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Crime and Punishment (Scotland) Act 1997

Status:

This is the original version (as it was originally enacted).

Part ISentencing

Automatic sentences

1Imprisonment for life on further conviction for certain offences

(1)After section 205 of the 1995 Act there shall be inserted the following section—

205AImprisonment for life on further conviction for certain offences

(1)This section applies where a person—

(a)is convicted on indictment in the High Court of a qualifying offence committed after the relevant date; and

(b)at the time when the offence mentioned in paragraph (a) above was committed, he had attained the age of at least 18 years and had a conviction for a qualifying offence which was obtained on indictment in the High Court or for any relevant offence, irrespective of—

(i)whether that offence was committed before or after the relevant date; and

(ii)his age at the time of the commission of that offence.

(2)Subject to subsection (3) below, where this section applies the High Court shall sentence the person—

(a)where he has attained the age of 21 years, to imprisonment for life;

(b)where he has attained the age of 18 years but is under the age of 21 years, to be detained for life, and a person so sentenced shall be liable to be detained in a young offenders institution.

(3)Notwithstanding subsection (2) above, if the High Court is of the opinion that it would be in the interests of justice for it to pass a sentence other than the sentence which that subsection would require it to pass, it may decline to pass that sentence and may instead pass any sentence which it otherwise has power to pass in respect of a conviction for that offence.

(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 qualifying offence shall not be regarded as a sentence fixed by law for that offence.

(5)In this section—

  • “qualifying offence” means any offence mentioned in Part I of Schedule 5A to this Act;

  • “the relevant date” means the date on which section 1 of the Crime and Punishment (Scotland) Act 1997 comes into force; and

  • “relevant offence” means any offence mentioned in Part II of Schedule 5A to this Act..

(2)After Schedule 5 to the 1995 Act, there shall be inserted the following Schedule—

Schedule 5AOffences for the purposes of section 205A of this Act
Part IQualifying offences

1Culpable homicide.

2Attempted murder, incitement to commit murder or conspiracy to commit murder.

3Rape or attempted rape.

4Clandestine injury to women or an attempt to cause such injury.

5Sodomy or attempted sodomy where, in either case, the complainer, that is to say the person against whom the offence was committed, did not consent.

6Assault, where the assault—

(a)is aggravated because it was carried out to—

(i)the victim’s severe injury; or

(ii)the danger of the victim’s life; or

(b)was carried out with an intention to rape or to ravish the victim.

7Robbery, where, at some time during the commission of the offence, the offender had in his possession a firearm or an imitation firearm.

8Any offence committed by contravention of—

(a)section 16 (possession of a firearm with intent to endanger life or cause serious injury);

(b)section 17 (use of firearm to resist arrest); or

(c)section 18 (having a firearm for purpose of committing an offence listed in Schedule 2), of the [1968 c. 27.] Firearms Act 1968.

9Lewd, indecent or libidinous behaviour or practices.

10Any offence committed by contravention of section 5(1) of the [1995 c. 39.] Criminal Law (Consolidation) (Scotland) Act 1995 (unlawful intercourse with a girl under the age of thirteen years).

Part IIRelevant offences

11Any of the following offences committed in England and Wales, namely—

(a)an attempt to commit murder, a conspiracy to commit murder or an incitement to murder;

(b)an offence under section 4 of the [1861 c. 100.] Offences Against the Person Act 1861 (soliciting murder);

(c)manslaughter;

(d)an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent);

(e)rape or an attempt to commit rape;

(f)an offence under section 5 of the [1956 c. 69.] Sexual Offences Act 1956 (intercourse with a girl under 13);

(g)any offence committed by contravention of—

(i)section 16 (possession of a firearm with intent to endanger life or cause serious injury);

(ii)section 17 (use of firearm to resist arrest); or

(iii)section 18 (carrying a firearm with criminal intent)

of the Firearms Act 1968;

(h)robbery, where, at some time during the commission of the offence the offender had in his possession a firearm or imitation firearm.

12Any of the following offences committed in Northern Ireland, namely—

(a)an offence mentioned in sub-paragraphs (a) to (e) of paragraph 11 above;

(b)an offence under section 4 of the [1885 c. 69.] Criminal Law Amendment Act 1885 (intercourse with a girl under 14);

(c)an offence under Article 17 (possession of a firearm with intent to injure), Article 18(1) (use of a firearm to resist arrest) or Article 19 (carrying a firearm with criminal intent) of the [S.I. 1981/155 (N.I.2).] Firearms (Northern Ireland) Order 1981; and

(d)robbery, where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Order.

Part IIIInterpretation

13In paragraphs 7 and 11(h) above “firearm” and “imitation firearm” have the meanings respectively given to them by section 57 of the [1968 c. 27.] Firearms Act 1968..

