Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17)

Prospective

F1 SCHEDULE 1 S The Parole Board for Scotland

(introduced by section 1(5))

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Sch. 1 repealed (1.10.2020) by Management of Offenders (Scotland) Act 2019 (asp 14), ss. 47(2), 63(2); S.S.I. 2020/283, reg. 2(l)

Prospective

SCHEDULE 2 S Prisoners serving more than one sentence: application of Part 2

(introduced by section 52)

Multiple custody-only sentences S

1 (1) This paragraph applies where a prisoner— S

(a) is serving, or liable to serve, two or more custody-only sentences, and

(b) is not serving, or liable to serve, any other sentence of imprisonment.

(2) Part 2 applies subject to the following modifications.

(3) In sections 5 and 34(1), references to the prisoner's sentence are to be read as references to the custody-only sentence which expires after the expiry of the other custody-only sentence (or sentences) imposed on the prisoner.

Multiple custody and community sentences S

2 (1) This paragraph applies where a prisoner— S

(a) is serving, or liable to serve, two or more custody and community sentences, and

(b) is not serving, or liable to serve, any other sentence of imprisonment.

(2) Part 2 applies subject to the following modifications.

(3) In sections 10 to 13, 18 and 47, references to the custody part of the prisoner's custody and community sentence are to be read as references to the custody part which expires after the expiry of the other custody part (or parts) specified in relation to the prisoner.

(4) In section 14—

(a) subsection (9) does not apply, and

(b) “three-quarter point”, in relation to each of the sentences imposed on the prisoner, means the day on which the prisoner will have served at least three-quarters of each of those sentences.

(5) In section 19(1), the reference to the prisoner's having served three-quarters of the prisoner's sentence is to be read as a reference to the prisoner's having served at least three-quarters of each sentence imposed on the prisoner.

(6) In sections 34(2) and 43, references to the expiry of the prisoner's sentence are to be read as references to the expiry of the sentence which expires after the expiry of the other custody and community sentence (or sentences) imposed on the prisoner.

(7) In section 47(4)(a)(i), the reference to the prisoner's sentence is to be read as a reference to the longer (or longest) of the sentences imposed on the prisoner.

(8) This paragraph is subject to paragraph 7.

Combinations of custody-only and custody and community sentences S

3 (1) This paragraph applies where a prisoner— S

(a) is serving, or liable to serve, at least one custody-only sentence and at least one custody and community sentence, and

(b) is not serving, or liable to serve, any other sentence of imprisonment.

(2) Part 2 applies subject to the following modifications.

(3) Sections 5 and 34(1) do not apply.

(4) In sections 10 to 13, 18 and 47, references to the custody part are to be read as references to the custody-only sentence or, as the case may be, the custody part of the custody and community sentence which expires after the expiry of—

(a) any other custody-only sentence (or sentences) imposed on the prisoner, and

(b) the custody part of any other custody and community sentence (or sentences) so imposed.

(5) In section 14—

(a) subsection (9) does not apply, and

(b) “three-quarter point”, in relation to each of the sentences imposed on the prisoner, means the day on which the prisoner will have served—

(i) at least three-quarters of the custody and community sentence (or sentences), and

(ii) the custody-only sentence (or sentences).

(6) In section 19(1), the reference to the prisoner's having served three-quarters of the prisoner's sentence is to be read as a reference to the prisoner's having served—

(a) at least three-quarters of the custody and community sentence (or sentences) imposed on the prisoner, and

(b) the custody-only sentence (or sentences) so imposed.

(7) In sections 34(2) and 43, references to the expiry of the prisoner's sentence are to be read as references to the expiry of the sentence which expires after the expiry of the other sentence (or sentences) imposed on the prisoner.

(8) In section 47(4)(a)(i), the reference to the prisoner's sentence is to be read as a reference—

(a) where one custody and community sentence is imposed on the prisoner, to that sentence,

(b) where two or more such sentences are so imposed, to the longer (or longest) of them.

