- Latest available (Revised)
- Point in Time (01/08/1997)
- Original (As enacted)
No versions valid at: 01/08/1997
Point in time view as at 01/08/1997. This version of this cross heading contains provisions that are not valid for this point in time.
Criminal Procedure (Scotland) Act 1995, Cross Heading: Restriction of liberty orders is up to date with all changes known to be in force on or before 10 September 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Changes and effects yet to be applied by the editorial team are only applicable when viewing the latest version or prospective version of legislation. They are therefore not accessible when viewing legislation as at a specific point in time. To view the ‘Changes to Legislation’ information for this provision return to the latest version view using the options provided in the ‘What Version’ box above.
Valid from 20/10/1997
Textual Amendments
F1Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
(1)Without prejudice to section 245D of this Act, where a person of 16 years of age or more is convicted of an offence (other than an offence the sentence for which is fixed by law) the court, if it is of opinion that it is the most appropriate method of disposal, may make an order under this section (in this Act referred to as a “restriction of liberty order”) in respect of him; and in this section and sections 245B to 245I of this Act any reference to an “offender” is a reference to a person in respect of whom an order has been made under this subsection.
(2)A restriction of liberty order may restrict the offender’s movements to such extent as the court thinks fit and, without prejudice to the generality of the foregoing, may include provision—
(a)requiring the offender to be in such place as may be specified for such period or periods in each day or week as may be specified;
(b)requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified,
but the court may not, under paragraph (a) above, require the offender to be in any place or places for a period or periods totalling more than 12 hours in any one day.
(3)A restriction of liberty order may be made for any period up to 12 months.
(4)Before making a restriction of liberty order, the court shall explain to the offender in ordinary language—
(a)the effect of the order, including any requirements which are to be included in the order under section 245C of this Act;
(b)the consequences which may follow any failure by the offender to comply with the requirements of any order; and
(c)that the court has power under section 245E of this Act to review the order on the application either of the offender or of any person responsible for monitoring the order,
and the court shall not make the order unless the offender agrees to comply with its requirements.
(5)The clerk of the court by which a restriction of liberty order is made shall—
(a)cause a copy of the order to be sent to any person who is to be responsible for monitoring the offender’s compliance with the order; and
(b)cause a copy of the order to be given to the offender or sent to him by registered post or by the recorded delivery service; and an acknowledgment or certificate of delivery of a letter containing such copy order issued by the Post Office shall be sufficient evidence of the delivery of the letter on the day specified in such acknowledgment or certificate.
(6)Before making a restriction of liberty order which will require the offender to remain in a specified place or places the court shall obtain and consider information about that place or those places, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender.
(7)A restriction of liberty order shall be taken to be a sentence for the purposes of this Act and of any appeal.
(8)The Secretary of State may by regulations prescribe—
(a)which courts, or class or classes of courts, may make restriction of liberty orders;
(b)what method or methods of monitoring compliance with such orders may be specified in any such order by any such court; and
(c)the class or classes of offenders in respect of which restriction of liberty orders may be made,
and different provision may be made in relation to the matters mentioned in paragraphs (b) and (c) above in relation to different courts or classes of court.
(9)Without prejudice to the generality of subsection (8) above, in relation to district courts, regulations under that subsection may make provision as respects such courts by reference to whether the court is constituted by a stipendiary magistrate or by one or more justices.
(10)Regulations under subsection (8) above may make such transitional and consequential provisions, including provision in relation to the continuing effect of any restriction of liberty order in force when new regulations are made, as the Secretary of State considers appropriate.
(11)A court shall not make a restriction of liberty order which requires an offender to be in or, as the case may be, not to be in, a particular place or places unless it is satisfied that his compliance with that requirement can be monitored by the means of monitoring which it intends to specify in the order.
(12)The Secretary of State may by regulations substitute for the period of—
(a)hours for the time being mentioned in subsection (2) above; or
(b)months for the time being mentioned in subsection (3) above,
such period of hours or, as the case may be, months as may be prescribed in the regulations.
(13)Regulations under this section shall be made by statutory instrument.
(14)A statutory instrument containing regulations made under subsection (8) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(15)No regulations shall be made under subsection (12) above unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.]
Textual Amendments
F2Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
(1)Where the Secretary of State, in regulations made under section 245A(8) of this Act, empowers a court or a class of court to make restriction of liberty orders he shall notify the court or each of the courts concerned of the person or class or description of persons who may be designated by that court for the purpose of monitoring an offender’s compliance with any such order.
(2)A court which makes a restriction of liberty order in respect of an offender shall include provision in the order for making a person notified by the Secretary of State under subsection (1) above, or a class or description of persons so notified, responsible for the monitoring of the offender’s compliance with it.
