocation to the Scottish Ministers.

(3) The Scottish Ministers are to refer to the Parole Board the case of any person who makes such representations.

(4) After considering the case the Parole Board may direct, or decline to direct, the Scottish Ministers to cancel the revocation.

(5) Where the revocation of a person's licence is cancelled by virtue of subsection (4) above, the person is to be treated for the purposes of section 3AA of this Act as if he had not been recalled to prison under this section.

(6) On the revocation under this section of a person's licence, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.]

Textual Amendments

F13 S. 17A inserted (3.7.2006 for specified purposes, otherwise 21.3.2008) by Management of Offenders etc. (Scotland) Act 2005 (asp 14), ss. 15(13), 24(2); S.S.I. 2006/331, art 3(4)(5); S.S.I. 2008/21, art. 2(2)

18 Breach of supervised release order. S

(1) Where the court which imposed a supervised release order on a person is informed, by statement on oath by an appropriate officer, that the person has failed to comply with a requirement specified in or by virtue of that order, the court may—

(a) issue a warrant for the arrest of the person; or

(b) issue a citation requiring the person to appear before the court at such time as may be specified in the citation.

(2) If it is proved to the satisfaction of the court before which a person is brought, or appears, in pursuance of a warrant or citation issued under subsection (1) above that there has been such failure as is mentioned in that subsection, the court may—

(a) order him to be returned to prison for the whole or any part of the period which—

(i) begins with the date of the order for his return; and

(ii) is equal in length to the period between the date of the first proven failure referred to in the statement mentioned in subsection (1) above and the date on which supervision under the supervised release order would have ceased; or

(b) do anything in respect of the supervised release order that might have been done under section 15(4) of this Act on an application under that subsection in relation to that order.

(3) For the purposes of subsection (2) above, evidence of one witness shall be sufficient evidence.

(4) As soon as the period for which a person is ordered under subsection (2) above to be returned to prison expires, the Secretary of State shall release him unconditionally.

(5) For the purposes of this Act, any such period as is mentioned in subsection (4) above is neither a sentence nor a part of a sentence.

(6) The following are “appropriate officers” for the purposes of subsection (1) above—

(a) the person’s supervising officer;

(b) the director of social work of a local authority which is designated under section 14(4) or 15(1) of this Act as the appropriate authority for the purposes of the order;

(c) any officer appointed by that director for the purposes of this section.

19 Appeals in respect of decisions relating to supervised release orders. S

(1) Within two weeks after a determination by a court—

(a) on an application under section 15(4); or

(b) under section 18(2),

of this Act, or within such longer period as the High Court may allow, the person subject to the supervised release order may lodge a written note of appeal with the Clerk of Justiciary, who shall send a copy to the court which made the determination and to the Secretary of State.

(2) A note of appeal under subsection (1) above shall be as nearly as possible in such form as may be prescribed by Act of Adjournal and shall contain a full statement of all the grounds of appeal; and except by leave of the High Court on cause shown it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal.

Modifications etc. (not altering text)

C21 S. 19 applied (with modifications) (1.10.1997) by S.I. 1997/1776, arts. 1, 2, Sch. paras. 5, 6, 7 (with transitional provisions in art. 3, Sch. 2); S.I. 1997/2200, art. 2(1)(g)

Ss. 1(4), 2, 2(4), 3, 11-13, 15, 17, 18, 19 extended (1.10.1997) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6); S.I. 1997/2200, art. 2(1)(g) (subject to art. 5) (which amending provisions were amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(a)(i)(d)(6)(a)(i)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2 & 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)(4), Sch. 5 paras. 11(1)(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

20 The Parole Board for Scotland. S

(1) There shall continue to be a body to be known as the Parole Board for Scotland, which shall discharge the functions conferred on it by, or by virtue of, this Part of this Act.

(2) It shall be the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners.

(3) The Secretary of State may, after consultation with the Board, by order provide that, in relation to such class of case as may be specified in the order, this Act shall have effect subject to the modifications that—

(a) in subsection (3) of section 1, for the word “may” there shall be substituted the word “ shall ” so however that nothing in this paragraph shall affect the operation of that subsection as it has effect in relation to a long-term prisoner who is liable to removal from the United Kingdom (within the meaning of section 9 of this Act);

(b) in section 12—

(i) in subsection (3)(a), after the words “licence of a” there shall be inserted the words “ long-term or ”; and

(ii) subsection (4) shall be omitted; and

(c) in section 17(1)(a), for the word “may” there shall be substituted the word “ shall ”.

(4) The Secretary of State may by rules make provision with respect to the proceedings of the Board, including provision—

(a) authorising cases to be dealt with in whole or in part by a prescribed number of members of the Board in accordance with such procedure as may be prescribed;

(b) requiring cases to be dealt with at prescribed times; and

(c) as to what matters may be taken into account by the Board (or by such number) in dealing with a case.

(5) The Secretary of State may give the Board directions as to the matters to be taken into account by it in discharging its functions under this Part of this Act; and in giving any such directions the Secretary of State shall in particular have regard to—

(a) the need to protect the public from serious harm from offenders; and

(b) the desirability of preventing the commission by offenders of further offences and of securing their rehabilitation.

(6) The supplementary provisions in Schedule 2 to this Act shall have effect with respect to the Board.

Modifications etc. (not altering text)

C22 Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2, 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)(4), Sch. 5 paras. 11(1)(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

Commencement Information

I4 S. 20 not in force at Royal Assent see s. 48(2). S. 20(3)(4)(5) in force for certain purposes at 18.8.1993, S. 20 wholly in force at 1.10.1993 by S.I. 1993/2050, art. 3(2)(4), Sch. 1

21 Parole advisers. S

(1) The Secretary of State may appoint under this section persons (to be known as “parole advisers”) to give advice to prisoners, or former prisoners, who wish to make representations to the Secretary of State or to the Parole Board as regards any matter concerning their release on licence under this Part of this Act or their return to prison or detention by virtue of this Part of this Act.

(2) The Secretary of State shall pay to parole advisers such remuneration and allowances as he may with the consent of the Treasury determine.

Modifications etc. (not altering text)

C23 Ss. 1, 1A, 2(4), 3A, 5, 6(1)(a)(b)(i)(iii), 7, 9, 16, 20, 21, 26A, 27, Schs. 2, 6 extended (30.9.1998) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6) (subject to art. 5) (as amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(5)(a)(d)(f)(6)(a)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2 & 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)(4), Sch. 5 paras. 11(1)(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

Miscellaneous S

22 Place of confinement of prisoners. S

For section 10 of the 1989 Act (place of confinement of prisoners) there shall be substituted the following section—

“10 Place of confinement of prisoners.

(1) A prisoner may be lawfully confined in any prison.

(2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct, and may be moved by the Secretary of State from any prison to any other prison.

(3) The foregoing provisions of this section are without prejudice to section 11 of this Act and section 241 of the 1975 Act (transfer of prisoner in connection with hearing of appeal).”.

23 Transfer of young offenders to prison or remand centre. S

After section 20 of the 1989 Act there shall be inserted the following section—

“20A Transfer of young offenders to prison or remand centre.

(1) Subject to section 21 of this Act, an offender sentenced to detention in a young offenders institution shall be detained in such an institution unless a direction under subsection (2) below is in force in relation to him.

(2) The Secretary of State may from time to time direct that an offender sentenced to detention in a young offenders institution shall be detained in a prison or remand centre instead of in a young offenders institution, but if the offender is under 18 years of age at the time of the direction, only for a temporary purpose.

(3) Where an offender is detained in a prison or remand centre by virtue of subsection (2) above, any rules under section 39 of this Act which apply in relation to persons detained in that place shall apply to that offender; but subject to the foregoing and to subsection (4) below, the provisions of the 1975 Act, the Prisoners and Criminal Proceedings (Scotland) Act 1993 and this Act relating to the treatment and supervision of persons sentenced to detention in a young offenders institution shall continue to apply to the offender.

(4) Where an offender referred to in subsection (3) above attains the age of 21 years, subsection (3) of section 21 of this Act shall apply to him as if he had been transferred to prison under that section.”.

24 Additional days for disciplinary offences. S

The following subsection shall be added at the end of section 39 of the 1989 Act (rules for the management of prisons and other institutions)—

“(7) Rules made under this section may provide for the award of additional days, not exceeding in aggregate one-sixth of the prisoner’s sentence—

(a) to a short-term or long-term prisoner within the meaning of Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993; or

(b) conditionally on his eventually becoming such a prisoner, to a person remanded in custody,

where he is guilty, under such rules, of a breach of discipline.”.

25 Provision in prison rules for directions. S

The following subsections shall be added at the end of section 39 of the 1989 Act (rules for the management of prisons and other institutions) after the subsection added by section 24 of this Act—

“(8) Without prejudice to any power to make standing orders or to issue directions or any other kind of instruction, rules made under this section may authorise the Secretary of State to supplement the rules by making provision by directions for any purpose specified in the rules; and rules so made or directions made by virtue of this subsection may authorise the governor, or any other officer, of a prison, or some other person or class of persons specified in the rules or directions, to exercise a discretion in relation to the purpose so specified.

(9) Rules made under this section may permit directions made by virtue of subsection (8) above to derogate (but only to such extent, or in such manner, as may be specified in the rules) from provisions of rules so made and so specified.

(10) Any reference, however expressed, in any enactment other than this section to rules made under this section shall be construed as including a reference to directions made by virtue of subsection (8) above.

(11) Directions made by virtue of subsection (8) above shall be published by the Secretary of State in such manner as he considers appropriate.”.

26 Further amendment of Mental Health (Scotland) Act 1984. S

In section 73 of the M10 Mental Health (Scotland) Act 1984, subsection (3) (which provides for the continued detention in hospital of persons moved there by virtue of a transfer order while awaiting trial etc. even where that order has ceased to have effect) shall cease to have effect.

Marginal Citations

M10 1984 c. 36.

Yn ddilys o 30/09/1998

[F14 Extended sentences] S

Textual Amendments

F14 S. 26A and preceding cross-heading inserted (30.9.1998) by 1998 c. 37, s. 87; S.I. 1998/2327, art. 2(1)(s) (subject to arts. 5-8)

F15 26A Extended sentences. S

(1) This section applies to a prisoner who, on or after the date on which section 87 of the Crime and Disorder Act 1998 comes into force, has been made subject to an extended sentence within the meaning of section 210A of the 1995 Act (extended sentences).

(2) Subject to the provisions of this section, this Part of this Act, except section 1A, shall apply in relation to extended sentences as if any reference to a sentence or term of imprisonment was a reference to the custodial term of an extended sentence.

(3) Where a prisoner subject to an extended sentence is released on licence under this Part the licence shall, subject to any revocation under section 17 of this Act, remain in force until the end of the extension period.

(4) Where, apart from this subsection, a prisoner subject to an extended sentence would be released unconditionally—

(a) he shall be released on licence; and

(b) the licence shall, subject to any revocation under section 17 of this Act, remain in force until the end of the extension period.

(5) The extension period shall be taken to begin as follows—

(a) for the purposes of subsection (3) above, on the day following the date on which, had there been no extension period, the prisoner would have ceased to be on licence in respect of the custodial term;

(b) for the purposes of subsection (4) above, on the date on which, apart from that subsection, he would have been released unconditionally.

(6) Subject to section 1A(c) of this Act and section 210A(3) of the 1995 Act and to any direction by the court which imposes an extended sentence, where a prisoner is subject to two or more extended sentences, the extension period which is taken to begin in accordance with subsection (5) above shall be the aggregate of the extension period of each of those sentences.

(7) For the purposes of sections 12(3) and 17(1) of this Act, and subject to subsection (8) below, the question whether a prisoner is a long-term or short-term prisoner shall be determined by reference to the extended sentence.

(8) Where a short-term prisoner serving an extended sentence in respect of a sexual offence is released on licence under subsection (4)(a) above, the provisions of section 17 of this Act shall apply to him as if he was a long-term prisoner.

(9) In relation to a prisoner subject to an extended sentence, the reference in section 17(5) of this Act to his sentence shall be construed as a reference to the extended sentence.

(10) For the purposes of this section “custodial term”, “extension period” and “imprisonment” shall have the same meaning as in section 210A of the 1995 Act.

(11) In section 1A(c) and section 16(1)(a) of this Act, the reference to the date on which a prisoner would have served his sentence in full shall mean, in relation to a prisoner subject to an extended sentence, the date on which the extended sentence, as originally imposed by the court, would expire.

