Criminal Justice and Licensing (Scotland) Act 2010

(9) An order under subsection (7) is subject to annulment in pursuance of a resolution of the Scottish Parliament. (10) In this section, “specified”, in relation to an unpaid work or other activity requirement, means specified in the requirement. (227J) (1) A court may not impose an unpaid work or other activity requirement on an offender who is under 16 years of age. (2) A court may impose such a requirement on an offender only if the court is satisfied, after considering the report mentioned in section 227B(4), that the offender is a suitable person to undertake unpaid work in pursuance of the requirement. (3) Subsection (2) 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). (4) A justice of the peace court may impose a level 2 unpaid work or other activity requirement only if— (a) the Scottish Ministers by regulations made by statutory instrument so provide, and (b) the requirement is imposed in such circumstances and subject to such conditions as may be specified in the regulations. (5) Regulations are not to be made under subsection (4) unless a draft of the statutory instrument containing them has been laid before and approved by resolution of the Scottish Parliament. (227K) (1) Subject to subsection (2), it is for the responsible officer to determine how many out of the number of hours specified in an unpaid work or other activity requirement are to be allocated to undertaking, respectively— (a) unpaid work, and (b) any other activity to be undertaken. (2) The number of hours allocated to undertaking an activity other than unpaid work must not exceed whichever is the lower of— (a) 30% of the number of hours specified in the requirement, and (b) 30 hours. (3) The Scottish Ministers may by order made by statutory instrument— (a) substitute another percentage for the percentage for the time being specified in subsection (2)(a), (b) substitute another number of hours for the number of hours for the time being specified in subsection (2)(b). (4) An order is not to be made under subsection (3) unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament. (227L) (1) The number of hours of unpaid work and any other activity that the offender is required to undertake in pursuance of an unpaid work or other activity requirement must be completed by the offender before the end of the specified period beginning with the imposition of the requirement. (2) The “specified period” is— (a) in relation to a level 1 unpaid work or other activity requirement, 3 months or such longer period as the court may specify in the requirement, (b) in relation to a level 2 unpaid work or other activity requirement, 6 months or such longer period as the court may specify in the requirement. (227M) (1) This section applies where— (a) a fine has been imposed on an offender in respect of an offence, (b) the offender fails to pay the fine or an instalment of the fine, (c) the offender is not serving a sentence of imprisonment, and (d) apart from this section, the court would have imposed a period of imprisonment on the offender under section 219(1) of this Act in respect of the failure to pay the fine or instalment. (2) Instead of imposing a period of imprisonment under section 219(1) of this Act, the court— (a) where the amount of the fine or the instalment does not exceed level 2 on the standard scale, must impose a community payback order on the offender imposing a level 1 unpaid work or other activity requirement, (b) where the amount of the fine or the instalment exceeds that level, may impose such a community payback order. (3) The court, in imposing a community payback order under subsection (2) on a person aged 16 or 17, must also impose an offender supervision requirement. (4) Where the amount of the fine or the instalment does not exceed level 1 on the standard scale, the number of hours specified in the requirement must not exceed 50. (5) On completion of the hours of unpaid work and any other activity specified in an unpaid work or other activity requirement imposed under this section, the fine in respect of which the requirement was imposed is discharged (or, as the case may be, the outstanding instalments of the fine are discharged). (6) If, after a community payback order is imposed on an offender under this section, the offender pays the fine or the full amount of any outstanding instalments, the appropriate court must discharge the order. (7) Subsection (2) is subject to sections 227J(1) and 227N(2), (3) and (7). (8) In this section, “court” does not include the High Court. (227N) (1) This section applies where— (a) a court is considering imposing an unpaid work or other activity requirement on an offender (referred to as the “new requirement”), and (b) at the time the court is considering imposing the requirement, there is already in effect one or more community payback orders imposing such a requirement on the same offender (each referred to as an “existing requirement”). (2) The court may, in imposing the new requirement, direct that it is to be concurrent with any existing requirement. (3) Where the court makes a direction under subsection (2), hours of unpaid work or other activity undertaken after the new requirement is imposed count for the purposes of compliance with that requirement and the existing requirement. (4) Subsection (5) applies where the court does not make a direction under subsection (2). (5) The maximum number of hours which may be specified in the new requirement is the number of hours specified in section 227I(4)(b) less the aggregate of the number of hours of unpaid work or activity still to be completed under each existing requirement at the time the new requirement is imposed. (6) In calculating that aggregate, if any existing requirement is concurrent with another (by virtue of a direction under subsection (2)), hours that count for the purposes of compliance with both (or, as the case may be, all) are to be counted only once. (7) Where that maximum number is less than the minimum number of hours that can be specified by virtue of section 227I(4)(a), the court must not impose the new requirement. (227O) (1) The Scottish Ministers may make rules by statutory instrument for or in connection with the undertaking of unpaid work and other activities in pursuance of unpaid work or other activity requirements. (2) Rules under subsection (1) may in particular make provision for— (a) limiting the number of hours of work or other activity that an offender may be required to undertake in any one day, (b) reckoning the time spent undertaking unpaid work or other activity, (c) the keeping of records of unpaid work and any other activity undertaken. (3) Rules under subsection (1) may— (a) confer functions on responsible officers, (b) contain rules about the way responsible officers are to exercise functions under this Act. (4) Rules under subsection (1) are subject to annulment in pursuance of a resolution of the Scottish Parliament. (227P) (1) In this Act, a “programme requirement” is, in relation to an offender, a requirement that the offender must participate in a specified programme, at the specified place and on the specified number of days. (2) In this section, “programme” means a course or other planned set of activities, taking place over a period of time, and provided to individuals or groups of individuals for the purpose of addressing offending behavioural needs. (3) A court may impose a programme requirement on an offender only if the specified programme is one which has been recommended by an officer