The Prisons and Young Offenders Institutions (Scotland) Rules 2011

Interpretation S

2.—(1) In these Rules—

“the Act” means the Prisons (Scotland) Act 1989 M1 ;

“the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 1993 M2 ;

“the 1994 Act” means the Criminal Justice and Public Order Act 1994;

“the 2006 Rules” means the Prisons and Young Offenders Institutions (Scotland) Rules 2006 M3 ;

“accommodation” means the cells or rooms used to accommodate prisoners for living and sleeping purposes;

“appellant” means, subject to rule 2(3), a prisoner—

(a)

who appeals under section 106 or 175 of the 1995 Act M4 against his or her conviction or sentence, or against both conviction and sentence;

(b)

whose case has been referred to the High Court of Justiciary by the Scottish Criminal Cases Review Commission pursuant to section 194B(1) of the 1995 Act M5 ;

(c)

who appeals by way of bill of suspension against his or her conviction or sentence, or both conviction and sentence, in summary proceedings;

(d)

who appeals under section 8 of the [F1 Court Martial Appeals Act 1968]M6 against his or her conviction or sentence, or both conviction and sentence, or who appeals under section 39(1) of that Act M7 from any decision of the [F2 Court Martial Appeal Court] on an appeal under section 8 of that Act; or

(e)

who is returned to prison under section 18(2) of the 1993 Act and who appeals under section 19 of that Act;

“appropriate member”, in relation to a member of the chaplaincy team, means a member who represents the religious denomination concerned or who has pastoral care of the prisoner concerned;

[F3 “authorised personal communication device” means a personal communication device the possession and use of which have been authorised under section 41ZB(8) of the Act;]

[F4 “biometric data” means fingerprints and any other data specified by direction made by the Scottish Ministers;]

“chaplain” means the person who is appointed pursuant to section 3(2) of the Act as the chaplain to a prison;

“chaplaincy team” consists of the chaplain and any prison minister and any visiting minister;

“civil prisoner” means a person who is committed to prison—

(a)

by virtue of non compliance with an order under section 45 of the Court of Session Act 1988 M8 ;

(b)

under section 4 or 6 of the Civil Imprisonment (Scotland) Act 1882 M9 ;

(c)

by virtue of a warrant granted under section 1(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 M10 ;

(d)

for contempt of court or for non payment of a fine imposed for contempt of court; or

(e)

for breach of interdict;

“clothing” includes footwear, jewellery and other objects worn for personal adornment;

[F5 “communal telephone” means a landline telephone provided in a communal area of the prison for use by any prisoner and does not include an authorised personal communication device;]

[F6 “constable” has the same meaning as in section 99(1) of the Police and Fire Reform (Scotland) Act 2012;]

“contracted out prison” means a prison or part of a prison the running of which a contract under section 106 of the 1994 Act M11 is for the time being in force;

“contracted out services” means services to a prison (other than a contracted out prison) or to staff or prisoners therein, provided other than by officers or employees;

“controlled drug” means any drug which is a controlled drug for the purposes of the Misuse of Drugs Act 1971 M12 ;

[F7 “coronavirus” has the same meaning as in section 1 of the Coronavirus (Scotland) Act 2020;]

“Deputy Governor” means any officer who is appointed to act in place of the Governor in Charge during any period when the Governor in Charge is temporarily absent from the prison;

“employee” means an employee (not being an officer of a prison) appointed by the Scottish Ministers under section 51 of the Scotland Act 1998 M13 ;

“film” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 M14 ;

[F8 “for the duration of a coronavirus outbreak” means the time period beginning from the commencement of the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 and lasting until [F9 30 September 2022];]

“Governor” means—

(a)

in this rule, rules 90(1), 93, 94 and any rule in Part 12 (other than rule 120(3)), the Governor in Charge;

(b)

in rules 6, 7, 14, 35 and 81 and in any rule in Parts 3, 8, 10 (other than rules 90(1), 93 and 94), 11 and 14 to 17 and, unless otherwise expressly provided for, in directions made under rules 19(2)(g), 21(1)(b)(iii), 22, 26, [F10 55(7)], [F11 62(10), 62A(11)], 77(3)[F12 , 78A(10)] and 86, any of the following—

(i)

the Governor in Charge;

(ii)

the Deputy Governor;

(iii)

any authorised Unit Manager; and

(iv)

where there is no officer as mentioned in paragraphs (i) to (iii) present for the time being in the prison, the most senior officer who is present in prison at that time; and

