Part 2 - Confinement and Release of Prisoners
Chapter 1 .Introductory
Section 3 - Application of Part 2
25.Other than a life prisoner, this Part only applies to a sentence imposed on a person for an offence committed after the coming into force of this Part. Section 54 deals with the application to those imprisoned other than following conviction of an offence.
Section 4 - Basic Definitions
26.This section provides definitions of various terms used in the Act.
27.Subsection (2) gives Scottish Ministers the power to amend, by order, the definitions of “custody and community sentence” and “custody-only sentence” by substituting a different period for the period mentioned (which is 15 days).
28.Subsections (3) and (4) provide that:
release on community licence is a reference to the release on licence of a custody and community prisoner; and
release on life licence is a reference to the release on licence of a life prisoner.
Chapter 2 .Confinement, Review and Release of Prisoners
Custody-only prisoners
Section 5 - Release on completion of sentence
29.This section provides that a custody-only prisoner (i.e. a prisoner sentenced to a term of less than 15 days) will spend the entire sentence in prison and then be released unconditionally.
Custody and community prisoners
Section 6 - Setting of custody part
30.This section describes the arrangements for setting the custody part of a custody and community sentence. This is a sentence for a term of 15 days or more. Subsection (2) provides that, for custody and community sentences, the court must make an order specifying the custody part. Subsection (3) defines the custody part as being the part of the sentence which satisfies the requirements for retribution (or punishment) and deterrence ignoring any period of confinement which may be necessary for the protection of the public since that is already a matter for the court to consider when setting the overall sentence. The decision on whether the prisoner should be released at the expiry of the custody part will depend on the assessment of the risk of serious harm posed and, if necessary, a final decision will be taken by the Parole Board for Scotland.
31.Subsection (4) provides that the custody part will be a minimum of one half of the overall sentence. However, subsection (5) enables the court to specify a greater proportion of the sentence as the custody part taking into account the matters mentioned in subsection (6), namely:
the seriousness of the offence or of the offence combined with other offences of which the person is being convicted of on the same indictment or complaint,
the fact that the offence was committed while still serving a sentence of imprisonment for a previous offence; and
any previous convictions.
Subsection (7) prevents the court from setting a custody part in excess of three-quarters of the sentence. Subsection (8) requires the court to specify the custody part as a period of time e.g. 2 years and 6 months. Subsection (9) requires that where a custody part would be expressed as a period including a fraction of a day, that it be rounded up to a whole day (with the community part of the sentence reducing respectively). Subsection (10) provides that when setting a custody part in excess of 50%, the court must explain its reasons for doing so in open court. Subsection (11) provides that the custody part forms part of the sentence for appeal purposes.
Section 7 - Power to amend section 6(4)
32.Section 7 gives the Scottish Ministers the power to amend, by order, the minimum custody part specified in section 6(4)(a).
Section 8 – Provision of information by court
33.Section 8 requires a court to produce a report when imposing custody and community sentence. In terms of subsection (2), the court must provide the Scottish Ministers with information about the person and the circumstances of the case as soon as is reasonably practicable. Subsection (3) provides that the court provide the information in a format it deems appropriate.
Section 9 - Joint arrangements between Scottish Ministers and local authorities
34.Subsections (1) and (2) require joint working arrangements to be put in place between the Scottish Ministers and local authorities in relation the assessment and management of the risks posed by custody and community prisoners. The Scottish Ministers and each local authority shall jointly assess whether an individual prisoner is likely to cause serious harm to members of the public if he or she were to be released on community licence on the expiry of the custody part of the sentence.
35.Subsection (4) defines the appropriate local authority as either the one in which the offender resided immediately prior to being sentenced or the one the offender intends to reside in upon beginning the community part of his or her sentence on licence. Subsection (5) provides that in the event of the two authorities being different they can agree between them which one should carry out the functions conferred on them under this section or section 31(4) (which also confers a function on the Scottish Ministers and local authorities to work together).
Section 10 - Review by Scottish Ministers
36.This section provides that the Scottish Ministers must determine, before the expiry of the custody part of the sentence, whether or not a custody and community prisoner is likely to cause serious harm to members of the public if he or she were released on community licence.
Section 11 - Consequences of review
37.This section requires that where the Scottish Ministers have assessed that a prisoner would not be likely to cause serious harm to the public if released then he or she must be released on community licence on the expiry of the custody part of the sentence (this is done without the prisoner’s case being referred to the Parole Board). Where a prisoner has been assessed as likely to cause serious harm to the public, subsection (3) requires the Scottish Ministers to refer his or her case to the Parole Board.
Section 12 - Review by Parole Board
38.This section places a duty on the Parole Board to review the case of a prisoner, referred to it by the Scottish Ministers under section 11(3), before the custody part of the prisoner’s sentence expires.