of a local authority as being suitable for the offender to participate in. (4) If an offender's compliance with a proposed programme requirement would involve the co-operation of a person other than the offender, the court may impose the requirement only if the other person consents. (5) A court may not impose a programme requirement that would require an offender to participate in a specified programme after the expiry of the period specified in the offender supervision requirement to be imposed at the same time as the programme requirement (by virtue of section 227G(2)(b)). (6) Where the court imposes a programme requirement on an offender, the requirement is to be taken to include a requirement that the offender, while attending the specified programme, complies with any instructions given by or on behalf of the person in charge of the programme. (7) In this section, “specified”, in relation to a programme requirement, means specified in the requirement. (227Q) (1) In this Act, a “residence requirement” is, in relation to an offender, a requirement that, during the specified period, the offender must reside at a specified place. (2) The court may, in a residence requirement, require an offender to reside at a hostel or other institution only if the hostel or institution has been recommended as a suitable place for the offender to reside in by an officer of a local authority. (3) The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the residence requirement (by virtue of section 227G(2)(b)). (4) In this section, “specified”, in relation to a residence requirement, means specified in the requirement. (227R) (1) In this Act, a “mental health treatment requirement” is, in relation to an offender, a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a registered medical practitioner or a registered psychologist (or both) with a view to improving the offender's mental condition. (2) The treatment to which an offender may be required to submit under a mental health treatment requirement is such of the kinds of treatment described in subsection (3) as is specified; but otherwise the nature of the treatment is not to be specified. (3) Those kinds of treatment are— (a) treatment as a resident patient in a hospital (other than a State hospital) within the meaning of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (“the 2003 Act”), (b) treatment as a non-resident patient at such institution or other place as may be specified, or (c) treatment by or under the direction of such registered medical practitioner or registered psychologist as may be specified. (4) A court may impose a mental health treatment requirement on an offender only if the court is satisfied— (a) on the written or oral evidence of an approved medical practitioner (within the meaning of the 2003 Act), that Condition A is met, (b) on the written or oral evidence of the registered medical practitioner or registered psychologist by whom or under whose direction the treatment is to be provided, that Condition B is met, and (c) that Condition C is met. (5) Condition A is that— (a) the offender suffers from a mental condition, (b) the condition requires, and may be susceptible to, treatment, and (c) the condition is not such as to warrant the offender's being subject to— (i) a compulsory treatment order under section 64 of the 2003 Act, or (ii) a compulsion order under section 57A of this Act. (6) Condition B is that the treatment proposed to be specified is appropriate for the offender. (7) Condition C is that arrangements have been made for the proposed treatment including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the hospital proposed to be specified in the requirement. (8) The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the mental health treatment requirement (by virtue of section 227G(2)(b)). (9) In this section, “specified”, in relation to a mental health treatment requirement, means specified in the requirement. (227S) (1) For the purposes of section 227R(4)(a) or (b), a written report purporting to be signed by an approved medical practitioner (within the meaning of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)) may be received in evidence without the need for proof of the signature or qualifications of the practitioner. (2) Where such a report is lodged in evidence otherwise than by or on behalf of the offender, a copy of the report must be given to— (a) the offender, and (b) the offender's solicitor (if any). (3) The court may adjourn the case if it considers it necessary to do so to give the offender further time to consider the report. (4) Subsection (5) applies where the offender is— (a) detained in a hospital under this Act, or (b) remanded in custody. (5) For the purpose of calling evidence to rebut any evidence contained in a report lodged as mentioned in subsection (2), arrangements may be made by or on behalf of the offender for an examination of the offender by a registered medical practitioner. (6) Such an examination is to be carried out in private. (227T) (1) This section applies where— (a) a mental health treatment requirement has been imposed on an offender, and (b) the registered medical practitioner or registered psychologist by whom or under whose direction the offender is receiving the treatment to which the offender is required to submit in pursuance of the requirement is of the opinion mentioned in subsection (2). (2) That opinion is— (a) that the offender requires, or that it would be appropriate for the offender to receive, a different kind of treatment (whether in whole or in part) from that which the offender has been receiving, or (b) that the treatment (whether in whole or in part) can be more appropriately given in or at a different hospital or other institution or place from that where the offender has been receiving treatment. (3) The practitioner or, as the case may be, psychologist may make arrangements for the offender to be treated accordingly. (4) Subject to subsection (5), the treatment provided under the arrangements must be of a kind which could have been specified in the mental health treatment requirement. (5) The arrangements may provide for the offender to receive treatment (in whole or in part) as a resident patient in an institution or place even though it is one that could not have been specified for that purpose in the mental health treatment requirement. (6) Arrangements may be made under subsection (3) only if— (a) the offender and the responsible officer agree to the arrangements, (b) the treatment will be given by or under the direction of a registered medical practitioner or registered psychologist who has agreed to accept the offender as a patient, and (c) where the treatment requires the offender to be a resident patient, the offender will be received as such. (7) Where arrangements are made under subsection (3)— (a) the responsible officer must notify the court of the arrangements, and (b) the treatment provided under the arrangements is to be taken to be treatment to which the offender is required to submit under the mental health treatment requirement. (227U) (1) In this Act, a “drug treatment requirement” is, in relation to an offender, a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a specified person with a view to reducing or eliminating the offender's dependency on, or propensity to misuse, drugs. (2) The treatment to which an offender may be required to submit under a drug treatment requirement is such of the kinds of treatment described in subsection (3) as is specified (but otherwise the nature of the treatment