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Criminal Justice (Scotland) Act 2003

Section 37 – Extended sentences: recall to prison and revocation of licences

177.Section 37 amends section 26A of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“the 1993 Act”) to clarify when an extended sentence prisoner who is recalled to custody has an unconditional right of re-release.  The effect is that, following the recall to custody of any prisoner serving an extended sentence, an automatic right to re-release will arise once the prisoner reaches the expiry date of his or her extension period.

178.Extended sentences are explained in paragraphs 91 and 92 above.  They consist of a term of imprisonment (“the custodial term”) and a further period (“the extension period”) for which the offender is to be subject to a licence.

179.For as long as any prisoner is on licence he or she remains liable to have his or her licence revoked and to be recalled to custody in terms of section 17 of 1993 Act.  However, following a prisoner’s return to prison, the Parole Board must consider whether he or she should be immediately re-released.  If the Parole Board decides that the prisoner should not be re‑released at that stage, further consideration of his or her suitability for release will take place at regular intervals.  However, it is not clear whether, as the law stands, the prisoner has an unconditional right to re-release at the end of the extension period, or whether he or she requires to be detained until the end of the extended sentence, in the event that these dates are different.

180.The dates will be different, by virtue of section 26A(5)(b) of the 1993 Act, if the custodial term that the prisoner receives is for less than 4 years.  In this case, in accordance with section 26A(4) of the 1993 Act, the prisoner will be released on licence after serving half of the  custodial term and will remain on licence for the duration of the extension period, which will begin on the date of the release on licence.  (For those serving a term of 4 years or more the extension period begins at the expiry of the “custodial term” and not on the date on which they are released on licence.)  However, at the expiry of the extension period, the prisoner’s extended sentence (consisting of the aggregate of the custodial term and the extension period) will not have expired.

181.The current interpretation of section 26A(9) of the 1993 Act is that it requires a prisoner who has been recalled to custody to be detained until the expiry of the entire extended sentence, unless the Parole Board directs the prisoner’s earlier release, even though this date may be considerably later than the expiry of the extension period.

182.Subsection (2) clarifies the law by providing that the reference in section 17(5) of the 1993 Act to a prisoner who is recalled to custody being liable to be detained in “pursuance of his sentence” should be construed as a liability to be detained until the expiry of the extension period.

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