Textual Amendments

F15 S. 26A and preceding cross-heading inserted (30.9.1998) by 1998 c. 37, s. 87; S.I. 1998/2327, art. 2(1)(s)

Modifications etc. (not altering text)

C24 Ss. 1, 1A, 2(4), 3A, 5, 6(1)(a)(b)(i)(iii), 7, 9, 16, 20, 21, 26A, 27, Schs. 2, 6 extended (30.9.1998) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6) (subject to art. 5) (as amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(5)(a)(d)(f)(6)(a)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

Yn ddilys o 04/10/2005

[F16 26B Parole Board to have regard to risk management plans S

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

Textual Amendments

F16 S. 26B inserted (4.10.2005) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 41, 89(2); S.S.I. 2005/433, art. 2(c)

Interpretation E+W+S

27 Interpretation of Part I. E+W+S

(1) In this Part of this Act, except where the context otherwise requires—

• “court” does not include a court-martial;

• “discretionary life prisoner” has the meaning given by section 2 of this Act;

• “life prisoner” means a person serving a sentence of imprisonment for life;

• “local authority” means a regional or islands council;

• “long-term prisoner” means a person serving a sentence of imprisonment for a term of four years or more;

• “Parole Board” means the Parole Board for Scotland;

• “petty sessions area” has the same meaning as in the Justices of the M11 Peace Act 1979;

• “relevant officer”, in relation to a local authority, means an officer of that authority employed by them in the discharge of their functions under section 27(1) of the M12 Social Work (Scotland) Act 1968 (supervision and care of persons put on probation or released from prison etc.);

• “short-term prisoner” means a person serving a sentence of imprisonment for a term of less than four years;

• “supervised release order” has the meaning given by section 212A (as inserted by section 14 of this Act) of the 1975 Act but includes any order under subsection (2) of the said section 14; and

• “supervising officer” has the meaning given by the said section 212A.

(2) The Secretary of State may by order provide—

(a) that the references to four years in the definitions of “long-term prisoner” and “short-term prisoner” in subsection (1) above shall be construed as references to such other period as may be specified in the order;

(b) that any reference in this Part of this Act to a particular proportion of a prisoner’s sentence shall be construed as a reference to such other proportion of a prisoner’s sentence as may be so specified.

(3) An order under subsection (2) above may make such transitional provisions as appear to the Secretary of State necessary or expedient in connection with any provision made by the order.

(4) For the purposes of this Part of this Act so far as relating to licences or persons released on licence, the age of any person at the time when sentence was passed on him shall be deemed to have been that which appears to the Secretary of State to have been his age at that time.

(5) For the purposes of any reference, however expressed, in this Part of this Act to the term of imprisonment or other detention to which a person has been sentenced or which, having been sentenced, he has served (in whole or in part), consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term.

(6) If additional days are awarded in accordance with rules made under section 39(7) of the 1989 Act (and are not remitted in accordance with such rules), the period which the prisoner (or eventual prisoner) must serve before becoming entitled to or eligible for release shall be extended by those additional days.

(7) Where (but for this subsection) a prisoner would, under any provision of this Act or of the 1975 Act, fall to be released on or by a day which is a Saturday, Sunday or public holiday he shall instead be released on or by the last preceding day which is not a Saturday, Sunday or public holiday.

Commencement Information

I5 S. 27 not in force at Royal Assent see s. 48(2). S. 27(1)(2)(3) in force for certain purposes at 18.8.1993, S. 27 wholly in force at 1.10.1993 by S.I. 1993/2050, art. 3(2)(4), Sch. 1

Marginal Citations

M11 1979 c. 55.

M12 1968 c. 49.

Part II S Criminal Proceedings

Evidence S

28 Prints, samples etc. in criminal investigations. S

(1) This section applies where a person has been arrested and is in custody, or is detained under section 2(1) of the M13 Criminal Justice (Scotland) Act 1980 (detention and questioning).

(2) A constable may take from the person fingerprints, palmprints and such other prints and impressions of an external part of the body as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take.

(3) All record of any prints or impressions taken under subsection (2) above shall be destroyed immediately following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under section 383 (absolute discharge) or 384(1) (probation) of the 1975 Act.

(4) A constable may, with the authority of an officer of a rank no lower than inspector, take from the person—

(a) from the hair of an external part of the body, by means of cutting or combing, a sample of hair or other material;

(b) from a fingernail or toenail or from under any such nail, a sample of nail or other material;

(c) from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material.

(5) A constable may use reasonable force in exercising any power conferred by subsection (2) or (4) above.

(6) Nothing in this section shall prejudice—

(a) any power of search;

(b) any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or

(c) any power to take prints, impressions or samples under the authority of a warrant.

Modifications etc. (not altering text)

C25 S. 28 applied (with modifications) (3.2.1995) by 1994 c. 33, s. 138(2); S.I. 1995/127, art. 2(1), Sch. 1

Marginal Citations

M13 1980 c. 62.

Yn ddilys o 31/03/1996

[F17 28A Prints, samples etc. in criminal investigations: supplementary provisions. S

(1) This section applies where a person convicted of an offence—

(a) has not, since the conviction, had a sample, print or impression taken from him; or

(b) has (whether before or after the conviction) had a sample, print or impression taken from him but it was not suitable for the means of analysis for which it was taken or, though suitable, was insufficient (either in quantity or in quality) to enable information to be obtained by that means of analysis.

(2) Where this section applies, a constable may, within the permitted period—

(a) take from the convicted person fingerprints, palmprints and such other prints and impressions of an external part of the body as the constable reasonably considers it appropriate to take; and

(b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to (d) of subsection (4) of section 28 of this Act by the means specified in that paragraph in relation to that sample.

(3) A constable—

(a) may require the convicted person to attend a police station for the purposes of subsection (2) above;

(b) may, where the convicted person is in legal custody within the meaning of the 1975 Act, exercise the powers conferred by subsection (2) above in relation to the person in the place where he is for the time being.

(4) In subsection (2) above, “the permitted period” means—

(a) in a case to which paragraph (a) of subsection (1) above applies, the period of one month beginning with the date of the conviction;

(b) in a case to which paragraph (b) of that subsection applies, the period of one month beginning with the date on which a constable of the police force which instructed the analysis receives written intimation that the sample, print or impression was unsuitable or, as the case may be, insufficient as mentioned in that paragraph.

(5) A requirement under subsection (3)(a) above—

(a) shall give the person at least seven days’ notice of the date on which he is required to attend;

(b) may direct him to attend at a specified time of day or between specified times of day.

(6) Any constable may arrest without warrant a person who fails to comply with a requirement under subsection (3)(a) above.]

Textual Amendments

F17 Ss. 28A, 28B inserted (31.3.1996) by 1995 c. 20, s. 58(5); S.I. 1996/517, art. 3(1) (which insertion fell (1.4.1996) by reason of the repeal (S.) of 1995 c. 20 by 1995 c. 40, ss. 4, 6, 7(2), Sch. 3 Pt. II paras. 16(3), 17, Sch. 5)

Yn ddilys o 31/03/1996

[F18 28B Use of prints, samples etc. S

Without prejudice to any power to do so apart from this section, prints, impressions and samples lawfully held by or on behalf of any police force or in connection with or as a result of an investigation of an offence and information derived therefrom may be checked against other such prints, impressions, samples and information.]

Textual Amendments

F18 Ss. 28A, 28B inserted (31.3.1996) by 1995 c. 20, s. 58(5); S.I. 1996/517, art. 3(1) (which insertion fell (1.4.1996) by reason of the repeal of 1995 c. 20 by 1995 c. 40, ss. 4, 6, 7(2), Sch. 3 Pt. II paras. 16(3), 17, Sch. 5)

29 Evidence from documents. S

Schedule 3 to this Act, which makes provision regarding the admissibility in criminal proceedings of copy documents and of evidence contained in business documents, shall have effect.

Yn ddilys o 01/01/1994

30 Admissibility of audio and video records. S

(1) Section 32 of the 1980 Act (evidence by letter of request or on commission) shall be amended as follows.

(2) After subsection (3) there shall be inserted the following subsection—

“(3A) Where any such record as is mentioned in paragraph (b) of subsection (2) above, or any part of such record, is not a document in writing, that record or part shall not be received in evidence under subsection (3) above unless it is accompanied by a transcript of its contents.”.

(3) After subsection (5) there shall be inserted the following subsection—

“(5A) In subsections (2) and (3) above, “record” includes, in addition to a document in writing—

(a) any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(b) any film (including microfilm), negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom.”.

31 Transcript of customs interview sufficient evidence. S

In section 60(1) of the M14 Criminal Justice (Scotland) Act 1987 (which provides that certain transcripts of interviews between police officers and accused persons shall be received in evidence and be sufficient evidence of the making of the transcript and of its accuracy), after the words “accused person” there shall be inserted the words “ , or between a person commissioned, appointed or authorised under section 6(3) of the Customs and Excise Management Act 1979 and an accused person, ”.

Marginal Citations

M14 1987 c. 41.

32 Evidence from abroad through television links in solemn proceedings. S

After section 32 of the 1980 Act there shall be inserted the following section—

“32A Evidence from abroad through television links in solemn proceedings.

(1) In any solemn proceedings in the High Court or the sheriff court a person other than the accused may give evidence through a live television link if—

(a) the witness is outside the United Kingdom;

(b) an application under subsection (2) below for the issue of a letter of request has been granted; and

(c) the court is satisfied as to the arrangements for the giving of evidence in that manner by that witness.

(2) The prosecutor or the defence in any proceedings referred to in subsection (1) above may apply to a judge of the court in which the trial is to take place (or, if that court is not yet known, to a judge of the High Court) for the issue of a letter of request to—

(a) a court or tribunal exercising jurisdiction in a country or territory outside the United Kingdom where a witness is ordinarily resident; or

(b) any authority which the judge is satisfied is recognised by the government of that country or territory as the appropriate authority for receiving requests for assistance in facilitating the giving of evidence through a live television link,

requesting assistance in facilitating the giving of evidence by that witness through a live television link.

(3) An application under subsection (2) above shall be granted only if the judge is satisfied that—

(a) the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial; and

(b) the granting of the application—

(i) is in the interests of justice; and

(ii) in the case of an application by the prosecutor, is not unfair to the accused.

(4) The power of the High Court to make Acts of Adjournal under the 1975 Act shall include power to make such provision as it considers necessary or expedient for the purposes of this section.”.

Yn ddilys o 01/01/1994

33 Evidence of children on commission. S

(1) Without prejudice to section 32 of the 1980 Act (evidence by letter of request or on commission where witness is out with United Kingdom or is ill or infirm) and subject to section 35 of this Act, where a child has been cited to give evidence in a trial the court may appoint a commissioner to take the evidence of the child if—

(a) in solemn proceedings, at any time before the oath is administered to the jury;

(b) in summary proceedings, at any time before the first witness is sworn; or

(c) in exceptional circumstances in either solemn or summary proceedings, during the course of the trial,

application is made to the court in that regard; but to be so appointed a person must be, and for a period of at least five years have been, a member of the Faculty of Advocates or a solicitor.

(2) Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder.

(3) An accused shall not, except by leave of the commissioner, be present in the room where such proceedings are taking place but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings.

Yn ddilys o 01/01/1994

34 Concealment by screen of accused from child giving evidence. S

Subject to section 35 of this Act, where a child has been cited to give evidence in a trial, the court may, on application being made to it, authorise the use of a screen to conceal the accused from the sight of the child while the child is present to give evidence; but arrangements shall be made to ensure that the accused is able to watch and hear as the evidence is given by the child.

Yn ddilys o 01/01/1994

35 Circumstances in which application under section 33 or 34 may be granted or on transfer be deemed granted, etc. S

Subsections (2) and (3) of section 56 (restrictions on power of court to grant application for child’s evidence to be given by means of live television link) and sections 57 (transfer of case where accommodation or equipment is lacking) and 58 (identification of accused by child whose evidence is given by such link) of the M15 Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 shall apply in respect of an application under section 33(1) or 34 of this Act as those provisions of that Act apply in respect of an application under subsection (1) of the said section 56; and in sections 33 and 34 of this Act “child”, “court” and “trial” have the same meanings as in the said sections 56 to 58.

Marginal Citations

M15 1990 c.40.

36 Evidence as to taking or destruction of eggs. S

After section 19 of the M16 Wildlife and Countryside Act 1981 there shall be inserted the following section—

“19A Evidence in Scotland as to taking or destruction of eggs.

In any proceedings in Scotland for an offence under section 1(1)(c) of, or by virtue of section 3(1)(a)(iii) of, this Act, the accused may be convicted on the evidence of one witness.”.

Marginal Citations

M16 1981 c. 69.