(c)

in any other provision in these Rules, any officer;

“Governor in Charge” means the officer who is appointed as the Governor in overall charge of the prison or, in the case of legalised police cells, the constable who is in charge of the cells;

“healthcare professional” has the same meaning as in section 17CA of the National Health Service (Scotland) Act 1978 M15 ;

[F13 “in-cell telephone” means a landline telephone provided in a prisoner’s cell or room for the use of any prisoner for the time being accommodated in that cell or room, and does not include an authorised personal communication device;]

[F14 “independent prison monitor” means an independent prison monitor appointed under section 7B(2)(a) of the Act;]

[F14 “legal adviser” means a person who is entitled to practise—

(a)

as a solicitor, an advocate or a barrister in any part of the United Kingdom; or

(b)

as a member of the corresponding profession of solicitor, advocate or barrister in any Member State of the European Union, and, except for the purposes of rule 113(9), includes the authorised clerk or employee of such a person;

“legal custody” is to be interpreted in accordance with section 13 of the Act M16 and section 295 of the 1995 Act M17 ;

“letter” includes any communication in written form which—

(a)

is directed to a specific person or address; and

(b)

relates to the personal, private or business affairs of, or the business affairs of the employer of, either correspondent, and includes an envelope containing any such communication;

“life prisoner” means a person serving a sentence of imprisonment for life;

“long-term prisoner” means a person serving a sentence of imprisonment for a term of four years or more which was imposed on or after 1st October 1993 and includes any person who is treated as such a prisoner for the purposes of any provision of Part I of the 1993 Act;

“media representative” means—

(a)

a photographer, cameraman, researcher or producer for, or of, any television, radio or other programme intended for broadcast or transmission by any form of electronic medium; or

(b)

a journalist or author;

[F15 “medical facility” includes any hospital and any other premises at which any form of services for the care of a person’s health is provided;]

[F16 “nicotine vapour product” has the meaning given by section 35A of the Tobacco and Primary Medical Services (Scotland) Act 2010;]

“officer” means an officer of the prison appointed by the Scottish Ministers and includes the Governor but—

(a)

for the purposes of searching a prisoner under rule 92(2)(a) and for the purposes of rule 99, includes a prisoner custody officer who is authorised to perform escort functions in accordance with section 114 of the 1994 Act M18 ; and

(b)

in the case of a legalised police cell, means any constable;

“personal communication device” has the same meaning as in section 41(9B) of the 1989 Act M19 ;

“photograph” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 M20 ;

“police member of the Scottish Crime and Drug Enforcement Agency” means a police member appointed in accordance with paragraph 7 of schedule 2 to the Police, Public Order and Criminal Justice (Scotland) Act 2006 M21 ;

“prison minister” means a person who is appointed by the Scottish Ministers pursuant to section 9(1) of the Act as a minister to a prison;

[F17 “prohibited article” means—

(a)

any drug which is a controlled drug within the meaning given by section 2 of the Misuse of Drugs Act 1971;

(b)

any firearm, or any ammunition, within the meaning given by section 57 of the Firearms Act 1968;

(c)

any offensive weapon within the meaning given by section 47(4) of the Criminal Law (Consolidation) (Scotland) Act 1995;

(d)

any article to which section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 applies;

(e)

alcohol, within the meaning given by section 2 of the Licensing (Scotland) Act 2005;

(f)

any personal communication device [F18 other than an authorised personal communication device]; F19 ...

(g)

tobacco or any tobacco product;] [F20 or,

(h)

any substance which is a psychoactive substance within the meaning given by section 2 of the Psychoactive Substances Act 2016F21 .]

“reception” means, in relation to a prisoner committed to prison, the process of receiving a prisoner into prison—

(a)

on his or her removal to prison from court, or any other place, in implementation of the warrant, order or direction ordering or authorising his or her detention in custody; or

(b)

on his or her transfer to any prison from any other prison, or from any remand centre, young offenders institution or other place where he or she was liable to be detained in custody, and cognate expressions shall be construed accordingly;

“refugee” means—

(a)

a person who is recognised by Her Majesty's Government as a refugee within the meaning of the UN Convention relating to the Status of Refugees done at Geneva on 28th July 1951 M22 as extended by the Protocol thereto which entered into force on 4th October 1987 M23 or, as the case may be, the Protocol relating to the status of refugees done at New York on 31st January 1967 M24 ; or

(b)

a person who enjoys asylum in the United Kingdom in pursuance of a decision of Her Majesty's Government though not yet recognised;

“residential first line manager” means an officer who is required by the Governor to manage areas of living accommodation for prisoners;

“short term prisoner” means a person serving a sentence of imprisonment for a term of less than four years which was imposed on or after 1st October 1993 and includes any person who is treated as such a prisoner for the purposes of any provision of Part I of the 1993 Act;

F22 ...