2Minimum sentence for third conviction of certain offences relating to drug trafficking

(1)After section 205 of the 1995 Act there shall be inserted the following section—

205BMinimum sentence for third conviction of certain offences relating to drug trafficking

(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 [1971 c. 38.] Misuse of Drugs Act 1971;

  • “drug trafficking offence” means a drug trafficking offence within the meaning of—

    (i)

    the [1994 c. 37.] Drug Trafficking Act 1994;

    (ii)

    the [1995 c. 43] Proceeds of Crime (Scotland) Act 1995; or

    (iii)

    the [S.I. 1996/1299 (N.I. 9).] Proceeds of Crime (Northern Ireland) Order 1996..

(2)In section 196 of the 1995 Act (sentence following guilty plea)—

(a)the existing words shall become subsection (1); and

(b)at the end there shall be added the following subsection—

(2)Where the court is passing sentence on an offender under section 205B(2) of this Act and that offender has pled guilty to the offence for which he is being so sentenced, the court may, after taking into account the matters mentioned in paragraphs (a) and (b) of subsection (1) above, pass a sentence of less than seven years imprisonment or, as the case may be, detention but any such sentence shall not be of a term of imprisonment or period of detention of less than five years, two hundred and nineteen days..

3Meaning of “conviction”

After section 205 of the 1995 Act there shall be inserted the following section—

205CMeaning of “conviction” for purposes of sections 205A and 205B

(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 [1975 c. 21.] Criminal 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 [1955 c. 18.] Army Act 1955;

(b)section 70 of the [1955 c. 19.] Air Force Act 1955; or

(c)section 42 of the [1957 c. 53.] Naval 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..

4Imposition of supervised release orders on conviction of qualifying offence

(1)Section 209 of the 1995 Act (supervised release orders) shall be amended in accordance with this section.

(2)For subsection (1) there shall be substituted the following subsections—

(1)Where a person is convicted of an offence and is sentenced to imprisonment for a determinate term, the court on passing sentence—

(a)subject to subsection (1A) below, where the conviction is in proceedings on indictment for an offence which is a qualifying offence within the meaning of section 205A of this Act, shall; and

(b)in any other case, if it considers that it is necessary to do so to protect the public from serious harm from the offender, may,

make such an order as is mentioned in subsection (3) below.

(1A)Notwithstanding paragraph (a) of subsection (1) above, if the court is of the opinion that there are exceptional circumstances which justify its not making a supervised release order, the court may decline to make such an order..

(3)In subsection (7), for the definition of “relevant period” there shall be substituted the following definition—

“relevant period” means such period as may be specified in the order, being, where a supervised release order is imposed—

(i)in a case such as is referred to in subsection (1)(b) above, or following conviction on indictment for one of the offences mentioned in paragraphs 1, 2, 6(a), 7 or 8 of Schedule 5A to this Act, such period as is mentioned in subsection (9)(a) below;

(ii)following conviction on indictment for one of the offences mentioned in paragraphs 3, 4, 5, 6(b), 9 or 10 of Schedule 5A to this Act, such period as is mentioned in subsection (9)(b) below;.

(4)In subsection (8) after the words “section 207” there shall be inserted the words “or 208”.

(5)After subsection (8) there shall be inserted the following subsections—

(9)Subject to subsection (11) below, the periods referred to in the definition of “relevant period” in subsection (7) above are—

(a)a period, beginning on the day on which the person is released—

(i)of not less than three months; and

(ii)not exceeding whichever is the greater of two years or one quarter of the full sentence of imprisonment from which the person is being released; and

(b)a period, beginning on the day on which the person is released—

(i)of not less than three months; and

(ii)not exceeding ten years.

(10)For the purposes of this section “court” does not include a district court except where constituted by a stipendiary magistrate.

(11)No court may impose a supervised release order for a period longer than the maximum period of imprisonment which that court may impose for a common law offence..

Restriction of liberty orders

5Restriction of liberty orders

After section 245 of the 1995 Act there shall be inserted the following sections—

Restriction of liberty orders
245ARestriction of liberty orders

(1)Without prejudice to section 245D of this Act, where a person of 16 years of age or more is convicted of an offence (other than an offence the sentence for which is fixed by law) the court, if it is of opinion that it is the most appropriate method of disposal, may make an order under this section (in this Act referred to as a “restriction of liberty order”) in respect of him; and in this section and sections 245B to 245I of this Act any reference to an “offender” is a reference to a person in respect of whom an order has been made under this subsection.

(2)A restriction of liberty order may restrict the offender’s movements to such extent as the court thinks fit and, without prejudice to the generality of the foregoing, may include provision—

(a)requiring the offender to be in such place as may be specified for such period or periods in each day or week as may be specified;

(b)requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified,

but the court may not, under paragraph (a) above, require the offender to be in any place or places for a period or periods totalling more than 12 hours in any one day.

(3)A restriction of liberty order may be made for any period up to 12 months.

(4)Before making a restriction of liberty order, the court shall explain to the offender in ordinary language—

(a)the effect of the order, including any requirements which are to be included in the order under section 245C of this Act;

(b)the consequences which may follow any failure by the offender to comply with the requirements of any order; and

(c)that the court has power under section 245E of this Act to review the order on the application either of the offender or of any person responsible for monitoring the order,

and the court shall not make the order unless the offender agrees to comply with its requirements.