(9) This paragraph is subject to paragraph 7.

Multiple life sentences S

4 (1) This paragraph applies where a prisoner— S

(a) is serving, or liable to serve, two or more life sentences, and

(b) is not serving, or liable to serve, any other sentence of imprisonment.

(2) Part 2 applies subject to the following modifications.

(3) In sections 20 to 23, references to the punishment part are to be read as references to the punishment part which expires after the expiry of the other punishment part (or parts) imposed on the prisoner.

Combinations of life sentences and other sentences S

5 (1) This paragraph applies where a prisoner is serving, or liable to serve, at least one life sentence and any of the following— S

(a) a custody-only sentence,

(b) two or more custody-only sentences,

(c) a custody and community sentence,

(d) two or more custody and community sentences.

(2) Part 2 applies subject to the following modifications.

(3) Sections 5, 9 to 19, 30, 31, 34(1) and (2), 43 and 47 to 49 do not apply.

(4) In sections 20 to 23, references to the punishment part are to be read as references to the custody-only sentence, the custody part of the custody and community sentence or, as the case may be, the punishment part of the life sentence which expires after the expiry of—

(a) any other custody-only sentence (or sentences) imposed on the prisoner,

(b) the custody part of any other custody and community sentence (or sentences) so imposed, and

(c) the punishment part of any other life sentence (or sentences) so imposed.

Single licence for released prisoner serving multiple sentences S

6 (1) This paragraph applies where— S

(a) paragraph 2, 3, 4 or 5 applies to a prisoner, and

(b) the prisoner is released on licence by virtue of section 11(2), 13(2)(a), 19(1), 23(2)(a), 27(1) or 42(4)(a).

(2) The prisoner must be released on a single licence as respects both (or all) sentences of imprisonment imposed on the prisoner.

(3) References in Part 2 to the prisoner's licence are to be read as references to that single licence.

Special case: extended sentences S

7 (1) Where a custody and community sentence imposed on a prisoner is an extended sentence, the modifications in paragraphs 2(4), (5) and (7) and 3(5), (6)(a) and (8) are to be read subject to sub-paragraph (2). S

(2) In the case of the extended sentence, references in those paragraphs to the prisoner's sentence are references to the confinement term of the prisoner's sentence.

(3) In this paragraph the expressions “extended sentence” and “the confinement term” are to be construed in accordance with section 210A(2) of the 1995 Act.

Prospective

SCHEDULE 3 S Sentences framed to run consecutively

(introduced by section 53)

Power to impose sentence to take effect on expiry of other sentence S

1 (1) This paragraph applies where— S

(a) a prisoner is serving, or liable to serve, at least one sentence of imprisonment (the “previous sentence”), and

(b) the court imposes a further sentence of imprisonment for an offence (the “further sentence”).

(2) The court may, when imposing the further sentence on a prisoner serving, or liable to serve, one previous sentence, frame the further sentence to take effect immediately on the expiry of the relevant period of the previous sentence.

(3) The court may, when imposing the further sentence on a prisoner serving, or liable to serve, two or more previous sentences, frame the further sentence to take effect immediately on the expiry of the relevant period of whichever previous sentence the court considers appropriate.

(4) The relevant period, in relation to a sentence of imprisonment, is—

(a) in the case of a custody-only sentence, that sentence,

(b) in the case of a custody and community sentence, the custody part of that sentence,

(c) in the case of a life sentence, the punishment part of that sentence.

Postponement of sentencing where previous punishment part or custody part not specified S

2 (1) This paragraph applies where— S

(a) it falls to the court to sentence a person who is subject to a previous sentence, and

(b) a punishment part or, as the case may be, custody part requires to be specified in respect of the previous sentence but has not been so specified.

(2) The court must not sentence the person until such time as the punishment part or, as the case may be, custody part–

(a) is specified, or

(b) no longer requires to be specified,

in respect of the previous sentence.

