(1)A court shall not pass a sentence of imprisonment or of detention in respect of any offence, nor impose imprisonment, or detention, under section 214(2) of this Act in respect of failure to pay a fine, on an accused who is not legally represented in that court and has not been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom, unless the accused either—
(a)applied for legal aid and the application was refused on the ground that he was not financially eligible; or
(b)having been informed of his right to apply for legal aid, and having had the opportunity, failed to do so.
(2)A court shall not pass a sentence of imprisonment on a person of or over twenty-one years of age who has not been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom unless the court considers that no other method of dealing with him is appropriate; and for the purpose of determining whether any other method of dealing with such a person is appropriate the court shall obtain (from an officer of a local authority or otherwise) such information as it can about the offender’s circumstances; and it shall also take into account any information before it concerning the offender’s character and physical and mental condition.
(3)Where a court of summary jurisdiction passes a sentence of imprisonment on any such person as is mentioned in subsection (2) above, the court shall state the reason for its opinion that no other method of dealing with him is appropriate, and shall have that reason entered in the record of the proceedings.
(4)The court shall, for the purpose of determining whether a person has been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom—
(a)disregard a previous sentence of imprisonment which, having been suspended, has not taken effect under section 23 of the M1Powers of Criminal Courts Act 1973 or under section 19 of the M2Treatment of Offenders Act (Northern Ireland) 1968;
(b)construe detention as meaning —
(i)in relation to Scotland, detention in a young offenders institution or detention centre;
(ii)in relation to England and Wales a sentence of youth custody, borstal training or detention in a young offender institution or detention centre; and
(iii)in relation to Northern Ireland, detention in a young offenders centre.
(5)This section does not affect the power of a court to pass sentence on any person for an offence the sentence for which is fixed by law.
(6)In this section—
“legal aid” means legal aid for the purposes of any part of the proceedings before the court;
“legally represented” means represented by counsel or a solicitor at some stage after the accused is found guilty and before he is dealt with as referred to in subsection (1) above.
Valid from 30/09/1998
A court sentencing a person to imprisonment or other detention shall not order or direct that the term of imprisonment or detention shall commence on the expiration of any other such sentence from which he has been released at any time under the existing or new provisions within the meaning of Schedule 6 to the M3Prisoners and Criminal Proceedings (Scotland) Act 1993.]
Textual Amendments
F1S. 204A inserted (30.9.1998) by 1998 c. 37, s. 112; S.I. 1998/2327, art. 2(1)(x)
Marginal Citations
Valid from 01/12/2003
(1)This section applies in respect of sentencing for offences committed after the coming into force of this section.
(2)Where, in solemn proceedings, the court sentences a person to imprisonment or other detention, the court may—
(a)if the person is serving or is liable to serve the punishment part of a previous sentence, frame the sentence to take effect on the day after that part of that sentence is or would be due to expire; or
(b)if the person is serving or is liable to serve the punishment parts of two or more previous sentences, frame the sentence to take effect on the day after the later or (as the case may be) latest expiring of those parts is or would be due to expire.
(3)Where, in such proceedings, it falls to the court to sentence a person who is subject to a previous sentence in respect of which a punishment part requires to be (but has not been) specified, the court shall not sentence the person until such time as the part is either specified or no longer requires to be specified.
(4)Where the court sentences a person to a sentence of imprisonment or other detention for life, for an indeterminate period or without limit of time, the court may, if the person is serving or is liable to serve for any offence—
(a)a previous sentence of imprisonment or other detention the term of which is not treated as part of a single term under section 27(5) of the 1993 Act; or
(b)two or more previous sentences of imprisonment or other detention the terms of which are treated as a single term under that section of that Act,
frame the sentence to take effect on the day after the person would (but for the sentence so framed and disregarding any subsequent sentence) be entitled to be released under the provisions referred to in section 204A of this Act as respects the sentence or sentences.
(5)Subsection (4)(a) above shall not apply where the sentence is a sentence from which he has been released at any time under the provisions referred to in section 204A of this Act.