(5)The clerk of the court by which a restriction of liberty order is made shall—

(a)cause a copy of the order to be sent to any person who is to be responsible for monitoring the offender’s compliance with the order; and

(b)cause a copy of the order to be given to the offender or sent to him by registered post or by the recorded delivery service; and an acknowledgment or certificate of delivery of a letter containing such copy order issued by the Post Office shall be sufficient evidence of the delivery of the letter on the day specified in such acknowledgment or certificate.

(6)Before making a restriction of liberty order which will require the offender to remain in a specified place or places the court shall obtain and consider information about that place or those places, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender.

(7)A restriction of liberty order shall be taken to be a sentence for the purposes of this Act and of any appeal.

(8)The Secretary of State may by regulations prescribe—

(a)which courts, or class or classes of courts, may make restriction of liberty orders;

(b)what method or methods of monitoring compliance with such orders may be specified in any such order by any such court; and

(c)the class or classes of offenders in respect of which restriction of liberty orders may be made,

and different provision may be made in relation to the matters mentioned in paragraphs (b) and (c) above in relation to different courts or classes of court.

(9)Without prejudice to the generality of subsection (8) above, in relation to district courts, regulations under that subsection may make provision as respects such courts by reference to whether the court is constituted by a stipendiary magistrate or by one or more justices.

(10)Regulations under subsection (8) above may make such transitional and consequential provisions, including provision in relation to the continuing effect of any restriction of liberty order in force when new regulations are made, as the Secretary of State considers appropriate.

(11)A court shall not make a restriction of liberty order which requires an offender to be in or, as the case may be, not to be in, a particular place or places unless it is satisfied that his compliance with that requirement can be monitored by the means of monitoring which it intends to specify in the order.

(12)The Secretary of State may by regulations substitute for the period of—

(a)hours for the time being mentioned in subsection (2) above; or

(b)months for the time being mentioned in subsection (3) above,

such period of hours or, as the case may be, months as may be prescribed in the regulations.

(13)Regulations under this section shall be made by statutory instrument.

(14)A statutory instrument containing regulations made under subsection (8) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(15)No regulations shall be made under subsection (12) above unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.

245BMonitoring of restriction of liberty orders

(1)Where the Secretary of State, in regulations made under section 245A(8) of this Act, empowers a court or a class of court to make restriction of liberty orders he shall notify the court or each of the courts concerned of the person or class or description of persons who may be designated by that court for the purpose of monitoring an offender’s compliance with any such order.

(2)A court which makes a restriction of liberty order in respect of an offender shall include provision in the order for making a person notified by the Secretary of State under subsection (1) above, or a class or description of persons so notified, responsible for the monitoring of the offender’s compliance with it.

(3)Where the Secretary of State changes the person or class or description of persons notified by him under subsection (1) above, any court which has made a restriction of liberty order shall, if necessary, vary the order accordingly and shall notify the variation to the offender.

245CRemote monitoring

(1)The Secretary of State may make such arrangements, including contractual arrangements, as he considers appropriate with such persons, whether legal or natural, as he thinks fit for the remote monitoring of the compliance of offenders with restriction of liberty orders, and different arrangements may be made in relation to different areas or different forms of remote monitoring.

(2)A court making a restriction of liberty order which is to be monitored remotely may include in the order a requirement that the offender shall, either continuously or for such periods as may be specified, wear or carry a device for the purpose of enabling the remote monitoring of his compliance with the order to be carried out.

(3)The Secretary of State shall by regulations specify devices which may be used for the purpose of remotely monitoring the compliance of an offender with the requirements of a restriction of liberty order.

(4)Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

245DConcurrent probation and restriction of liberty orders

(1)Notwithstanding sections 228(1) and 245A(1) of this Act, where the court—

(a)intends to make a restriction of liberty order under section 245A(1); and

(b)considers it expedient—

(i)having regard to the circumstances, including the nature of the offence and the character of the offender; and

(ii)having obtained a report as to the circumstances and character of the offender,

that the offender should also be subject to a probation order made under section 228(1) of this Act,

it may make both such orders in respect of the offender.

(2)Where the court makes both a restriction of liberty order and a probation order by virtue of subsection (1) above, the clerk of the court shall send a copy of each order to both—

(a)any person responsible for monitoring the offender’s compliance with the restriction of liberty order; and

(b)the officer of the local authority who is to supervise the probationer.

(3)Where the offender by an act or omission fails to comply with a requirement of an order made by virtue of subsection (1) above—

(a)if the failure relates to a requirement contained in a probation order and is dealt with under section 232(2)(c) of this Act, the court may, in addition, exercise the power conferred by section 245F(2)(b) of this Act in relation to the restriction of liberty order; and

(b)if the failure relates to a requirement contained in a restriction of liberty order and is dealt with under section 245F(2)(b) of this Act, the court may, in addition, exercise the power conferred by section 232(2)(c) in relation to the probation order.

