The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 1999

Substitution of rule 2 of the principal Rules

2.  For rule 2 of the principal Rules (application to young offenders institutions and young offenders)(1) there are substituted the following rules:–

“Application of Rules

2.— (1) Subject to the following provisions of this rule, these Rules apply to prisons and young offenders institutions and to any person who is required to be detained in any such prison or institution.

(2) Subject to any exception or modification specified in any provision of these Rules or where the context otherwise requires, any reference in these Rules to a prison shall be construed as including a young offenders institution.

(3) Subject to any exception or modification specified in any provision of these Rules or where the context otherwise requires, these Rules apply to persons on whom detention in a young offenders institution has been imposed under section 207(2) or 415(2) of the Criminal Procedure (Scotland) Act 1975(2) or 207(2) of the Criminal Procedure (Scotland) Act 1995(3) as they apply to prisoners who are serving sentences of imprisonment; and any reference in these Rules to a prisoner, imprisonment or a sentence of imprisonment shall respectively be construed as including a young offender, detention or a sentence of detention in a young offenders institution.

(4) Subject to any exception or modification specified in any provision of these Rules or where the context otherwise requires, these Rules apply to–

(a) any person under 16 years of age who has been committed to a prison under section 51 of the Criminal Procedure (Scotland) Act 1995;

(b) a person sentenced under section 205 of the Criminal Procedure (Scotland) Act 1975(4) or section 205 of the said Act of 1995 to be detained without limit of time or for life and who is directed or sentenced to be detained in a prison or a young offenders institution; and

(c) a person sentenced to be detained under section 206 of the said Act of 1975 or section 208 of the said Act of 1995 and who is directed to be detained in a prison or a young offenders institution,

as they apply to prisoners who are serving sentences of imprisonment; and any reference in these Rules to a prisoner, imprisonment or a sentence of imprisonment shall respectively be construed as including any such person, detention or a sentence of detention under any of those provisions.

(5) Subject to any exception or modification specified in any provision of these Rules or where the context otherwise requires, these Rules apply to any other person on whom imprisonment, or as the case may be detention in a young offenders institution, has been imposed or who is committed to prison, including persons who are imprisoned or detained–

(a) under section 219 of the Criminal Procedure (Scotland) Act 1995 (imprisonment for non-payment of fine) or, by virtue of that section, under section 207 of that Act (detention of young offenders);

(b) for examination or trial on any criminal charge;

(c) by virtue of remand in custody under the Extradition Act 1989(5);

(d) by virtue of detention under Schedule 2 or 3 to the Immigration Act 1971(6);

(e) by virtue of non-compliance with an order under section 45 of the Court of Session Act 1988(7);

(f) under section 4 or 6 of the Civil Imprisonment (Scotland) Act 1882(8);

(g) by virtue of a warrant granted under section 1(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940(9);

(h) for contempt of court or for non-payment of a fine for contempt of court;

(i) for breach of interdict; and

(j) by virtue of, or by virtue of any rules or regulations made under, the Army Act 1955(10), the Air Force Act 1955(11), the Naval Discipline Act 1957(12) or the Courts-Martial (Appeals) Act 1968(13),

as they apply to persons serving sentences of imprisonment; and any reference in these Rules to a prisoner, imprisonment or a sentence of imprisonment shall therefore respectively be construed as including any such person, any such imprisonment or detention or any such period of imprisonment or detention imposed on such a person.

(6) Any reference in the foregoing provisions of this rule to a person sentenced to imprisonment or other detention includes a person who is detained in a prison or young offenders institution and is–

(a) by virtue of section 26 of the Criminal Justice Act 1961(14), Schedule 1 to the Crime (Sentences) Act 1997(15) or the Transfer of Prisoners (Restricted Transfers) (Channel Islands and Isle of Man) Order 1998(16), treated for any purpose as if his sentence had been an equivalent sentence passed by a court in Scotland; or

(b) serving a sentence of imprisonment or detention by virtue of a warrant authorising his detention which has been issued under the Repatriation of Prisoners Act 1984(17).

Application of Rules to contracted out prisons

2A.— (1) Subject to the following paragraphs of this rule, these Rules apply to a contracted out prison.

