9.The automatic early release of short-term prisoners is provided for primarily in section 1(1) of the 1993 Act. However, short-term prisoners who are sentenced to 6 months’ imprisonment or more for an offence listed in schedule 3 of the Sexual Offences Act 2003 (i.e. one where sex offender notification requirements apply upon conviction) are dealt with separately under section 1AA of the 1993 Act. Terrorist prisoners are also dealt with separately and are provided for in section 1AB of the 1993 Act.
10.The effect of section 1(1) of the 1993 Act prior to this Act was that, subject to the exception of the categories of prisoner noted above, the Scottish Ministers(2) were required to release a short-term prisoner after the prisoner had served one-half (i.e. 50%) of their sentence. Release was normally unconditional, although this was subject to any supervised release order which applied in a particular case(3), and any prisoners who were subject to an extended sentence were to be released on licence instead(4).
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.
18.A number of examples are provided below to illustrate the effect of the provision made by section 1 of the Act. However, it should be noted that these are approximations only, as release dates are calculated by the Scottish Prison Service in days rather than weeks/months/years. Further, under section 27(7) of the 1993 Act, release dates are brought forward very slightly to avoid releasing prisoners on particular days, but the effect of that is disregarded for the purpose of these examples. Finally, the examples do not rely upon sentencing guidelines in stating a sentence, as insufficient information is provided to make an assessment about the likelihood of a particular sentence being imposed in any given case.
19.Albert was sentenced to 4 months’ imprisonment for causing a young child to see or hear an indecent communication. This is a listed sexual offence. It is dealt with as follows—
Under the previous law, he would have been released unconditionally under section 1(1) of the 1993 Act after 50% of his sentence, which means after 2 months.
Under the Act, there is no change. He continues to be released unconditionally after 2 months under new section 1(1)(a).
20.Brian was sentenced to 2 years’ imprisonment for sexual exposure to a young child. This is a listed sexual offence. It is dealt with as follows—
Under the previous law, he would have been released on licence under section 1AA of the 1993 Act after 50% of his sentence, which means after 1 year.
Under the Act, there is no change. He continues to be released on licence after 1 year under section 1AA of the 1993 Act.
21.Connor was sentenced to 2 years’ imprisonment for domestic abuse towards his partner. It is dealt with as follows—
Under the previous law, he would have been released unconditionally under section 1(1) of the 1993 Act after 50% of his sentence, which means after 1 year.
Under the Act, there is no change. He continues to be released unconditionally after 1 year under new section 1(1)(a).
22.Diane was sentenced to 3 years’ imprisonment for theft. It is dealt with as follows—
Under the previous law, she would have been released unconditionally under section 1(1) of the 1993 Act after 50% of her sentence, which means after 1 year and 6 months.
Under the Act, she is now to be released unconditionally under new section 1(1)(b) after 40% of her sentence, which means after 1 year and 2.4 months.
23.Edward was sentenced to 5 years’ imprisonment for a serious assault. It is dealt with as follows—
Under the previous law, as a long-term prisoner who was sentenced on or after 1 February 2016, he would have been released on licence under section 1(2A) of the 1993 Act 6 months before his sentence ended, if not released earlier by being granted parole, which means after 4 years and 6 months.
Under the Act, there is no change. He continues to be released on licence after 4 years and 6 months under section 1(2A) of the 1993 Act, if not released earlier by being granted parole.
24.Frank was sentenced to 12 months’ imprisonment for domestic abuse of his partner and 3 months’ imprisonment for also stealing from his partner. The sentences are to run wholly concurrently. As such, the sentences form part of a single-term with a total sentence of 12 months, which is dealt with as follows—
Under the previous law, he would have been released unconditionally under section 1(1) of the 1993 Act after 50% of his sentence, which means after 6 months.
Under the Act, there is no change. Because part of his single-termed sentence relates to a domestic abuse offence, he is subject to new section 1(1)(a) and continues to be released unconditionally after 6 months.
25.George was sentenced to 12 months’ imprisonment for domestic abuse of his partner and 3 months’ imprisonment for also stealing from his partner. The sentences are to run wholly consecutively. As such, the sentences form part of a single-term with a total sentence of 15 months, which is dealt with as follows—
Under the previous law, he would have been released unconditionally under section 1(1) of the 1993 Act after 50% of his sentence, which means after 7.5 months.
Under the Act, there is no change. Because part of his single-termed sentence relates to a domestic abuse offence, he is subject to new section 1(1)(a) and continues to be released unconditionally after 7.5 months.
26.Hamish was sentenced to 6 months’ imprisonment for theft and a further 12 months’ imprisonment for assault for his part in a pub brawl. The sentences are to run wholly consecutively. As such, the sentences form part of a single-term with a total sentence of 18 months, which is dealt with as follows—
Under the previous law, he would have been released unconditionally under section 1(1) of the 1993 Act after 50% of his sentence, which means after 9 months.
Under the Act, he is now to be released after 40% of his sentence. Because neither part of his single-termed sentence relates to a domestic abuse or sexual offence, he is subject to new section 1(1)(b) and is to be released unconditionally after 7.2 months.
While the 1993 Act refers to this as being a duty upon the Secretary of State, this is read as meaning the Scottish Ministers under section 53 of the Scotland Act 1998.
A supervised release order can be imposed by the court under section 209 of the 1995 Act on a short-term prisoner who is convicted on indictment of a non-sexual offence if the court considers the order necessary “to protect the public from serious harm from the offender” on the person’s release.
Extended sentences can be imposed by the court under section 210A and section 210AA of the 1995 Act where a person is convicted on indictment of a sexual, violent, terrorism or abduction offence and the court considers that the period (if any) for which the offender would otherwise be on licence “would not be adequate for the purpose of protecting the public from serious harm from the offender”.
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.