37 Evidence by certificate. S

Schedule 1 to the 1980 Act (certain certificates to be sufficient evidence in relation to statutory offences) shall have effect subject to the amendments specified in Schedule 4 to this Act.

Procedure S

38 Adjournment for inquiry etc. in summary proceedings at first calling. S

(1) Immediately preceding section 334 of the 1975 Act there shall be inserted the following section—

“333A Adjournment for inquiry at first calling.

Without prejudice to section 338(1) of this Act, at the first calling of the case in a summary prosecution the court may, in order to allow time for inquiry into the case or for any other cause which it considers reasonable, adjourn the case under this section, for such period as it considers appropriate, without calling on the accused to plead to any charge against him but remanding him in custody or on bail or ordaining him to appear at the diet thus fixed; and the court may from time to time so adjourn the case, so however that—

(a) where the accused is remanded in custody, the total period for which he is so remanded under this subsection shall not exceed twenty-one days and no one period of adjournment shall, except on special cause shown, exceed seven days; and

(b) where he is remanded on bail or ordained to appear, no one period of adjournment shall exceed twenty eight days.”.

(2) Section 328 of the 1975 Act (which admits of adjournment for inquiry in summary proceedings only where an accused has been apprehended) shall cease to have effect.

39 New circumstances on notice of which preliminary diet may be ordered. S

(1) Section 76 of the 1975 Act (which specifies various circumstances on notice of which a preliminary diet shall or may be ordered) shall be amended as follows.

(2) In subsection (1)—

(a) after paragraph (b) there shall be inserted the following paragraph—

“(bb) that there are documents the truth of the contents of which ought in his view to be admitted, or that there is any other matter which in his view ought to be agreed, the court may make such order as is mentioned in paragraph (a) above;”; and

(b) in paragraph (c), for the words “or (b)” there shall be substituted the words “ , (b) or (bb) ”.

(3) In subsection (7)(c), after the word “paragraph” there shall be inserted the words “ (bb) or ”.

40 Taking of other proceedings while jury out. S

(1) After section 155 of the 1975 Act there shall be inserted the following section—

“155A Taking of other proceedings while jury out.

During the period in which, in any criminal trial, the jury are retired to consider their verdict, the judge may sit in any other proceedings; and the trial shall not fail by reason only of his so doing.”.

(2) After section 360 of that Act there shall be inserted the following heading and section—

“ Interruption of proceedings S

360A Interruption of summary proceedings for verdict in earlier trial.

(1) Where the sheriff is sitting in any summary proceedings during the period in which the jury in any criminal trial in which he has presided are retired to consider their verdict, it shall be lawful, if he considers it appropriate to do so, to interrupt those proceedings—

(a) in order to receive the verdict of the jury and dispose of the cause to which it relates;

(b) to give a direction to the jury on any matter on which they may wish one from him, or to hear a request from them regarding any matter, as for example that a production may be made available for examination by them,

and the interruption shall not affect the validity of the proceedings nor cause the instance to fall in respect of any person accused in the proceedings.

(2) Subsection (5) of section 156 of this Act shall apply in respect of the interruption of summary proceedings as it applies in respect of the interruption of a trial.”.

41 Date of commencement of sentence. S

(1) Each of sections 218 and 431 of the 1975 Act (consideration of time spent in custody) shall be amended as follows.

(2) After the word “shall” there shall be inserted “ (a) ”.

(3) At the end there shall be added the following words— “or spent in custody awaiting extradition to the United Kingdom;

(b) specify the date of commencement of the sentence; and

(c) if that person—

(i) has spent a period of time in custody on remand awaiting trial or sentence; or

(ii) is an extradited prisoner for the purposes of this section,

and the date specified under paragraph (b) above is not earlier than the date on which sentence is passed, state its reasons for not specifying an earlier date.”.

(4) The existing words, as so amended, shall be subsection (1).

(5) After that subsection there shall be inserted the following subsections—

“(2) A prisoner is an extradited prisoner for the purposes of this section if—

(a) he was tried for the offence in respect of which his sentence of imprisonment was imposed—

(i) after having been extradited to the United Kingdom; and

(ii) without having first been restored to the state from which extradited or having had an opportunity of leaving the United Kingdom; and

(b) he was for any period kept in custody while awaiting such extradition.

(3) In this section “extradited to the United Kingdom” means returned to the United Kingdom—

(a) in pursuance of extradition arrangements (as defined in section 3 of the Extradition Act 1989);

(b) under any law which corresponds to that Act and is a law of a designated Commonwealth country (as defined in section 5(1) of that Act);

(c) under that Act as extended to a colony or under any corresponding law of a colony; or

(d) in pursuance of a warrant of arrest endorsed in the Republic of Ireland under the law of that country corresponding to the Backing of Warrants (Republic of Ireland) Act 1965.”.

42 Appeal by Lord Advocate against sentence in solemn proceedings etc. S

(1) After section 228 of the 1975 Act (which provides for appeal by a person convicted on indictment) there shall be inserted the following section—

“228A Appeal by Lord Advocate against sentence in solemn proceedings.

Where a person has been convicted on indictment, the Lord Advocate may appeal against the sentence passed on conviction—

(a) if it appears to the Lord Advocate that the sentence is unduly lenient; or

(b) on a point of law.”.

(2) In section 442 of that Act (which provides for appeal in summary proceedings)—

(a) in subsection (1), after paragraph (b) there shall be inserted the following paragraph—

“(c) the prosecutor in such proceedings may, in any class of case specified by order by the Secretary of State under this paragraph, so appeal against the sentence passed on such conviction if it appears to the prosecutor that the sentence is unduly lenient.”; and

(b) after subsection (2) there shall be added the following subsection—

“(3) The power of the Secretary of State to make an order under paragraph (c) of subsection (1) above shall be exercisable by statutory instrument; and any order so made shall be subject to annulment in pursuance of a resolution of either House of Parliament.”.

43 Prosecutor’s consent to or application for setting aside of conviction. S

For section 453 of the 1975 Act there shall be substituted the following section—

“453 Prosecutor’s consent to or application for setting aside of conviction.

(1) Where—

(a) an appeal has been taken under section 442(1)(a)(i) or (iii) of this Act or by suspension or otherwise and the prosecutor is not prepared to maintain the judgment appealed against he may, by a relevant minute, consent to the conviction being set aside either in whole or in part; or

(b) no such appeal has been taken but the prosecutor is, at any time, not prepared to maintain the judgment on which a conviction is founded he may, by a relevant minute, apply for the conviction so to be set aside.

(2) For the purposes of subsection (1) above, a “relevant minute” is a minute, signed by the prosecutor—

(a) setting forth the grounds on which he is of the opinion that the judgment cannot be maintained; and

(b) written on the complaint or lodged with the clerk of court.

(3) A copy of any minute under subsection (1) above shall be sent by the prosecutor to the convicted person or his solicitor and the clerk of court shall—

(a) thereupon ascertain, and note on the record, whether that person or solicitor desires to be heard by the High Court before the appeal, or as the case may be application, is disposed of; and

(b) thereafter transmit the complaint and relative proceedings to the Clerk of Justiciary.

(4) The Clerk of Justiciary, on receipt of a complaint and relative proceedings transmitted under subsection (3) above, shall lay them before any judge of the High Court either in court or in chambers who, after hearing parties if they desire to be heard, may—

(a) set aside the conviction either in whole or in part and—

(i) award such expenses to the convicted person, both in the High Court and in the inferior court, as the judge may think fit; and

(ii) where the conviction is set aside in part, pass another (but not more severe) sentence in substitution for the sentence imposed in respect of that conviction; or

(b) refuse to set aside the conviction, in which case the complaint and proceedings shall be returned to the clerk of the inferior court.

(5) Where an appeal has been taken and the complaint and proceedings in respect of that appeal returned under subsection (4)(b) above, the appellant shall be entitled to proceed with the appeal as if it had been marked on the date of their being received by the clerk of the inferior court on such return.

(6) Where an appeal has been taken and a copy minute in respect of that appeal sent under subsection (3) above, the preparation of the draft stated case shall be delayed pending the decision of the High Court.

(7) The period from an application being made under subsection (1)(b) above until its disposal under subsection (4) above (including the day of application and the day of disposal) shall, in relation to the conviction to which the application relates, be disregarded in any computation of time specified in any provision of this Part of this Act relating to appeals.”.

Part III E+W+S General

44 Expenses. S

There shall be paid out of money provided by Parliament—

(a) any sums required by the Secretary of State for defraying the expenses of the Parole Board for Scotland;

(b) any expenses incurred by the Secretary of State under section 21(2) of this Act;

(c) any administrative expenses incurred by the Secretary of State under this Act; and

(d) any increase attributable to this Act in the sums payable out of money so provided under any other Act.

45 Rules and orders. S

(1) The power of the Secretary of State to make rules and orders under this Act shall be exercisable by statutory instrument.

(2) Any rule made under section 13 or 20(4) of this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) An order shall not be made under section 6(3), 7(6), 20(3) or 27(2) of this Act unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

46 Interpretation. E+W+S

In this Act—

• “the 1975 Act” means the M17 Criminal Procedure (Scotland) Act 1975;

• “the 1980 Act” means the M18 Criminal Justice (Scotland) Act 1980; and

• “the 1989 Act” means the M19 Prisons (Scotland) Act 1989.

Marginal Citations

M17 1975 c. 21.

M18 1980 c. 62.

M19 1989 c. 45.

47 Minor and consequential amendments, transitional provisions, savings and repeals. E+W+S

(1) The enactments mentioned in Schedule 5 to this Act shall have effect subject to the amendments there specified (being minor amendments and amendments consequential on the preceding provisions of this Act).

(2) The transitional provisions and savings contained in Schedule 6 to this Act shall have effect; but nothing in this subsection shall be taken as prejudicing the operation of sections 16 and 17 of the M20 Interpretation Act 1978 (effect of repeals).

(3) The enactments mentioned in Part I of Schedule 7 to this Act (which include some that are spent or no longer of practical utility) are hereby repealed to the extent specified in the third column of that Part and the instruments mentioned in Part II of that Schedule are hereby revoked to the extent specified in the third column of that Part.

Extent Information

E5 S. 47(1)(3) extends to England and Wales and Scotland for specified purposes; s. 47 otherwise extends to Scotland only, see s. 48(5)(6)

Commencement Information

I6 S.47(1) in force for certain purposes at Royal Assent as provided by S.48(4), for certain further purposes at 18.8.1993 and 18.9.1993, S. 47(3) in force for certain purposes at 18.9.1993, s. 47 wholly in force at 1.10.1993 by S.I. 1993/2050, art. 3(2)(3)(4), Sch. 1, Sch. 2

Marginal Citations

M20 1978 c. 30.

48 Short title, commencement and extent. E+W+S

(1) This Act may be cited as the Prisoners and Criminal Proceedings (Scotland) Act 1993.

(2) Subject to subsection (4) below, this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different provisions and for different purposes.

(3) An order under subsection (2) above may make such transitional provisions and savings as appear to the Secretary of State necessary or expedient in connection with any provision brought into force by the order.

(4) This section and, in so far as relating to paragraph 5 of Schedule 5 to this Act, section 47(1) of this Act shall come into force on the day on which this Act is passed.

(5) Subject to subsection (6) below, this Act extends to Scotland only.

(6) This section and the following provisions of this Act also extend to England and Wales—

• section 12(2);

• section 14(4);

• section 15;

• section 16(1) and (3);

• section 27;

• section 46; and

• in section 47, subsection (1) in so far as relating to paragraphs 1(38) and 3 of Schedule 5, and subsection (3) in so far as relating to the entry in Schedule 7 in respect of the M21 Criminal Justice Act 1991.

(7) Nothing in subsection (5) above affects the extent of this Act in so far as it amends or repeals any provision of the M22 Army Act 1955, the M23 Air Force Act 1955 or the M24 Naval Discipline Act 1957.

Subordinate Legislation Made

P1 S. 48(2)(3) power fully exercised (16.8.1993): 18.8.1993, 18.9.1993, 1.10.1993 and 1.1.1994 appointed days by S.I. 1993/2050 (subject to saving in arts. 4-10)

Marginal Citations

M21 1991 c. 53.

M22 1955 c. 18.

M23 1955 c. 19.

M24 1957 c. 53.

SCHEDULES

Section 1(8).

SCHEDULE 1 S Consecutive and Concurrent Terms of Imprisonment

General S

1 S This Schedule applies as respects the release of a person on whom there has been imposed—

(a) a term of imprisonment on conviction of an offence (“his offence term”); and

(b) a term of imprisonment or detention mentioned in section 5(1)(a) or (b) of this Act (“his non-offence term”).