is not to be specified). (3) Those kinds of treatment are— (a) treatment as a resident in such institution or other place as is specified, (b) treatment as a non-resident at such institution or other place, and at such intervals, as is specified. (4) The specified person must be a person who has the necessary qualifications or experience in relation to the treatment to be provided. (5) The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the drug treatment requirement (by virtue of section 227G(2)(b)). (6) A court may impose a drug treatment requirement on an offender only if the court is satisfied that— (a) the offender is dependent on, or has a propensity to misuse, any controlled drug (as defined in section 2(1)(a) of the Misuse of Drugs Act 1971 (c.38)), (b) the dependency or propensity requires, and may be susceptible to, treatment, and (c) arrangements have been, or can be, made for the proposed treatment including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the institution or other place to be specified. (7) In this section, “specified”, in relation to a drug treatment requirement, means specified in the requirement. (227V) (1) In this Act, an “alcohol treatment requirement” is, in relation to an offender, a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a specified person with a view to the reduction or elimination of the offender's dependency on alcohol. (2) The treatment to which an offender may be required to submit under an alcohol treatment requirement is such of the kinds of treatment described in subsection (3) as is specified (but otherwise the nature of the treatment is not to be specified). (3) Those kinds of treatment are— (a) treatment as a resident in such institution or other place as is specified, (b) treatment as a non-resident at such institution or other place, and at such intervals, as is specified, (c) treatment by or under the direction of such person as is specified. (4) The person specified under subsection (1) or (3)(c) must be a person who has the necessary qualifications or experience in relation to the treatment to be provided. (5) The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the alcohol treatment requirement (by virtue of section 227G(2)(b)). (6) A court may impose an alcohol treatment requirement on an offender only if the court is satisfied that— (a) the offender is dependent on alcohol, (b) the dependency requires, and may be susceptible to, treatment, and (c) arrangements have been, or can be, made for the proposed treatment, including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the institution or other place to be specified. (7) In this section, “specified”, in relation to an alcohol treatment requirement, means specified in the requirement. (227W) (1) In this Act, a “conduct requirement” is, in relation to an offender, a requirement that the offender must, during the specified period, do or refrain from doing specified things. (2) A court may impose a conduct requirement on an offender only if the court is satisfied that the requirement is necessary with a view to— (a) securing or promoting good behaviour by the offender, or (b) preventing further offending by the offender. (3) The specified period must be not more than 3 years. (4) The specified things must not include anything that— (a) could be required by imposing one of the other requirements listed in section 227A(2), or (b) would be inconsistent with the provisions of this Act relating to such other requirements. (5) In this section, “specified”, in relation to a conduct requirement, means specified in the requirement. (227X) (1) On imposing a community payback order on an offender, the court may include in the order provision for the order to be reviewed at such time or times as may be specified in the order. (2) A review carried out in pursuance of such provision is referred to in this section as a “progress review”. (3) A progress review may be carried out by the court which imposed the community payback order or (if different) the appropriate court, and, where those courts are different, the court must specify in the order which of those courts is to carry out the reviews. (4) A progress review is to be carried out in such manner as the court carrying out the review may determine. (5) Before each progress review, the responsible officer must give the court a written report on the offender's compliance with the requirements imposed by the community payback order in the period to which the review relates. (6) The offender must attend each progress review. (7) If the offender fails to attend a progress review, the court may— (a) issue a citation requiring the offender's attendance, or (b) issue a warrant for the offender's arrest. (8) The unified citation provisions apply in relation to a citation under subsection (7)(a) as they apply in relation to a citation under section 216(3)(a) of this Act. (9) Subsections (10) and (11) apply where, in the course of carrying out a progress review in respect of a community payback order, it appears to the court that the offender has failed to comply with a requirement imposed by the order. (10) The court must— (a) provide the offender with written details of the alleged failure, (b) inform the offender that the offender is entitled to be legally represented, and (c) inform the offender that no answer need be given to the allegation before the offender— (i) has been given an opportunity to take legal advice, or (ii) has indicated that the offender does not wish to take legal advice. (11) The court must then— (a) if it is the appropriate court, appoint another hearing for consideration of the alleged failure in accordance with section 227ZC, or (b) if it is not the appropriate court, refer the alleged failure to that court for consideration in accordance with that section. (12) On conclusion of a progress review in respect of a community payback order, the court may vary, revoke or discharge the order in accordance with section 227Z. (227Y) (1) The appropriate court may, on the application of either of the persons mentioned in subsection (2), vary, revoke or discharge a community payback order in accordance with section 227Z. (2) Those persons are— (a) the offender on whom the order was imposed, (b) the responsible officer in relation to the offender. (227Z) (1) This section applies where a court is considering varying, revoking or discharging a community payback order imposed on an offender. (2) The court may vary, revoke or discharge the order only if satisfied that it is in the interests of justice to do so having regard to circumstances which have arisen since the order was imposed. (3) Subsection (2) does not apply where the court is considering varying the order under section 227ZC(7)(d). (4) In varying an order, the court may, in particular— (a) add to the requirements imposed by the order, (b) revoke or discharge any requirement imposed by the order, (c) vary any requirement imposed by the order, (d) include provision for progress reviews under section 227X, (e) where the order already includes such provision, vary that provision. (5) In varying a requirement imposed by the order, the court may, in particular— (a) extend or shorten any period or other time limit specified in the requirement, (b) in the case of an unpaid work or other activity requirement, increase or decrease the number of hours specified in the requirement, (c) in the case of a compensation requirement, vary the amount of compensation or any instalment. (6) The court may not, under subsection (5)(b), increase the number