(6)In this section, any reference to a punishment part of a sentence shall be construed by reference to—
(a)the punishment part of the sentence as is specified in an order mentioned in section 2(2) of the 1993 Act; or
(b)any part of the sentence which has effect, by virtue of section 10 of the 1993 Act or the schedule to the Convention Rights (Compliance)(Scotland) Act 2001 (asp 7), as if it were the punishment part so specified,
and “the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9).
(7)This section is without prejudice to any other power under any enactment or rule of law as respects sentencing.]
Textual Amendments
F2S. 204B inserted (1.12.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 26(1), 89; S.S.I. 2003/475, art. 2, Sch.
(1)Subject to subsections (2) and (3) below, a person convicted of murder shall be sentenced to imprisonment for life.
(2)Where a person convicted of murder is under the age of 18 years he shall not be sentenced to imprisonment for life but to be detained without limit of time and shall be liable to be detained in such place, and under such conditions, as the Secretary of State may direct.
(3)Where a person convicted of murder has attained the age of 18 years but is under the age of 21 years he shall not be sentenced to imprisonment for life but to be detained in a young offenders institution and shall be liable to be detained for life.
(4)On sentencing any person convicted of murder a judge may make a recommendation as to the minimum period which should elapse before, under section 1(4) of the M4Prisoners and Criminal Proceedings (Scotland) Act 1993, the Secretary of State releases that person on licence.
(5)When making a recommendation under subsection (4) above, the judge shall state his reasons for so recommending.
(6)Notwithstanding subsection (2) of section 106 of this Act it shall be competent to appeal under paragraph (b) or (f) of subsection (1) of that section against a recommendation made under subsection (4) above; and for the purposes of such appeal (including the High Court’s power of disposal under section 118(4)(b) of this Act) the recommendation shall be deemed part of the sentence passed on conviction.
Valid from 20/10/1997
(1)This section applies where—
(a)a person is convicted on indictment in the High Court of a class A drug trafficking offence committed after the commencement of section 2 of the Crime and Punishment (Scotland) Act 1997;
(b)at the time when that offence was committed, he had attained the age of at least 18 years and had been convicted in any part of the United Kingdom of two other class A drug trafficking offences, irrespective of—
(i)whether either of those offences was committed before or after the commencement of section 2 of the Crime and Punishment (Scotland) Act 1997;
(ii)the court in which any such conviction was obtained; and
(iii)his age at the time of the commission of either of those offences; and
(c)one of the offences mentioned in paragraph (b) above was committed after he had been convicted of the other.
(2)Subject to subsection (3) below, where this section applies the court shall sentence the person—
(a)where he has attained the age of 21 years, to a term of imprisonment of at least seven years; and
(b)where he has attained the age of 18 years but is under the age of 21 years, to detention in a young offenders institution for a period of at least seven years.
(3)The court shall not impose the sentence otherwise required by subsection (2) above where it is of the opinion that there are specific circumstances which—
(a)relate to any of the offences or to the offender; and
(b)would make that sentence unjust.
(4)For the purposes of section 106(2) of this Act a sentence passed under subsection (2) above in respect of a conviction for a class A drug trafficking offence shall not be regarded as a sentence fixed by law for that offence.
(5)In this section “class A drug trafficking offence” means a drug trafficking offence committed in respect of a class A drug; and for this purpose—
“class A drug” has the same meaning as in the M5Misuse of Drugs Act 1971;
“drug trafficking offence” means a drug trafficking offence within the meaning of—
Textual Amendments
F3S. 205B inserted (20.10.1997) by 1997 c. 48, s. 2(1); S.I. 1997/2323, art. 3, Sch. 1
Marginal Citations
Valid from 20/10/1997
(1)For the purposes of paragraph (b) of subsection (1) of each of sections 205A and 205B of this Act “conviction” includes—
(a)a finding of guilt in respect of which the offender was admonished under section 181 of the M9Criminal Procedure (Scotland) Act 1975 (admonition); and
(b)a conviction for which an order is made placing the offender on probation,
and related expressions shall be construed accordingly.