Consecutive terms of imprisonment S

2 Where his offence term and his non-offence term are consecutive—

(a) his offence term shall be taken to precede his non-offence term;

(b) notwithstanding section 1(1) to (3) of this Act, he shall not be released when he has served the proportion of his offence term mentioned in whichever of those subsections is (or are) relevant to the term in question but when he falls to be released by virtue of the application of section 5 of this Act to his non-offence term; and

(c) his non-offence term shall be taken as beginning on the date on which he would have been released under section 1(1) to (3) but for sub-paragraph (b) above.

Yn ddilys o 02/04/2006

[F19 Concurrent terms of imprisonment S

Textual Amendments

F19 Sch. 1 paras. 2, 2A and cross-heading to para. 2A substituted for Sch. 1 para. 2 (2.4.2006) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 32(3)(a), 89(2); S.S.I. 2006/85, art. 1(2)

2A S Where his offence term and his non-offence term are wholly or partly concurrent, section 1(1) to (3) of this Act (so far as relevant to the term in question and whether or not modified by section 5(2) of this Act or as read with section 220 of the 1995 Act (reduction of term in certain circumstances)) shall apply separately to each term (that is to say, in particular, he may be released as respects one of the terms even if he is not for the time being eligible for release as respects the other term).]

Wholly concurrent terms of imprisonment S

3 Where his offence term and his non-offence term are wholly concurrent—

(a) only the offence term shall be taken into account for the purposes of the provisions of this Part of this Act relating to his release; but

(b) he shall not be released under section 1(3) of this Act.

Partly concurrent terms of imprisonment S

4 Where his offence term and his non-offence term are partly concurrent—

(a) section 1(1) or (2), or as the case may be those provisions as modified by section 5(2), of this Act shall apply in relation to the term which is due to expire later and shall not apply to the term which is due to expire first; and

(b) if the term due to expire later is his offence term, section 1(3) of this Act shall apply in relation to it only if the person has served such proportion of his non-offence term as would, but for sub-paragraph (a) above, entitle him to release under section 1(1) or (2), as modified by section 5(2), of this Act.

Section 20(6).

SCHEDULE 2 S The Parole Board

Modifications etc. (not altering text)

C26 Ss. 1, 1A, 2(4), 3A, 5, 6(1)(a)(b)(i)(iii), 7, 9, 16, 20, 21, 26A, 27, Schs. 2, 6 extended (30.9.1998) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6) (subject to art. 5) (as amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(5)(a)(d)(f)(6)(a)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2, 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)(4), Sch. 5 paras. 11(1)(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

Membership S

1 S The Parole Board shall consist of a chairman and not less than four other members appointed by the Secretary of State.

Yn ddilys o 27/07/2001

[F20 1A S In making those appointments, the Scottish Ministers shall comply with such requirements as to procedure and consultation as may be prescribed in regulations made by them.]

Textual Amendments

F20 Sch. 2 paras. 1A, 1B inserted (27.7.2001) by 2001 asp 7, s. 5(2) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(1)(e)

Yn ddilys o 27/07/2001

[F21 1B S In making regulations under paragraph 1A above, the Scottish Ministers may make different provision for different kinds of members of the Board, including the kinds of members having the respective qualifications for office specified in paragraph 2 below.]

Textual Amendments

F21 Sch. 2 paras. 1A, 1B inserted (27.7.2001) by 2001 asp 7, s. 5(2) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(1)(e)

2 S The Parole Board shall include among its members—

(a) a Lord Commissioner of Justiciary;

(b) a registered medical practitioner who is a psychiatrist;

(c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or aftercare of discharged prisoners; and

(d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders.

Yn ddilys o 08/10/2001

Limitation, termination etc. of appointment of members S

[F22 2A An appointment as a member of the Parole Board shall, subject to paragraphs 2B to 2D below, last for such period, being not shorter than six years nor longer than seven years, as is specified in the instrument of appointment.]

Textual Amendments

F22 Sch. 2 paras. 2A-2J inserted (8.10.2001) by 2001 asp 7, s. 5(3) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F23 2B S A member of the Parole Board may resign at any time by giving notice to that effect to the Scottish Ministers.

Textual Amendments

F23 Sch. 2 paras. 2A-2J inserted (8.10.2001) by 2001 asp 7, s. 5(3) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F24 2C S An appointment of a person as a member of the Parole Board shall not extend beyond the day when the person reaches the age of 75.

Textual Amendments

F24 Sch. 2 paras. 2A-2J inserted (8.10.2001) by 2001 asp 7, s. 5(3) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F25 2D S The appointment of a member of the Parole Board shall come to an end upon the member’s being removed from office under paragraph 3 below.

Textual Amendments

F25 Sch. 2 paras. 2A-2J inserted (8.10.2001) by 2001 asp 7, s. 5(3) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F26 2E S A person may be reappointed to be a member of the Parole Board but only if—

(a) three years or more have passed since the person ceased to be a member of the Parole Board; and

(b) the person has not previously been reappointed under this paragraph.

Textual Amendments

F26 Sch. 2 paras. 2A-2J inserted (8.10.2001) by 2001 asp 7, s. 5(3) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F27 2F S A person whose membership of the Parole Board came to an end by resignation under paragraph 2B above may be reappointed under paragraph 2E above.

Textual Amendments

F27 Sch. 2 paras. 2A-2J inserted (8.10.2001) by 2001 asp 7, s. 5(3) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F28 2G S A person whose membership of the Parole Board came to an end on removal from office under paragraph 3 below shall not be reappointed.

Textual Amendments

F28 Sch. 2 paras. 2A-2J inserted (8.10.2001) by 2001 asp 7, s. 5(3) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F29 2H S The provisions of paragraphs 1 to 2D above apply to a reappointment under paragraph 2E above as they apply to an appointment.

Textual Amendments

F29 Sch. 2 paras. 2A-2J inserted (8.10.2001) by 2001 asp 7, s. 5(3) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F30 Performance of duties S

2J The Chairman of the Parole Board shall have regard to the desirability of securing that every member of the Parole Board is given the opportunity of participating appropriately in the functions of the Board under this Act on not fewer than 20 days in each successive period of 12 months beginning with the day of the member’s appointment as such.

Textual Amendments

F30 Sch. 2 paras. 2A-2J inserted (8.10.2001) by 2001 asp 7, s. 5(3) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

3 A member of the Parole Board shall hold and vacate office under the terms of the instrument by which he is appointed, but may at any time resign his office; and a person who ceases to hold office as a member of the Parole Board shall be eligible for reappointment.

Yn ddilys o 08/10/2001

F31 3A S The tribunal may order the removal from office of a member only if, after investigation carried out at the request of the Scottish Ministers, it finds that the member is unfit for office by reason of inability, neglect of duty or misbehaviour.

Textual Amendments

F31 Sch. 2 paras. 3-3D substituted for Sch. 2 para. 3 (8.10.2001) by 2001 asp 7, s. 5(4) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F32 3B S The tribunal shall consist of the following three members, who shall be appointed by the Lord President of the Court of Session—

(a) either a Senator of the College of Justice or a sheriff principal (who shall preside);

(b) a person who is, and has been for at least ten years, legally qualified; and

(c) one other person who shall not be legally qualified.

Textual Amendments

F32 Sch. 2 paras. 3-3D substituted for Sch. 2 para. 3 (8.10.2001) by 2001 asp 7, s. 5(4) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F33 3C S For the purposes of paragraph 3B above, a person is legally qualified if that person is an advocate or a solicitor.

Textual Amendments

F33 Sch. 2 paras. 3-3D substituted for Sch. 2 para. 3 (8.10.2001) by 2001 asp 7, s. 5(4) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Yn ddilys o 08/10/2001

F34 3D S Regulations, made by the Scottish Ministers—

(a) may make provision enabling the tribunal, at any time during an investigation, to suspend a member from office and providing as to the effect and duration of such suspension; and

(b) shall make such further provision as respects the tribunal as the Scottish Ministers consider necessary or expedient, including provision for the procedure to be followed by and before it.

Textual Amendments

F34 Sch. 2 paras. 3-3D substituted for Sch. 2 para. 3 (8.10.2001) by 2001 asp 7, s. 5(4) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(3)

Remuneration and allowances S

4 There shall be paid to the members of the Board such remuneration and allowances as the Secretary of State may with the consent of the Treasury determine.

5 S The expenses of the Board under paragraph 4 above and any other expenses incurred by the Board in discharging the functions mentioned in section 20(1) of this Act shall be defrayed by the Secretary of State.

Reports S

6 S The Board shall as soon as practicable after the end of each year make to the Secretary of State a report on the performance of its functions during that year, and the Secretary of State shall lay a copy of the report before Parliament.

Yn ddilys o 27/07/2001

Regulations S

[F35 6A Regulations under paragraphs 1A and 3D above shall be made by statutory instrument.]

Textual Amendments

F35 Sch. 2 paras. 6A, 6B inserted (27.7.2001) by 2001 asp 7, s. 5(5) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(1)(e)

Yn ddilys o 27/07/2001

F36 6B S No such regulations shall be made unless laid in draft before, and approved by resolution of, the Scottish Parliament.

Textual Amendments

F36 Sch. 2 paras. 6A, 6B inserted (27.7.2001) by 2001 asp 7, s. 5(5) (with Sch. paras. 79-83); S.S.I. 2001/274, art. 3(1)(e)

Section 29.

SCHEDULE 3 S Documentary Evidence in Criminal Proceedings

Production of copy documents S

1 (1) For the purposes of any criminal proceedings a copy of, or of a material part of, a document, purporting to be authenticated in such manner and by such person as may be prescribed, shall unless the court otherwise directs, be—

(a) deemed a true copy; and

(b) treated for evidential purposes as if it were the document, or the material part, itself,

whether or not the document is still in existence.

(2) For the purposes of this paragraph it is immaterial how many removes there are between a copy and the original.

(3) In this paragraph, “copy” includes a transcript or reproduction.

Statements in business documents S

2 (1) Except where it is a statement such as is mentioned in paragraph 3(b) and (c) below, a statement in a document shall be admissible in criminal proceedings as evidence of any fact or opinion of which direct oral evidence would be admissible, if the following conditions are satisfied—

(a) the document was created or received in the course of, or for the purposes of, a business or undertaking or in pursuance of the functions of the holder of a paid or unpaid office;

(b) the document is, or at any time was, kept by a business or undertaking or by or on behalf of the holder of such an office; and

(c) the statement was made on the basis of information supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in it.

(2) Sub-paragraph (1) above applies whether the information contained in the statement was supplied directly or indirectly unless, in the case of information supplied indirectly, it appears to the court that any person through whom it was so supplied did not both receive and supply it in the course of a business or undertaking or as or on behalf of the holder of a paid or unpaid office.

(3) Where in any proceedings a statement is admitted as evidence by virtue of this paragraph—

(a) any evidence which, if—

(i) the maker of the statement; or

(ii) where the statement was made on the basis of information supplied by another person, such supplier,

had been called as a witness, would have been admissible as relevant to the witness’s credibility shall be so admissible in those proceedings;

(b) evidence may be given of any matter which, if the maker or as the case may be the supplier had been called as a witness, could have been put to him in cross-examination as relevant to his credibility but of which evidence could not have been adduced by the cross-examining party; and

(c) evidence tending to prove that the maker or as the case may be the supplier, whether before or after making the statement or supplying the information on the basis of which the statement was made, made (in whatever manner) some other representation which is inconsistent with the statement shall be admissible for the purpose of showing that he has contradicted himself.

(4) In sub-paragraph (3)(c) above, “representation” does not include a representation in a precognition.

3 A statement in a document shall be admissible in criminal proceedings as evidence of the fact that the statement was made if—

(a) the document satisfies the conditions mentioned in sub-paragraph (1)(a) and (b) of paragraph 2 above;

(b) the statement is made, whether directly or indirectly, by a person who in those proceedings is an accused; and

(c) the statement, being exculpatory only, exculpates the accused.

Documents kept by businesses etc. S

4 Unless the court otherwise directs, a document may in any criminal proceedings be taken to be a document kept by a business or undertaking or by or on behalf of the holder of a paid or unpaid office if it is certified as such by a docquet in the prescribed form and purporting to be authenticated, in such manner as may be prescribed—

(a) by a person authorised to authenticate such a docquet on behalf of the business or undertaking by which; or

(b) by, or by a person authorised to authenticate such a docquet on behalf of, the office-holder by whom,

the document was kept.

Statements not contained in business documents S

5 (1) In any criminal proceedings, the evidence of an authorised person that a document which satisfies the conditions mentioned in paragraph 2(1)(a) and (b) above does not contain a relevant statement as to a particular matter (or that no document, within a category of documents satisfying those conditions, contains such a statement) shall be admissible evidence whether or not the whole or any part of that document (or of the documents within that category and satisfying those conditions) has been produced in the proceedings.

