The Management of Offenders (Scotland) Act 2019 (Commencement No. 6 and Saving Provisions) Regulations 2022

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations bring further provisions of Part 1 and the remainder of schedule 1 of the Management of Offenders (Scotland) Act 2019 (“the 2019 Act”) into force. Part 1 of the 2019 Act introduces a new regime for the electronic monitoring (“EM”) of court disposals and licence conditions. Schedule 1 of the 2019 Act amends the law relating to Community Payback Orders (“CPOs”) to enable the imposition of a restricted movement requirement when the CPO is first imposed on an individual. Schedule 1 also repeals the existing law on EM which is no longer required following the introduction of the new EM regime in Part 1 of the 2019 Act.

Regulation 2(1) provides that, subject to regulations 2(3) and 3, the provisions of the 2019 Act listed in regulation 2(2) will commence on 17 May 2022 (”the appointed day”).

Regulation 2(3) provides that section 1 of the 2019 Act is only commenced in relation to:

• a restriction of liberty order (“RLO”) made or varied under section 245A of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”),

• a restricted movement requirement (“RMR”) imposed or varied by virtue of section 234CA(1) of the 1995 Act, in relation to a drug treatment and testing order (“DTTO”) within the meaning of section 234B(2) of that Act or imposed or varied by virtue of section 227A(2)(j) of the 1995 Act, in relation to a community payback order (“CPO”) under section 227A(1) of that Act, and

• the imposition of bail conditions under section 24(1) of the 1995 Act or the variation of such conditions under various sections of that Act.

Regulation 3 makes saving provision in relation to the commencement of certain provisions of Part 1 and schedule 1 of the 2019 Act.

Regulation 3(1) provides that section 1 of the 2019 Act has no effect in relation to a RLO or a CPO made before the appointed day. This means that the courts will only be able to impose an EM requirement under the 2019 Act on a RLO, or on a RMR imposed as part of a CPO, made on or after the appointed day. Regulation 3(1) also provides that it shall have no effect in relation to a DTTO made before the appointed day. This means that the court may only impose an EM requirement under the 2019 Act alongside a RMR imposed as part of a DTTO made on or after the appointed day.

Regulation 3(2) provides that the amendments made by paragraph 2 of schedule 1 of the 2019 Act (to enable a restricted movement requirement to form part of a CPO when it is first imposed) will have no effect in relation to a CPO imposed by the court prior to the appointed day. A CPO imposed by the court prior to the appointed day will continue to be subject to the existing law on CPOs until the expiry of that CPO.

Regulation 3(3) provides that the amendments made by paragraph 6 of schedule 1 of the 2019 Act (to repeal the existing law on the EM of curfew conditions) have no effect in relation to a curfew condition imposed as part of a home detention curfew licence by the Scottish Ministers prior to the appointed day. Before the appointed day, EM of compliance with curfew condition imposed as part of a home detention curfew licence is a requirement. Curfew conditions imposed prior to the appointed day will therefore remain in force and will continue to be subject to the existing law on EM. If the curfew condition is varied then it will become subject to the new law on EM.

Regulation 3(4) provides that the amendments made by paragraph 7 of schedule 1 of the 2019 Act (to repeal the existing law on EM in the 1995 Act in relation to RLOs and RMRs imposed as part of a CPO, and to make amendments to the provisions in that Act in relation to RLOs, DTTOs and CPOs) have no effect in relation to a RLO, DTTO or CPO made by the court prior to the appointed day. This means the EM of RLOs and RMRs in CPOs and DTTOs made before the appointed day will remain in effect and those orders will continue to be subject to the existing law on EM.

Regulation 3(5) provides that the amendment made by paragraph 8 of schedule 1 of the 2019 Act (to repeal the reference to the existing law on EM in the 1995 Act as that was inserted by the Crime and Punishment (Scotland) Act 1997) has no effect in relation to a RLO, a CPO or a DTTO made by the court before the appointed day. In addition to the saving provision at regulation 3(4) this preserves the current system of EM of an existing RLO, and RMRs in a CPO or DTTO, with those orders continuing to be subject to the existing law on EM.

Regulation 3(6) provides that the amendment made by paragraph 9 of schedule 1 of the 2019 Act (to repeal the existing law on EM in the Criminal Justice (Scotland) Act 2003 (“the 2003 Act”)) has no effect in relation to a licence condition imposed on an individual released on licence under section 12(1) of the 1993 Act or section 22 of the Prisons (Scotland) Act 1989 prior to the appointed day. This provision will ensure that a remote monitoring condition imposed under section 40 of the 2003 Act prior to the appointed day will remain in force until that condition is varied, revoked or otherwise expires. Where a licence imposed before the appointed day is varied after the appointed day, it will be possible for a condition subject to the EM legislation in force before the appointed day (section 40 of the 2003 Act) to be switched to being subject to EM under the 2019 Act. It will also be possible to vary such licences so as to add a condition which can be made subject to EM under the 2019 Act.