(3)Where the Secretary of State changes the person or class or description of persons notified by him under subsection (1) above, any court which has made a restriction of liberty order shall, if necessary, vary the order accordingly and shall notify the variation to the offender.]
Textual Amendments
F3Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
(1)The Secretary of State may make such arrangements, including contractual arrangements, as he considers appropriate with such persons, whether legal or natural, as he thinks fit for the remote monitoring of the compliance of offenders with restriction of liberty orders, and different arrangements may be made in relation to different areas or different forms of remote monitoring.
(2)A court making a restriction of liberty order which is to be monitored remotely may include in the order a requirement that the offender shall, either continuously or for such periods as may be specified, wear or carry a device for the purpose of enabling the remote monitoring of his compliance with the order to be carried out.
(3)The Secretary of State shall by regulations specify devices which may be used for the purpose of remotely monitoring the compliance of an offender with the requirements of a restriction of liberty order.
(4)Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]
Textual Amendments
F4Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
Modifications etc. (not altering text)
C1S. 245C applied (12.1.2004) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 40(7), 89; S.S.I. 2003/475, art. 2, Sch.
C2S. 245C(1)(3) modified (prosp.) by Criminal Justice Act 2003 (c. 44), ss. 188, 336, Sch. 11 para. 23
S. 245C(1)(3) modified (4.4.2005) by Criminal Justice Act 2003 (c. 44), ss. 188, 336, Sch. 13 para. 21; S.I. 2005/950, art. 2(1), Sch. 1
C3S. 245C(1)(3) modified (prosp.) by Criminal Justice Act 2003 (c. 44), ss. 188, 336, Sch. 11 para. 23
S. 245C(1)(3) modified (4.4.2005) by Criminal Justice Act 2003 (c. 44), ss. 188, 336, Sch. 13 para. 21; S.I. 2005/950, art. 2(1), Sch. 1
(1)Notwithstanding sections 228(1) and 245A(1) of this Act, where the court—
(a)intends to make a restriction of liberty order under section 245A(1); and
(b)considers it expedient—
(i)having regard to the circumstances, including the nature of the offence and the character of the offender; and
(ii)having obtained a report as to the circumstances and character of the offender,
that the offender should also be subject to a probation order made under section 228(1) of this Act,
it may make both such orders in respect of the offender.
(2)Where the court makes both a restriction of liberty order and a probation order by virtue of subsection (1) above, the clerk of the court shall send a copy of each order to both—
(a)any person responsible for monitoring the offender’s compliance with the restriction of liberty order; and
(b)the officer of the local authority who is to supervise the probationer.
(3)Where the offender by an act or omission fails to comply with a requirement of an order made by virtue of subsection (1) above—
(a)if the failure relates to a requirement contained in a probation order and is dealt with under section 232(2)(c) of this Act, the court may, in addition, exercise the power conferred by section 245F(2)(b) of this Act in relation to the restriction of liberty order; and
(b)if the failure relates to a requirement contained in a restriction of liberty order and is dealt with under section 245F(2)(b) of this Act, the court may, in addition, exercise the power conferred by section 232(2)(c) in relation to the probation order.
(4)Where the offender by an act or omission fails to comply with both a requirement contained in a probation order and a requirement contained in a restriction of liberty order to which he is subject by virtue of subsection (1) above, he may, without prejudice to subsection (3) above, be dealt with as respects that act or omission either under section 232(2) of this Act or under section 245F(2) of this Act but he shall not be liable to be otherwise dealt with in respect of that act or omission.]
Textual Amendments
F5Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
(1)Where a restriction of liberty order is in force either the offender or any person responsible for monitoring his compliance with the order may apply to the court which made the order for a review of it.
(2)On an application made under subsection (1) above, and after hearing both the offender and any person responsible for monitoring his compliance with the order, the court may by order, if it appears to it to be in the interests of justice to do so—
(a)vary the order by—
(i)amending or deleting any of its requirements;
(ii)inserting further requirements; or
(iii)subject to subsection (3) of section 245A of this Act, increasing the period for which the order has to run; or
(b)revoke the order.
(3)Where the court, on the application of a person other than the offender, proposes to—
(a)exercise the power conferred by paragraph (a) of subsection (2) above to vary (otherwise than by deleting a requirement) a restriction of liberty order, it shall issue a citation requiring the offender to appear before the court and section 245A(4) shall apply to the variation of such an order as it applies to the making of an order; and
(b)exercise the power conferred by subsection (2)(b) above to revoke such an order and deal with the offender under section 245G of this Act, it shall issue a citation requiring him to appear before the court.