Section 13 – Release on community licence following review by Parole Board
39.This section provides that where the Parole Board has determined that a prisoner is not likely to cause serious harm to the public if released when the court-imposed custody part of the sentence expires or after a further review by the Board, the Board shall direct that the prisoner be released on community licence and shall specify the conditions to be included in the licence. Subsection (3) provides that where the Parole Board has made such a direction, the Scottish Ministers must release the prisoner on a community licence. In the case of a determination to release after the first referral by the Scottish Ministers, subsection (4) obliges the Scottish Ministers to give effect to the Parole Board’s direction by releasing the prisoner on the expiry of the custody part of the sentence.
Section 14 - Determination that section 10(2) applicable: consequences
40.This section applies where the Parole Board has determined, as a result of an initial referral or of a further review, that a prisoner is likely to cause serious harm to the public on release. Subsection (2) requires that the Parole Board give its reasons in writing.
41.Subsection (3) provides that if, on the day of determination, less than 4 months of the prisoner’s sentence remains before reaching the three-quarters point of the sentence, the prisoner must be confined until that point and the Parole Board must specify conditions to be included on the prisoner’s community licence.
42.Subsection (4) provides that if, on the day of determination, between 4 months and 2 years remain to be served before reaching the three-quarters point, the Parole Board may fix a date for next considering the prisoner’s case during the period specified in subsection (5). Subsection (5) provides that the period begins with the day that falls 4 months after the date of the determination and ends at the three-quarters point. Subsection (6) provides that if the Parole Board decides not to hold another hearing the prisoner must be confined until the three-quarters point and the Parole Board must set a date falling within the period provided for at subsection (5) in order to specify conditions to be included on the prisoner’s community licence.
43.Subsection (7) provides that if, on the day of determination, more than 2 years remain before the three-quarters point, the Parole Board must fix a date for when it will next consider the prisoner’s case. This must fall within the period provided for at subsection (8), which begins with the day that falls 4 months after the date of the determination and before the second anniversary of the determination.
44.Subsection (9) provides that the “three-quarters” point is the day on which the prisoner will have served three-quarters of his sentence.
Section 15 - Prisoner’s right to request early consideration by Parole Board
45.Section 15 provides that a prisoner may request earlier consideration of his/her case by the Parole Board to that fixed under section 14(4) or (7). Subsection (4) also enables a prisoner to request that a date be fixed for next considering his or her case where the Parole Board has not fixed a date under section 14(4). This section applies to those offenders who have been detained in custody following a review by the Parole Board.
Section 16 - Referral to Parole Board for the purposes of specifying conditions
46.Section 16 requires Scottish Ministers before the date fixed by the Board under section 14(6)(b) to refer cases to the Parole Board to enable it to set community licence conditions. This refers to those offenders with between 4 months and 2 years to serve before reaching the three-quarters point and for whom the Board had directed they remain in custody up to the three-quarters point.
Section 17 - Further referral to Parole Board
47.This section applies where the Parole Board has fixed a date under sections 14(4) or (7) to determine whether or not the prisoner would cause the public serious harm if not confined. Subsection (2) provides that the Scottish Ministers must refer the prisoner’s case to the Parole Board before that date and subsection (3) requires the Parole Board to determine whether or not the prisoner would be likely to cause serious harm to the public if not confined.
Section 18 - Cases where custody part specified as three-quarters of prisoner’s sentence
48.Subsection (1) provides that this section applies to custody and community prisoners whose custody part has been set at three-quarters of the overall sentence by the court. Subsection (2), by disapplying section 10(1) provides that there is no requirement for Scottish Ministers to determine whether or not the prisoner presents a risk of serious harm to the public prior to the end of the custody part with a view to referring the case to the Parole Board. Subsection (3) provides, however, that Scottish Ministers must, before the expiry of the custody part, refer the prisoner’s case to the Board and that the Board must specify the conditions to be included on the prisoner’s community licence.
Section 19 - Release after three-quarters of sentence served
49.Subsection (1) provides that the Scottish Ministers must release the prisoner on a community licence once three-quarters of the sentence have been served. Subsection (2) provides that the obligation to release at the three-quarter point does not apply in the case of an offender who has been recalled to custody in consequence of the revocation of a community licence by virtue of section 37(1) or (4) of the Act.
Life Prisoners
Section 20 - Setting of punishment part
50.This section sets out the provisions for setting the punishment part of a life sentence. The period will be specified in an order made by the court. Subsection (1) provides that this section applies where the court imposes on a person a life sentence. Subsection (2) requires the court to specify the punishment part in an order after imposing the sentence. Subsection (3) defines the punishment part as being that part of the sentence which, taking into account certain specified matters, the court considers appropriate to satisfy the requirements for retribution and deterrence but ignoring any period of confinement that the court feels may be necessary for protection of the public. It is only once this period has been served in full that the offender can be released on life licence, but this will only happen following a direction from the Parole Board, as explained below.