(4)Where the offender by an act or omission fails to comply with both a requirement contained in a probation order and a requirement contained in a restriction of liberty order to which he is subject by virtue of subsection (1) above, he may, without prejudice to subsection (3) above, be dealt with as respects that act or omission either under section 232(2) of this Act or under section 245F(2) of this Act but he shall not be liable to be otherwise dealt with in respect of that act or omission.

245EVariation of restriction of liberty order

(1)Where a restriction of liberty order is in force either the offender or any person responsible for monitoring his compliance with the order may apply to the court which made the order for a review of it.

(2)On an application made under subsection (1) above, and after hearing both the offender and any person responsible for monitoring his compliance with the order, the court may by order, if it appears to it to be in the interests of justice to do so—

(a)vary the order by—

(i)amending or deleting any of its requirements;

(ii)inserting further requirements; or

(iii)subject to subsection (3) of section 245A of this Act, increasing the period for which the order has to run; or

(b)revoke the order.

(3)Where the court, on the application of a person other than the offender, proposes to—

(a)exercise the power conferred by paragraph (a) of subsection (2) above to vary (otherwise than by deleting a requirement) a restriction of liberty order, it shall issue a citation requiring the offender to appear before the court and section 245A(4) shall apply to the variation of such an order as it applies to the making of an order; and

(b)exercise the power conferred by subsection (2)(b) above to revoke such an order and deal with the offender under section 245G of this Act, it shall issue a citation requiring him to appear before the court.

(4)If an offender fails to appear before the court after having been cited in accordance with subsection (3) above, the court may issue a warrant for his arrest.

245FBreach of restriction of liberty order

(1)If at any time when a restriction of liberty order is in force it appears to the court which made the order that the offender has failed to comply with any of the requirements of the order the court may issue a citation requiring the offender to appear before the court at such time as may be specified in the citation or, if it appears to the court to be appropriate, it may issue a warrant for the arrest of the offender.

(2)If it is proved to the satisfaction of the court that the offender has failed without reasonable excuse to comply with any of the requirements of the order the court may by order—

(a)without prejudice to the continuance in force of the order, impose a fine not exceeding level 3 on the standard scale;

(b)vary the restriction of liberty order; or

(c)revoke that order.

(3)A fine imposed under this section in respect of a failure to comply with the requirements of a restriction of liberty order shall be deemed for the purposes of any enactment to be a sum adjudged to be paid by or in respect of a conviction or a penalty imposed on a person summarily convicted.

(4)Where the court varies a restriction of liberty order under subsection (2) above it may do so in any of the ways mentioned in paragraph (a) of section 245E(2) of this Act.

245GDisposal on revocation of restriction of liberty order

(1)Where the court revokes a restriction of liberty order under section 245E(2)(b) or 245F(2) of this Act, it may dispose of the offender in any way which would have been competent at the time when the order was made, but in so doing the court shall have regard to the time for which the order has been in operation.

(2)Where the court revokes a restriction of liberty order as mentioned in subsection (1) above, and the offender is, by virtue of section 245D(1) of this Act, subject to a probation order, it shall, before disposing of the offender under subsection (1) above, discharge the probation order.

245HDocumentary evidence in proceedings under section 245F

(1)Evidence of the presence or absence of the offender at a particular place at a particular time may, subject to the provisions of this section, be given by the production of a document or documents bearing to be—

(a)a statement automatically produced by a device specified in regulations made under section 245C of this Act, by which the offender’s whereabouts were remotely monitored; and

(b)a certificate signed by a person nominated for the purpose of this paragraph by the Secretary of State that the statement relates to the whereabouts of the person subject to the order at the dates and times shown in the statement.

(2)The statement and certificate mentioned in subsection (1) above shall, when produced at a hearing, be sufficient evidence of the facts set out in them.

(3)Neither the statement nor the certificate mentioned in subsection (1) above shall be admissible in evidence unless a copy of both has been served on the offender prior to the hearing and, without prejudice to the foregoing, where it appears to the court that the offender has had insufficient notice of the statement or certificate, it may adjourn a hearing or make any order which it thinks appropriate in the circumstances.

245IProcedure on variation or revocation of restriction of liberty order

Where a court exercises any power conferred by sections 232(3A), 245E(2) or 245F(2)(b) or (c) of this Act, the clerk of the court shall forthwith give copies of the order varying or revoking the restriction of liberty order to any person responsible for monitoring the offender’s compliance with that order and that person shall give a copy of the order to the offender..

Mentally disordered offenders

6Disposal in cases of mentally disordered offenders

(1)After section 59 of the 1995 Act (restriction orders), there shall be inserted the following section—

59AHospital directions

(1)Subject to subsection (2) and (3) below, where a person is convicted on indictment in the High Court or in the sheriff court of an offence punishable by imprisonment, the court may, in addition to any sentence of imprisonment which it has the power or the duty to impose, by a direction under this subsection (in this Act referred to as a “hospital direction”) authorise his admission to and detention in such hospital as may be specified in the direction.