“sound recording” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 M25 ;

“special cell” means a cell or room which is adapted for the temporary accommodation of refractory or violent prisoners and whose features may include special sound-proofing, strengthened fixtures and fittings or the absence of any window;

“stateless person” has the meaning assigned to it in article 1 of the Convention relating to the Status of Stateless Persons 1954 M26 ;

“supervision level” means a supervision level which may be assigned to a prisoner in accordance with Part 3 of these Rules;

“temporary release” means any of the forms of temporary release defined in rule 136;

[F23 “tobacco product” has the meaning given by section 35 of the Tobacco and Primary Medical Services (Scotland) Act 2010;]

“unauthorised property” means any property which the prisoner has not been authorised by any officer or by virtue of these Rules to possess within the prison or within a particular part of the prison.

“Unit Manager” means an officer who is appointed to manage a function or group of functions within the prison;

“untried prisoner” means a person who is committed to prison—

(a)

for examination or trial on any criminal charge;

(b)

by virtue of remand in custody under the Extradition Act 2003 M27 ; or

(c)

by virtue of detention under Schedule 2 or 3 to the Immigration Act 1971 M28 ;

(d)

following conviction but awaiting sentence, but does not include any such person who is for the time being serving a sentence of imprisonment;

“visiting minister” means a minister who is allowed to visit prisoners of his or her religious denomination in terms of section 9(3) of the Act;

“young offender” means an offender who—

(a)

has attained 16 years of age but has not yet attained 21 years of age;

(b)

is being detained in a prison or young offenders institution; and

(c)

has been sentenced to a period of detention.

(2) Except where the context otherwise requires, for the purposes of any reference, however expressed, in these Rules to—

(a) the term of imprisonment or other detention to which a person has been sentenced; or

(b) the term of imprisonment or other detention which a person, having been sentenced, has served in whole or in part,

consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term.

(3) For the purposes of the definition of “appellant” in paragraph (1), a prisoner is deemed to be an appellant—

(a) in the case of an appeal as mentioned in sub-paragraph (a) of that definition in solemn proceedings, from the time the prisoner lodges an intimation of intention to appeal in terms of section 109(1) of the 1995 Act M29 or, in the case of an appeal against sentence only, a note of appeal in terms of section 110(1) of that Act M30 ;

(b) in the case of an appeal as mentioned in sub-paragraph (a) of that definition in summary proceedings, from the time the prisoner lodges an application for a stated case under section 176(1) of the 1995 Act or, in the case of an appeal against sentence only, a note of appeal under section 186(1) of that Act M31 ;

(c) in the case of a reference as mentioned in sub-paragraph (b) of that definition, from the time the Scottish Criminal Cases Review Commission refer the case to the High Court of Justiciary;

(d) in the case of an appeal as mentioned in sub-paragraph (c) of that definition, from the time the prisoner lodges the bill of suspension;

[F24 (e) in the case of an appeal as mentioned in sub-paragraph (d) of that definition, from the time the prisoner lodges the appeal;]

(f) in the case of an appeal as mentioned in sub-paragraph (e) of that definition, from the time the prisoner lodges a note of appeal, until the appeal, or, as the case may be, the reference is finally disposed of or abandoned in its entirety.

(4) Subject to any exception or modification specified in any provision of these Rules or where the context otherwise requires—

(a) any reference in these Rules to a prison is to be construed as including a young offenders institution;

(b) any reference in these Rules to a prisoner, imprisonment or a sentence of imprisonment is to be construed respectively as including a young offender, detention or a sentence of detention in a young offenders institution;

(c) any reference in these Rules to a prisoner, imprisonment or a sentence of imprisonment is to be construed respectively as including any person mentioned in rule 3(2)or any detention or sentence of detention imposed on such a person under any the provisions mentioned in rule 3(2);

(d) any reference in these Rules to a prisoner, imprisonment or a sentence of imprisonment is to be construed respectively as including any person mentioned in rule 3(3) or any imprisonment or detention or period of imprisonment or detention imposed on such a person under any of the provisions mentioned in rule 3(3); and

(e) any reference in these Rules to a visitor is to be interpreted in accordance with rule 105(9).]

