Criminal Justice and Licensing (Scotland) Act 2010

PART 1 — SENTENCING

The Scottish Sentencing Council

The Scottish Sentencing Council

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• (1) There is established a body corporate to be known as the “Scottish Sentencing Council” (referred to in this Part as the “Council”).

• (2) Schedule 1 makes further provision about the Council.

The Council’s objectives

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The Council must, in carrying out its functions, seek to—

• (a) promote consistency in sentencing practice,

• (b) assist the development of policy in relation to sentencing,

• (c) promote greater awareness and understanding of sentencing policy and practice.

Articles banned in prison

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• (1) The Council is from time to time to prepare, for the approval of the High Court of Justiciary, guidelines relating to the sentencing of offenders.

• (2) Such guidelines are to be known as “sentencing guidelines”.

• (3) Sentencing guidelines may in particular relate to—

• (a) the principles and purposes of sentencing,

• (b) sentencing levels,

• (c) the particular types of sentence that are appropriate for particular types of offence or offender,

• (d) the circumstances in which the guidelines may be departed from.

• (4) Sentencing guidelines may be general in nature or may relate to a particular category of offence or offender or a particular matter relating to sentencing.

• (5) The Council must, on preparing any sentencing guidelines, also prepare—

• (a) an assessment of the costs and benefits to which the implementation of the guidelines would be likely to give rise,

• (b) an assessment of the likely effect of the guidelines on the criminal justice system generally.

• (6) The Council—

• (a) must from time to time review any sentencing guidelines published by it, and

• (b) may prepare, for the approval of the High Court of Justiciary, revised guidelines.

• (7) In this section and sections 4 to 13, references to sentencing guidelines include references to revised sentencing guidelines.

Consultation on proposed sentencing guidelines

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• (1) The Council must, before submitting any sentencing guidelines to the High Court of Justiciary for approval—

• (a) publish a draft of the proposed guidelines together with a draft of the assessments referred to in section 3(5), and

• (b) consult the following persons about the drafts—

• (i) the Scottish Ministers,

• (ii) the Lord Advocate,

• (iii) such other persons as the Council considers appropriate.

• (2) The Council must, in finalising the guidelines and assessments for submission to the High Court of Justiciary, have regard to any comments made on the drafts following publication and consultation under subsection (1).

Approval of sentencing guidelines by High Court

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• (1) Sentencing guidelines have no effect unless approved by the High Court of Justiciary.

• (2) On submitting sentencing guidelines to the High Court for approval, the Council must also provide the High Court with the assessments referred to in section 3(5).

• (3) Where the Council submits sentencing guidelines to the High Court for approval, the Court may—

• (a) approve the proposed guidelines—

• (i) in whole or in part,

• (ii) with or without modifications, or

• (b) reject the proposed guidelines, in whole or in part.

• (4) Where the High Court—

• (a) rejects any of the proposed guidelines, or

• (b) modifies any of them,

the Court must state its reasons for doing so.

• (5) Sentencing guidelines approved by the High Court take effect on such date as the Court may determine.

• (6) Different dates may be determined in relation to—

• (a) different provisions of the guidelines, or

• (b) different purposes.

• (7) As soon as possible after the approval of sentencing guidelines by the High Court, the Council must publish—

• (a) the guidelines as approved (including the date on which they take effect), and

• (b) the assessments referred to in section 3(5) (revised as necessary to take account of any modifications of the guidelines prior to their approval).

• (8) The guidelines and assessments are to be published in such manner as the Council considers appropriate.

Effect of sentencing guidelines

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• (1) A court (whether at first instance or on appeal) must—

• (a) in sentencing an offender in respect of an offence, have regard to any sentencing guidelines which are applicable in relation to the case,

• (b) in carrying out any other function relating to the sentencing of offenders, have regard to any sentencing guidelines applicable to the carrying out of the function.

• (2) If the court decides not to follow the guidelines, or to depart from them in accordance with provision contained in them under section 3(3)(d), it must state the reasons for its decision.

• (3) The sentencing guidelines to which the court must have regard under subsection (1) are those applicable to the case at the time the court is sentencing the offender or, as the case may be, carrying out the function.