(2) For the purposes of sub-paragraph (1) above, a relevant statement is a statement which is of the kind mentioned in paragraph 2(1)(c) above and which, in the ordinary course of events, the document (or the document had there been one) might reasonably have been expected to contain.

(3) The evidence referred to in sub-paragraph (1) above may, unless the court otherwise directs, be given by means of a certificate by the authorised person in the prescribed form and purporting to be authenticated in such manner as may be prescribed.

(4) In this paragraph, “authorised person” means a person authorised to give evidence—

(a) on behalf of the business or undertaking by which; or

(b) as or on behalf of the office-holder by or on behalf of whom,

the document is or was kept.

Additional evidence where evidence from business documents challenged S

6 (1) This sub-paragraph applies where—

(a) evidence has been admitted by virtue of paragraph 2(3) above; or

(b) the court has made a direction under paragraph 1(1), 4 or 5(3) above.

(2) Where sub-paragraph (1) above applies in solemn criminal proceedings the judge may, without prejudice to sections 149 and 149A of the 1975 Act, on a motion of the prosecutor or defence at any time before the commencement of the speeches to the jury, permit him to lead additional evidence of such description as the judge may specify.

(3) Subsections (2) and (3) of section 149 of the 1975 Act shall apply in relation to sub-paragraph (2) above as they apply in relation to subsection (1) of that section.

(4) Where sub-paragraph (1) above applies in summary criminal proceedings the judge may, without prejudice to sections 350 and 350A of the 1975 Act, on a motion of the prosecutor or defence after the close of that party’s evidence and before the prosecutor proceeds to address the judge on the evidence, permit that party to lead additional evidence of such description as the judge may specify.

(5) Subsections (2) and (3) of section 350 of the 1975 Act shall apply in relation to sub-paragraph (4) above as they apply in relation to subsection (1) of that section.

General S

7 (1) Nothing in this Schedule—

(a) shall prejudice the admissibility of a statement made by a person other than in the course of giving oral evidence in court which is admissible otherwise than by virtue of this Schedule;

(b) shall affect the operation of the M25 Bankers’ Books Evidence Act 1879;

(c) shall apply to—

(i) proceedings commenced; or

(ii) where the proceedings consist of an application to the sheriff by virtue of section 42(2)(c) of the M26 Social Work (Scotland) Act 1968, an application made,

before this Schedule comes into force.

(2) For the purposes of sub-paragraph (1)(c)(i) above, solemn proceedings are commenced when the indictment is served.

(3) In section 6 of the M27 Bankers’ Books Evidence Act 1879 (case in which banker not compellable to produce book), after the word “1988” there shall be inserted the words “ or Schedule 3 to the Prisoners and Criminal Proceedings (Scotland) Act 1993 ”.

Marginal Citations

M25 1879 c. 11.

M26 1968 c. 49.

M27 1879 c. 11.

8 In this Schedule—

• “business” includes trade, profession or other occupation;

• “criminal proceedings” includes any hearing by the sheriff under section 42 of the Social Work (Scotland) Act 1968 of an application for a finding as to whether grounds for the referral of a child’s case to a children’s hearing are established, in so far as the application relates to the commission of an offence by the child;

• “document” includes, in addition to a document in writing—

  (a)

  any map, plan, graph or drawing;

  (b)

  any photograph;

  (c)

  any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

  (d)

  any film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom;

• “film” includes a microfilm;

• “made” includes allegedly made;

• “prescribed” means prescribed by Act of Adjournal;

• “statement” includes any representation (however made or expressed) of fact or opinion, including an instruction, order or request, but, except in paragraph 7(1)(a), does not include a statement which falls within one or more of the following descriptions—

  (a)

  a statement in a precognition;

  (b)

  a statement made for the purposes of or in connection with—

(i) pending or contemplated criminal proceedings; or

(ii) a criminal investigation; or

(c) a statement made by an accused person in so far as it incriminates a co-accused; and

“undertaking” includes any public or statutory undertaking, any local authority and any government department.

Section 37.

SCHEDULE 4 S Certificates as to Proof of Certain Routine Matters

1 Schedule 1 to the 1980 Act (which makes provision as regards the sufficiency of evidence by certificate in certain routine matters) shall be amended as follows.

2 For the entry relating to the Wireless Telegraphy Act 1949, there shall be substituted the following entries—

“The Wireless Telegraphy Act 1949 (c. 54)	A person authorised to do so by the British Broadcasting Corporation.	In relation to an address specified in the certificate, whether on a date so specified any television licence (within the meaning of that Act) was, in records maintained on behalf of the Corporation in relation to such licences, recorded as being in force; and, if so, particulars so specified of such record of that licence.
Section 1 in so far as it relates to the installation or use of a television receiver (within the meaning of that Act); and section 1A in so far as it relates to an intended such use.
The Firearms Act 1968 (c.27)	A person authorised to do so by the Secretary of State.	In relation to a person identified in the certificate, that on a date specified therein—(a) he held, or as the case may be did not hold, a firearm certificate or shotgun certificate (within the meaning of that Act);(b) he possessed, or as the case may be did not possess, an authority (which, as regards a possessed authority, shall be described in the certificate) given under section 5 of that Act by the Secretary of State.”.

3 After the entry relating to the Immigration Act 1971, there shall be inserted the following entry—

“The Control of Pollution Act 1974 (c.40)	Two persons authorised to do so by a river purification authority (within the meaning of that Act).	That they have analysed a sample identified in the certificate (by label or otherwise) and that the sample is of a nature and composition specified in the certificate.
Section 31(1) (permitting poisonous, noxious or polluting matter to enter controlled waters, etc.), 32(1) (permitting trade effluent or sewage effluent to be discharged into such waters, etc.) or 49(1)(a) (causing accumulated deposit to be carried away in suspension in inland waters) or regulations under section 31(4) (prohibition on carrying on without consent certain activities likely to pollute waters in designated areas).”

4 For the entry relating to the Supplementary Benefits Act 1976, there shall be substituted the following entry—

“The Licensing (Scotland) Act 1976 (c.66)

A person authorised to do so by the Secretary of State.

In relation to a person identified in the certificate, that on a date specified therein he held, or as the case may be did not hold, a licence granted under that Act.”

5 After the entry relating to the Customs and Excise Management Act 1979, there shall be inserted the following entry—

“The Bail etc. (Scotland) Act 1980 (c.4)

The Clerk of Justiciary or the clerk of court.

In relation to a person identified in the certificate— (a) that on a date specified therein an order granting bail was made by a court so specified; and (b) that on a date so specified that order, or a condition thereof so specified, was in force.”

6 After the entry relating to the Forgery and Counterfeiting Act 1981, there shall be inserted the following entry—

“The Civic Government (Scotland) Act 1982 (c.45)

A person authorised to do so by the Secretary of State.

In relation to a person identified in the certificate, that on a date specified therein he held, or as the case may be did not hold, a licence under a provision so specified of that Act.”

7 At the end there shall be added the following entry—

“The Social Security Administration Act 1992 (c.5)

A person authorised to do so by the Secretary of State.

In relation to a person identified in the certificate— (a) the assessment, award, or nature of any benefit applied for by him; (b) the transmission or handing over of any payment to him.”.

Section 47(1).

SCHEDULE 5 E+W+S Minor and Consequential Amendments

Criminal Procedure (Scotland) Act 1975 (c. 21) E+W+S

1 (1) The Criminal Procedure (Scotland) Act 1975 shall be amended as follows.

(2) In section 20B (record of proceedings at judicial examination)—

(a) in subsection (1), for the words “a shorthand writer” there shall be substituted the words “ means of shorthand notes or by mechanical means ”;

(b) after subsection (1), there shall be inserted the following subsections—

“(1A) A shorthand writer shall—

(a) sign the shorthand notes taken by him of the questions, answers and declarations mentioned in subsection (1) above and certify the notes as being complete and correct; and

(b) retain the notes.

(1B) A person recording the questions, answers and declarations mentioned in subsection (1) above by mechanical means shall—

(a) certify that the record is true and complete;

(b) specify in the certificate the proceedings to which the record relates; and

(c) retain the record.

(1C) The prosecutor shall require the person who made the record mentioned in subsection (1) above, or such other competent person as he may specify, to make a transcript of the record in legible form; and that person shall—

(a) comply with the requirement;

(b) certify the transcript as being a complete and correct transcript of the record purporting to have been made and certified, and in the case of shorthand notes signed, by the person who made the record; and

(c) send the transcript to the prosecutor.”; and

(c) for subsection (2) there shall be substituted the following subsection—

“(2) A transcript certified under subsection (1C)(b) above shall, subject to subsection (4) below, be deemed for all purposes to be a complete and correct record of the questions, answers and declarations mentioned in subsection (1) above.”.

(3) In section 76(1)(b) (notice of intention to submit plea in bar of trial or to make certain preliminary applications), after the word “trials” there shall be inserted the words “ or to raise a preliminary objection under section 67 of this Act ”.

(4) In section 108(2) (certain preliminary objections competent only where notice given)—

(a) the word “and” at the end of paragraph (b) shall cease to have effect; and

(b) after paragraph (c) there shall be inserted the following— “; and

(d) no preliminary objection under section 67 of this Act shall be raised,”.

(5) After section 137 there shall be inserted the following section—

“137A Verdict by judge alone.

“137A (1) Where, at any time after the jury has been sworn to serve in any trial, the prosecutor intimates to the court that he does not intend to proceed in respect of an offence charged in the indictment, the judge shall acquit the accused of that offence and the trial shall proceed only in respect of any other offence charged in the indictment.

(2) Where, at any time after the jury has been sworn to serve in any trial, the accused intimates to the court that he is prepared to tender a plea of guilty as libelled, or such other plea as the Crown is prepared to accept, in respect of any offence charged in the indictment, the judge shall accept the plea tendered and shall convict the accused accordingly.

(3) Where an accused is convicted under subsection (2) above of an offence—

(a) the trial shall proceed only in respect of any other offence charged in the indictment; and

(b) without prejudice to any other power of the court to adjourn the case or to defer sentence, the judge shall not sentence him or make any other order competent following a conviction until a verdict has been returned in respect of every offence mentioned in paragraph (a) above.”.

(6) In each of sections 179(1) (power of court in solemn proceedings to adjourn case before sentence) and 380(1) (corresponding power in summary proceedings), in the proviso, for the words “three weeks” there shall be substituted the following paragraphs—

“(a) where the accused is remanded in custody, three weeks; or

(b) where he is remanded on bail or is ordained to appear, eight weeks but only on cause shown and otherwise four weeks”.

(7) In each of sections 186 (breach of probation order imposed in solemn proceedings) and 387 (corresponding provision as regards summary proceedings), after subsection (2) there shall be inserted the following subsection—

“(2A) for the purposes of subsection (2) above, evidence of one witness shall be sufficient evidence.”.

(8) In section 205A(1) (recommendation as to minimum period of detention for person convicted of murder), for the words “26 of the Prisons (Scotland) Act 1989” there shall be substituted the words “ 1(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ”.

(9) In section 233(1) (note of appeal), the existing words from “within six weeks” to the end shall be paragraph (a) and after that paragraph there shall be added the word “ ; or ” and the following paragraph—

“(b) as the case may be, within four weeks of the passing of the sentence in open court, the Lord Advocate may lodge such a note with the Clerk of Justiciary, who shall send a copy to the said judge and to the convicted person or that person’s solicitor.”.

(10) In section 234(1) (presentation of appeal in writing), after the word “appellant” there shall be inserted the words “ other than the Lord Advocate ”.

(11) In section 236B(2) (extension of certain periods), for the words “233(1)” there shall be substituted the words “ 233(1)(a) ”.

(12) In section 236C (signing of documents), after the words “to appeal” there shall be inserted the words “ or (except where the appellant is the Lord Advocate) any ”.

(13) In section 238 (admission of appellant to bail), for subsections (1) and (2) there shall be substituted the following subsections—

“(1) The High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of—

(a) his appeal; or

(b) any appeal by the Lord Advocate against the sentence passed on conviction.

(2) A person who is admitted to bail under subsection (1) above shall, unless the High Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal or of any application for leave to appeal; and in the event of his failing to do so the court may—

(a) if he is the appellant—

(i) decline to consider the appeal or application; and

(ii) dismiss it summarily; or

(b) whether or not he is the appellant—

(i) consider and determine the appeal or application; or

(ii) without prejudice to section 3 of the Bail etc. (Scotland) Act 1980 (breach of conditions), make such other order as the court thinks fit.”.