(2) Where the Secretary of State has entered into a contract for the running of a contracted out prison, these Rules shall have effect in relation to the prison, with the following modifications:–

(a) references to “an officer” in these Rules shall include references to a prisoner custody officer certified as such under section 114(1) of the 1994 Act and performing custodial duties at that or any other prison;

(b) references to “an employee” in these Rules shall include references to an employee of the contractor or any sub-contractor;

(c) subject to sub-paragraphs (d) and (h), references to a “Governor” in these Rules shall include references to a director approved by the Secretary of State for the purpose of section 107(1) of the 1994 Act except in rules 15(2), 29, 80, 83, 84, 85, 112, 112A and in any rule in Parts 10 and 14 where references to a “Governor” shall be construed as references to a controller appointed by the Secretary of State under section 107(1) of the 1994 Act;

(d) where a director exercises the powers set out in section 107(3)(c) of the 1994 Act (removal of a prisoner from association with other prisoners, the temporary confinement of a prisoner in a special cell or the application to a prisoner of any other special control or restraint in cases of urgency) he shall notify the controller of the fact forthwith;

(e) “Governor-in-Charge” in these Rules means the director except where the function has been conferred on the controller in terms of sub-paragraph (c) and in such cases references to the “Governor-in-Charge” mean the controller;

(f) rules 86A(8), 111 and paragraphs (b) and (c) of rule 129 shall not apply;

(g) references to an officer in rule 95(2) shall be construed as references to the controller;

(h) in rule 108 where a prisoner desires to make a complaint concerning a matter referred to in rule 108(1) in relation to the controller, references to “the Governor” in paragraphs (2) to (4) shall be construed as references to “the Secretary of State”; and

(i) the reference to “the Governor” in paragraph (b) of rule 127 shall include reference to the director and the controller.

Suspension of certificate of a prisoner custody officer

2B.   The prescribed circumstances for the purposes of paragraph 3(2)(b) of Schedule 6 to the 1994 Act (suspension of certificate) are–

(a) where–

(i) an allegation has been made against a prisoner custody officer acting in pursuance of prisoner escort arrangements or performing custodial duties at a prison; or

(ii) the officer has been charged with a criminal offence or disciplinary action is being taken against him by the contractor; or

(iii) it appears to the prisoner escort monitor or (as the case may be) controller that the officer is, by reason of physical or mental illness, or for any other reason, incapable of satisfactorily carrying out his duties; and

(b) where the prisoner escort monitor or (as the case may be) controller considers that the suspension of the certificate would be conducive to the maintenance of order or discipline in the prison or (as the case may be) the performance of the functions set out in section 102(2) of the 1994 Act (arrangements for the provision of prisoner escorts).”.

(1)

Rule 2 was amended by S.I. 1998/1589, rule 2(2).

(2)

1975 c. 21; sections 207 and 415 were substituted by the Criminal Justice (Scotland) Act 1980 (c. 62), section 45.

(3)

1995 c. 46.

(4)

Section 205 was substituted by the Criminal Justice (Scotland) Act 1980 (c. 62), section 43.

(5)

1989 c. 33.

(6)

1971 c. 77; Schedule 2 was modified by the Criminal Justice (International Co-operation) Act 1990 (c. 5) section 6(6)(b).

(7)

1988 c. 36.

(8)

1882 c. 42; sections 4 and 6 were amended by the Sheriff Courts (Scotland) Act 1971 (c. 58), section 4.

(9)

1940 c. 42.

(10)

1955 c. 18.

(11)

1955 c. 19.

(12)

1957 c. 53.

(13)

1968 c. 20.

(14)

1961 c. 39; section 26 was repealed by the Crime (Sentences) Act 1997 (c. 43), Schedule 6 but, by virtue of article 5(6) of the Crime (Sentences) Act 1997 (Commencement No.2 and Transitional Provisions) Order 1997 (S.I. 1997/2200), that repeal does not apply in respect of any person who on 1st October 1997 was in Scotland by virtue of an order made under section 26 of the 1961 Act, for so long as that order has effect under Part III of that Act.

(15)

1997 c. 43.

(16)

S.I. 1998/2798.

(17)

1984 c. 47.