(2)This subsection applies where a person has at any time been convicted of an offence under—
(a)section 70 of the M10Army Act 1955;
(b)section 70 of the M11Air Force Act 1955; or
(c)section 42 of the M12Naval Discipline Act 1957.
(3)Where subsection (2) above applies and the corresponding civil offence (within the meaning of the Act under which the offence was committed) was—
(a)a relevant offence within the meaning of section 205A of this Act; or
(b)a Class A drug trafficking offence within the meaning of section 205B of this Act,
that section shall have effect as if he had been convicted in England and Wales of the corresponding civil offence.]
Textual Amendments
F4S. 205C inserted (20.10.1997 for specified purposes and otherwise prosp.) by 1997 c. 48, ss. 3, 65(2); S.I. 1997/2323, art. 3, Sch. 1
Marginal Citations
Valid from 08/10/2001
Where a person is convicted on the same indictment of more than one offence for which the court must impose or would, apart from this section, have imposed a sentence of imprisonment for life, only one such sentence shall be imposed in respect of those offences.]
Textual Amendments
F5S. 205D inserted (8.10.2001) by 2001 asp 7, s. 2(2); S.S.I. 2001/274, art. 3(3)
(1)No person shall be sentenced to imprisonment by a court of summary jurisdiction for a period of less than five days.
(2)Where a court of summary jurisdiction has power to impose imprisonment on an offender, it may, if any suitable place provided and certified as mentioned in subsection (4) below is available for the purpose, sentence the offender to be detained therein, for such period not exceeding four days as the court thinks fit, and an extract of the finding and sentence shall be delivered with the offender to the person in charge of the place where the offender is to be detained and shall be a sufficient authority for his detention in that place in accordance with the sentence.
(3)The expenses of the maintenance of offenders detained under this section shall be defrayed in like manner as the expenses of the maintenance of prisoners under the M13Prisons (Scotland) Act 1989.
(4)The Secretary of State may, on the application of any police authority, certify any police cells or other similar places provided by the authority to be suitable places for the detention of persons sentenced to detention under this section, and may by statutory instrument make regulations for the inspection of places so provided, the treatment of persons detained therein and generally for carrying this section into effect.
(5)No place certified under this section shall be used for the detention of females unless provision is made for their supervision by female officers.
(6)In this section the expression “police authority” has the same meaning as in the M14Police (Scotland) Act 1967.
(1)It shall not be competent to impose imprisonment on a person under 21 years of age.
(2)Subject to section 205(2) and (3) of this Act and to subsections (3) and (4) below, a court may impose detention (whether by way of sentence or otherwise) on a person, who is not less than 16 but under 21 years of age, where but for subsection (1) above the court would have power to impose a period of imprisonment; and a period of detention imposed under this section on any person shall not exceed the maximum period of imprisonment which might otherwise have been imposed.
(3)The court shall not under subsection (2) above impose detention on an offender unless it is of the opinion that no other method of dealing with him is appropriate; and the court shall state its reasons for that opinion, and, except in the case of the High Court, those reasons shall be entered in the record of proceedings.
(4)To enable the court to form an opinion under subsection (3) above, it shall obtain from an officer of a local authority or otherwise such information as it can about the offender’s circumstances; and it shall also take into account any information before it concerning the offender’s character and physical and mental condition.
(5)A sentence of detention imposed under this section shall be a sentence of detention in a young offenders institution.
Subject to section 205 of this Act, where a child is convicted on indictment and the court is of the opinion that no other method of dealing with him is appropriate, it may sentence him to be detained for a period which it shall specify in the sentence; and the child shall during that period be liable to be detained in such place and on such conditions as the Secretary of State may direct.
(1)Where a person is convicted of an offence and is sentenced to imprisonment for a term of not less than twelve months but less than four years, the court on passing sentence may, if it considers that it is necessary to do so to protect the public from serious harm from the offender on his release, make such order as is mentioned in subsection (3) below.
(2)A court shall, before making an order under subsection (1) above, consider a report by a relevant officer of a local authority about the offender and his circumstances and, if the court thinks it necessary, hear that officer.