of hours beyond the appropriate maximum. (7) The appropriate maximum is the number of hours specified in section 227I(4)(b) at the time the unpaid work or other activity requirement being varied was imposed less the aggregate of the number of hours of unpaid work or other activity still to be completed under each other unpaid work or other activity requirement (if any) in effect in respect of the offender at the time of the variation (a “current requirement”). (8) In calculating that aggregate, if any current requirement is concurrent with another (by virtue of a direction under section 227N(2)), hours that count for the purposes of compliance with both (or, as the case may be, all) are to be counted only once. (9) The court may not, under subsection (5)(c), increase the amount of compensation beyond the maximum that could have been awarded at the time the requirement was imposed. (10) Where the court varies a restricted movement requirement imposed by a community payback order, the court must give a copy of the order making the variation to the person responsible for monitoring the offender's compliance with the requirement. (11) Where the court revokes a community payback order, the court may deal with the offender in respect of the offence in relation to which the order was imposed as it could have dealt with the offender had the order not been imposed. (12) Subsection (11) applies in relation to a community payback order imposed under section 227M(2) as if the reference to the offence in relation to which the order was imposed were a reference to the failure to pay in respect of which the order was imposed. (13) Where the court is considering varying, revoking or discharging the order otherwise than on the application of the offender, the court must issue a citation to the offender requiring the offender to appear before the court (except where the offender is required to appear by section 227X(6)) or 227ZC(2)(b). (14) If the offender fails to appear as required by the citation, the court may issue a warrant for the arrest of the offender. (15) The unified citation provisions apply in relation to a citation under subsection (13) as they apply in relation to a citation under section 216(3)(a) of this Act. (227ZA) (1) This section applies where a court is considering varying a community payback order imposed on an offender. (2) The court must not make the variation unless it has obtained, and taken account of, a report from the responsible officer containing information about the offender and the offender's circumstances. (3) An Act of Adjournal may prescribe— (a) the form of a report under subsection (2), and (b) the particular information to be contained in it. (4) Subsection (2) does not apply where the court is considering varying a community payback order— (a) so that it imposes only a level 1 unpaid work or other activity requirement, or (b) imposed under section 227M(2). (5) The clerk of the court must give a copy of any report obtained under subsection (2) to— (a) the offender, (b) the offender's solicitor (if any). (6) Before making the variation, 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 as proposed to be varied, (b) the consequences which may follow if the offender fails to comply with any of the requirements imposed by the order as proposed to be varied, and (c) where the court proposes to include in the order as proposed to be varied provision for a progress review under section 227X, or to vary any such provision already included in the order, the arrangements for such a review. (7) The court must not make the variation 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 as proposed to be amended. (8) Where the variation would impose a new requirement— (a) the court must not make the variation if the new requirement is not a requirement that could have been imposed by the order when it was imposed, (b) if the new requirement is one which could have been so imposed, the court must, before making the variation take whatever steps the court would have been required to take before imposing the requirement had it been imposed by the order when it was imposed. (9) Subsection (8)(a) does not prevent the imposition of a restricted movement requirement under section 227ZC(7)(d). (10) In determining for the purpose of subsection (8)(a) whether an unpaid work or other activity requirement is a requirement that could have been imposed by the order when the order was imposed, the effect of section 227N(7) is to be ignored. (11) Where the variation would vary any requirement imposed by the order, the court must not make the variation if the requirement as proposed to be varied could not have been imposed, or imposed in that way, by the order when it was imposed. (12) Subsections (4) and (5) of section 227D apply, with the necessary modifications, where a community payback order is varied as they apply where such an order is imposed. (227ZB) (1) The section applies where— (a) the offender on whom a community payback order has been imposed proposes to change, or has changed, residence to a locality (“the new locality”) situated in the area of a different local authority from that in which the locality currently specified in the order is situated, and (b) the court is considering varying the order so as to specify the new local authority area in which the offender resides or will reside. (2) The court may vary the order only if satisfied that arrangements have been, or can be, made in the local authority area in which the new locality is situated for the offender to comply with the requirements imposed by the order. (3) If the court considers that a requirement (“the requirement concerned”) imposed by the order cannot be complied with if the offender resides in the new locality, the court must not vary the order so as to specify the new local authority area unless it also varies the order so as to— (a) revoke or discharge the requirement concerned, or (b) substitute for the requirement concerned another requirement that can be so complied with. (4) Where the court varies the order, the court must also vary the order so as to require the local authority for the area in which the new locality is situated to nominate an officer of the authority to be the responsible officer for the purposes of the order. (227ZC) (1) This section applies where it appears to the appropriate court that an offender on whom a community payback order has been imposed has failed to comply with a requirement imposed by the order. (2) The court may— (a) issue a warrant for the offender's arrest, or (b) issue a citation to the offender requiring the offender to appear before the court. (3) If the offender fails to appear as required by a citation issued under subsection (2)(b), the court may issue a warrant for the arrest of the offender. (4) The unified citation provisions apply in relation to a citation under subsection (2)(b) as they apply in relation to a citation under section 216(3)(a) of this Act. (5) The court must, before considering the alleged failure— (a) provide the offender with written details of the alleged failure, (b) inform the offender that the offender is entitled to be legally represented, and (c) inform the offender that no answer need be given to the allegation before the offender— (i) has been given an opportunity to take legal advice, or (ii) has indicated that the offender does not wish to take legal advice. (6) Subsection (5) does not apply if the offender has previously been provided with those details and informed about those matters under section 227X(10) of