(2)Subsection (1) above shall not apply where the person convicted is a child.

(3)A hospital direction shall not be made unless—

(a)the court is satisfied on the written or oral evidence of two medical practitioners (complying with section 61 of this Act) that the grounds set out in section 17(1) of the [1984 c. 36.] Mental Health (Scotland) Act 1984 apply in relation to the offender;

(b)the medical practitioners mentioned in paragraph (a) above each describe the person as suffering from the same form of mental disorder, being mental illness or mental handicap, whether or not he is also described by either of them as suffering from the other form; and

(c)the court is satisfied that the hospital to be specified in the direction can admit the person in respect of whom it is to be made within 7 days of the direction being made.

(4)A State hospital shall not be specified in a hospital direction in respect of the detention of a person unless the court is satisfied, on the evidence of the medical practitioners which is taken into account under paragraphs (a) and (b) of subsection (3) above, that the person—

(a)on account of his dangerous violent or criminal propensities requires treatment under conditions of special security; and

(b)cannot suitably be cared for in a hospital other than a State hospital.

(5)A hospital direction shall specify the form of mental disorder from which, upon the evidence taken into account under paragraphs (a) and (b) of subsection (3) above, the person in respect of whom it is made is found to be suffering.

(6)The court by which a hospital direction is made may give such additional directions as it thinks fit for the conveyance of the person in respect of whom it is made to a place of safety and for his detention in that place pending his admission to hospital within the period mentioned in paragraph (c) of subsection (3) above.

(7)The court shall not make an additional direction under subsection (6) above directing the conveyance of the person concerned to a place of safety which is a residential establishment unless it is satisfied that the managers of that establishment are willing to receive him in the establishment..

(2)In section 60 of the 1995 Act (appeals against disposal related to mental disorder)—

(a)for the words “or a restriction order” there shall be substituted the words “, a restriction order or a hospital direction”; and

(b)for the words “order in” there shall be substituted the words “order or, as the case may be, direction in”.

(3)In section 204 of the 1995 Act (restrictions on the passing of sentence of imprisonment)—

(a)in subsection (2), the words from “and”, where it first occurs, to the end shall cease to have effect; and

(b)after subsection (2), there shall be inserted the following subsection—

(2A)For the purpose of determining under subsection (2) above whether any other method of dealing with such a person is appropriate, the court shall take into account—

(a)such information as it has been able to obtain from an officer of a local authority or otherwise about his circumstances;

(b)any information before it concerning his character and mental and physical condition;

(c)its power to make a hospital direction in addition to imposing a sentence of imprisonment..

(4)In section 207 of the 1995 Act (detention of young offenders), after subsection (4) there shall be inserted the following subsection—

(4A)In forming an opinion under subsection (3) above the court shall take into account its power to make a hospital direction in addition to imposing a period of detention..

(5)In section 307 of the 1995 Act (interpretation), after the definition of “hospital” there shall be inserted the following definition—

“hospital direction” has the meaning assigned to it by section 59A(1) of this Act;.

7Effect of hospital direction

(1)After section 62 of the 1984 Act, there shall be inserted the following section—

62AEffect of hospital direction

(1)A hospital direction made under section 59A of the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995 shall be sufficient authority—

(a)for a constable, a mental health officer, an officer on the staff of the hospital specified in the direction or other person directed to do so by the court to convey the person in respect of whom the direction has been made to the hospital specified in the direction within a period of 7 days; and

(b)for the managers of the hospital so specified to admit him at any time within that period and thereafter to detain him in accordance with the provisions of this Act.

(2)Where the managers of a hospital specified in a hospital direction propose to admit the patient to a hospital unit in that hospital, they shall, if that unit was not so specified, notify the Secretary of State and the Mental Welfare Commission of the patient’s proposed admission to and detention in that unit; and the patient shall not be so admitted unless the Secretary of State has consented to the proposed admission.

(3)If within the period of 7 days referred to in subsection (1) of this section it appears to the Secretary of State that by reason of an emergency or other special circumstance it is not practicable for the person to whom the hospital direction relates to be received into the hospital specified in the direction, he may give a direction under this subsection for the admission of that person to such other hospital as appears to be appropriate in lieu of the hospital so specified.

(4)Where a direction is given by the Secretary of State under subsection (3) of this section, he shall cause the person having custody of the person to whom the hospital direction relates to be informed, and the hospital direction shall have effect as if the hospital specified in the direction under subsection (3) of this section were substituted for the hospital specified in the hospital direction.