(3)The order referred to in subsection (1) above (to be known as a “supervised release order”) is that the person, during a relevant period—
(a)be under the supervision either of a relevant officer of a local authority or of a probation officer appointed for or assigned to a petty sessions area (such local authority or the justices for such area to be designated under section 14(4) or 15(1) of the M15Prisoners and Criminal Proceedings (Scotland) Act 1993);
(b)comply with;
(i)such requirements as may be imposed by the court in the order; and
(ii)such requirements as that officer may reasonably specify,
for the purpose of securing the good conduct of the person or preventing, or lessening the possibility of, his committing a further offence (whether or not an offence of the kind for which he was sentenced); and
(c)comply with the standard requirements imposed by virtue of subsection (4)(a)(i) below.
(4)A supervised release order—
(a)shall—
(i)without prejudice to subsection (3)(b) above, contain such requirements (in this section referred to as the “standard requirements”); and
(ii)be as nearly as possible in such form,
as may be prescribed by Act of Adjournal;
(b)for the purposes of any appeal or review constitutes part of the sentence of the person in respect of whom the order is made; and
(c)shall have no effect during any period in which the person is subject to a licence under Part I of the said Act of 1993.
(5)Before making a supervised release order as respects a person the court shall explain to him, in as straightforward a way as is practicable, the effect of the order and the possible consequences for him of any breach of it.
(6)The clerk of the court by which a supervised release order is made in respect of a person shall—
(a)forthwith send a copy of the order to the person and to the Secretary of State; and
(b)within seven days after the date on which the order is made, send to the Secretary of State such documents and information relating to the case and to the person as are likely to be of assistance to a supervising officer.
(7)In this section—
“relevant officer” has the same meaning as in Part I of the M16Prisoners and Criminal Proceedings (Scotland) Act 1993;
“relevant period” means such period as may be specified in the supervised release order, being a period—
not exceeding twelve months after the date of the person’s release; and
no part of which is later than the date by which the entire term of imprisonment specified in his sentence has elapsed; and
“supervising officer” means, where an authority has or justices have been designated as is mentioned in subsection (3)(a) above for the purposes of the order, any relevant officer or, as the case may be, probation officer who is for the time being supervising for those purposes the person released.
(8)This section applies to a person sentenced under section 207 of this Act as it applies to a person sentenced to a period of imprisonment.
Extent Information
Marginal Citations
(1)A court, in passing a sentence of imprisonment or detention on a person for an offence, shall—
(a)in determining the period of imprisonment or detention, have regard to any period of time spent in custody by the person on remand awaiting trial or sentence, or spent in custody awaiting extradition to the United Kingdom;
(b)specify the date of commencement of the sentence; and
(c)if the person—
(i)has spent a period of time in custody on remand awaiting trial or sentence; or
(ii)is an extradited prisoner for the purposes of this section,
and the date specified under paragraph (b) above is not earlier than the date on which sentence was passed, state its reasons for not specifying an earlier date.
(2)A prisoner is an extradited prisoner for the purposes of this section if—
(a)he was tried for the offence in respect of which his sentence of imprisonment was imposed—
(i)after having been extradited to the United Kingdom; and
(ii)without having first been restored to the state from which he was extradited or having had an opportunity of leaving the United Kingdom; and
(b)he was for any period in custody while awaiting such extradition.
(3)In this section “extradited to the United Kingdom” means returned to the United Kingdom—
(a)in pursuance of extradition arrangements (as defined in section 3 of the M17Extradition Act 1989);
(b)under any law which corresponds to that Act and is a law of a designated Commonwealth country (as defined in section 5(1) of that Act);
(c)under that Act as extended to a colony or under any corresponding law of a colony;
(d)in pursuance of arrangements with a foreign state in respect of which an Order in Council under section 2 of the M18Extradition Act 1870 is in force; or
(e)in pursuance of a warrant of arrest endorsed in the Republic of Ireland under the law of that country corresponding to the M19Backing of Warrants (Republic of Ireland) Act 1965.
Valid from 30/09/1998
(1)Where a person is convicted on indictment of a sexual or violent offence, the court may, if it—
(a)intends, in relation to—
(i)a sexual offence, to pass a determinate sentence of imprisonment; or
(ii)a violent offence, to pass such a sentence for a term of four years or more; and
(b)considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender,
pass an extended sentence on the offender.