• (4) Subsection (5) applies where, on an appeal in any case—

• (a) the High Court of Justiciary passes another sentence under one of the following provisions of the 1995 Act—

• (i) section 118(3),

• (ii) section 118(4)(b),

• (iii) section 118(4A)(b),

• (iv) section 118(4A)(c)(ii), or

• (b) the Sheriff Appeal Court or the High Court passes another sentence under section 189(1)(b) of that Act.

• (5) The sentencing guidelines which the High Court or, as the case may be, the Sheriff Appeal Court must have regard to under subsection (1) in passing that other sentence are those applicable to the case at the time it is passed.

• (6) A revision of the sentencing guidelines after an offender is sentenced in respect of an offence is not a ground for the referral of the case to the High Court of Justiciary under section 194B of the 1995 Act (references to the High Court of cases dealt with on indictment).

• (7) In section 108 of the 1995 Act (Lord Advocate's right of appeal against disposal where conviction on indictment), after subsection (2) insert—

(2A) In deciding whether to appeal under subsection (1) in any case, the Lord Advocate must have regard to any sentencing guidelines which are applicable in relation to the case.

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• (8) In section 175 of the 1995 Act (prosecutor's right of appeal against disposal in summary proceedings), after subsection (4B) insert—

(4C) In deciding whether to appeal under subsection (4) in any case, the prosecutor must have regard to any sentencing guidelines which are applicable in relation to the case.

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Ministers’ power to request that sentencing guidelines be prepared or reviewed

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• (1) The Scottish Ministers may request that the Council consider—

• (a) preparing, for the approval of the High Court of Justiciary, sentencing guidelines on any matter, or

• (b) reviewing any sentencing guidelines published by the Council.

• (2) The Council must have regard to any request made by the Scottish Ministers.

• (3) If the Council decides not to comply with a request made by the Scottish Ministers, it must provide the Scottish Ministers with reasons for its decision.

Data matching for detection of fraud etc.

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• (1) Where the High Court of Justiciary pronounces an opinion under section 118(7) or 189(7) of the 1995 Act, the Court may require the Council to—

• (a) prepare, for the Court's approval, sentencing guidelines on any matter, or

• (b) review any sentencing guidelines published by the Council on any matter.

• (2) On making a requirement under subsection (1), the High Court must state its reasons for doing so.

• (3) The Council must comply with a requirement made under subsection (1) and, in doing so, must have regard to the High Court's reasons for making the requirement.

Publication of High Court guideline judgments

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• (1) The Council must publish the opinions of the High Court of Justiciary pronounced under section 118(7) of the 1995 Act and opinions of the Sheriff Appeal Court or the High Court pronounced under section 189(7) of that Act.

• (2) As soon as possible after the High Courtor the Sheriff Appeal Court pronounces such an opinion, the Scottish Court Service must provide the Council with a copy of the opinion.

• (3) The copy opinion is to be provided in such form and by such means as the Council may require.

• (4) The opinions are to be published in such manner, and at such times, as the Council considers appropriate.

• (5) This section does not affect any power or responsibility of the Scottish Court Service in relation to the publication of opinions of the High Court.

Scottish Court Service to provide sentencing information to the Council

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• (1) The Scottish Court Service must provide the Council with such information relating to the sentences imposed by courts as the Council may reasonably require for the purposes of its functions.

• (2) The information must be provided in such form and by such means as the Council may require.

• (3) The Council must from time to time publish information about the sentences imposed by courts.

Medical services in prisons

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• (1) The Council may—

• (a) publish or otherwise disseminate information about sentencing matters,

• (b) provide advice or guidance of a general nature about such matters,

• (c) conduct research into such matters.

• (2) In this section, “sentencing matters” means—

• (a) sentencing guidelines,

• (b) the practice of the courts in relation to sentencing, and

• (c) any other matter relating to sentencing.

Business plan

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• (1) The Council must, before the submission day for each period of 3 years, prepare and submit to the Scottish Ministers a plan (a “business plan”) describing how the Council proposes to carry out its functions during the period.

• (2) The “submission day” is—

• (a) for the period of 3 years beginning on the day on which this section comes into force, the day specified by order made by the Scottish Ministers,

• (b) for each succeeding period of 3 years, the first day of the period.