(14) In section 239(1) (notice of date of hearing), for—

(a) the words “appellant or applicant”, in both places where they occur, there shall be substituted the words “ convicted person ”; and

(b) the word “latter”, there shall be substituted the words “ appellant or applicant ”.

(15) In section 240 (presence of appellant at hearing), for the word “An”, where it first occurs, there shall be substituted the words “ A convicted ”.

(16) After section 242 there shall be inserted the following section—

“242A Special provision where appellant is Lord Advocate.

Where the Lord Advocate is the appellant, sections 241 and 242 of this Act shall apply in respect of the convicted person, if in custody, as they apply to an appellant or applicant in custody.”.

(17) In section 243 (provision as to warders attending court), for the words “the last foregoing section” there shall be substituted the words “ section 242 of this Act ”.

(18) In section 252 (powers of High Court), after the words “228(1)” there shall be inserted the words “ or 228A ”.

(19) In section 258 (sentence in absence), after the word “appellant” there shall be inserted the words “ (or, where the Lord Advocate is the appellant, the convicted person) ”.

(20) In section 261 (notice of determination of appeal), after the word “applicant” there shall be inserted the words “ (or, where the Lord Advocate is the appellant, to the convicted person) ”.

(21) In section 264 (disqualification, forfeiture, etc), in each of subsections (1) and (2)—

(a) for the word “two” there shall be substituted the word “ four ”; and

(b) after the words “228(1)(b)” there shall be inserted the words “ or 228A ”.

(22) In section 265 (fines and caution), after subsection (4) there shall be inserted the following subsection—

“(4A) A convicted person who has been sentenced to the payment of a fine and has duly paid it shall, if an appeal against sentence by the Lord Advocate results in the sentence being quashed and no fine, or a lesser fine than that paid, being imposed, be entitled, subject to any order of the High Court, to the return of the sum paid or as the case may be to the return of the amount by which that sum exceeds the amount of the lesser fine.”.

(23) In section 268 (reckoning of time spent in custody pending appeal)—

(a) in subsection (1)—

(i) for the words “an appellant” there shall be substituted the words “ a convicted person ”;

(ii) after the word “appeal” there shall be inserted the words “ , or as the case may be of any appeal by the Lord Advocate against the sentence passed on conviction, ”; and

(iii) for the word “this”, where it occurs qualifying the word “sentence”, there shall be substituted the word “ that ”;

(b) for subsection (2) there shall be substituted the following subsection—

“(2) The time (including any period consequent on the recall of bail) during which a convicted person is in custody pending the determination of his appeal, or as the case may be of any appeal by the Lord Advocate against the sentence passed on conviction, shall subject to any direction which the High Court may give to the contrary be reckoned as part of any term of imprisonment under that sentence.”; and

(c) in subsection (3), after the word “appellant” there shall be inserted the words “ (or, where the appellant is the Lord Advocate, of a convicted person) ”.

(24) In section 269 (extract convictions)—

(a) for the word “two” there shall be substituted the word “ four ”; and

(b) after the words “228(1)(b)” there shall be inserted the words “ or 228A ”.

(25) In section 270 (custody of trial documents, etc.)—

(a) in subsection (2)—

(i) for the words from the beginning to “proceedings” there shall be substituted the words “ Until any period allowed under or by virtue of this Part of this Act for lodging intimation of intention to appeal (or any longer period allowed by virtue thereof for lodging a note of appeal) has elapsed, all documents and other productions produced at the trial of a convicted person shall be kept ”;

(ii) after the words “228(1)(b)” there shall be inserted the words “ or 228A ”; and

(iii) the words “of two weeks or any extension thereof authorised by the High Court” shall cease to have effect;

(b) in subsection (3)—

(i) after the words “228(1)(b)” there shall be inserted the words “ or 228A ”; and

(ii) for the words “to his” there shall be substituted the words “ , as the case may be, to the convicted person’s ”; and

(c) in subsection (4)—

(i) after the words “228(1)(b)” there shall be inserted the words “ or 228A ”; and

(ii) for the words “such period of two weeks or extension thereof as aforesaid” there shall be substituted the words “ the period mentioned in subsection (2) above ”.

(26) In section 273(1) (register of appeals), after the words “228(1)(b)” there shall be inserted the words “ or 228A ”.

(27) For sections 274 and 275 (short hand notes of trial etc.) there shall be substituted the following sections—

“274 Record of trial.

“274 (1) The proceedings at the trial of any person who, if convicted, is entitled to appeal under this Part of this Act shall be recorded by means of shorthand notes or by mechanical means.

(2) A shorthand writer shall—

(a) sign the shorthand notes taken by him of such proceedings and certify them as being complete and correct; and

(b) retain the notes.

(3) A person recording such proceedings by mechanical means shall—

(a) certify that the record is true and complete;

(b) specify in the certificate the proceedings (or, as the case may be, the part of the proceedings) to which the record relates; and

(c) retain the record.

(4) The cost of making a record under subsection (1) above shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of money provided by Parliament.

(5) In subsection (1) above “proceedings at the trial” means the whole proceedings including (without prejudice to that generality)—

(a) discussions—

(i) on any objection to the relevancy of the indictment;

(ii) with respect to any challenge of jurors; and

(iii) on all questions arising in the course of the trial;

(b) the decision of the court on any matter referred to in paragraph (a) above;

(c) the evidence led at the trial;

(d) any statement made by or on behalf of the accused whether before or after the verdict;

(e) the summing up by the judge;

(f) the speeches of counsel or agent;

(g) the verdict of the jury; and

(h) the sentence by the judge.

275 Transcripts of record and documentary productions.

275 (1) The Clerk of Justiciary may direct that a transcript of a record made under section 274(1) of this Act, or any part thereof, be made and delivered to him for the use of any judge.

(2) Subject to subsection (3) below, the Clerk of Justiciary shall, if he is requested to do so by—

(a) the Secretary of State; or

(b) any other person on payment of such charges as may be fixed for the time being by the Treasury,

direct that such a transcript be made and sent to the person who requested it.

(3) The Secretary of State may, after consultation with the Lord Justice General, by order made by statutory instrument provide that in any class of proceedings specified in the order the Clerk of Justiciary shall only make a direction under subsection (2)(b) above if satisfied that the person requesting the transcript is of a class of person so specified and, if purposes for which the transcript may be used are so specified, intends to use it only for such a purpose; and different purposes may be so specified for different classes of proceedings or classes of person.

(4) Where subsection (3) above applies as respects a direction, the person to whom the transcript is sent shall, if purposes for which that transcript may be used are specified by virtue of that subsection, use it only for such a purpose.

(5) A statutory instrument containing an order under subsection (3) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) A direction under subsection (1) or (2) above may require that the transcript be made by the person who made the record or by such competent person as may be specified in the direction; and that person shall comply with the direction.

(7) A transcript made in compliance with a direction under subsection (1) or (2) above—

(a) shall be in legible form; and

(b) shall be certified by the person making it as being a correct and complete transcript of the whole or, as the case may be, the part of the record purporting to have been made and certified, and in the case of shorthand notes signed, by the person who made the record.

(8) The cost of making a transcript in compliance with a direction under subsection (1) or (2)(a) above shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of money provided by Parliament.

(9) The Clerk of Justiciary shall, on payment of such charges as may be fixed for the time being by the Treasury, provide a copy of any documentary production lodged in connection with an appeal under this Part of this Act to such of the following persons as may request it—

(a) the prosecutor;

(b) any person convicted in the proceedings;

(c) any other person named in, or immediately affected by, any order made in the proceedings; and

(d) any person authorised to act on behalf of any of the persons mentioned in paragraphs (a) to (c) above.”.

(28) In section 276 (minute book entry regarding appointment of shorthand writer), for the words from “taken” to the end there shall be substituted the words “ recorded by means of (specify means) and appointed (name), (designation), (address), to do so. ”.

(29) In section 277(2) (list of provisions non-compliance with which may be waived), in the first column, under the entry relating to section 242, there shall be inserted the entry “ 242A ”.

(30) In section 334(1) (procedure at first diet)—

(a) after the word “prosecution” there shall be inserted the words “ (whether or not a diet fixed by virtue of section 333A of this Act) ”; and

(b) after the words “he shall” there shall be inserted the words “ , unless the court adjourns (or further adjourns) the case under the said section 333A, ”.

(31) In section 350(1) (additional evidence)—

(a) for the words “after the close of that party’s evidence and” there shall be substituted the words “ at any time ”; and

(b) in paragraph (b), for the words “time the party’s evidence was closed” there shall be substituted the words “ commencement of the trial ”.

(32) In section 413 (detention of children in summary proceedings)—

(a) in subsection (1)—

(i) the words “for such period, not exceeding one year, as the sheriff may determine” shall cease to have effect; and

(ii) at the end there shall be added the words “ and shall, when making any such order, specify therein a period not exceeding one year ”; and

(b) in subsection (7), after the word “(1)” there shall be inserted the words “ (or (6B)) ”.

(33) In section 442(1)(b)(ii) (prosecutor’s appeal against sentence on point of law), for the words “in such proceedings” there shall be substituted the words “ on such conviction ”.

(34) In section 442B (method of appeal against sentence alone)—

(a) after the words “Where a” there shall be inserted the word “ convicted ”;

(b) after the word “Act”, where it first occurs, there shall be inserted the words “ , or the prosecutor desires so to appeal by virtue of section 442(1)(c) thereof, ”; and

(c) for the proviso there shall be substituted the words “ ; but nothing in this section shall prejudice any right to proceed by bill of suspension, or as the case may be advocation, against an alleged fundamental irregularity relating to the imposition of the sentence. ”.

(35) In section 452A (disposal of stated case appeal)—

(a) in subsection (1), after the word “subject” there shall be inserted the words “ to subsection (2) below and ”; and

(b) for subsection (2) there shall be substituted the following subsection—

“(2) The High Court shall, in an appeal—

(a) against both conviction and sentence, subject to section 453D(1) of this Act, dispose of the appeal against sentence; or

(b) by the prosecutor, against sentence, dispose of the appeal,

by exercise of the power mentioned in section 453C(1) of this Act.”.

(36) In section 453B (appeals against sentence only)—

(a) in each of subsections (1), (7) and (8), after the words “442(1)(a)(ii)” there shall be inserted the words “ , or by virtue of section 442(1)(c), ”;

(b) for subsection (2) there shall be substituted the following subsection—

“(2) The note of appeal shall, where the appeal is—

(a) under section 442(1)(a)(ii) be lodged, within one week of the passing of the sentence, with the clerk of the court from which the appeal is to be taken; or

(b) by virtue of section 442(1)(c) be so lodged within four weeks of such passing.”;

(c) in subsection (6), for the word “(2)” there shall be substituted the words “ (2)(a) ”; and

(d) in subsection (8), at the end, there shall be added the words “ except that, for the purposes of such application to any appeal by virtue of section 442(1)(c), references in subsections (1) to (3) of section 446 to the appellant shall be construed as references to the convicted person and subsections (4) and (5) of section 446 shall be disregarded ”.

(37) In section 453C(3) (powers of High Court at time of disposal of appeal)—

(a) after the words “442(1)(a)(ii)” there shall be inserted the words “ , or by virtue of section 442(1)(c), ”; and

(b) for the word “appellant”, in each place where it occurs, there shall be substituted the words “ convicted person ”.

(38) In section 463(1) (application to England and Wales), in paragraph (a) for the words “and 189” there shall be substituted the words “ 189 and 212A(2) and (6) ”.

Commencement Information

I7 Sch. 5 para. 1 not in force at Royal Assent see s. 48(2). Sch. 5 para. 1(27) in force for certain purposes at 18.8.1993, para. 1(3)(4)(5)(6)(28)(30)(31) in force at 18.9.1993 and para. 1 wholly in force at 1.10.1993 by S.I. 1993/2050, art. 3(2)(3)(4)(subject to savings in arts. 4, 5, 10)

Mental Health (Scotland) Act 1984 (c. 36) S

2 (1) Section 65 of the Mental Health (Scotland) Act 1984 (appeal to sheriff by patient in respect of whom restriction direction has been given) shall be amended as follows.

(2) In subsection (1)(b), for the words “in the event of the patient’s not being released on licence or discharged under supervision under subsection (2)(b)(ii) of this section he” there shall be substituted the words “ the patient ”.