(5)Where a patient has been admitted to a hospital under a hospital direction—

(a)none of the provisions of Part V of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital direction until he is remitted to prison in accordance with section 65(2) or 74(3) of this Act or he is discharged in accordance with section 74(8B) of this Act;

(b)the following powers shall be exercisable only with the consent of the Secretary of State, that is to say—

(i)power to grant leave of absence to the patient under section 27 of this Act;

(ii)power to transfer the patient under section 29 of this Act;

and if leave of absence is granted under the said section 27 the power to recall shall be vested in the Secretary of State as well as in the responsible medical officer;

(c)the power to take the patient into custody and return him under section 28 of this Act may be exercised at any time,

and in relation to any such patient the provisions of the said Part V specified in Part II of the Second Schedule to this Act shall have effect subject to the exceptions and modifications set out in that Part and the remaining provisions of Part V shall not apply..

(2)In section 63 of that Act (rights of appeal of restricted patients)—

(a)in subsection (1)—

(i)in the definition of “restricted patient” after the word “order” there shall be substituted the words “, to a hospital direction”; and

(ii)for the definition of “relevant hospital order” and “relevant transfer direction” there shall be substituted the following definition—

“relevant hospital order”, “relevant hospital direction” and “relevant transfer direction”, in relation to a restricted patient, mean the hospital order, hospital direction or transfer direction by virtue of which he is liable to be detained in a hospital.; and

(b)in subsection (2), in paragraph (a), after the word “order” there shall be inserted the words “, hospital direction”.

(3)In section 65 of that Act (appeal where person is subject to restriction direction)—

(a)in subsection (1), after the word “subject” there shall be inserted the words “to a hospital direction or”;

(b)in subsection (2)—

(i)in paragraph (a) for the words “removed to hospital” there shall be substituted the words “conveyed under a relevant hospital direction or removed under a relevant transfer direction to a hospital specified in the direction” and for the words “so removed” there shall be substituted the words “so conveyed or removed”; and

(ii)the words after paragraph (b) shall cease to have effect; and

(c)after subsection (2) there shall be inserted the following subsection—

(3)Where a direction has been given under subsection (2) of this section, on the person’s arrival in the prison or other institution or place to which he has been remitted by virtue of such a direction the relevant hospital direction or, as the case may be, the relevant transfer direction together with the restriction direction given in respect of the person shall cease to have effect..

(4)In section 74 of that Act (further provision as to transfer directions and restriction directions)—

(a)after subsection (1), there shall be inserted the following subsection—

(1A)This subsection applies if the Secretary of State is satisfied as regards a person who has been conveyed to a hospital under a hospital direction as to the matters mentioned in subsection (2) below at a time when the person, by virtue of a sentence of imprisonment imposed on him at the time that direction was made, would but for that direction be in prison or being detained other than in a hospital.;

(b)in subsection (2), after the words “subsection (1)” there shall be inserted the words “and (1A)”;

(c)in subsection (3)—

(i)after the words “subsection (1)” there shall be inserted the words “or (1A)”;

(ii)after the word “been”, where it occurs for the second time, there shall be inserted the words “conveyed or”; and

(iii)for the words “so removed” there shall be substituted the words “so conveyed or removed”;

(d)in subsection (4), after the words “subsection (1)” there shall be inserted the words “or (1A)”;

(e)in subsection (5), after the words “restriction direction” there shall be inserted the words “or, as the case may be, the hospital direction”;

(f)after subsection (8), there shall be inserted the following subsections—

(8A)This subsection applies where a hospital direction has been made in respect of a person and he has thereafter been released under the Crime and Punishment (Scotland) Act 1997.

(8B)Where subsection (8A) above applies—

(a)the hospital direction shall forthwith cease to have effect; and

(b)the person shall thereupon be discharged from hospital unless a report is furnished in respect of him under subsection (9) below.;

(g)in subsection (9)—

(i)after the word “before” there shall be inserted—

(a); and

(ii)after the word “above” there shall be inserted the following paragraph— ; or

(b)a hospital direction ceases to have effect,;

(h)in subsection (10), after the words “restriction direction”, in both places where they occur, there shall be inserted the words “or, as the case may be, hospital direction”; and

(i)in subsection (11), after the words “transfer direction” there shall be inserted the words “or, as the case may be, hospital direction”.

(5)In section 125 of that Act (interpretation), after the definition of “hospital” there shall be inserted the following definition—

“hospital direction” has the meaning assigned to it by section 59A(1) of the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995;.

8Remand of persons suffering from mental disorder to private hospital

In section 70 of the 1984 Act (removal to hospital of persons on remand), the words “(not being a private hospital)” shall cease to have effect.

9Power to specify hospital unit

(1)Subject to subsection (2) below, any power to specify a hospital which is conferred by—

(a)section 57(2)(a) of the 1995 Act (disposal where accused insane);

(b)section 58 of the 1995 Act (hospital orders);

(c)section 59A of the 1995 Act (hospital directions); or

(d)section 71 of the 1984 Act (transfer direction),

includes a power to specify a hospital unit; and where such a unit is specified in relation to any person in the exercise of such a power, any reference in any enactment (including one contained in this Act) to him being, or being liable to be, detained in a hospital shall be construed accordingly.