• (3) A business plan must—

• (a) be prepared in such form as the Scottish Ministers may direct,

• (b) contain the information specified in subsection (4) and such other information as they may direct, and

• (c) be submitted by such time as they may direct.

• (4) The information referred to in subsection (3)(b) is details of the matters in relation to which the Council proposes to prepare sentencing guidelines.

• (5) The Council may include in a business plan such other information as it considers appropriate.

• (6) In preparing a business plan, the Council must consult—

• (a) the Scottish Ministers,

• (b) the Lord Advocate,

• (c) the Lord Justice General, and

• (d) such other persons as it considers appropriate.

• (7) The Scottish Ministers must lay before the Scottish Parliament each business plan submitted to them.

• (8) The Council must, as soon as practicable after a business plan has been laid before the Parliament, publish it in such manner as it considers appropriate.

• (9) The Council may at any time during a period covered by a business plan review the plan for the period and submit to the Scottish Ministers a revised plan.

• (10) Subsections (3) to (8) apply to a revised plan as they apply to a business plan.

Extended hours applications: notification period

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• (1) The Council must, as soon as practicable after the end of each financial year, prepare and submit to the Scottish Ministers a report on the carrying out of its functions during the year.

• (2) The report must—

• (a) be prepared in such form as the Scottish Ministers may direct,

• (b) contain the information specified in subsection (3) and such other information as they may direct, and

• (c) be submitted by such time as they may direct.

• (3) The information referred to in subsection (2)(b) is details of—

• (a) the sentencing guidelines published or revised during the year (if any),

• (b) any sentencing guidelines submitted during the year to the High Court of Justiciary for approval and of the Court's response to them,

• (c) any draft sentencing guidelines being consulted upon,

• (d) requests made by the Scottish Ministers under section 7 and of the Council's response to them, ...

• (e) requirements made by the High Court of Justiciary under section 8 and of the Council's response to them and

• (f) requirements made by the Sheriff Appeal Court under section 8A and of the Council's response to them.

• (4) The Council may include in the report such other information as it considers appropriate.

• (5) The Scottish Ministers must lay before the Scottish Parliament each report submitted to them.

• (6) The Council must, as soon as practicable after the report has been laid before the Parliament, publish it in such manner as it considers appropriate.

Community payback orders

Community payback orders

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• (1) After section 227 of the 1995 Act insert—