Effect of sentences framed to take effect consecutively S

3 (1) This paragraph applies where— S

(a) the court imposes a custody-only sentence as a further sentence,

(b) the court frames the sentence to take effect in accordance with paragraph 1(2) or (3), and

(c) the prisoner's previous sentence (or one of the prisoner's previous sentences) is a custody and community sentence.

(2) In determining the date on which the previous sentence expires, no account is to be taken of the period of confinement served under the further sentence.

4 (1) This paragraph applies where— S

(a) the court imposes a custody and community sentence as a further sentence,

(b) the court frames the sentence to take effect in accordance with paragraph 1(2) or (3), and

(c) the prisoner's previous sentence (or one of the prisoner's previous sentences) is a custody and community sentence.

(2) In determining the date on which the previous sentence expires, no account is to be taken of the period of confinement served under the custody part of the further sentence.

(3) In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.

(4) The balance of the previous sentence is the term of the sentence less the custody part of the sentence.

Effect of sentences framed to take effect consecutively on extension periods S

5 (1) In paragraph 3, if the previous sentence is an extended sentence, the reference in sub-paragraph (2) of that paragraph to the date when the previous sentence is due to expire is to be read as a reference to the date when the confinement term of that sentence is due to expire. S

(2) In paragraph 4, if the previous sentence is an extended sentence—

(a) the reference in sub-paragraph (2) of that paragraph to the date when the previous sentence is due to expire is to be read as a reference to the date when the confinement term of that sentence is due to expire,

(b) the extension period of the previous sentence is to commence immediately after the date on which the further sentence expires in accordance with sub-paragraph (3) of that paragraph.

(3) In paragraph 4, if the further sentence is an extended sentence, the reference in sub-paragraph (3) of that paragraph to the date when the further sentence expires is to be read as a reference to the date when the confinement term of that sentence expires.

(4) Subject to section 210A(3) of the 1995 Act and to any direction by the court which imposes the further sentence, where both the further sentence and the previous sentence are extended sentences—

(a) the references in paragraph 4(2) and (3) to the dates when those sentences expire are to be read as references to the dates when the confinement terms of those sentences expire,

(b) the extension periods of the sentences must be aggregated, and

(c) that aggregated extension period is to commence immediately after the date on which the further sentence expires in accordance with paragraph 4(3).

(5) In this paragraph the expressions “extended sentence”, “the confinement term” and “the extension period” are to be construed in accordance with section 210A(2) of the 1995 Act.

Application of schedule where previous sentence imposed by court outwith Scotland S

6 S The Scottish Ministers may by order make provision for or in connection with the application of this schedule (subject to modifications specified in the order) where a previous sentence is passed by a court in any part of the United Kingdom outwith Scotland.

Prospective

SCHEDULE 4 S Minor and consequential amendments

(introduced by section 66(1))

Criminal Procedure (Scotland) Act 1995 (c. 46) S

1 (1) Section 167 of the 1995 Act (forms of finding and sentence in summary proceedings) is amended as follows. S

(2) In subsection (7)—

(a) ”paragraph (a) and the word “or immediately following it are repealed,

(b) for the words “previous sentence for a term or order” substitute “ period mentioned in subsection (7D) below ”, and

(c) for the words “later conviction or order” substitute “ order mentioned in paragraph (b) of this subsection ”.

(3) After subsection (7C), insert—

“(7D) The periods are—

(a) any previous custody-only sentence,

(b) the custody part of any previous custody and community sentence,

(c) any previous sentence for a term passed by a court in any part of the United Kingdom outwith Scotland,

following on conviction or any previous order for committal in default of payment of any sum of money or for contempt of court.

(7E) In subsection (7D) above, “custody and community sentence”, “custody-only sentence” and “custody part” have the meanings given by section 4(1) of the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17).”.

2 S In section 204A of the 1995 Act (restriction on consecutive sentences for released prisoners), for the words from “at” to the end of the section substitute “ on licence by virtue of Part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17). ”.

