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The Mental Health (Scotland) Act 2015 (Commencement No. 5 and Transitional Provisions) Order 2017

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TRANSITIONAL PROVISIONS

Victim’s right to information on offender: section 16 of the 2003 Act

3.  Despite the commencement of section 54 of the Act

(a)the amendments to section 16(3)(f) of the 2003 Act (victim’s right to receive information concerning release etc. of offender) have no effect where the convicted person who was unlawfully at large from hospital as described in section 16(3)(f)(i) has been returned to hospital as described in section 16(3)(f)(ii) before the appointed day; and

(b)section 16(3)(g)(ii) of the 2003 Act has no effect where the certificate mentioned in section 16(3)(g)(i) was revoked before the appointed day.

4.—(1) Paragraph (2) applies where—

(a)an offence has been perpetrated against a natural person;

(b)another person (“O”) was convicted of that offence and sentenced in respect of it as described in section 16(1)(a) to (c) of the 2003 Act and, immediately before 5th October 2005, was subject to a transfer direction made under section 71 of the 1984 Act (removal to hospital of persons serving sentences of imprisonment and other prisoners) in connection with that sentence of imprisonment or treated as so subject; and

(c)O continues to be treated on or after the appointed day as if subject to a transfer for treatment direction made under section 136 of the 2003 Mental Health Act (transfer of prisoners for treatment for mental disorder) and as if liable to be detained by virtue of that Act, in accordance with article 29 of the 2005 Order (transfer directions).

(2) For the purposes of section 16(3)(g) of the 2003 Act (as read with section 18A of that Act (interpretation)), O is to be treated as liable to be detained in hospital under a transfer for treatment direction made under section 136 of the 2003 Mental Health Act (transfer of prisoners for treatment for mental disorder).

Victim’s right to information on offender subject to compulsion order: sections 16A to 16C of the 2003 Act

5.—(1) Paragraph (2) applies where—

(a)an offence has been perpetrated against a natural person;

(b)another person (“O”), immediately before 5th October 2005, was subject to a hospital order or an order having the effect of a hospital order made under section 58 of the 1995 Act (order for hospital admission or guardianship) in proceedings in respect of that offence and was subject to the special restrictions set out in section 62(1) of the 1984 Act (effect of restriction orders); and

(c)O fell to be treated on that date as if a compulsion order and a restriction order had been made in respect of O, by virtue of article 20 of the 2005 Order (restriction orders).

(2) For the purposes of section 16A(1)(b) of the 2003 Act (victim’s right to receive information concerning offender subject to compulsion order), O is to be treated as if O has been made subject to a compulsion order and a restriction order in proceedings in respect of an offence as described in subsection (1)(a) of that section.

6.—(1) Despite the commencement of section 55 of the Act, where paragraph (2) applies—

(a)section 16A(2) of the 2003 Act has no effect; and

(b)provided that it is reasonably practicable for them to do so, the Scottish Ministers must give the information about O (as defined in section 16A(1) of the 2003 Act) described in paragraph (3) to the person mentioned in section 16A(1)(c) of the 2003 Act.

(2) This paragraph applies where—

(a)the circumstances set out in section 16A(1)(a) to (d) apply; and

(b)the compulsion order or the restriction order referred to in section 16A(1)(b) ceased to have effect before the appointed day.

(3) The following information is to be given—

(a)that the compulsion order to which O was subject was revoked before the appointed day and that revocation is final;

(b)that the restriction order to which O was subject was revoked before the appointed day and that revocation is final; or

(c)where neither sub-paragraph (a) nor sub-paragraph (b) applies, that O died before the appointed day and the date of O’s death.

7.—(1) For the purposes of article 6 of this Order, an order has “ceased to have effect” if—

(a)it is revoked and the revocation is final; or

(b)it ceased to have effect in consequence of O’s death.

(2) For the purposes of paragraph (1), a revocation is final if any of the circumstances mentioned in paragraph (3) apply.

(3) The circumstances are—

(a)the decision to revoke the order has not been appealed against before the expiry of the time allowed to appeal to the Court of Session;

(b)the decision to revoke the order has been appealed against and—

(i)the Court of Session has decided not to allow the appeal; and

(ii)the Court of Session’s decision has not been appealed against to the Supreme Court before the expiry of the time allowed to appeal to the Supreme Court; or

(c)the decision to revoke the order has been appealed against and—

(i)the Court of Session has decided to allow or not to allow the appeal;

(ii)the Court of Session’s decision has been appealed against to the Supreme Court; and

(iii)the Supreme Court has decided not to allow the appeal.

8.—(1) Despite the commencement of section 55 of the Act—

(a)section 16C(2)(e) of the 2003 Act (information to be given under section 16A) has no effect where the compulsion order referred to in that section has been varied before the appointed day;

(b)section 16C(2)(g) of the 2003 Act has no effect where the order mentioned in that subsection has been made before the appointed day, if the Scottish Ministers have recalled O to hospital under section 202 of the 2003 Mental Health Act (recall of patients from conditional discharge) before that day;

(c)where sub-paragraph (b) applies, section 16C(2)(h) and (2)(i) of the 2003 Act have no effect;

(d)section 16C(3)(b) of the 2003 Act has no effect where O has returned to hospital before the appointed day; and

(e)section 16C(3)(d) of the 2003 Act has no effect where the certificate mentioned in section 16C(3)(c) was revoked before the appointed day.

(2) For the purposes of paragraph (1), O is to be treated as having been recalled to hospital under section 202 of the 2003 Mental Health Act before the appointed day if O has returned, or has been returned, to hospital before that day in pursuance of a warrant issued by the Scottish Ministers under that section.

(3) In this article, “O” has the same meaning as in section 16A(1) of the 2003 Act.

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