(227A) (1) Where a person (the “offender”) is convicted of an offence punishable by imprisonment, the court may, instead of imposing a sentence of imprisonment, impose a community payback order on the offender. (2) A community payback order is an order imposing one or more of the following requirements— (a) an offender supervision requirement, (b) a compensation requirement, (c) an unpaid work or other activity requirement, (d) a programme requirement, (e) a residence requirement, (f) a mental health treatment requirement, (g) a drug treatment requirement, (h) an alcohol treatment requirement, (i) a conduct requirement. (3) Subsection (4) applies where— (a) a person (the “offender”) is convicted of an offence punishable by a fine (whether or not it is also punishable by imprisonment), and (b) where the offence is also punishable by imprisonment, the court decides not to impose— (i) a sentence of imprisonment, or (ii) a community payback order under subsection (1) instead of a sentence of imprisonment. (4) The court may, instead of or as well as imposing a fine, impose a community payback order on the offender imposing one or more of the following requirements— (a) an offender supervision requirement, (b) a level 1 unpaid work or other activity requirement, (c) a conduct requirement. (5) A justice of the peace court may only impose a community payback order imposing one or more of the following requirements— (a) an offender supervision requirement, (b) a compensation requirement, (c) an unpaid work or other activity requirement, (d) a residence requirement, (e) a conduct requirement. (6) Subsection (5)(c) is subject to section 227J(4). (7) The Scottish Ministers may by order made by statutory instrument amend subsection (5) so as to add to or omit requirements that may be imposed by a community payback order imposed by a justice of the peace court. (8) An order is not to be made under subsection (7) unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament. (9) In this section and sections 227B to 227ZK, except where the context requires otherwise— - “court” means the High Court, the sheriff or a justice of the peace court, - “imprisonment” includes detention. (227B) (1) This section applies where a court is considering imposing a community payback order on an offender. (2) The court must not impose the order unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant the imposition of such an order. (3) Before imposing a community payback order imposing two or more requirements, the court must consider whether, in the circumstances of the case, the requirements are compatible with each other. (4) The court must not impose the order unless it has obtained, and taken account of, a report from an officer of a local authority containing information about the offender and the offender's circumstances. (5) An Act of Adjournal may prescribe— (a) the form of a report under subsection (4), and (b) the particular information to be contained in it. (6) Subsection (4) does not apply where the court is considering imposing a community payback order— (a) imposing only a level 1 unpaid work or other activity requirement, or (b) under section 227M(2). (7) The clerk of the court must give a copy of any report obtained under subsection (4) to— (a) the offender, (b) the offender's solicitor (if any), and (c) the prosecutor. (8) Before imposing the order, the court must explain to the offender in ordinary language— (a) the purpose and effect of each of the requirements to be imposed by the order, (b) the consequences which may follow if the offender fails to comply with any of the requirements imposed by the order, and (c) where the court proposes to include in the order provision under section 227X for it to be reviewed, the arrangements for such a review. (9) The court must not impose the order unless the offender has, after the court has explained those matters, confirmed that the offender— (a) understands those matters, and (b) is willing to comply with each of the requirements to be imposed by the order. (10) Subsection (9)(b) does not apply where the court is considering imposing a community payback order under section 227M(2). (227C) (1) This section applies where a court imposes a community payback order on an offender. (2) The court must, in imposing the order— (a) specify the locality in which the offender resides or will reside for the duration of the order, (b) require the local authority within whose area that locality is situated to nominate, within two days of its receiving a copy of the order, an officer of the authority as the responsible officer for the purposes of the order, (c) require the offender to comply with any instructions given by the responsible officer— (i) about keeping in touch with the responsible officer, or (ii) for the purposes of subsection (3), (d) require the offender to report to the responsible officer in accordance with instructions given by that officer, (e) require the offender to notify the responsible officer without delay of— (i) any change of the offender's address, and (ii) the times, if any, at which the offender usually works (or carries out voluntary work) or attends school or any other educational establishment, and (f) where the order imposes an unpaid work or other activity requirement, require the offender to undertake for the number of hours specified in the requirement such work or activity as the responsible officer may instruct, and at such times as may be so instructed. (3) The responsible officer is responsible for— (a) making any arrangements necessary to enable the offender to comply with each of the requirements imposed by the order, (b) promoting compliance with those requirements by the offender, (c) taking such steps as may be necessary to enforce compliance with the requirements of the order or to vary, revoke or discharge the order. (4) References in this Act to the responsible officer are, in relation to an offender on whom a community payback order has been imposed, the officer for the time being nominated in pursuance of subsection (2)(b). (5) In reckoning the period of two days for the purposes of subsection (2)(b), no account is to be taken of a Saturday or Sunday or any day which is a local or public holiday in the area of the local authority concerned. (227D) (1) Where a community payback order is imposed on an offender, the order is to be taken for all purposes to be a sentence imposed on the offender. (2) On imposing a community payback order, the court must state in open court the reasons for imposing the order. (3) The imposition by a court of a community payback