The Management of Offenders (Scotland) Act 2019 (Commencement No. 1, Saving and Transitional Provisions) Regulations 2019

Made30th September 2019

Laid before the Scottish Parliament1st October 2019

Coming into force11th October 2019

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 63(2) and (3) of the Management of Offenders (Scotland) Act 20191 and all other powers enabling them to do so.

Citation, commencement and interpretation1

1

These Regulations may be cited as the Management of Offenders (Scotland) Act 2019 (Commencement No. 1, Saving and Transitional Provisions) Regulations 2019 and come into force on 11 October 2019.

2

In these Regulations—

“the Act” means the Management of Offenders (Scotland) Act 2019,
“the 1989 Act” means the Prisons (Scotland) Act 19892,
“the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 19933.

Appointed day2

1

Subject to paragraph (2), 11 October 2019 is the day appointed for the coming into force of the provisions of the Act specified in column 1 of the table in the schedule (the subject matter of which is described in the corresponding entry in column 2 of the table).

2

Where a purpose is specified in column 3 of the table in the schedule, the corresponding provision in column 1 comes into force in accordance with paragraph (1) only for that purpose.

Saving provision3

The amendment of section 17A(1) of the 1993 Act4 by section 50(2) of the Act has no effect in relation to a prisoner released on licence under section 3AA of the 1993 Act5 before the day appointed in regulation 2(1).

Transitional provision4

Section 59 of the Act comes into force subject to the following transitional provisions—

a

in section 32C(2) of the 1989 Act (as inserted by section 59(2) of the Act), all references to temporary release are references to temporary release granted to a prisoner on or after the day appointed in regulation 2(1),

b

in section 32C(3) of the 1989 Act (as inserted by section 59(2) of the Act), all references to notification are references to notification given on or after the day appointed in regulation 2(1).

H YOUSAFA member of the Scottish GovernmentSt Andrew’s House,Edinburgh30th September 2019

SCHEDULE

Regulation 2

Column 1 (provisions of the Act)	Column 2 (subject matter)	Column 3 (purpose)
Section 16(1)	Additional and consequential provisions	For the purposes of commencing paragraphs 1, 3, 4 and 5 of schedule 1.
Section 48	Release on licence under section 3AA of the 1993 Act
Section 49	Release timed to benefit re-integration
Section 50(1), (2) and (4)	Representations by certain recalled prisoners
Section 53(1) and (3)(a)	Re-release after revocation of licences generally
Section 55	Temporary release on licence under prison rules
Section 56	Co-operation between public authorities
Section 57	Operating protocol for release on licence under section 3AA of the 1993 Act
Section 59	Offence of remaining unlawfully at large
Section 60	Arrest where unlawfully at large
Section 61	Meaning of the 1993 Act
The following paragraphs of schedule 1—	Court orders and electronic monitoring
Paragraph 1	Supervised release orders
Paragraph 3	Non-harassment orders
Paragraph 4	Multiple orders
Paragraph 5	Suitability of the place of supervision

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations bring Part 4 and Schedule 1 of the Management of Offenders (Scotland) Act 2019 (“the Act”) partially into force.

Regulation 3 makes saving provision for the commencement of section 50(2) of the Act. Section 50(2) repeals the existing grounds on which the Scottish Ministers may recall a prisoner to prison from a period of home detention curfew (HDC) and substitutes one new ground of recall where it is expedient in the public interest to do so. Regulation 3 provides that for prisoners who have been released on HDC prior to the day appointed in regulation 2(1) (“the appointed day”), the new ground of recall in section 50(2) of the Act does not apply and the existing grounds continue to apply.

Regulation 4 makes transitional provision for the commencement of section 59 of the Act. Section 59 introduces the new offence of remaining unlawfully at large by inserting new sections 32A to 32C into the Prisons (Scotland) Act 1989. There are two main circumstances in which a person can be unlawfully at large: (1) following the expiry of a period of temporary release; and (2) following their recall to prison from a period of temporary release, HDC or parole.

The first aspect of the new offence is where a person, without reasonable excuse, fails to take all necessary steps to return to prison as soon as possible following the expiry of a period of temporary release. If this aspect of the new offence was applied to those who have been granted temporary release prior to the appointed day, it could criminalise behaviour retrospectively. A person who, on the appointed day, is unlawfully at large following the expiry of their temporary release could automatically be committing the new offence when section 59 of the Act comes into force.

Regulation 4(a) prevents the offence of remaining unlawfully at large following the expiry of temporary release from applying retrospectively by providing that the offence will only apply to those prisoners who have been granted temporary release on or after the appointed day.

The second aspect of the offence is where a person, without reasonable excuse, fails to take all necessary steps to return to prison as soon as possible following being notified of being deemed to be unlawfully at large. If this aspect of the new offence was applied to every person serving their prison sentence in the community on the appointed day, it could criminalise behaviour retrospectively. A person who, on the appointed day, is unlawfully at large following their recall to prison, and has been advised that they are unlawfully at large, could automatically be committing the new offence when section 59 of the Act comes into force.

Regulation 4(b) prevents the offence of remaining unlawfully at large following notification of recall to prison from applying retrospectively by providing that the offence will only apply where notification has been provided to the prisoner on or after the appointed day.

The Bill for the Act received Royal Assent on 30 July 2019. Sections 62, 63 and 64 of the Act came into force on the day after Royal Assent by operation of section 63(1) of the Act.