New position
11.Section 1 of the Act modifies section 1(1) of the 1993 Act so as to impose a new automatic early release point for the short-term prisoners to whom it applies. The effect is as follows—
No changes are made to the release of short-term terrorist prisoners. Such prisoners continue to be dealt with under section 1AB of the 1993 Act.
No changes are made to the release of short-term prisoners who are sentenced to 6 months’ imprisonment or more for an offence where sex offender notification requirements apply. Such prisoners continue to be dealt with under section 1AA of the 1993 Act.
Under new section 1(1)(a) of the 1993 Act, a short-term prisoner serving a sentence of imprisonment for a domestic abuse offence, or a sentence of less than 6 months for a listed sexual offence (which therefore falls outwith the category immediately above), will be automatically released after serving one-half (i.e. 50%) of their sentence. Although the separate categorisation of this cohort is new, the outcome is the same as applied to these prisoners previously.
Under new section 1(1)(b) of the 1993 Act, any other short-term prisoner not mentioned above will be automatically released after serving two-fifths (i.e. 40%) of their sentence. This is a reduction from the 50% level that applied to them previously. This change will apply regardless of when their sentence was imposed.
12.In the same way as applied under the previous law, short-term prisoners who are covered by and released under new section 1(1) of the 1993 Act will normally be released unconditionally. However, this default position continues to be subject to any supervised release order which applies to a particular prisoner, and where an extended sentence applies to the prisoner then the prisoner will still be released on licence instead. In short, no changes are made by the Act to the type of release which applies upon a short-term prisoner reaching the point of automatic early release – the only change is to the point at which the prisoner is released.
13.As noted above, the short-term prisoners who are covered by new section 1(1)(a) and who therefore do not benefit from any change to their release date under the Act are those who are serving a sentence for a listed sexual offence(5) or a domestic abuse offence. The effect of this in practical terms is as follows—
The sexual offences listed (as set out in new section 1(1ZA)(a)) are in practice those offences which result in sex offender notification requirements applying. The list therefore aligns exactly with the offences that are covered by section 1AA of the 1993 Act. In practice, this means that section 1(1)(a) only covers those sentenced to less than 6 months’ imprisonment for a sexual offence. If the sentence is longer than that, the short-term prisoner’s release will be dealt with under section 1AA instead. While the release point is the same under section 1(1)(a) as it is under section 1AA, section 1AA provides for release on licence rather than unconditional release.
A domestic abuse offence is defined in new section 1(10) of the 1993 Act. It covers both a domestic abuse offence and a domestic abuse aggravation.
14.New section 1(1ZA) of the 1993 Act provides that the continuation of the existing 50% rule applies not just where the prisoner is serving a sentence of imprisonment for a listed sexual offence or a domestic abuse offence. It also covers the case where the prisoner is serving a sentence which has been “single-termed” and the single-termed sentence includes a sentence passed in respect of such an offence. The concept of “single-terming” is provided for under section 27(5) of the 1993 Act. It means that if two sentences are imposed on a person to operate either wholly or partly concurrently, they are treated as one single sentence.
15.In such cases, what will therefore matter are the offences for which the person was sentenced which together make up the single-term. Prisoners to whom section 1AA applies who are serving a single-termed sentence will still be dealt with under section 1AA. But where a prisoner is serving a single-termed sentence where one of the offences is a domestic abuse offence, or where it is a sexual offence where the length of sentence does not trigger section 1AA, the prisoner’s sentence will be dealt with under new section 1 by reference to the higher threshold which applies to cases of sexual offences or domestic abuse offences.
16.The Act also alters the automatic early release point which applies under section 5 of the 1993 Act to fine defaulters or those imprisoned for contempt of court. This is reduced from 50% to 40% for such short-term prisoners, in line with the changes above.
17.It should be noted that although the Act changes the automatic early release point for prisoners, if a prisoner is in prison both because they are serving a sentence and because there is a warrant remanding them in custody awaiting trial for a separate offence, they will not be released upon reaching the automatic early release point in respect of their sentence. While the basis for holding the person in prison on account of their sentence will no longer apply, the person will continue to be held in prison on the basis of the warrant.
The listed sexual offences are all the Scottish offences listed in schedule 3 of the Sexual Offences Act 2003. This covers a broad range from common law rape to indecent assault or voyeurism, as well as an offence where the court specifically determines that there was a significant sexual aspect to the offender’s behaviour in committing the offence.