C8C9C10C11Part I Detention, Transfer and Release of Offenders
Pt. 1 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.)
Pt. 1 applied (S.) by Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), Sch. para. 7A (as inserted) (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 39(a), 89(2); S.S.I. 2003/288, art. 2, Sch.
Pt. 1: power to modify conferred (S.) (1.3.2007) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 94(3)(4), 104(1); S.S.I. 2007/84, art. 3(2)
Early release
C1C2C3C42 Duty to release discretionary life prisoners.
F11
In this Part of this Act “ F2. . . life prisoner”, subject to subsection (9)(a) below and except where the context otherwise requires, means a person—
a
sentenced to life imprisonment for an offence for which, subject to paragraph (b) below, such a sentence is not the sentence fixed by law; F3or
F3aa
sentenced to life imprisonment for murder or for any other offence for which that sentence is the sentence fixed by law;
b
whose sentence was imposed under section 205A(2) of the 1995 Act (imprisonment for life on further conviction for certain offences); F4. . .
F4c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
and in respect of whom the court whichsentenced him for that offence made the order mentioned in subsection (2) below.
C52
The order referred to in F5subsection (1) above is an order that subsections (4) and (6) below shall apply to the F2. . . life prisoner as soon as he has served such part of his sentence (F6the punishment part) as is specified in the order, being such part as the court considers appropriate F7to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public),taking into account—
a
F10aa
in the case of a life prisoner to whom paragraph (a) of subsection (1) above applies—
i
the period of imprisonment, if any, which the court considers would have been appropriate for the offence had the court not sentenced the prisoner to imprisonment for life for it;
ii
the part of that period of imprisonment which the court considers would satisfy the requirements of retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public); and
iii
the proportion of the part mentioned in sub-paragraph (ii) above which a prisoner sentenced to it would or might serve before being released, whether unconditionally or on licence, under section 1 of this Act;
c
where appropriate, the matters mentioned in paragraphs (a) and (b) of section 196(1) of the 1995 Act.
F123
A court which imposes life imprisonment for an offence such as is mentioned in subsection (1) above shall make such order as is mentioned in subsection (2) above and such order shall constitute part of a person’s sentence within the meaning of the 1995 Act for the purposes of any appeal or review.
3A
An order such as is mentioned in subsection (2) above—
a
shall specify the period that the court considers appropriate under that subsection in years and months; and
b
may specify any such period of years and months notwithstanding the likelihood that such a period will exceed the remainder of the prisoner’s natural life.
C6C44
Where this subsection applies, the Secretary of State shall, if directed to do so by the Parole Board, release a F2. . . 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.
F135A
Where, on the disposal of any reference of a life prisoner’s case under section 28(4) of the 1989 Act, under subsection (5)(a) above, subsection (5C) or (6) below or section 17(3) of this Act or under paragraph 34, 38 or 42 of the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), the Parole Board declines to direct that the prisoner be released on licence, it shall—
a
give the prisoner reasons in writing for the decision not to direct his release on licence; and
C7b
fix the date when it will next consider the prisoner’s case under this section, being a date not later than two years after the date of its decision to decline to direct the release of the prisoner.
5B
The Scottish Ministers shall refer the case of a life prisoner to the Parole Board so as to enable it to consider the case on the date fixed by the Board under subsection (5A)(b) above.
5C
The Parole Board, at the request of a life prisoner in respect of whom it has, under subsection (5A)(b) above, fixed the date of the next consideration of his case, may direct the Scottish Ministers to refer that case to the Board before that date.
C66
F156A
The Scottish Ministers shall not refer the case of a life prisoner to the Parole Board under subsection (6) above if—
a
they have previously so referred his case to the Board under that subsection;
b
they have referred his case to the Board without the prisoner requiring them to do so under that subsection; or
c
the Parole Board has, on a reference to it under section 28(4) of the 1989 Act, under section 17(3) of this Act or under paragraph 34, 38 or 42 of the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), declined to direct that the prisoner be released on licence.
C57
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
F18b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
9
Where a life prisoner is serving two or more sentences of imprisonment for life—
F17a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 F16punishmentpart of each of those sentences; and
c
he shall, if released on licence under subsection (4) above, be so released on a single licence.
Pt. 1 modified (S.) (20.10.1997) by 1997 c. 48, s. 16(2)(3) (with s. 33); S.I. 1997/2323, art. 3, Sch. 1