(3) For subsection (2) there shall be substituted the following subsection—

“(2) If the sheriff notifies the Secretary of State—

(a) that the patient would be entitled to be absolutely discharged, the Secretary of State shall by warrant direct that the patient be remitted to any prison or other institution or place in which he might have been detained had he not been removed to hospital and that he shall be dealt with there as if he had not been so removed;

(b) that the patient would be entitled to be conditionally discharged, the Secretary of State may—

(i) by warrant give such direction as is mentioned in paragraph (a) above; or

(ii) decide that the patient should continue to be detained in a hospital,

and (if a direction is given under this subsection) on the person’s arrival in the prison or other institution or place to which remitted by virtue of this subsection, the restriction direction, together with the transfer direction given in respect of the person, shall cease to have effect.”.

Repatriation of Prisoners Act 1984 (c. 47) S

3 (1) The Repatriation of Prisoners Act 1984 shall be amended as follows. S

(2) In section 2 (transfer of prisoners out of United Kingdom), in subsection (4)(b), for sub-paragraph (ii) there shall be substituted the following sub-paragraph—

“(ii) released on licence under section 1(2), (3) or (4), 2(4) or 7(1) or (2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993;”.

(3) In section 3 (transfer of prisoners into United Kingdom), after subsection (8) there shall be inserted the following subsection—

“(9) The provisions contained by virtue of subsection (1)(c) above in a warrant under this Act shall, in the case of a person who is a transferred life prisoner for the purposes of section 48 of the Criminal Justice Act 1991 or section 10 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (life prisoners transferred to England and Wales or, as the case may be, Scotland) include provision specifying the part of his sentence which is treated by virtue of section 48 or section 10 as the relevant part of his sentence.”.

(4) In the Schedule (operation of certain enactments in relation to prisoners transferred into United Kingdom), in paragraph 2, for sub-paragraph (1) there shall be substituted the following sub-paragraphs—

“(1) In determining for the purposes of any of the enactments relating to release on licence whether the prisoner has at any time served a particular proportion or part of his sentence specified in that provision, the prisoner’s sentence shall, subject to sub-paragraph (2) below, be deemed to begin with the day on which the relevant provisions take effect.

(1A) In sub-paragraph (1) above “the enactments relating to release on licence” means—

(a) sections 33(1)(b) and (2), 34(3) and (5), 35(1) and 37(1) and (2) of the Criminal Justice Act 1991; and

(b) sections 1(2) and (3), 2(2) and (7) and 7(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993.”; and the amendment made to sub-paragraph (2) of that paragraph by paragraph 35(3)(b) of Schedule 11 to the Criminal Justice Act 1991 shall extend also to Scotland.

(5) For paragraph 3 of the Schedule there shall be substituted the following paragraph—

“3 Where the relevant provisions include provision equivalent to a sentence in relation to which section 35(2) of the Criminal Justice Act 1991 or, as the case may be, section 1(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (power to release life prisoners who are not discretionary life prisoners) applies, section 35(2) or, as the case may be, section 1(4) shall have effect as if the reference to consulting the trial judge were omitted.”.

Legal Aid (Scotland) Act 1986 (c. 47) S

4 S In section 21(1) of the Legal Aid (Scotland) Act 1986 (definition of “criminal legal aid”), after paragraph (a) (but before the word “and” which immediately follows that paragraph) there shall be inserted the following paragraph—

“(aa) any case the referral of which is required, under section 2(6) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, by a discretionary life prisoner;”.

Road Traffic Offenders Act 1988 (c. 53) S

5 S In section 12(4) of the Road Traffic Offenders Act 1988, as proposed to be inserted by paragraph 85 of Schedule 4 to the M28 Road Traffic Act 1991 (proof of identity of driver in summary proceedings for certain road traffic offences), for the words “Road Traffic Act 1988” in the first place where they occur there shall be substituted the words “ this Act ”.

Commencement Information

I8 Sch.5 para.5 in force as provided by S.48(4).

Marginal Citations

M28 1991 c. 40.

Prisons (Scotland) Act 1989 (c. 45) S

6 (1) The Prisons (Scotland) Act 1989 shall be amended as follows. S

(2) In section 12 (photographing and measuring of prisoners)—

(a) for the words “The Secretary of State may make regulations as to” there shall be substituted the words “ Rules under section 39 of this Act may provide for ”; and

(b) the words “such regulations” shall cease to have effect.

(3) In section 14(1) (legalised police cells), after the word “under” there shall be inserted the words “ section 39 of ”.

(4) In section 19 (provisions of 1989 Act applying to remand centres and young offenders institutions)—

(a) in subsection (3), for the words “the rules” there shall be substituted the words “ rules under section 39 of this Act ”; and

(b) in subsection (4), in sub-paragraph (iii) of the proviso—

(i) for the words “paragraphs (i) and (ii)” there shall be substituted the words “ paragraph (i) ”; and

(ii) for the words “of the Secretary of State” there shall be substituted the words “ under section 39 of this Act ”.

(5) In section 21 (transfer to prison of persons over 21 etc.)—

(a) in subsection (1), after the word “section” there shall be inserted the words “ but without prejudice to section 20A(2) of this Act ”; and

(b) in subsection (3), after the words “1975 Act” there shall be inserted the words “ the Prisoners and Criminal Proceedings (Scotland) Act 1993 ”.

(6) In section 39(1) (rules for the management of prisons and other institutions)—

(a) the word “and”, where it occurs for the third time, shall cease to have effect; and

(b) at the end there shall be added the words “ and for any other matter as respects which it is provided in this Act that rules may be made under this section ”.

(7) In section 40(2) (no account to be taken, in calculating period of liability to detention, of period when unlawfully at large)—

(a) after the word “institution”, where it first occurs, there shall be inserted the words “ or committed to a prison or remand centre ”;

(b) after the word “sentence” there shall be inserted the words “ or committal ”;

(c) for the words “or young offenders institution” there shall be substituted the words “ , young offenders institution or remand centre ”; and

(d) after the words “so detained,” there shall be inserted the words “ or the date on or by which a term or period of imprisonment or detention elapses or has been served, ”.

(8) In section 42(2) (procedure in relation to statutory instruments containing regulations or rules), for the words from “regulations” to the end there shall be substituted the words “ an order made under section 37(1) or rules made under section 39 of this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament ”.

(9) In section 43 (interpretation)—

(a) in subsection (1), the definition of “sentence of imprisonment” shall cease to have effect; and

(b) in subsection (2), the words “(other than in section 25)” shall cease to have effect.

Commencement Information

I9 Sch. 5 para. 6 not in force at Royal Assent see. s. 48(2). Sch. 5 para. 6(1)-(4), (6),(8) in force at 18.8.1993, para. 6 wholly in force at 1.10.1993 by S.I. 1993/2050, art. 3(2)(4), Sch. 1

Section 47(2).

SCHEDULE 6 S Transitional Provisions and Savings

Modifications etc. (not altering text)

C27 Sch. 6 amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 para. 70(1); S.I. 1998/2327, art. 2(1)(y)(2)(u)

Sch. 6 modified (retrospectively) by 1984 c. 47, s. 3(7), Sch. para. 2(4) (as inserted (1.10.1997) by 1997 c. 43, s. 42, Sch. 2 para. 6(1)(2); S.I. 1997/2200, art. 2(1)(h))

Sch. 6 modified (retrospectively)) by 1984 c. 47, s. 3(7), Sch. para. 2(4) (as substituted (1.10.1997) by 1997 c. 43, s. 42, Sch. 2 para. 7(1)(2); S.I. 1997/2200, art. 2(1)(h))

Sch. 6: certain functions made exercisable in or as regards Scotland (30.6.1999) by S.I. 1999/1748, art. 4(2), Sch. 3 Pt. I paras. 5-8, Pt. III para. 10(3)

Ss. 1-3, 5, 6(1)(a)(b)(i)(iii), 9, 11-13, 15-21, 27, Schs. 2, 6 extended (1.10.1997) by 1997 c. 43, 56(1), Sch. 1 paras. 10(2)(5), 11(2)-(4), Sch. 5 paras. 11(1)-(3), 12(1); S.I. 1997/2200, art. 2(1)(n) (subject to art. 5 of the said S.I.) (which amendment fell (30.9.1998) by reason of the repeal of Sch. 5 paras. 11(1), 12(1) by 1998 c. 37, s. 120(2), Sch. 10; S.I. 1998/2327, art. 2(1)(aa)(3)(x) (subject to arts. 5-8 of the said S.I.)

Ss. 1, 1A, 2(4), 3A, 5, 6(1)(a)(b)(i)(iii), 7, 9, 16, 20, 21, 26A, 27, Schs. 2, 6 extended (30.9.1998) by 1997 c. 43, ss. 41, 56(1), Sch. 1 Pt. II paras. 10(2)(a)(5)(a)(6)(7), 11(2)(a)(4)(a)(6) (subject to art. 5) (as amended (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 paras. 135(5)(a)(d)(f)(6)(a)(b); S.I. 1998/2327, art. 2(1)(y)(2)(oo) (subject to arts. 5-8))

1 In this Schedule—

• “existing provisions” means such provisions as relate to the detention or release of persons and are amended or repealed by this Act, as they had effect immediately before such amendment or repeal;

• “new provisions” means sections 1 to 21 and 27 of this Act (together with the provisions of the 1975 Act and of the M29 Mental Health (Scotland) Act 1984 which so relate and are so amended);

• “existing child detainee” means any child (“child” having the meaning assigned to that expression by section 30 of the M30 Social Work (Scotland) Act 1968) who, at the relevant date, is detained under section 206 of the 1975 Act other than without limit of time or is detained in residential care by virtue of section 413 of the 1975 Act;

• “existing licensee” means any person who, before the relevant date, has been released on licence under the 1989 Act;

• “existing life prisoner” means any person [F37 (other than a transferred life prisoner)] who, at the relevant date, is serving—

  (a)

  a sentence of imprisonment for life;

  (b)

  a sentence of detention without limit of time or for life under section 205 of the 1975 Act;

  (c)

  a sentence of detention without limit of time under section 206 of that Act; or

  (d)

  a period of detention without limit of time or for life under section 207(2) of that Act;

• “existing prisoner” means any person who, at the relevant date, is serving—

  (a)

  a sentence of imprisonment; or

  (b)

  a sentence of detention in a young offenders institution; and

• “relevant date” means the date of commencement of the new provisions.

Textual Amendments

F37 Words in Sch. 6 para. 1 inserted (27.7.1993) by 1993 c. 36, ss. 76(3)(a), 78(2)

Marginal Citations

M29 1984 c. 36.

M30 1968 c. 49.

2 (1) Subject to sub-paragraph (2) and [F38 to section 10(4) of this Act], the new provisions shall apply only to persons who are sentenced (or on whom detention is imposed) on or after the relevant date; and notwithstanding any repeal or amendment effected by or by virtue of this Act, but subject to that sub-paragraph and to the following paragraphs of this Schedule, the existing provisions shall continue to apply to persons sentenced (or on whom detention has been imposed) before that date.

(2) Section 3 of this Act [F39 , and sections 12 and 17 of this Act in so far as relating to a licence granted, or person released, by virtue of this sub-paragraph,]shall apply irrespective of the date on which a person is sentenced (or on which detention is imposed on him).

Textual Amendments

F38 Words in Sch. 6 para 2(1) substituted (27.7.1993) by 1993 c. 36, ss. 76(3)(b), 78(2)

F39 Words in Sch. 6 para. 2(2) inserted (27.7.1993) by 1993 c. 36, ss. 75(2), 78(2)

3 S An existing prisoner whose sentence is for a term of less than two years and who, by the relevant date, has served—

(a) one-half or more of that sentence, shall be released unconditionally by the Secretary of State on that date;

(b) less than one-half of that sentence, shall be so released as soon as he has served one-half of that sentence.

4 (1) An existing child detainee whose sentence under section 206 of the 1975 Act is for a period—

(a) of less than four years and who, by the relevant date, has served—

(i) one-half or more of that sentence, shall be released on licence by the Secretary of State on that date;

(ii) less than one-half of that sentence, shall be so released as soon as he has served one-half of that sentence;

(b) of four years or more and who, by the relevant date, has served—

(i) two-thirds or more of that sentence, shall be released on licence by the Secretary of State on that date;

(ii) less than two-thirds of that sentence, shall be so released as soon as he has served two-thirds of that sentence.

(2) An existing child detainee detained under section 206 of the 1975 Act may, on the recommendation of the Parole Board made at any time, be released on licence by the Secretary of State.

5 (1) An existing child detainee who, by the relevant date, has completed— S

(a) one-half or more of a period of detention in residential care for which he has been committed, shall be released from such care on that date;

(b) less than one-half of that period, shall be so released as soon as he has completed one-half of that period,

but until the entire such period has elapsed may be required by the appropriate local authority to submit to supervision in accordance with such conditions as they consider appropriate.