Textual Amendments

F1 Words in rule 2(1) substituted (1.11.2011) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2011 (S.S.I. 2011/356), rules 1, 2(2)(a)

F2 Words in rule 2(1) substituted (1.11.2011) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2011 (S.S.I. 2011/356), rules 1, 2(2)(b)

F3 Words in rule 2(1) inserted (15.6.2020 at 2.00 p.m.) by The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2020 (S.S.I. 2020/175), rules 1, 2(2)(a)

F4 Words in rule 2(1) substituted (19.3.2012) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2012 (S.S.I. 2012/26), rules 1, 2(2)

F5 Words in rule 2(1) inserted (15.6.2020 at 2.00 p.m.) by The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2020 (S.S.I. 2020/175), rules 1, 2(2)(b)

F6 Words in rule 2 substituted (24.3.2016) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2016 (S.S.I. 2016/131), rules 1, 2(2)(a)

F7 Words in rule 2(1) inserted (7.4.2020 at 2.15 p.m.) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 (S.S.I. 2020/122), rules 1, 2(2)(a)

F8 Words in rule 2(1) inserted (7.4.2020 at 2.15 p.m.) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 (S.S.I. 2020/122), rules 1, 2(2)(b)

F9 Words in rule 2(1) substituted (30.3.2022) by The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2022 (S.S.I. 2022/73), rules 1, 2

F10 Word in rule 2 substituted (24.3.2016) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2016 (S.S.I. 2016/131), rules 1, 2(2)(b)

F11 Words in rule 2(1) substituted (15.6.2020 at 2.00 p.m.) by The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2020 (S.S.I. 2020/175), rules 1, 2(2)(c)(i)

F12 Word in rule 2(1) inserted (15.6.2020 at 2.00 p.m.) by The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2020 (S.S.I. 2020/175), rules 1, 2(2)(c)(ii)

F13 Words in rule 2(1) inserted (15.6.2020 at 2.00 p.m.) by The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2020 (S.S.I. 2020/175), rules 1, 2(2)(d)

F14 Words in rule 2(1) inserted (31.8.2015) by The Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2015 (S.S.I. 2015/39), arts. 1, 4(2) (with art. 5)

F15 Words in rule 2 inserted (24.3.2016) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2016 (S.S.I. 2016/131), rules 1, 2(2)(c)

F16 Words in rule 2 inserted (30.11.2018) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2018 (S.S.I. 2018/293), rules 1, 2(2)(a)

F17 Words in rule 2 substituted (30.11.2018) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2018 (S.S.I. 2018/293), rules 1, 2(2)(b)

F18 Words in rule 2(1) inserted (15.6.2020 at 2.00 p.m.) by The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2020 (S.S.I. 2020/175), rules 1, 2(2)(e)

F19 Word in rule 2(1) omitted (13.12.2021) by virtue of The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2021 (S.S.I. 2021/446), rules 1, 2(2)(a)

F20 Words in rule 2(1) inserted (13.12.2021) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2021 (S.S.I. 2021/446), rules 1, 2(2)(b)

F21 2016 c. 2.

F22 Words in rule 2 revoked (30.11.2018) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2018 (S.S.I. 2018/293), rules 1, 2(2)(c)

F23 Words in rule 2 inserted (30.11.2018) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2018 (S.S.I. 2018/293), rules 1, 2(2)(d)

F24 Rule 2(3)(e) substituted (1.11.2011) by The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2011 (S.S.I. 2011/356), rules 1, 2(3)

Marginal Citations

M1 1989 c.45.

M2 1993 c.9.

M3 S.S.I. 2006/94.

M4 1995 c.46; has been relevantly amended as follows: section 106 was amended by the Crime and Punishment (Scotland) Act 1997 (c.48), sections 17, 18 and 23, by the Crime and Disorder Act 1998 (c.37) section 119 and paragraph 119 of Schedule 8, by the Protection of Children (Scotland) Act 2003 (asp 5), section 16 and also by the Criminal Justice Scotland Act 2003 (asp 7), Schedule 1, paragraph 2; section 106A was inserted by the Crime and Punishment (Scotland) Act 1997, section 19; section 175 was amended by Crime and Punishment (Scotland) Act 1997 (c.48), section 17, section 21, section 23, by the Crime and Disorder Act 1998 (c.37) section 119 and paragraph 123 of Schedule 8, by the Proceeds of Crime Act 2002 (c.29) Part 3, section 115, and also by the Protection of Children (Scotland) Act 2003 (asp 5), section 16.