(2)In subsection (1) above—

(a)paragraph (a) shall not apply unless the court also makes an order under paragraph (b) of section 57(2) of the 1995 Act;

(b)paragraph (b) shall not apply unless the court also makes an order under section 59 of the 1995 Act;

(c)paragraph (d) shall not apply unless the Secretary of State also gives a direction under section 72 of the 1984 Act.

(3)In this section—

  • “hospital”, in relation to the exercise of a power, has the same meaning as in the enactment which confers the power;

  • “hospital unit” means any part of a hospital which is treated as a separate unit.

10Medical evidence in relation to mentally disordered offenders

(1)In section 53 of the 1995 Act (interim hospital orders)—

(a)in subsection (1), the words “subsection (2) below and” shall cease to have effect; and

(b)subsection (2) shall cease to have effect.

(2)In section 61 of the 1995 Act (requirements as to medical evidence)—

(a)in subsection (1), for the words from “under” to “this Act” there shall be substituted the words “in making a finding under section 54(1)(a) of this Act or under any of the relevant provisions”;

(b)after subsection (1) there shall be inserted the following subsection—

(1A)Of the medical practitioners whose evidence is taken into account under section 53(1), 54(1)(c), 58(1)(a)(i) or 59A(3)(a) and (b) of this Act, at least one shall be employed at the hospital which is to be specified in the order or, as the case may be, direction.;

(c)in subsection (2), for the words “the said section 58(1)(a)” there shall be substituted the words “any of the relevant provisions”;

(d)in subsection (3), for the words “the said sections 54(1) and 58(1)(a)” there shall be substituted the words “making a finding under section 54(1)(a) of this Act or of any of the relevant provisions”; and

(e)after subsection (5) there shall be added the following subsection—

(6)In this section the “relevant provisions” means sections 53(1), 54(1)(c), 58(1)(a) and 59A(3)(a) and (b) of this Act..

11Increase in maximum period of interim hospital orders

In section 53 of the 1995 Act (interim hospital orders), in subsection (6), for the words “six months” there shall be substituted the words “twelve months”.

12Sentence calculation where remand spent in hospital

In section 210 of the 1995 Act (consideration of time spent in custody), in subsection (1)—

(a)at the end of paragraph (a) there shall be inserted the words “, or spent in hospital awaiting trial or sentence by virtue of an order made under section 52, 53 or 200 of this Act”; and

(b)in paragraph (c), after subparagraph (ii) there shall be inserted the following words— ; or

(iii)has spent a period of time in hospital awaiting trial or sentence by virtue of an order made under section 52, 53 or 200 of this Act,.

Increases in sentencing powers and penalties

13Increase in sentences available to sheriff and district courts

(1)In section 3 of the 1995 Act (jurisdiction and powers of solemn courts)—

(a)in subsection (3), for the words “three years” there shall be substituted the words “five years”;

(b)in subsection (4), for the words “three years” there shall be substituted “five years”;

(c)after subsection (4) there shall be inserted the following subsection—

(4A)Subject to subsection (5) below, where under any enactment passed or made after 1st January 1988 but before the commencement of section 13 of the Crime and Punishment (Scotland) Act 1997 (increase in sentencing powers of sheriff courts) an offence is punishable on conviction on indictment for a term exceeding three years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding three years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding three but not exceeding five years.; and

(d)in subsection (5), for the words “subsection (4)” there shall substituted the words “subsections (4) and (4A)”.

(2)In section 5 of the 1995 Act (powers of sheriff when sitting as summary court)—

(a)in subsection (2)(d), for the words “three months” there shall be substituted the words “six months”; and

(b)in subsection (3), for the words “six months” there shall be substituted the words “twelve months”.

(3)In section 195(2) of the 1995 Act (remit to High Court for sentence where sheriff’s power limited by statute) for the words “three years”, in both places where they occur, there shall be substituted the words “five years”.

(4)In paragraph 12 of Schedule 3 to the [1995 c. 40.] Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (construction of references to penal servitude and hard labour), in sub-paragraph (3), for the words “two years” there shall be substituted the words “five years”.

14Increase in maximum penalty for certain sexual offences

(1)In section 5 of the [1995 c. 39.] Criminal Law (Consolidation) (Scotland) Act 1995 (unlawful intercourse with girls under the age of 16 years)—

(a)in subsection (2), for the words “two years” there shall be substituted the words “ten years”; and

(b)in subsection (3), for the words “two years” there shall be substituted the words “ten years”.

(2)In section 6 of that Act (indecent behaviour towards a girl aged between 12 and 16 years), for the words “two years” there shall be substituted the words “ten years”.

Powers of court to disqualify from driving

15Driving disqualifications

(1)After section 248 of the 1995 Act there shall be inserted the following sections—

248AGeneral power to disqualify offenders

(1)Subject to subsection (2) below, the court by or before which a person is convicted of an offence may, in addition to or instead of dealing with him in any other way, order him to be disqualified from holding or obtaining a licence to drive a motor vehicle granted under Part III of the [1988 c. 52.] Road Traffic Act 1988 for such period as it thinks fit.