(2) Where a child released under sub-paragraph (1) above is subject to a supervision requirement within the meaning of the M31 Social Work (Scotland) Act 1968, the effect of that requirement shall commence, or as the case may be resume, upon such release.

Marginal Citations

M31 1968 c. 49.

6 (1) This paragraph applies where, in the case of an existing life prisoner, the Lord Justice General, whom failing the Lord Justice Clerk, after consultation with the trial judge, if available, certifies his opinion that, if section 2 of this Act had been in force at the time when the prisoner was sentenced, the court by which he was sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate.

(2) In a case to which this paragraph applies, sections 1 to 27 of this Act except sections 1(4) and 2(9) shall apply as if—

(a) the existing life prisoner were a discretionary life prisoner within the meaning of section 2 of this Act; and

(b) the relevant part of his sentence within the meaning of that section were the part specified in the certificate.

(3) Where a person is serving two or more sentences of imprisonment for life or detention without limit of time or for life—

(a) he shall be treated as a discretionary life prisoner within the meaning of section 2 of this Act only if the requirements of sub-paragraph (1) above are satisfied in respect of each of those sentences; and

(b) notwithstanding the terms of any certificate under that sub-paragraph, subsections (4) and (6) of section 2 shall not apply to him until he has served the relevant part of each of those sentences.

Yn ddilys o 03/02/1995

[F40 6A (1) This paragraph applies where a prisoner sentenced before the relevant date to a sentence of imprisonment for life for an offence the sentence for which is not fixed by law has been (whether before, on or after that date) released on licence under the 1989 Act.

(2) Without prejudice to section 22(6) of the 1989 Act, in a case to which this paragraph applies, the new provisions shall apply as if the prisoner were a discretionary life prisoner, within the meaning of section 2 of this Act, whose licence has been granted under subsection (4) of that section of this Act on his having served the relevant part of his sentence.]

Textual Amendments

F40 Sch. 6 paras. 6A, 6B inserted (3.2.1995) by 1994 c. 33, s. 135; S.I. 1995/127, art. 2(1), Sch. 1

Yn ddilys o 03/02/1995

[F41 6B (1) This paragraph applies where—

(a) a prisoner was, at the relevant date, serving a sentence or sentences of imprisonment, on conviction of an offence, passed before that date and that sentence was for a term of, or as the case may be those sentences fall to be treated as for a single term of, two or more years; and

(b) on or after that date he is, or has been, sentenced to a further term or terms of imprisonment, on conviction of an offence, to be served consecutively to, or concurrently with, the sentence or sentences mentioned in head (a) above.

(2) In a case to which this paragraph applies—

(a) the sentence or sentences mentioned in head (b) of sub-paragraph (1) above shall be treated as a single term with the sentences mentioned in head (a) of that sub-paragraph and that single term as imposed on or after the relevant date (so however that nothing in the foregoing provisions of this head shall affect the application of sections 39(7) (which makes provision as respects the award of additional days for breaches of discipline) and 24 (which makes provision as respects remission for good conduct) of the 1989 Act); and

(b) the new provisions shall apply accordingly, except that—

(i) where the prisoner is a long-term prisoner by virtue only of the aggregation provided for in head (a) of this sub-paragraph, he shall be released unconditionally on the same day as he would have been but for that aggregation;

(ii) where, notwithstanding the aggregation so provided for, the prisoner remains a short-term prisoner, subsection (1) of section 1 of this Act shall in its application be construed as subject to the qualification that the prisoner shall be released no earlier than he would have been but for that aggregation;

(iii) that section shall in its application be construed as if for subsection (3) there were substituted—

“(3) Without prejudice to subsection (1) above and to sub-paragraph (2)(b)(i) of paragraph 6B of Schedule 6 to this Act, after a prisoner to whom that paragraph applies has either served one-third of the sentence, or as the case may be sentences, mentioned in sub-paragraph (1)(a) of that paragraph, or (if it results in a later date of release) has served twelve months of that sentence or those sentences, the Secretary of State may, if recommended to do so by the Parole Board under this section, release him on licence; and where such a prisoner has been released on licence under section 22 of the 1989 Act, that licence shall be deemed to have been granted by virtue of this subsection.”;

(iv) section 11(1) shall in its application be construed as if the sentence referred to were the further term or terms mentioned in head (b) of sub-paragraph (1) above; and

(v) section 16 shall in its application be construed as if the original sentence (within the meaning of that section) were the further term or terms so mentioned.]

Textual Amendments

F41 Sch. 6 paras. 6A, 6B inserted (3.2.1995) by 1994 c. 33, s. 135; S.I. 1995/127, art. 2(1), Sch. 1

Yn ddilys o 30/09/1998

[F42 6C (1) This paragraph applies where— S

(a) an existing prisoner was, at the relevant date, serving a sentence or sentences of imprisonment, on conviction of an offence, passed before that date;

(b) on or after the date on which section 111 of the Crime and Disorder Act 1998 comes into force he is, or has been, sentenced to a further term or terms of imprisonment on conviction of an offence, to be served wholly or partly concurrently with the sentence or sentences mentioned in head (a); and

(c) the sentences do not fall to be treated as a single term by virtue of paragraph 6B(2)(a) above.

(2) In a case to which this paragraph applies the Secretary of State shall not release, or be required to consider the release of, the prisoner unless and until the requirements for release, or for consideration of his release, of the new and the existing provisions are satisfied in relation to each sentence to which they respectively apply.

(3) In a case to which this paragraph applies the Parole Board shall not be required to consider the release of the prisoner unless and until the requirements for release, or for consideration for release, of the new and the existing provisions are satisfied in relation to each sentence to which they respectively apply.

(4) In a case to which this paragraph applies, where the prisoner is released on licence, he shall be on a single licence which—

(a) shall (unless revoked) remain in force until the later of—

(i) the date on which he would have been discharged from prison on remission of part of his sentence or sentences under the existing provisions if, after his release, he had not forfeited remission of any part of that sentence under those provisions; or

(ii) the date on which he would (but for his release) have served in full all the sentences in respect of which he was released on licence and which were imposed after the relevant date; and

(b) shall be deemed to be granted under the new provisions and, subject to sub-paragraph (5) below, those provisions so far as relating to conditions of licences, and recall or return to prison, shall apply as they apply in respect of a prisoner on licence in respect of a sentence passed after the relevant date.

(5) In the application of section 16 to a person whose licence is deemed to be granted under the new provisions by virtue of sub-paragraph (4)(b) above, the reference to the original sentence (within the meaning of that section) shall be construed as a reference to the further term or terms mentioned in head (b) of sub-paragraph (1) above.]

Textual Amendments

F42 Sch. 6 para. 6C inserted (30.9.1998) by 1998 c. 37, s. 111(5)(6); S.I. 1998/2327, art. 2(1)(x)

Yn ddilys o 30/09/1998

[F43 6D S Where a prisoner released on licence is treated by virtue of the provisions of this or any other enactment as a prisoner whose licence was granted under section 2(4) of this Act, the validity of his licence shall not be affected by the absence in the licence of such a condition as is specified in section 12(2) of this Act.]

Textual Amendments

F43 Sch. 6 para. 6D inserted (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 para. 108; S.I. 1998/2327, art. 2(1)(y)(2)(hh)

[F44 7 In the case of a transferred life prisoner who is a discretionary life prisoner for the purposes of Part II of the Criminal Justice Act 1991 by virtue of section 48 of or paragraph 9of Schedule 12 to that Act, subsection (3) of section 10 of this Act applies and the certificate mentioned in paragraph (b) of that subsection is the certificate under the said section 48 or paragraph 9.]

Textual Amendments

F44 Sch. 6 para. 7 substituted (27.7.1993) by 1993 c. 36, ss. 76(3)(c), 78(2)

8 Unless revoked, a licence under—

(a) paragraph 4(1)(a)(i) or (b)(i) above shall remain in force until at least twelve months have elapsed after the date of release and until the entire period of sentence has elapsed;

(b) paragraph 4(1)(a)(ii) or (b)(ii) above shall remain in force until a date determined by the Parole Board, being a date not later than the date by which the entire period of sentence has elapsed.

9 S Section 12 of this Act shall apply in respect of a licence granted under this Schedule.

Yn ddilys o 03/02/1995

[F45 10 S Section 17 of this Act shall apply in respect of a release on licence under paragraph 4 of this Schedule as that section applies in respect of the release on licence, under Part I of this Act, of a long-term prisoner.]

Textual Amendments

F45 Sch. 6 para. 10 inserted (3.2.1995) by 1994 c. 33, s. 130(3)(b); S.I. 1995/127, art. 2(1), Sch. 1

Section 47(3).

SCHEDULE 7 E+W+S Repeals and Revocations

Part I E+W+S Repeals

Commencement Information

I10 Sch. 7 Pt. I not in force at Royal Assent see. s. 48(2). Sch. 7 Pt. I in force for certain purposes at 18.9.1993 and Pt. 1 wholly in force at 1.10.1993 by S.I. 1993/2050, art. 3(3)(4), Sch. 2 (subject to savings in art. 4, 9)

Chapter	Short title	Extent of repeal
1 Edw.8 & 1 Geo.6 c. 37.	The Children and Young Persons (Scotland) Act 1937.	In section 57(3), the words “or section 25 of the Prisons (Scotland) Act 1989”.
3 & 4 Eliz.2 c. 18.	The Army Act 1955.	Section 71AA(6B).In Schedule 5A, paragraph 10(6B).
3 & 4 Eliz.2 c. 19.	The Air Force Act 1955.	Section 71AA(6B).In Schedule 5A, paragraph 10(6B).
5 & 6 Eliz.2 c. 53.	The Naval Discipline Act 1957.	Section 43AA(6B).In Schedule 4A, paragraph 10(6B).
1963 c. 39.	The Criminal Justice (Scotland) Act 1963.	In paragraph 13 of Schedule 1, the words “(and, if that person is released from such a prison under the said section 214(7) or 423(7), section 30(3) of the Prisons (Scotland) Act 1989)”.
1965 c. 20.	The Criminal Evidence Act 1965.	The whole Act.
1969 c. 48.	The Post Office Act 1969.	Section 93(4).
1975 c. 21.	The Criminal Procedure (Scotland) Act 1975.	In section 108(2), the word “and” at the end of paragraph (b).
		Section 207(11).
		Section 212.
		Section 214.
		In section 270(2), the words “of two weeks or any extension thereof authorised by the High Court”.
		Section 289D(1A)(e).
		Section 328.
		In section 413(1) the words “for such period, not exceeding one year, as the sheriff may determine”.
		Section 415(11).
		Section 421.
		Section 423.
1980 c. 55.	The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980.	In Part I of Schedule 1, in Group B, paragraph (v).
1980 c. 62.	The Criminal Justice (Scotland) Act 1980.	In section 2, in subsection (5), paragraph (c) and the proviso to that paragraph; and in subsection (6) the words “or (c)”.
		In Schedule 3, paragraph 12.
1981 c. 49.	The Contempt of Court Act 1981.	Section 15(6).
1984 c. 36.	The Mental Health (Scotland) Act 1984.	In section 71, subsection (2)(b); and in subsection (7)(a), the words “in criminal proceedings”.
		Section 73(3).
1987 c. 41.	The Criminal Justice (Scotland) Act 1987.	Section 62(1).
		In Schedule 1, paragraph 19.
1989 c. 45.	The Prisons (Scotland) Act 1989.	In section 12, the words “such regulations”.
		Section 16(1).
		Section 18.
		In section 19(4), in paragraph (b), the word “24,”; and in the proviso, sub-paragraph (ii).
		In section 21(3), the proviso.
		Sections 22 to 32.
		In section 39, in subsection (1) the word “and” where it occurs for the third time; and subsection (4).
		In section 42, in subsection (1) the words “22(2), 30(6) or (7), 32(5) or”; and subsections (3) and (4).
		In section 43, in subsection (1), the definitions of “local review committee”, “Parole Board” and “sentence of imprisonment”; in subsection (2), the words “(other than in section 25)”; and in subsection (5), the words “(other than in section 30)”.
		Schedule 1.
		In Schedule 2, paragraphs 1, 3 to 5, 8, 13 to 15, 17 and 18.
1991 c. 53.	The Criminal Justice Act 1991.	In Schedule 11, in paragraph 35, sub-paragraphs (2), (3)(a) and (4).

Part II S Revocations

Year and number	T itle	Extent of revocation
S.I. 1952/565.	The Prison (Scotland) Rules 1952.	Rule 9.
S.I. 1976/1889.	The Prison (Scotland) Amendment Rules 1976.	The whole rules.