51.Subsection (4) details the matters the court must take account of when setting a punishment part for someone with a mandatory life sentence (for murder), namely
the seriousness of the offence, or of the offence combined with other offences of which the person is convicted on the same indictment;
any previous convictions;
where appropriate, the timing of any guilty plea;
Subsection (5) deals with the relevant matters for those with a discretionary life sentence (for offence other than murder) or an order for lifelong restriction. They are:
the determinate period of imprisonment the court considers would have been appropriate had the court not imposed a discretionary life sentence or an order for lifelong restriction; and
the part of that period of imprisonment which the court would have specified as the custody part, by reference to the matters set out in section 6(4)
52.Subsections (6), (7) and (8) provide that the punishment part, which must be expressed in years and months, may exceed the person’s life expectancy, and forms part of the person’s sentence for the purposes of any appeal or review.
Section 21 - Referral to Parole Board
53.This section requires the Scottish Ministers to refer a life prisoner’s case to the Parole Board before the expiry of the punishment part.
Section 22 - Review by Parole Board
54.This section requires the Parole Board, on referral of the case by the Scottish Ministers under section 21, to determine before the expiry of the punishment part of the sentence whether or not the life prisoner, if not confined, would be likely to cause serious harm to the public.
Section 23 - Release on life licence following review by Parole Board
55.Where the Parole Board is satisfied (either at the first review before the punishment of the sentence expires or at a subsequent review) that it is no longer necessary to confine a life prisoner for the protection of the public, it must direct the Scottish Ministers to release him or her on life licence and must specify conditions to be included in the licence. Where the direction is given at the first review before the punishment part expires, the Scottish Ministers are obliged to give effect to that direction on the expiry of the punishment part. Subsection (3) provides that where the Parole Board has directed that a life prisoner be released, the Scottish Ministers must release the prisoner on a life licence.
Section 24 - Determination that section 22(3) applicable: consequences
56.This section provides that where the Parole Board is satisfied that it is necessary to continue to confine a life prisoner for the protection of the public, it must give the prisoner reasons in writing and fix a date for a further review of the case. Subsection (3) provides that this must be within the period beginning 4 months after the day of the determination and ending immediately before the second anniversary of the determination. Subsection (4) provides that where the Parole Board has set a date for further review under subsection (2)(b), subsection (5) gives the Parole Board the discretion of replacing that date with an earlier one if the prisoner requests this.
Section 25 - Further referral to Parole Board
57.This section provides that where the Parole Board fixes a date under section 24(2)(b) the Scottish Ministers must, subject to section 26 (which is explained below), refer the case before that date to allow the Board to consider the case. The Board is to determine whether the prisoner would be likely to cause the public serious harm if not confined.
Referral to Parole Board: postponement
Section 26 - Referral to Parole Board: postponement
58.Subsections (1) and (2) require the Parole Board to postpone the date which it would otherwise have fixed for the review of a prisoner’s case where he or she receives a subsequent sentence of imprisonment after the case has been referred to the Board but before the Board has fixed a date for considering the referral. This applies where the prisoner would not be eligible for release from the subsequent sentence on the date which would otherwise have been fixed. In such circumstances, subsection (2) obliges the Board to fix a different date.
59.Subsections (3) and (4) deal with the situation in which the Board has fixed a date to review a particular case and the prisoner subsequently receives a further sentence from which he or she would not be eligible for release at that date. In this event, the Board must fix a different date for considering the case.
60.Subsection (5) provides that, in either of these scenarios, the date fixed must be the date which would have been set if the prisoner were only subject to the subsequent sentence. It replaces any other dates fixed previously.
Compassionate release on licence
Section 27 - Compassionate release on licence
61.Subsection (1) enables the Scottish Ministers to release prisoners on licence at any time if they are satisfied there are compassionate grounds for doing so.
62.Subsections (2) and (3) require the Scottish Ministers, before releasing a prisoner other than a custody-only prisoner under this section, to consult the Parole Board, unless it is impracticable to do so.
CHAPTER 3 .Community and Life Licences
The standard conditions
Section 28 – Release on licence: the standard conditions
63.Section 28 provides that where a prisoner is released on licence under the provisions of Part 2 of the Act (in practice custody and community prisoners, including those serving an extended sentence, and life sentence prisoners) the prisoner will be subject to certain standard conditions. Subsection (2) provides these as being (a) that the prisoner must be of good behaviour; and (b) that the prisoner is prohibited from leaving the United Kingdom without permission. Subsections (3) and (4) provides that the prohibition on leaving the United Kingdom does not apply if the prisoner is to be deported or is liable to removal under the relevant immigration legislation (as specified in subsection (4)) or the Scottish Ministers or a person designated by them permit the prisoner to leave the United Kingdom.