this Act. (7) Where the order was imposed under section 227A, if the court is satisfied that the offender has failed without reasonable excuse to comply with a requirement imposed by the order, the court may— (a) impose on the offender a fine not exceeding level 3 on the standard scale, (b) where the order was imposed under section 227A(1), revoke the order and deal with the offender in respect of the offence in relation to which the order was imposed as it could have dealt with the offender had the order not been imposed, (c) where the order was imposed under section 227A(4), revoke the order and impose on the offender a sentence of imprisonment for a term not exceeding— (i) where the court is a justice of the peace court, 60 days, (ii) in any other case, 3 months, (d) vary the order so as to impose a new requirement, vary any requirement imposed by the order or revoke or discharge any requirement imposed by the order, or (e) both impose a fine under paragraph (a) and vary the order under paragraph (d). (8) Where the order was imposed under section 227M(2), if the court is satisfied that the offender has failed without reasonable excuse to comply with a requirement imposed by the order, the court may— (a) revoke the order and impose on the offender a period of imprisonment for a term not exceeding— (i) where the court is a justice of the peace court, 60 days, (ii) in any other case, 3 months, or (b) vary— (i) the number of hours specified in the level 1 unpaid work or other activity requirement imposed by the order, and (ii) where the order also imposes an offender supervision requirement, the specified period under section 227G in relation to the requirement. (9) Where the court revokes a community payback order under subsection (7)(b) or (c) and the offender is, in respect of the same offence, also subject to— (a) a drug treatment and testing order, by virtue of section 234J, or (b) a restriction of liberty order, by virtue of section 245D(3), the court must, before dealing with the offender under subsection (7)(b) or (c), revoke the drug treatment and testing order or, as the case may be, restriction of liberty order. (10) If the court is satisfied that the offender has failed to comply with a requirement imposed by the order but had a reasonable excuse for the failure, the court may, subject to section 227Z(2), vary the order so as to impose a new requirement, vary any requirement imposed by the order or revoke or discharge any requirement imposed by the order. (11) Subsections (7)(b) and (c) and (9) are subject to section 42(9) of the Criminal Justice (Scotland) Act 2003 (asp 7) (powers of drugs courts to deal with breach of community payback orders). (227ZD) (1) Evidence of one witness is sufficient for the purpose of establishing that an offender has failed without reasonable excuse to comply with a requirement imposed by a community payback order. (2) Subsection (3) applies in relation to a community payback order imposing a compensation requirement. (3) A document bearing to be a certificate signed by the clerk of the appropriate court and stating that the compensation, or an instalment of the compensation, has not been paid as required by the requirement is sufficient evidence that the offender has failed to comply with the requirement. (4) The appropriate court may, for the purpose of considering whether an offender has failed to comply with a requirement imposed by a community payback order, require the responsible officer to provide a report on the offender's compliance with the requirement. (227ZE) (1) The requirements which the court may impose under section 227ZC(7)(d) include a restricted movement requirement. (2) If the court varies a community payback order under section 227ZC(7)(d) so as to impose a restricted movement requirement, the court must also vary the order so as to impose an offender supervision requirement, unless an offender supervision requirement is already imposed by the order. (3) The court must ensure that the specified period under section 227G in relation to the offender supervision requirement is at least as long as the period for which the restricted movement requirement has effect and, where the community payback order already imposes an offender supervision requirement, must vary it accordingly, if necessary. (4) The minimum period of 6 months in section 227G(3) does not apply in relation to an offender supervision requirement imposed under subsection (2). (5) Where the court varies the order so as to impose a restricted movement requirement, the court must give a copy of the order making the variation to the person responsible for monitoring the offender's compliance with the requirement. (6) If during the period for which the restricted movement requirement is in effect it appears to the person responsible for monitoring the offender's compliance with the requirement that the offender has failed to comply with the requirement, the person must report the matter to the offender's responsible officer. (7) On receiving a report under subsection (6), the responsible officer must report the matter to the court. (227ZF) (1) In this Act, a “restricted movement requirement” is, in relation to an offender, a requirement restricting the offender's movements to such extent as is specified. (2) A restricted movement requirement may in particular require the offender— (a) to be in a specified place at a specified time or during specified periods, or (b) not to be in a specified place, or a specified class of place, at a specified time or during specified periods. (3) In imposing a restricted movement requirement containing provision under subsection (2)(a), the court must ensure that the offender is not required, either by the requirement alone or the requirement taken together with any other relevant requirement or order, to be at any place for periods totalling more than 12 hours in any one day. (4) In subsection (3), “other relevant requirement or order” means— (a) any other restricted movement requirement in effect in respect of the offender at the time the court is imposing the requirement referred to in subsection (3), and (b) any restriction of liberty order under section 245A in effect in respect of the offender at that time. (5) A restricted movement requirement— (a) takes effect from the specified day, and (b) has effect for such period as is specified. (6) The period specified under subsection (5)(b) must be— (a) not less than 14 days, and (b) subject to subsections (7) and (8), not more than 12 months. (7) Subsection (8) applies in the case of a restricted movement requirement imposed for failure to comply with a requirement of a community payback order— (a) where the offender was under 18 years of age at the time the order was imposed, or (b) where the only requirement imposed by the order is a level 1 unpaid work or other activity requirement. (8) The period specified under subsection (5)(b) must be not more than— (a) where the order was imposed by a justice of the peace court, 60 days, or (b) in any other case, 3 months. (9) A court imposing a restricted movement requirement must specify in it— (a) the method by which the offender's compliance with the requirement is to be monitored, and (b) the person who is to be responsible for monitoring that compliance. (10) The Scottish Ministers may by regulations made by statutory instrument substitute— (a) for the number of hours for the time being specified in subsection (3) another number of hours, (b) for the number of months for the time being specified in subsection (6)(b) another