Part 3Victims’ rights to receive information and to give views

40Transfers of convicted persons

(1)

The Criminal Justice (Scotland) Act 2003 is amended as follows.

(2)

In section 16 (victim’s right to receive information concerning release etc. of offender)—

(a)

after subsection (1), insert—

“(1A)

Where a person was convicted and sentenced to imprisonment or detention in respect of an offence in any part of the United Kingdom outwith Scotland, or any of the Channel Islands or the Isle of Man, and has been transferred to Scotland—

(a)

by unrestricted transfer, subsection (1) applies as though the person was convicted and sentenced in Scotland,

(b)

by restricted transfer, subsection (1) does not apply.”,

(b)

in subsection (3)—

(i)

in paragraph (c), after “Scotland” insert “and, unless the Scottish Ministers have cause to believe that it would not be in the interests of justice to provide such information, the jurisdiction to which the convicted person is subject as a result”,

(ii)

after paragraph (c), insert—

“(ca)

where the convicted person was previously transferred to a place outwith Scotland, that the convicted person has been returned to Scotland to serve the remainder, or any part of the remainder, of the sentence imposed in respect of the offence referred to in subsection (1),”.

(3)

After section 16ZA (provision of information to person supporting victim), insert—

“16ZBRights under section 16 where convicted person is transferred outwith Scotland: unrestricted transfer

(1)

Subsection (2) applies where a person (“the convicted person”) is transferred to any part of the United Kingdom outwith Scotland, or to any of the Channel Islands or the Isle of Man, by unrestricted transfer.

(2)

Section 16(1) ceases to apply in relation to the convicted person on the day on which the Scottish Ministers notify, in accordance with section 16(3)(c), a person who would otherwise be entitled to receive information about the convicted person under section 16 (“P”) that the person has been so transferred.

(3)

Where a transfer described in subsection (1) takes place, the Scottish Ministers must, when notifying P of the information set out in section 16(3)(c), also notify P—

(a)

that, by virtue of the transfer, no further information will fall to be given under section 16 unless the convicted person is returned to custody in Scotland to serve the remainder, or any part of the remainder, of the sentence to which P’s rights relate (“the relevant sentence”),

(b)

that P may be entitled to receive information about the convicted person from the jurisdiction to which the convicted person is subject as a result of the transfer (“the receiving jurisdiction”), and

(c)

of such other information as is reasonably available to the Scottish Ministers as to the availability of information for victims of crime in the receiving jurisdiction.

(4)

Where a transfer described in subsection (1) has taken place and the convicted person is subsequently returned to Scotland to serve the remainder, or any part of the remainder, of the relevant sentence, section 16(1) applies with effect from the day on which the return takes place.

(5)

Where a person (“the applicant”) intimates under section 16(1) that they wish to receive information, and the convicted person to whom that information relates has been transferred as described in subsection (1), the Scottish Ministers must inform the applicant—

(a)

that the convicted person has been so transferred, and the jurisdiction to which the convicted person is subject as a result,

(b)

that the applicant does not have the right to receive information under section 16 during such time as the convicted person is not in custody in Scotland,

(c)

that if the convicted person is returned to Scotland—

(i)

the applicant will be notified under section 16(3)(ca), and

(ii)

beginning with the date on which the transfer takes place, section 16(1) will apply as though the convicted person had not been transferred out of Scotland,

(d)

that the applicant may be entitled to receive information about the convicted person from the receiving jurisdiction,

(e)

of such other information as is reasonably available to the Scottish Ministers as to the availability of information for victims of crime in the receiving jurisdiction.

16ZCRights under section 16 where convicted person is transferred outwith Scotland: restricted transfer

(1)

Where a person (“the convicted person”) is transferred to any part of the United Kingdom outwith Scotland, or to any of the Channel Islands or the Isle of Man, by restricted transfer—

(a)

section 16 applies in relation to the convicted person in accordance with subsection (2),

(b)

the Scottish Ministers must, when notifying a person who would otherwise be entitled to receive information about the convicted person under section 16 (“P”) of the information set out in section 16(3)(c), also notify P—

(i)

that subject to subsection (2), P will continue to be eligible to receive information under section 16,

(ii)

that P may be entitled to receive information about the convicted person from the jurisdiction to which the convicted person is subject as a result of the transfer (“the receiving jurisdiction”), and

(iii)

of such other information as is reasonably available to the Scottish Ministers as to the availability of information for victims of crime in the receiving jurisdiction.

(2)

Section 16(1) has effect as if—

(a)

the convicted person had not been transferred outwith Scotland,

(b)

after “so,” there were inserted “use reasonable endeavours to”,

(c)

after “subsection (3)”, there were inserted “or information about an event which the Scottish Ministers consider is equivalent in effect to an event listed in section 16(3)”.

(3)

Where a transfer described in subsection (1) has taken place and subsequently ceases to be a restricted transfer by reason of the removal of a condition as is mentioned in paragraph 6(1)(a) of schedule 1 to the Crime (Sentences) Act 1997—

(a)

section 16(1) ceases to apply in relation to the convicted person with effect from the date on which the variation of conditions takes place,

(b)

the Scottish Ministers must notify any person who would otherwise be entitled to receive information under section 16—

(i)

that the condition has been removed and the transfer is now an unrestricted transfer,

(ii)

of the information set out in section 16ZB(3),

(c)

sections 16ZB(4) and (5) apply in relation to the convicted person.

16ZDRights under section 16 where convicted person is transferred to Scotland from outwith UK

(1)

Where a person who has been convicted of an offence and sentenced to imprisonment or detention in respect of that offence, in a jurisdiction outwith the United Kingdom or any of the Channel Islands or the Isle of Man, is transferred to Scotland—

(a)

the Scottish Ministers may—

(i)

give to the jurisdiction from which the person is transferred (“the transferring jurisdiction”) information about the rights of persons to receive information under this Part,

(ii)

request that the transferring jurisdiction give that information to any person who would qualify to receive information under section 16 if the convicted person had been convicted and sentenced in Scotland, and

(iii)

request from the transferring jurisdiction the details of any person who would so qualify and, if received, use reasonable endeavours to notify that person of their right to receive information under this Part,

(b)

section 16 applies in relation to the convicted person in accordance with subsection (2).

(2)

Section 16(1) has effect as if—

(a)

the convicted person had been convicted and sentenced in Scotland,

(b)

after “so” there were inserted “use reasonable endeavours to”.”.

(4)

In section 18A(1) (interpretation of Part)—

(a)

after the definition of “Mental Health Tribunal” insert—

““restricted transfer” means a transfer under paragraph 1(1)(b), (2)(b), or (2A)(b), 2(1)(b) or (2)(b), or 3(1)(b) or (2)(b) of schedule 1 of the Crime (Sentences) Act 1997 (“the 1997 Act”) which is a restricted transfer within the meaning of paragraph 6(1)(a) of the schedule of the 1997 Act,”,

(b)

after the definition of “transfer for treatment direction” insert—

““unrestricted transfer” means a transfer under paragraph 1(1)(b), (2)(b) or (2A)(b), 2(1)(b) or (2)(b), or 3(1)(b) or (2)(b) of schedule 1 of the Crime (Sentences) Act 1997 (“the 1997 Act”) which is an unrestricted transfer within the meaning of paragraph 6(1)(b) of the schedule of the 1997 Act.”.