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”, F3. . . 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; F4or
F4aa
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); F5. . .
F5c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 F6subsection (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 (F7the punishment part) as is specified in the order, being such part as the court considers appropriate F8to 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
F11aa
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.
F133
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.
F145A
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
F165AB
Where a reference has been made to the Parole Board under any of the provisions mentioned in subsection (5A) above and the prisoner receives another sentence of imprisonment (whether for life or for a term) before a date has been fixed for considering his case, the Board shall, if he would not be eligible for release from the other sentence on the date which would (apart from this subsection) have been fixed for considering his case, fix a date (other than that date) for considering his case.
5AC
Where, at any time after such a reference has been made—
a
a date has been fixed for considering the prisoner’s case; or
b
following the disposal of the reference, a date has been fixed under subsection (5A)(b) above,
and, before that date, the prisoner receives any other sentence of imprisonment (whether for life or for a term), the Board shall, if he would not be eligible for release from any such other sentence on that date, fix a different date for considering his case (and where he receives any further sentence of imprisonment from which he would not be eligible for release on that different date, the Board shall fix a further different date).
5AD
Any date fixed under subsection (5AB) or (5AC) above shall—
a
be—
i
the date on which the prisoner would be eligible to be released, or considered for release, from all such other sentences (subject to any change to the date on which he would be so eligible); or
ii
a date as soon as practicable after that date; and
b
replace any date previously fixed for considering the prisoner’s case.
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) F17, (5AB) or (5AC) above.
5C
The Parole Board, at the request of a life prisoner in respect of whom it has, under subsection (5A)(b) F17, (5AB) or (5AC) 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
F196A
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.
F207
No requirement shall be made under subsection (6) above by a life prisoner who is also serving or liable to serve a sentence of imprisonment for a term, before he has served the appropriate part of the term.
7A
The appropriate part of the term is—
a
one half, where the term is—
i
less than 4 years; or
ii
4 years or more and is imposed by a sentence of imprisonment on conviction of an offence; or
b
two thirds, where the term is 4 years or more and is a term of imprisonment or detention mentioned in section 5(1)(a) or (b) of this Act.
7B
Section 5(1) of this Act, in so far as relating to the construction of references to sentences of imprisonment, does not apply to subsection (7A)(b) above.
8
9
Where a life prisoner is serving F22or is liable to serve two or more sentences of imprisonment for life—
F23a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 F21punishmentpart 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