number of months. (11) Regulations are not to be made under subsection (10) unless a draft of the statutory instrument containing the regulations has been laid before and approved by resolution of the Scottish Parliament. (12) In this section, “specified”, in relation to a restricted movement requirement, means specified in the requirement. (227ZG) (1) A court may not impose a restricted movement requirement requiring the offender to be, or not to be, in a specified place unless it is satisfied that the offender's compliance with the requirement can be monitored by the method specified in the requirement. (2) Before imposing a restricted movement requirement requiring the offender to be in a specified place, the appropriate court must obtain and consider a report by an officer of the local authority in whose area the place is situated on— (a) the place, and (b) the attitude of any person (other than the offender) likely to be affected by the enforced presence of the offender at the place. (3) The court may, before imposing the requirement, hear the officer who prepared the report. (227ZH) (1) This section applies where— (a) a community payback order which is in force in respect of an offender imposes a restricted movement requirement requiring the offender to be at a particular place specified in the requirement for any period, and (b) the court is considering varying the requirement so as to require the offender to be at a different place (“the new place”). (2) Before making the variation, the appropriate court must obtain and consider a report by an officer of the local authority in whose area the new place is situated on— (a) the new place, and (b) the attitude of any person (other than the offender) likely to be affected by the enforced presence of the offender at the new place. (3) The court may, before making the variation, hear the officer who prepared the report. (227ZI) Section 245C of this Act, and regulations made under that section, apply in relation to the imposition of, and compliance with, restricted movement requirements as they apply in relation to the imposition of, and compliance with, restriction of liberty orders. (227ZJ) (1) The Scottish Ministers may by regulations made by statutory instrument prescribe— (a) which courts, or class or classes of courts, may impose restricted movement requirements, (b) the method or methods of monitoring compliance with a restricted movement requirement which may be specified in such a requirement, (c) the class or classes of offender on whom such a requirement may be imposed. (2) Regulations under subsection (1) may make different provision about the matters mentioned in paragraphs (b) and (c) of that subsection in relation to different courts or classes of court. (3) Regulations under subsection (1) are subject to annulment in pursuance of a resolution of the Scottish Parliament. (4) The Scottish Ministers must determine the person, or class or description of person, who may be specified in a restricted movement requirement as the person to be responsible for monitoring the offender's compliance with the requirement (referred to in this section as the “monitor”). (5) The Scottish Ministers may determine different persons, or different classes or descriptions of person, in relation to different methods of monitoring. (6) The Scottish Ministers must notify each court having power to impose a restricted movement requirement of their determination. (7) Subsection (8) applies where— (a) the Scottish Ministers make a determination under subsection (4) changing a previous determination made by them, and (b) a person specified in a restricted movement requirement in effect at the date the determination takes effect as the monitor is not a person, or is not of a class or description of person, mentioned in the determination as changed. (8) The appropriate court must— (a) vary the restricted movement requirement so as to specify a different person as the monitor, (b) send a copy of the requirement as varied to that person and to the responsible officer, and (c) notify the offender of the variation. (227ZK) (1) This section applies for the purposes of establishing in any proceedings whether an offender on whom a restricted movement requirement has been imposed has complied with the requirement. (2) Evidence of the presence or absence of the offender at a particular place at a particular time may be given by the production of a document or documents bearing to be— (a) a statement automatically produced by a device specified in regulations made under section 245C of this Act, by which the offender's whereabouts were remotely monitored, and (b) a certificate signed by a person nominated for the purposes of this paragraph by the Scottish Ministers that the statement relates to the whereabouts of the offender at the dates and times shown in the statement. (3) The statement and certificate are, when produced in evidence, sufficient evidence of the facts stated in them. (4) The statement and certificate are not admissible in evidence at any hearing unless a copy of them has been served on the offender before the hearing. (5) Where it appears to any court before which the hearing is taking place that the offender has not had sufficient notice of the statement or certificate, the court may adjourn the hearing or make any order that it considers appropriate. (227ZL) (1) Each local authority must, for each year, consult prescribed persons about the nature of unpaid work and other activities to be undertaken by offenders residing in the local authority's area on whom community payback orders are imposed. (2) In subsection (1), “prescribed persons” means such persons, or class or classes of person, as may be prescribed by the Scottish Ministers by regulations made by statutory instrument. (3) A statutory instrument containing regulations under subsection (2) is to be subject to annulment in pursuance of a resolution of the Scottish Parliament. (227ZM) (1) Each local authority must, as soon as practicable after the end of each reporting year, prepare a report on the operation of community payback orders within their area during that reporting year, and send a copy of the report to the Scottish Ministers. (2) The Scottish Ministers may issue directions to local authorities about the content of their reports under subsection (1); and local authorities must comply with any such directions. (3) The Scottish Ministers must, as soon as practicable after the end of each reporting year, lay before the Scottish Parliament and publish a report that collates and summarises the data included in the various reports under subsection (1). (4) In this section, “reporting year” means— (a) the period of 12 months beginning on the day this section comes into force, or (b) any subsequent period of 12 months beginning on an anniversary of that day. (227ZN) (1) In sections 227A to 227ZK, “the appropriate court” means, in relation to a community payback order— (a) where the order was imposed by the High Court of Justiciary, that Court, (b) where the order was imposed by a sheriff, a sheriff having jurisdiction in the locality mentioned in subsection (2), (c) where the order was imposed by a justice of the peace court— (i) the justice of the peace court having jurisdiction in that locality, or (ii) if there is no justice of the peace court having jurisdiction in that locality, a sheriff having such jurisdiction. (2) The locality referred to in subsection (1) is the locality for the time being specified in the community payback order under section 227C(2)(a).