3 (1) Section 210A of the 1995 Act (extended sentences for sex and violent offenders) is amended as follows. S

(2) In subsection (1)(b), before “licence” insert “ community ”.

(3) In subsection (2)—

(a) in paragraph (a), for “custodial” substitute “ confinement ”,

(b) in paragraph (b), before “licence” insert “ community ”.

(4) In subsection (6), for “custodial” substitute “ confinement ”.

(5) In subsection (10), for the words from “ “licence”” to “1993” substitute—

““community licence” has the same meaning as in Part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17);

“relevant officer”, in relation to a local authority, means an officer of that authority employed by them in the discharge of their functions under section 27(1) of the Social Work (Scotland) Act 1968 (supervision and care of persons put on probation or released from prison etc.);”.

Criminal Justice (Scotland) Act 2003 (asp 7) S

4 (1) Section 40 of the Criminal Justice (Scotland) Act 2003 (remote monitoring of released prisoners) is amended as follows. S

(2) In subsection (1), for the words from “licence” to the end of paragraph (b) substitute “ community licence or life licence under Part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17) ”.

(3) In subsection (3)—

(a) for “specify” substitute “ include ”, and

(b) for “specified” substitute “ included ”.

(4) In subsection (8), for paragraphs (a) and (b) substitute—

“(a) section 30 of the Custodial Sentences and Weapons (Scotland) Act 2007 (community licences: Scottish Ministers to include only licence conditions specified by Parole Board), or

(b) section 32(2) of that Act (life licences: Scottish Ministers to include only licence conditions specified by Parole Board).”.

Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) S

5 (1) The Police, Public Order and Criminal Justice (Scotland) Act 2006 is amended as follows. S

(2) In section 91 (assistance by offender: reduction in sentence), in subsection (8)(b), for “section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)” substitute “ section 20(3) of the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17) ”.

(3) In section 92 (assistance by offender: review of sentence), in subsection (5), for the words from “(whether” to the end of the subsection substitute “ on licence under Part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17) is to be treated as still serving the sentence for so long as the licence remains in force. ”

(4) In section 94 (section 92: further provision), in subsection (3)(b)—

(a) for “or unconditionally under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)” substitute “ under Part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17) ”, and

(b) the words from “before” to “full” are repealed.

SCHEDULE 5 S Repeals

(introduced by section 66(2))

Commencement Information

I1 Sch. 5 partly in force; Sch. 5 not in force at Royal Assent see s. 67(2); Sch. 5 in force at 1.11.2007 for specified purposes by S.S.I. 2007/431, art. 3, Sch.

Enactment	Extent of repeal
Criminal Justice Act 1988 (c. 33)	Section 141(3).
Prisons (Scotland) Act 1989 (c. 45)	In section 39, subsections (7), (7A) and (7B).
Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)	Part 1.
Criminal Procedure (Scotland) Act 1995 (c. 46)	In section 167, subsections (7A) to (7C). Section 204B.
Crime and Disorder Act 1998 (c. 37)	In Schedule 8, paragraph 71.

[F2 SCHEDULE 6 S TRANSITORY AMENDMENTS

(introduced by section 66(3))

Textual Amendments

F2 Sch. 6 substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 19, 206(1); S.S.I. 2011/178, art. 2, Sch.

1 S Until the coming into force of the repeal by this Act of Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9), that Part has effect in accordance with paragraphs 2 to 4.

2 S In section 1 (release of short-term and long-term prisoners), subsection (3) has effect as if for paragraphs (a) and (b) there were substituted “ must, ”

3 S Section 9 (persons liable to removal from the United Kingdom) has effect as if—

(a) subsection (1) were repealed, and

(b) in subsection (3), after “section”, where it first occurs, there were inserted “ and sections 9A and 9B ” .

4 S That Part has effect as if after section 9 there were inserted—

9A “Persons eligible for removal from the United Kingdom

(1) For the purposes of this Part, to be “eligible for removal from the United Kingdom” a person must show, to the satisfaction of the Scottish Ministers, that the condition in subsection (2) is met.