(2)An extended sentence is a sentence of imprisonment which is the aggregate of—
(a)the term of imprisonment (“the custodial term”) which the court would have passed on the offender otherwise than by virtue of this section; and
(b)a further period (“the extension period”) for which the offender is to be subject to a licence and which is, subject to the provisions of this section, of such length as the court considers necessary for the purpose mentioned in subsection (1)(b) above.
(3)The extension period shall not exceed, in the case of—
(a)a sexual offence, ten years; and
(b)a violent offence, five years.
(4)A court shall, before passing an extended sentence, consider a report by a relevant officer of a local authority about the offender and his circumstances and, if the court thinks it necessary, hear that officer.
(5)The term of an extended sentence passed for a statutory offence shall not exceed the maximum term of imprisonment provided for in the statute in respect of that offence.
(6)Subject to subsection (5) above, a sheriff may pass an extended sentence which is the aggregate of a custodial term not exceeding the maximum term of imprisonment which he may impose and an extension period not exceeding three years.
(7)The Secretary of State may by order—
(a)amend paragraph (b) of subsection (3) above by substituting a different period, not exceeding ten years, for the period for the time being specified in that paragraph; and
(b)make such transitional provision as appears to him to be necessary or expedient in connection with the amendment.
(8)The power to make an order under subsection (7) above shall be exercisable by statutory instrument; but no such order shall be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(9)An extended sentence shall not be imposed where the sexual or violent offence was committed before the commencement of section 86 of the Crime and Disorder Act 1998.
(10)For the purposes of this section—
“licence” and “relevant officer” have the same meaning as in Part I of the M20Prisoners and Criminal Proceedings (Scotland) Act 1993;
“sexual offence” means—
rape;
clandestine injury to women;
abduction of a woman or girl with intent to rape or ravish;
assault with intent to rape or ravish;
indecent assault;
lewd, indecent or libidinous behaviour or practices;
shameless indecency;
sodomy;
an offence under section 170 of the M21Customs and Excise Management Act 1979 in relation to goods prohibited to be imported under section 42 of the M22Customs Consolidation Act 1876, but only where the prohibited goods include indecent photographs of persons;
an offence under section 52 of the M23Civic Government (Scotland) Act 1982 (taking and distribution of indecent images of children);
an offence under section 52A of that Act (possession of indecent images of children);
an offence under section 1 of the M24Criminal Law (Consolidation) (Scotland) Act 1995 (incest);
an offence under section 2 of that Act (intercourse with a stepchild);
an offence under section 3 of that Act (intercourse with child under 16 by person in position of trust);
an offence under section 5 of that Act (unlawful intercourse with girl under 16);
an offence under section 6 of that Act (indecent behaviour towards girl between 12 and 16);
an offence under section 8 of that Act (abduction of girl under 18 for purposes of unlawful intercourse);
an offence under section 10 of that Act (person having parental responsibilities causing or encouraging sexual activity in relation to a girl under 16); and
an offence under subsection (5) of section 13 of that Act (homosexual offences);
“imprisonment” includes—
detention under section 207 of this Act; and
detention under section 208 of this Act; and
“violent offence” means any offence (other than an offence which is a sexual offence within the meaning of this section) inferring personal violence.
(11)Any reference in subsection (10) above to a sexual offence includes—
(a)a reference to any attempt, conspiracy or incitement to commit that offence; and
(b)except in the case of an offence in paragraphs (i) to (viii) of the definition of “sexual offence” in that subsection, a reference to aiding and abetting, counselling or procuring the commission of that offence.]
Valid from 27/06/2003
Where a person is convicted on indictment of abduction but the offence is other than is mentioned in paragraph (iii) of the definition of “sexual offence” in subsection (10) of section 210A of this Act, that section shall apply in relation to the person as it applies in relation to a person so convicted of a violent offence.]
Textual Amendments
F7S. 210AA inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 20, 89; S.S.I. 2003/288, art. 2, Sch.