.

• (2) Schedule 2 modifies enactments in consequence of this section.

Non-harassment orders

Non-harassment orders

15

In section 234A of the 1995 Act (non-harassment orders)—

• (a) in subsection (1), for “harassment of” substitute “ misconduct towards ”,

• (b) in subsection (2), for “further harassment” substitute “ harassment (or further harassment) ”,

• (c) after subsection (2) insert—

(2A) The court may, for the purpose of subsection (2) above, have regard to any information given to it for that purpose by the prosecutor— (a) about any other offence involving misconduct towards the victim— (i) of which the offender has been convicted, or (ii) as regards which the offender has accepted (or has been deemed to have accepted) a fixed penalty or compensation offer under section 302(1) or 302A(1) or as regards which a work order has been made under section 303ZA(6), (b) in particular, by way of— (i) an extract of the conviction along with a copy of the complaint or indictment containing the charge to which the conviction relates, or (ii) a note of the terms of the charge to which the fixed penalty offer, compensation offer or work order relates. (2B) But the court may do so only if the court may, under section 101 or 101A (in a solemn case) or section 166 or 166A (in a summary case), have regard to the conviction or the offer or order. (2C) The court must give the offender an opportunity to make representations in response to the application.

, and

• (d) for subsection (7) substitute—

(7) For the purposes of this section— - “harassment” and “conduct” are to be construed in accordance with section 8 of the Protection from Harassment Act 1997 (c.40), - “misconduct” includes conduct that causes alarm or distress.

.

Short sentences

Short periods of detention

16

• (1) The 1995 Act is amended as follows.

• (2) Section 169 (detention in precincts of court) is repealed.

• (3) In section 206 (minimum periods of detention)—

• (a) in subsection (1), for “five” substitute “ 15 ”, and

• (b) subsections (2) to (6) are repealed.

Presumption against short periods of imprisonment

17

In section 204 of the 1995 Act (restrictions on passing sentence of imprisonment or detention), after subsection (3) insert—

(3A) A court must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate. (3B) Where a court passes such a sentence, the court must— (a) state its reasons for the opinion that no other method of dealing with the person is appropriate, and (b) have those reasons entered in the record of the proceedings. (3C) The Scottish Ministers may by order made by statutory instrument substitute for the number of months for the time being specified in subsection (3A) another number of months. (3D) An order under subsection (3C) is not to be made unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament.

.

Amendments of Custodial Sentences and Weapons (Scotland) Act 2007

18

• (1) The Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17) is amended as follows.