The supervision conditions
Section 29 - Release on licence of certain prisoners: the supervision conditions
64.This section (see, in particular, subsection (2)) requires the Scottish Ministers to include a supervision condition in the licence where the prisoner being released (other than one liable to removal from the United Kingdom) falls into the following categories: a life prisoner; a custody and community prisoner with a sentence of 6 months or more or who is detained in custody beyond the court-imposed custody part of the sentence; a custody and community prisoner with a custody part set at the maximum three-quarters by the court at the point of sentencing; a prisoner released on compassionate grounds; an extended sentence prisoner; a sex offender; or a child,.
65.Subsection (4) states that a supervision conditions are that (a) the prisoner is to be supervised by a relevant officer of the local authority specified in the licence, (b) the prisoner comply with any other requirements imposed by the supervising officer, (c) the prisoner maintains contact with the supervising officer as directed, and (d) the prisoner informs the supervising officer of any change of address and any change of employment.
66.Subsection (5) provides that the “relevant officer” referred to in subsection (3), in relation to a local authority, is an officer of that local authority employed by it as a social worker.
Community Licences
Section 30 - Release on community licence on Parole Board’s direction
67.Where the Parole Board specifies conditions to be included in a community licence by virtue of sections 13(2)(b), 14(3)(b), 16(3), 18(3)(b) or 42(4)(b), the Scottish Ministers must include these conditions in the community licence. Subsection (2) provides that the Scottish Ministers must also include the standard conditions specified at section 28 and, if applicable, the supervision conditions. Subsection (3) provides that the Scottish Ministers may only vary or cancel the conditions or include further conditions, if directed by the Parole Board to do so.
Section 31 - Community licences in which Scottish Ministers may specify conditions
68.This section provides that, in a case where the Scottish Ministers release a prisoner without referring the case to the Parole Board, the Scottish Ministers can include such conditions as they consider appropriate upon the prisoner being released on community licence either on the expiry of the custody part or as a result of being granted compassionate release. Subsection (2) also provides that the Scottish Ministers must include the standard conditions specified at section 28 and, if applicable, the supervision conditions. Subsection (3) allows Scottish Ministers to vary or cancel conditions or include such further conditions as they consider appropriate. Subsection (4) provides that in exercising such powers they must co-operate with the appropriate local authority, as defined in section 9.
Life licences
Section 32 - Release on life licence: conditions
69.Where the Parole Board specifies the conditions to be included in a prisoner’s life licence, the Scottish Ministers must include these conditions in the life licence. Subsection (2) also provides that the Scottish Ministers must include the standard conditions specified at section 28 and, if applicable, the supervision conditions specified at section 29. Subsection (3) provides that,the Scottish Ministers may vary or cancel the conditions or include further conditions but only if directed to do so by the Parole Board.
Section 33 - Compassionate release on life licence: conditions
70.This section applies where Scottish Ministers have granted compassionate release to a life sentence prisoner. Subsection (2) provides that the Scottish Ministers must include the standard conditions specified at section 28 and, if applicable, the supervision conditions and such other conditions as they consider appropriate. Subsection (3) provides that the Scottish Ministers may vary or cancel conditions or include further conditions.
Duration of licence
Section 34 – Period during which licence in force
71.Subsection (1) provides that where a custody-only prisoner has been granted compassionate release, the licence remains in force until the sentence expires.
72.Subsection (2) provides that, where a custody and community prisoner is released on community licence, the licence remains in force until the sentence expires.
73.Subsection (3) provides that, where a life prisoner has been released on life licence, the licence remains in force for the remainder of the prisoner’s life.
Prisoner to comply with licence conditions
Section 35 - Prisoner to comply with licence conditions
74.This section requires a prisoner to comply with all conditions included in his or her licence.
Suspension
Section 36 - Suspension of licence conditions while detained
75.This section provides that if a custody and community prisoner or a life prisoner is detained in custody, for whatever reason, during a period when their licence is still in force, then the licence conditions - with certain exceptions - are suspended. As provided for at subsections (4)(a) and (b), the suspension remains in place for so long as the prisoner is confined in prison and for so long as the licence remains in force.
76.The exceptions are set out in subsection (3), namely, the condition that the prisoner be of good behaviour and keep the peace and any condition that the prisoner must not contact a named person or class of persons. These conditions continue in force, and breach of them can lead to the licence being revoked.
77.Subsection (5) allows Scottish Ministers, by order, to add to these conditions and to cancel or vary them.
Revocation
Section 37 - Revocation of licence
78.Subsection (1) enables the Scottish Ministers to revoke a prisoner’s licence and recall him or her to custody. Subsection (4) deals with the situation in which a prisoner is still on licence but is detained in custody for any reason. In such a situation, Ministers must revoke the licence.