M5 Section 194B was inserted by the Crime and Punishment (Scotland) Act 1997, section 25, and was amended by S.I. 1999/1181, Article 3.

M6 1968 c.20; section 8 was amended by the Armed Forces Act 1971 (c. 33), section 73(2) and Schedule 2, paragraph 1(2), by the Armed Forces Act 1976 (c.52), section 22(5) and Schedule 9, paragraph 16, by the Armed Forces Act 1991 (c.62), Schedule 3, by the Armed Forces Act 1996 (c.46), section 17 and Schedule 7, Part III, and by the Armed Forces Act 2001 (c.19), section 34 and Schedule 6, paragraph 55.

M7 1968 c.20; section 39 was amended by the Constitutional Reform Act 2005, Schedule 9, paragraph 17.

M8 1988 c.36.

M9 1882 c.42; sections 4 and 6 were amended by the Sheriff Courts (Scotland) Act 1971 (c.58), section 4.

M10 1940 c.42.

M11 1994 c.33; section 106 was relevantly amended by S.I. 1999/1820, Schedule 2, paragraph 115.

M12 1971 c.38.

M13 1998 c.46; section 51 was amended by the Constitutional Reform and Governance Act 2010 (c.25) Schedule 2, paragraph 9.

M14 1988 c.48; section 5B was inserted by S.I. 1995/3297, article 9.

M15 1978 c.29; section 17CA was added by the Tobacco and Primary Medical Services (Scotland) Act 2010 (asp 3), section 38.

M16 Section 13 was amended by the Criminal Justice (Scotland) Act 2003 (asp 7), section 24(1).

M17 Section 295 was amended by the Criminal Justice (Scotland) Act 2003 (asp 7), section 24(2).

M18 1994 c.33, section 114(1) was amended by S.I. 1999/1820, article 4 and paragraph 115 of Schedule 2.

M19 1989 c.45; section 41(9B) was added by the Criminal Justice and Licensing (Scotland) Act 2010, section 34.

M20 1988 c.48.

M21 2006 asp 10.

M22 Treaty Series No. 39 (1951), Cmnd 9171.

M23 Treaty Series No. 50 (1987), Cmnd 222.

M24 Treaty Series No. 15 (1969), Cmnd 3906.

M25 1988 c.48; Section 5A was inserted by S.I. 1995/3297, article 9.

M26 Cmnd 1098 of 1960.

M27 2003 c.41.

M28 1971 c.77; Schedule 2 was relevantly amended as follows: paragraph 16(1A) was inserted by paragraph 60 of Schedule 14 to the Immigration and Asylum Act 1999 (c.33); paragraph 16(2) was substituted by section 140(1) of the Immigration and Asylum Act 1999 (c.33); paragraph 16(3) was substituted by paragraph 1(11) of Schedule 4 to the Channel Tunnel (International Arrangements) Order 1993 (S.I. 1993/1813); paragraph 16(2) was amended by section 73(5) of the Nationality, Immigration and Asylum Act 2002 (c.41), and by paragraph 1(11) of Schedule 4 to the Channel Tunnel (International Arrangements) Order 1993 (S.I. 1993/1813); Schedule 3 was relevantly amended as follows: paragraph 2(1A) was inserted by paragraph 1(b) of Schedule 10 to the Criminal Justice Act 1982 (c.48); paragraph 2(1) was amended by section 34(1) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19), by section 54(2) of the Immigration and Asylum Act 1999 (c.33) and also by paragraph 1(a) of Schedule 10 to the Criminal Justice Act 1982 (c.48); paragraph 2(2) was amended by section 34(2) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) and also by paragraph 7 of Schedule 7 to the Nationality, Immigration and Asylum Act 2002 (c.41); paragraph 2(3) was amended by section 54(3) of the Immigration and Asylum Act 1999 (c.33). In addition, Schedule 2 is subject to the modifications contained in section 6(6)(b) of the Criminal Justice (International Co-operation) Act 1990 (c.5).

M29 Section 109(1) amended by the Proceeds of Crime Act 2002 (c.29), Schedule 11, paragraph 29.

M30 Section 110(1) amended by the Crime and Punishment (Scotland) Act 1997 (c.48), section 19, by the Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), section 24, and also by S.S.I. 2002/387, article 2.

M31 Section 186(1) was amended by the Protection of Children (Scotland) Act (asp 5), section 16.