(2) The condition is that the person has the settled intention of residing permanently outside the United Kingdom if removed from prison under section 9B.

(3) The person must not be one who is liable to removal from the United Kingdom.

9B Early removal of certain short-term prisoners from the United Kingdom

(1) Subject to subsection (2), where a short-term prisoner is liable to, or eligible for, removal from the United Kingdom, the Scottish Ministers may remove the prisoner from prison under this section at any time during the period of 180 days ending with the day on which the prisoner will have served one-half of the prisoner's sentence.

(2) Subsection (1) does not apply in relation to a prisoner unless the prisoner has served one-quarter of the sentence.

(3) A prisoner removed from prison under this section—

(a) if liable to removal from the United Kingdom, is so removed only for the purpose of enabling the Secretary of State to remove the prisoner from the United Kingdom under powers conferred by—

(i) Schedule 2 or 3 to the Immigration Act 1971 (c.77), or

(ii) section 10 of the Immigration and Asylum Act 1999 (c.33),

(b) if eligible for removal from the United Kingdom, is so removed only for the purpose of enabling the prisoner to leave the United Kingdom in order to reside permanently outside the United Kingdom, and

(c) in either case, so long as remaining in the United Kingdom, remains liable to be detained in pursuance of the prisoner's sentence until the prisoner has served one-half of the sentence.

(4) So long as a prisoner removed from prison under this section remains in the United Kingdom but has not been returned to prison, any duty or power of the Scottish Ministers under section 1(1), 1AA or 3 is exercisable in relation to the prisoner as if the prisoner were in prison.

(5) The Scottish Ministers may by order amend the number of days for the time being specified in subsection (1).

(6) A statutory instrument containing an order under subsection (5) may not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

[F3 (7) This section does not apply in relation to a person to whom section 1AB applies.]

9C Re-entry into United Kingdom of prisoner removed from prison early

(1) This section applies in relation to a person (referred to in this section as “ the removed person ”) who, after being removed from prison under section 9B, has been removed from the United Kingdom before serving one-half of the sentence.

(2) Where the removed person re-enters the United Kingdom at any time before the date on which the person would have served the person's sentence in full (but for the person's removal from prison under section 9B), the person is liable to be detained in pursuance of the person's sentence until the earlier of the following—

(a) the date of the expiry of the outstanding custodial period,

(b) the date on which the person would have served the person's sentence in full (but for the person's removal from prison under section 9B).

(3) In the case of a person liable to be detained under subsection (2), the duty to release the person under section 1(1) or 1AA(1) applies only after the expiry of the outstanding custodial period.

(4) A person who is liable to be detained by virtue of subsection (2) is, if at large, to be taken F4 ... to be unlawfully at large.

(5) Subsection (2) does not prevent—

(a) the further removal from prison under section 9B(1) of a person falling within that subsection, or

(b) the further removal from the United Kingdom of such a person.

(6) In this section, the “ outstanding custodial period ” means, in relation to a removed person, a period of time equal to the period beginning with the date of removal from the United Kingdom and ending with the date on which the person would, but for the removal, have served one-half of the sentence. ”.

Textual Amendments

F3 Words in sch. 6 para. 4 inserted (30.4.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(1)(i), Sch. 13 para. 58

F4 Words in sch. 6 para. 4 repealed (11.10.2019) by Management of Offenders (Scotland) Act 2019 (asp 14), ss. 60(5), 63(2); S.S.I. 2019/309, reg. 2, sch.

5 S Until the coming into force of the repeal by this Act of Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9), paragraph (c) of section 24 of the International Criminal Court (Scotland) Act 2001 (asp 13) (limited disapplication of certain provisions relating to sentences) has effect as if—

(a) after “9” there were inserted “, 9A, 9B, 9C” , and

(b) after “transfer” there were inserted “, removal”. ]