79.Subsections (2), (3) and (5) provide that, whether or not the prisoner is in custody at the time, the licence may only be revoked if two conditions are met: first, that the prisoner either has breached a licence condition or is considered to be likely to do so; and secondly that Ministers consider that it is in the public interest to revoke the licence.
Section 38 - Compassionate release: additional ground for revocation of licence
80.Subsection (1) provides that this section applies if a prisoner has been given compassionate release on licence and Scottish Ministers are satisfied that those grounds for granting such release are no longer justified e.g. a reversal of the medical condition. Subsection (2) requires Scottish Ministers to revoke the licence and subsection (3) requires that if the offender is not already detained, that he or she is recalled to prison.
Section 39 - Prisoners unlawfully at large
81.This section provides that where a prisoner’s licence has been revoked by virtue of section 37(1) or 38(2) and that prisoner is not in custody, he or she is taken to be unlawfully at large. The effect of this is any period of time spent unlawfully at large will still have to be served as part of the sentence. This section also applies to those released on compassionate grounds who have been recalled to custody.
Section 40 – Compassionate release: effect of revocation in certain circumstances
82.Subsection (1) provides that subsection (2) applies where a prisoner is released on compassionate grounds is recalled to custody following revocation of his or her licence and the revocation occurs before the expiry of the relevant period described in subsection (3). These are: the prisoner’s sentence if a custody-only prisoner; the custody part of the sentence if a custody and community prisoner; or the punishment part of the sentence if a life sentence prisoner. The effect of subsection (2) is that the prisoner reverts to being treated as if he or she had not been released on compassionate grounds i.e. the remainder of the sentence will follow the relevant procedures as prescribed by Part 2 of the Act.
Section 41 - Referral to Parole Board following revocation of licence
83.This section provides that where the Scottish Ministers have revoked a prisoner’s licence (including compassionate release licences) by virtue of section 37(1) or (4) or 38(2), they must inform the prisoner of the reasons for doing so and, subject to section 40, refer the case to the Parole Board.
Section 42 - Consideration by Parole Board
84.This section applies where a prisoner whose licence has been revoked has his or her case referred to the Parole Board by virtue of section 41(2)(b), 43(9) or 44(5). Subsection (2) provides that the Board must determine under subsection (3) whether or not it is in the public interest that the prisoner be confined. Subsection (4) provides that where the Board considers subsection (3) does not apply, it must direct the Scottish Ministers to release the prisoner on licence and must specify licence conditions for inclusion in the licence. Subsection (5) provides that where the Parole Board have made such a direction the Scottish Ministers must release the prisoner on a community licence or a life licence as appropriate.
Section 43 - Determination that section 42(3) applicable: consequences for custody and community prisoners
85.Subsection (1) provides that this section applies where the Parole Board considers under section 42(3) that it is in the public interest that a recalled custody and community prisoner be confined. Subsection (2) requires the Board to provide the prisoner with its reasons for making its determination in writing. Subsection (3) provides that if there is less than 4 months of the prisoner’s sentence remaining, the prisoner must remain in custody for the remainder of the sentence. Subsection (4) provides, however, that if there are between 4 months and 2 years of the prisoner’s sentence remaining, the Board must fix a date when it will next review the prisoner’s case within the period mentioned in subsection (5). Subsection (5) specifies that the period begins 4 months after the date of the determination and ends on the expiry of the prisoner’s sentence. Subsection (6) provides that if no date is set under subsection (4) the prisoner must remain in prison to the end of the sentence.
86.Subsection (7) provides that if at least 2 years remain of the prisoner’s sentence then the Parole Board must, subject to section 26, fix a date for when it will next hear the prisoner’s case within the period mentioned in subsection (8). Subsection (8) provides that the period begins 4 months after the date of the determination and ends immediately before the second anniversary of the determination. Subsection (9) requires Scottish Ministers to refer the case to the Parole Board before any date set by the Parole Board under subsection (4) or (7).
Section 44 - Determination that section 42(3) applicable: consequences for life prisoners
87.Subsection (1) provides that this section applies where the Parole Board under section 42(2) considers it to be in the public interest that a recalled life sentence prisoner be confined. Subsection (2) requires the Board to provide the prisoner with its reasons for not re-releasing the prisoner in writing. Subsection (3) provides that the Board must, subject to section 26, set a date for when it will next consider the prisoner’s case within the period mentioned in subsection (4). Subsection (4) provides that the period begins 4 months after the date of the determination and ends immediately before the second anniversary of the determination. Subsection (5) requires Scottish Ministers to refer the case to the Parole Board before the date set under subsection (3).