(4)If an offender fails to appear before the court after having been cited in accordance with subsection (3) above, the court may issue a warrant for his arrest.]
Textual Amendments
F6Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
(1)If at any time when a restriction of liberty order is in force it appears to the court which made the order that the offender has failed to comply with any of the requirements of the order the court may issue a citation requiring the offender to appear before the court at such time as may be specified in the citation or, if it appears to the court to be appropriate, it may issue a warrant for the arrest of the offender.
(2)If it is proved to the satisfaction of the court that the offender has failed without reasonable excuse to comply with any of the requirements of the order the court may by order—
(a)without prejudice to the continuance in force of the order, impose a fine not exceeding level 3 on the standard scale;
(b)vary the restriction of liberty order; or
(c)revoke that order.
(3)A fine imposed under this section in respect of a failure to comply with the requirements of a restriction of liberty order shall be deemed for the purposes of any enactment to be a sum adjudged to be paid by or in respect of a conviction or a penalty imposed on a person summarily convicted.
(4)Where the court varies a restriction of liberty order under subsection (2) above it may do so in any of the ways mentioned in paragraph (a) of section 245E(2) of this Act.]
Textual Amendments
F7Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
(1)Where the court revokes a restriction of liberty order under section 245E(2)(b) or 245F(2) of this Act, it may dispose of the offender in any way which would have been competent at the time when the order was made, but in so doing the court shall have regard to the time for which the order has been in operation.
(2)Where the court revokes a restriction of liberty order as mentioned in subsection (1) above, and the offender is, by virtue of section 245D(1) of this Act, subject to a probation order, it shall, before disposing of the offender under subsection (1) above, discharge the probation order.]
Textual Amendments
F8Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
(1)Evidence of the presence or absence of the offender at a particular place at a particular time may, subject to the provisions of this section, be given by the production of a document or documents bearing to be—
(a)a statement automatically produced by a device specified in regulations made under section 245C of this Act, by which the offender’s whereabouts were remotely monitored; and
(b)a certificate signed by a person nominated for the purpose of this paragraph by the Secretary of State that the statement relates to the whereabouts of the person subject to the order at the dates and times shown in the statement.
(2)The statement and certificate mentioned in subsection (1) above shall, when produced at a hearing, be sufficient evidence of the facts set out in them.
(3)Neither the statement nor the certificate mentioned in subsection (1) above shall be admissible in evidence unless a copy of both has been served on the offender prior to the hearing and, without prejudice to the foregoing, where it appears to the court that the offender has had insufficient notice of the statement or certificate, it may adjourn a hearing or make any order which it thinks appropriate in the circumstances.]
Textual Amendments
F9Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
Modifications etc. (not altering text)
C4S. 245H applied (4.4.2005) by Criminal Justice Act 2003 (c. 44), ss. 194, 336, Sch. 13 para. 14(5); S.I. 2005/950, art. 2(1), Sch. 1
Where a court exercises any power conferred by sections 232(3A), 245E(2) or 245F(2)(b) or (c) of this Act, the clerk of the court shall forthwith give copies of the order varying or revoking the restriction of liberty order to any person responsible for monitoring the offender’s compliance with that order and that person shall give a copy of the order to the offender.]
Textual Amendments
F10Ss. 245A-245I and preceding cross-heading inserted (20.10.1997 for specified purposes and 1.7.1998 otherwise) by 1997 c. 48, s. 5; S.I. 1997/2323, arts. 3, 5(1), Sch. 1
Valid from 27/06/2003
(1)Where a probationer or offender appears before the court in respect of his apparent failure to comply with a requirement of, as the case may be, a probation order, drug treatment and testing order, supervised attendance order, community service order or restriction of liberty order the court may, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with him, adjourn the hearing.
(2)Where, under subsection (1) above, the court adjourns a hearing it shall remand the probationer or offender in custody or on bail or ordain him to appear at the adjourned hearing.
(3)A court shall not so adjourn a hearing for any single period exceeding four weeks or, on cause shown, eight weeks.
(4)A probationer or offender remanded under this section may appeal against the refusal of bail, or against the conditions imposed, within 24 hours of his remand.
(5)Any such appeal shall be by note of appeal presented to the High Court, who, either in court or in chambers, may after hearing the prosecutor and the appellant—
(a)review the order appealed against and either grant bail on such conditions as it thinks fit or ordain the appellant to appear at the adjourned hearing; or
(b)confirm the order.]
Textual Amendments
F11S. 245J inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 48, 89; S.S.I. 2003/288, art. 2, Sch.
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Point in Time: This becomes available after navigating to view revised legislation as it stood at a certain point in time via Advanced Features > Show Timeline of Changes or via a point in time advanced search.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.