(2)Where the person is convicted of an offence for which the sentence is fixed by law, subsection (1) above shall have effect as if the words “or instead of” were omitted.

(3)Subsections (2) and (4) of section 248 of this Act shall apply for the purposes of this section as they apply for the purposes of that section.

248BPower to disqualify fine defaulters

(1)This section applies where the court has power to impose a period of imprisonment in default of payment of a fine, or any part or instalment of a fine.

(2)Where this section applies, the court may, instead of imposing such a period of imprisonment as is mentioned in subsection (1) above, order that where the offender is in default he shall be disqualified from holding a licence to drive a motor vehicle granted under Part III of the Road Traffic Act 1988 for such period not exceeding twelve months as the court thinks fit.

(3)Where an order has been made under subsection (2) above in default of payment of any fine, or any part or instalment of a fine—

(a)on payment of the fine to any person authorised to receive it, the order shall cease to have effect; and

(b)on payment of any part of that fine to any such person, the period of disqualification to which the order relates shall be reduced (or, as the case may be, further reduced) by a number of days bearing as nearly as possible the same proportion to such period as the sum so paid bears to the amount of the fine outstanding at the commencement of that period.

(4)Subsections (2) and (4) of section 248 of this Act shall apply for the purposes of this section as they apply for the purposes of that section.

(5)Section 19 of the [1988 c. 53.] Road Traffic Offenders Act 1988 (proof of disqualification in Scottish proceedings) shall apply to an order under subsection (2) above as it applies to a conviction or extract conviction.

(6)The Secretary of State may by order made by statutory instrument vary the period specified in subsection (2) above; 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.

248CApplication of sections 248A and 248B

(1)The Secretary of State may by order prescribe which courts, or class or classes of courts, may make orders under section 248A or 248B of this Act and, without prejudice to that generality, in relation to district courts an order under this subsection may make provision as respects such courts by reference to whether the court is constituted by a stipendiary magistrate or by one or more justices.

(2)An order made under subsection (1) above shall be made by statutory instrument and any such instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3)Where an order has been made under subsection (1) above, section 248(1) of this Act shall not apply as respects any court, or class or classes of court prescribed by the order..

(2)In section 252(2) of the 1995 Act (application of fines provisions to compensation orders)—

(a)the word “and” in the third place where it occurs shall cease to have effect; and

(b)after the word “specified)” there shall be inserted the words ; and

section 248B (driving disqualification for fine defaulters) so far as it relates to the power conferred by section 219(1)(b)..

(3)In section 14(2) of the [1995 c. 43.] Proceeds of Crime (Scotland) Act 1995 (application of fines provisions to confiscation orders), after paragraph (k) there shall be added the following paragraph—

(l)section 248B..

Miscellaneous

16Designated life prisoners

(1)In section 2 of the 1993 Act (duty to release discretionary life prisoners)—

(a)for subsection (1) there shall be substituted the following subsection—

(1)In this Part of this Act “designated life prisoner”, subject to subsection (9)(a) below and except where the context otherwise requires, means a person—

(a)sentenced to life imprisonment for an offence for which, subject to paragraph (b) below, such a sentence is not the sentence fixed by law;

(b)whose sentence was imposed under section 205A(2) of the 1995 Act (imprisonment for life on further conviction for certain offences); or

(c)whose sentence was imposed in respect of a murder committed by him before he attained the age of 18 years,

and in respect of whom the court which sentenced him for that offence made the order mentioned in subsection (2) below.; and

(b)in subsection (2)—

(i)the word “and” shall cease to have effect; and

(ii)after paragraph (b), there shall be inserted the words— ; and

(c)where appropriate, the matters mentioned in paragraphs (a) and (b) of section 196(1) of the 1995 Act..

(2)This subsection applies where, in the case of a person sentenced, prior to the coming into force of this section, in respect of a murder committed by him before he attained the age of 18 years, the Lord Justice General, whom failing the Lord Justice Clerk, after consultation with the trial judge, if available, certifies his opinion that, if section 2 of the 1993 Act, as amended by this Act, had been in force at the time when the prisoner was sentenced, the court by which he was sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate.

(3)In a case to which subsection (2) above applies, Part I of the 1993 Act, except sections 1(4) and 2(9), shall apply as if—

(a)the life prisoner concerned were a designated life prisoner within the meaning of section 2 of that Act; and

(b)the designated part of his sentence within the meaning of that section were the part specified in the certificate.

(4)Where a person is serving two or more sentences of imprisonment for life or detention without limit of time or for life—

(a)he shall be treated as a designated life prisoner within the meaning of section 2 of the 1993 Act only if the requirements of subsection (2) above are satisfied in respect of each of those sentences; and

(b)notwithstanding the terms of any certificate under that subsection, subsections (4) and (6) of that section shall not apply to him until he has served the designated part of each of those sentences.

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