Section 45 - Prisoner’s right to request early reconsideration by Parole Board
88.Section 45 provides that prisoners who have had a date set for a further review under sections 43(4), 43(7) or section 44(3) can ask for early consideration of their case by the Parole Board. Subsection (2) provides that the Board may, if it considers it appropriate, to fix an earlier date. In terms of subsection (3) and (4), where the Board does not fix a date under section 43(4), it may, on the prisoner’s request, consider it appropriate, to do so and will fix a date when it will next consider the prisoner’s case.
Single licence
Section 46 - Multiple licences to be replaced by single licence
89.Subsection (1) provides that this section applies to offenders who have been released on licence under this Part and who have received another sentence of imprisonment while that licence remains in force. Subsection (2) provides that, if the original licence is still in force at the time when the prisoner is to be released on licence from the subsequent sentence, then he or she is to be released on a single licence covering both sentences. Subsection (3) provides that the single licence replaces the original one while subsection (4) requires that the single licence includes all conditions from the previous licence.
90.Subsection (5) provides that the new single licence will remain in force, unless revoked, until all licences which would otherwise have been imposed would have expired. Subsection (6) provides that in the case of a prisoner being released unconditionally from a subsequent sentence the licence from the original sentence will remain in place, unless revoked, in the same way as it would have done had the subsequent sentence not been imposed.
Chapter 4 .Curfew Licences
Section 47 - Curfew licences
91.Under this section the Scottish Ministers may release, on licence, a custody and community prisoner who is serving a sentence of 3 months or more and is of a description to be specified by the Ministers by order. Such an order is subject to the affirmative resolution procedure. Subsection (3) provides that the licence must include a curfew condition, which is described in section 48.
92.Subsections (2) and (4) specify the period during which a prisoner may be released on a curfew licence. Subsection (2) states that it shall be before the expiry of the custody part of the sentence. Subsection (4) provides that the Scottish Ministers may only release a prisoner after the later of: the day on which the prisoner has served one-quarter or four weeks of the sentence (whichever is the greater), or the day falling 135 days before the expiry of the custody part of the sentence. In addition, release must be before the day falling 14 days before the expiry of the custody part. So the window for release on curfew licence is between 135 days and 14 days before the expiry of the custody so long as the prisoner has served at least one-quarter (or 4 weeks if this is more than one quarter) of his or her sentence at the proposed time of release.
93.Subsection (5) provides that in determining whether to release a prisoner under this section, the Scottish Ministers must have regard to the need to protect the public, prevent re-offending and secure the successful re-integration of the prisoner into the community. Subsections (6) to (8) provide that the Scottish Ministers may include in a curfew licence any other conditions they consider appropriate; that prisoners released on curfew licence must comply with any conditions on it; and that the curfew licence remains in force until the expiry of the custody part of the sentence.
94.Subsection (9) provides that an order made under subsection (1)(b) may apply, with or without modification, relevant provisions of Part 2 of the Act to curfew licences. It may also amend the periods of time mentioned in subsection (4).
Section 48 - Curfew conditions
95.Subsection (1) defines a curfew condition as being one that requires a person to remain at the place specified in the condition for the periods which are specified. Subsection (2) provides that it may also require the person not to be in a particular place, or class of place, at a specified time or during a specified period and may also specify different places and periods for different days. However, subsection (3) states that it cannot specify, in respect of the condition to remain at a certain place, periods amounting to less than nine hours in any one day (excluding the first and last days of the period for which the condition is in force).
Section 49 - Monitoring of curfew conditions
96.Subsection (1) provides that an offender’s compliance with a curfew condition will be monitored remotely. Subsection (2) applies section 245C of the Criminal Procedure (Scotland) Act 1995 in relation to the imposition of, and compliance with, a curfew condition as that section applies to the monitoring of restriction of liberty orders. Section 245C, read with section 38(2) and also with section 118 of the Scotland Act 1998, requires the Scottish Ministers to make regulations specifying the devices which may be used for the remote monitoring of compliance with the curfew condition.
97.Subsection (3) requires the Scottish Ministers to designate in the licence who will be responsible for the remote monitoring, and subsection (4) provides that the Scottish Ministers may replace the responsible person with another person. Subsection (5) requires the Scottish Ministers to send, as soon as practicable after designating any person as the responsible person, a copy of the curfew condition to that person, together with any other relevant information which Ministers consider the person may need for the fulfilment of the remote monitoring responsibility. Subsection (6) provides that, where the Scottish Ministers exercise their power under subsection (4) to designate a new responsible person, they must, where practicable, notify the person who has been replaced.
Chapter 5 .General
Section 50 - No release on weekends or public holidays
98.This section provides that where a prisoner is due to be released on a Saturday, Sunday or a public holiday, then he or she will instead be released on the day immediately preceding that day. The reference to “public holiday” is to be read by reference to any holidays in the area in which the prisoner is likely to be upon release.