order on an offender does not prevent the court imposing a fine or any other sentence (other than imprisonment), or making any other order, that it would be entitled to impose or make in respect of the offence. (4) Where a court imposes a community payback order on an offender, the clerk of the court must ensure that— (a) a copy of the order is given to— (i) the offender, and (ii) the local authority within whose area the offender resides or will reside, and (b) a copy of the order and such other documents and information relating to the case as may be useful are given to the clerk of the appropriate court (unless the court imposing the order is that court). (5) A copy of the order may be given to the offender— (a) by being delivered personally to the offender, or (b) by being sent— (i) by a registered post service (as defined in section 125(1) of the Postal Services Act 2000 (c.26)), or (ii) by a postal service which provides for the delivery of the document to be recorded. (6) A community payback order is to be in such form, or as nearly as may be in such form, as may be prescribed by Act of Adjournal. (227E) (1) In imposing a community payback order on an offender, the court must ensure, so far as practicable, that any requirement imposed by the order avoids— (a) a conflict with the offender's religious beliefs, (b) interference with the times, if any, at which the offender normally works (or carries out voluntary work) or attends school or any other educational establishment. (2) The responsible officer must ensure, so far as practicable, that any instruction given to the offender avoids such a conflict or interference. (227F) (1) The Scottish Ministers may by order made by statutory instrument provide for the payment to offenders of travelling or other expenses in connection with their compliance with requirements imposed on them by community payback orders. (2) An order under subsection (1) may— (a) specify expenses or provide for them to be determined under the order, (b) provide for the payments to be made by or on behalf of local authorities, (c) make different provision for different purposes. (3) An order under subsection (1) is subject to annulment in pursuance of a resolution of the Scottish Parliament. (227G) (1) In this Act, an “offender supervision requirement” is, in relation to an offender, a requirement that, during the specified period, the offender must attend appointments with the responsible officer or another person determined by the responsible officer, at such time and place as may be determined by the responsible officer, for the purpose of promoting the offender's rehabilitation. (2) On imposing a community payback order, the court must impose an offender supervision requirement if— (a) the offender is under 18 years of age at the time the order is imposed, or (b) the court, in the order, imposes— (i) a compensation requirement, (ii) a programme requirement, (iii) a residence requirement, (iv) a mental health requirement, (v) a drug treatment requirement, (vi) an alcohol treatment requirement, or (vii) a conduct requirement. (3) The specified period must be at least 6 months and not more than 3 years. (4) Subsection (3) is subject to subsection (5) and section 227ZE(4). (5) In the case of an offender supervision requirement imposed on a person aged 16 or 17 along with only a level 1 unpaid work or other activity requirement, the specified period must be no more than whichever is the greater of— (a) the specified period under section 227L in relation to the level 1 unpaid work or other activity requirement, and (b) 3 months. (6) In this section, “specified”, in relation to an offender supervision requirement, means specified in the requirement. (227H) (1) In this Act, a “compensation requirement” is, in relation to an offender, a requirement that the offender must pay compensation for any relevant matter in favour of a relevant person. (2) In subsection (1)— - “relevant matter” means any personal injury, loss, damage or other matter in respect of which a compensation order could be made against the offender under section 249 of this Act, and - “relevant person” means a person in whose favour the compensation could be awarded by such a compensation order. (3) A compensation requirement may require the compensation to be paid in a lump sum or in instalments. (4) The offender must complete payment of the compensation before the earlier of the following— (a) the end of the period of 18 months beginning with the day on which the compensation requirement is imposed, (b) the beginning of the period of 2 months ending with the day on which the offender supervision requirement imposed under section 227G(2) ends. (5) The following provisions of this Act apply in relation to a compensation requirement as they apply in relation to a compensation order, and as if the references in them to a compensation order included a compensation requirement— (a) section 249(3), (4), (5) and (8) to (10), (b) section 250(2), (c) section 251(1), (1A) and (2)(b), and (d) section 253. (227I) (1) In this Act, an “unpaid work or other activity requirement” is, in relation to an offender, a requirement that the offender must, for the specified number of hours, undertake— (a) unpaid work, or (b) unpaid work and other activity. (2) Whether the offender must undertake other activity as well as unpaid work is for the responsible officer to determine. (3) The nature of the unpaid work and any other activity to be undertaken by the offender is to be determined by the responsible officer. (4) The number of hours that may be specified in the requirement must be (in total)— (a) at least 20 hours, and (b) not more than 300 hours. (5) An unpaid work or other activity requirement which requires the work or activity to be undertaken for a number of hours totalling no more than 100 is referred to in this Act as a “level 1 unpaid work or other activity requirement”. (6) An unpaid work or other activity requirement which requires the work or activity to be undertaken for a number of hours totalling more than 100 is referred to in this Act as a “level 2 unpaid work or other activity requirement”. (7) The Scottish Ministers may by order made by statutory instrument substitute another number of hours for any of the numbers of hours for the time being specified in subsections (4) to (6). (8) An order under subsection (7) may only substitute for the number of hours for the time being specified in a provision mentioned in the first column of the following table a number of hours falling within the range set out in the corresponding entry in the second column.