Chapter 6 .Extended and Multiple Sentences
Section 51 – Prisoners serving extended sentences: application of Part 2
99.Section 51 provides that Part 2 applies to prisoners given an extended sentence by the court. Subsection (2) to (6) explain that references to a custody and community sentence, where appropriate, can be read as a reference to the confinement term of an extended sentence.
Section 52 – Prisoners serving more than one sentence: application of Part 2
100.Section 52 provides that Schedule 2 (which makes provisions in relation to prisoners serving more than one sentence) has effect.
Schedule 2(introduced by section 52) .Prisoners Serving More Than One Sentence: Application of Part 2
Multiple custody-only sentences
101.Paragraph 1(1) provides that paragraph 1 applies where a prisoner is serving, or is likely to serve, two or more custody-only sentences and is not serving, or is not likely to serve, any other custodial sentence. Paragraph 1(2) provides that Part 2 of the Act applies subject to the modifications specified in paragraph 1(3) i.e. that a reference to a prisoner’s sentence in sections 5 and 28(1) are to be read as a reference to the sentence with the latest date of expiry.
Multiple custody and community sentences
102.Paragraph 2(1) provides that paragraph 2 applies where a prisoner is serving, or is likely to serve, two or more custody and community sentences and is not serving, or is not likely to serve, any other custodial sentence.
103.Where a prisoner is serving two or more custody and community sentences, references in Part 2 to the expiry of the custody part will be to the latest expiry date. This prevents the case being referred to the Parole Board until shortly before the expiry of all custody parts. The prisoner will only be released on licence on expiry of the latest custody part.
104.Paragraph 2(5) provides that the prisoner can, following review by the Parole Board, be detained on the grounds of risk until he or she has served at least three-quarters of each of the sentences. Paragraph 2(6) provides that the sentence end date is the latest expiry date of the sentences.
Combinations of custody-only and custody and community sentences
105.Paragraph 3(1) provides that paragraph 3 has effect where a prisoner is serving, or is likely to serve, a combination of at least one custody-only and one custody and community sentence.
106.References in Part 2 to the expiry of the custody part will be to the expiry of whichever is the later (or latest) of the custody parts and custody-only sentences imposed on the prisoner. This prevents the case being referred to the Parole Board until shortly before the expiry of all custody parts and custody-only sentences.
107.Paragraph 3(5) provides that the prisoner can, following review by the Parole Board, be detained on the grounds of risk until he or she has served at least three-quarters of each of the sentences and the custody-only sentence. Paragraph 5(6) provides that the sentence end date is the latest expiry date of the sentences.
Multiple life sentences
108.Paragraph 4(1) provides that paragraph 4 has effect where a prisoner is serving, or is likely to serve, two or more life sentences. Where a prisoner is serving two or more life sentences, his case will not be able to be referred to the Parole Board until shortly before the expiry of the latest punishment part.
Combinations of life sentences and other sentences
109.Paragraph 5(1) provides that paragraph 5 has effect where a prisoner is serving, or is likely to serve, a combination of at least one life sentence and any number or combination of custody-only or custody and community sentences.
110.Where a prisoner is serving such a combination of sentences. This prevents the case being referred to the Parole Board until shortly before the expiry of the latest custody only sentence, custody part of a custody and community sentence or punishment part of a life sentence. The prisoner will only be released on licence on expiry of the latest custody only sentence, custody part or punishment part.
Single licence for released prisoner serving multiple sentences
111.Paragraph 6 provides that where paragraph 2, 3, 4 or 5 applies to a prisoner, he will be released on a single licence covering all sentences of imprisonment.
Special case: extended sentences
112.Paragraph 7 provides that where a custody and community sentence mentioned in paragraphs 2 and 3 is an extended sentence, references to the prisoner’s sentences are to be read as references to the confinement period/s of the extended sentence/s.
Section 53 – Sentences framed to run consecutively
113.Section 53 provides that Schedule 3 (which makes provisions in relation to sentences framed to take effect on the expiry of another sentence) has effect.
Schedule 3(introduced by section 53) .Sentences Framed to Be Run Consecutively
Power to impose sentence to take effect on expiry of other sentence
114.Paragraph 1 provides the main power to impose a sentence to run consecutively to other sentences. It is intended to apply to the case where the prisoner is already serving another sentence and the court wants the new sentence to run consecutively to that existing sentence; and to the case where the court is imposing more than one sentence and it wants them to run consecutively.
Postponement of sentencing where previous punishment part or custody part not specified
115.Paragraph 2 provides that the where the court is required to sentence a person who is awaiting the setting of a custody or punishment part for a previous offence, the court may not set the custody or punishment part of the subsequent offence until the previous custody or punishment part has been set.
Effect of sentences framed to take effect consecutively
116.The provisions in paragraphs 3 and 4 deal with the situations where consecutive sentences are intended to intertwine rather than run purely consecutively. There are two circumstances where this might happen. The table below sets out how this schedule deals with the various permutations of sentences running consecutively.
| Previous Sentence (PS) | Further Sentence (FS) | Order to be served | Relevant provisions of schedule |
|---|---|---|---|
| Custody-only | Custody-only | Custody-only PS – Custody-only FS | Para 1 |
| Custody-only | Custody and community | Custody-only PS – Custody part of FS – Community part of FS | Para 1 |
| Custody-only | Life | Custody-only PS – Punishment Part of FS Life licence | Para 1 |
| Custody and community | Custody-only | Custody part of PS – Custody-only FS – Community part of PS | Paras 1 and 3 |
| Custody and community | Custody and community | Custody part of PS – Custody part of FS – Community part of PS Community part of FS | Paras 1 and 4 |
| Custody and community | Life | Custody Part of PS – Punishment Part of FS Life licence | Para 1 |
| Life | Custody-only | Punishment part of PS – Custody-only FS Life licence | Para 1 (the multiple sentence provisions make it clear when the life licence is due to begin) |
| Life | Custody and community | Punishment part of PS – Custody Part of FS – Life licence | Para 1 |
| Life | Life | Punishment part of PS – Punishment Part of FS Life licence | Para 1 |
Effect of sentences framed to take effect consecutively on extension periods
117.Paragraph 5 provides the arrangements for the effects of extended sentences to be framed consecutively. The table below sets out how this schedule deals with the various permutations of sentences running consecutively.
| Previous Sentence (PS) | Further Sentence (FS) | Order to be served | Relevant provisions of schedule |
|---|---|---|---|
| Custody and community (Extended) | Custody-only | Custody part of PS – Custody-only FS – Community part of PS – Extension period of PS | Paras 1, 3 and 5(1) |
| Custody and community (Extended) | Custody and community | Custody part of PS – Custody part of FS – Community part of PS – Community part of FS – Extension period of PS | Paras 1, 4 and 5(2) |
| Custody and community | Custody and community (Extended) | Custody part of PS – Custody part of FS – Community part of PS – Community part of FS – Extension period of FS | Paras 1, 4 and 5(3) |
| Custody and community (Extended) | Custody and community (Extended) | Custody part of PS – Custody part of FS – Community part of PS – Community part of FS – Aggregated extension period for PS and FS (limited to a maximum of ten years) | Paras 1, 4 and 5(4) |
Application of schedule where previous sentence imposed by court outwith Scotland
118.Paragraph 6 provides Scottish Ministers with an order making power to make provision to apply this section where a previous sentence has been passed in a court in any part of the United Kingdom outwith Scotland.
Chapter 7 .Application of Part 2 to Certain Persons
Section 54 - Persons detained under mental health provisions
119.This section provides that Part 2 of the Act applies to the following categories of prisoner as if they had continued to serve their sentence in prison rather than in a hospital:
those transferred to hospital under a transfer direction made in accordance with section 136(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003; and
those conveyed to and detained in a hospital for treatment of a mental disorder in accordance with section 59A of the Criminal Procedure (Scotland) Act 1995.
Section 55 - Application to young offenders and children
120.This section deals with the application of the provisions of Part 2 to young offenders and children. A young offender is a person who is under 21 years old at the point of sentence (and who is not a child). A child a person who is under 16 years old or who is under 18 years old and in respect of whom a supervision requirement is in force.
121.Where the sentence on a young person or child is of less than 15 days, Part 2 applies to them as if they were a custody-only prisoner. Where the sentence is of 15 days or more, it applies as if they were a custody and community prisoner. And where the sentence is indeterminate, it applies as if they were a life prisoner.
122.Subsection (7) provides that references to “imprisonment” in Part 2 are to be read as references to detention and cognate expressions are to be construed accordingly. This is because young offenders and children are sentenced to detention and not to imprisonment.
Section 56 – Fine defaulters and persons in contempt of court
123.This section provides that Part 2 of the Act will apply as it applies to custody-only prisoners to:
those who are in custody as a result of a failure to pay a fine, and
to persons who are in custody having been found in contempt of court.
124.This means that these categories of person will serve their full sentence in custody regardless of the length of the period of custody imposed on such a person.
125.Subsection (3) states that this section will only apply where the relevant act which leads to imprisonment or detention occurs after the coming into force of Part 2.
Chapter 8 .Cross-Border Transfer of Prisoners
Section 57 – Cross-border transfer of prisoners
126.Subsection (1) provides that the Scottish Ministers may, by order, make provisions dealing with the transfer of a person serving a custodial sentence in Scotland to a place outwith Scotland, and for the transfer to and confinement in Scotland of a person serving a sentence outwith Scotland.