• (2) In section 4 (basic definitions)—

• (a) in subsection (1)—

• (i) the definitions of “custody-only prisoner” and “custody-only sentence” are repealed,

• (ii) in the definition of “custody and community sentence” for “15 days or more” substitute “ at least the prescribed period ”,

• (iii) after the definition of “Parole Board” insert—

“prescribed period” means such period as the Scottish Ministers may by order specify,

, and

• (iv) after the definition of “punishment part” insert—

“short-term custody and community prisoner” means a person serving a short-term custody and community sentence, “short-term custody and community sentence” means a sentence of imprisonment for an offence for a term of less than the prescribed period,

, and

• (b) subsection (2) is repealed.

• (3) For section 5 (release of custody-only prisoners on completion of sentence) substitute—

(5) As soon as a short-term custody and community prisoner has served one-half of the prisoner's short-term custody and community sentence the Scottish Ministers must release the prisoner on short-term community licence.

.

• (4) In Chapter 3 of Part 2, in the chapter title, for “Community” substitute “ Short-term community, community ”.

• (5) In section 29 (release on licence of certain prisoners: the supervision conditions), in subsection (2)(a)—

• (a) in sub-paragraph (ii), the words from “serving” to the end are repealed,

• (b) sub-paragraph (iii) is repealed,

• (c) in sub-paragraphs (iv) and (v), for “person” substitute “ short-term custody and community prisoner ”,

• (d) in sub-paragraph (vi), for “person” substitute “ short-term custody and community prisoner serving a sentence of imprisonment of 6 months or more and ”, and

• (e) in sub-paragraph (vii), at the beginning insert “ a short-term custody and community prisoner who is ”.

• (6) After section 29 insert—

(29A) (1) This section applies where, by virtue of section 5, the Scottish Ministers release a prisoner on short-term community licence. (2) The Scottish Ministers must include in the prisoner's short-term community licence— (a) the standard conditions, and (b) where the prisoner falls within section 29(2), the supervision conditions. (3) The Scottish Ministers may include in the prisoner's short-term community licence— (a) where the prisoner does not fall within section 29(2), any of the supervision conditions, (b) such other conditions as they consider appropriate. (4) The Scottish Ministers may— (a) vary any condition mentioned in subsection (2) or (3), (b) cancel any condition mentioned in subsection (3), (c) include any further conditions in the licence. (5) The Scottish Ministers may not cancel any condition mentioned in subsection (2). (6) Before exercising any of the powers conferred by subsection (3) or (4), the Scottish Ministers must, in pursuance of arrangements established under section 46A(1), co-operate with the appropriate local authority. (7) In this section, “appropriate local authority”, in relation to a short-term custody and community prisoner, means the local authority for the area in which the prisoner— (a) resided immediately before the imposition of the short-term custody and community sentence, or (b) intends to reside on release on short-term community licence. (8) If, by virtue of subsection (7), two or more local authorities are the appropriate local authority in relation to a short-term custody and community prisoner, those authorities may agree that the functions conferred on them by subsection (5) and section 46A(2) may be carried out by only one of them.

.

• (7) After section 46 insert—

(46A) (1) The Scottish Ministers and each local authority must jointly establish arrangements for the assessment and management of the risk posed in the local authority's area by short-term custody and community prisoners released on licence subject to the supervision conditions. (2) For the purposes of assisting the Scottish Ministers in deciding whether, under section 29A(3)(a), to include any of the supervision conditions in a prisoner's short-term community licence, the Scottish Ministers and the appropriate local authority must, during the first half of a short-term custody and community prisoner's sentence, assess, in accordance with arrangements established under subsection (1), whether any of those conditions are appropriate. (3) In this section, “appropriate local authority” is to be construed in accordance with section 29A(7) and (8).

.

• (8) In section 47 (curfew licences)—

• (a) in subsection (1), after “to” insert “ a short-term custody and community prisoner or ”,

• (b) in subsection (2) for “the custody part of the prisoner's sentence” substitute—

(a) in the case of a short-term custody and community prisoner, the first half of the prisoner's sentence, (b) in the case of a custody and community prisoner, the custody part of the prisoner's sentence

,

• (c) after subsection (3) insert—

(3A) The Scottish Ministers may release a short-term custody and community prisoner on curfew licence only— (a) after the later of— (i) the day on which the prisoner has served the greater of one-quarter or four weeks of the prisoner's sentence, or (ii) the day falling 166 days before the expiry of one-half of the prisoner's sentence, and (b) before the day falling 14 days before the expiry of one-half of the prisoner's sentence.

,

• (d) in subsection (4)—

• (i) after “a” insert “ custody and community ”, and

• (ii) in paragraph (a)(ii), for “135” substitute “ 166 ”, and

• (e) in subsection (8), for “the custody part of the prisoner's sentence” substitute—

(a) in the case of a short-term custody and community prisoner, the first half of the prisoner's sentence, (b) in the case of a custody and community prisoner, the custody part of the prisoner's sentence

.

• (9) Schedule 3 amends the Custodial Sentences and Weapons (Scotland) Act (asp 17) and the 1995 Act in consequence of amendments made by this section.

Early removal of certain short-term prisoners from the United Kingdom

19

For schedule 6 to the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17) (transitory amendments of the Prisoners and Criminal Proceedings (Scotland) Act 1993) substitute—

SCHEDULE 6 (1) Until the coming into force of the repeal by this Act of Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9), that Part has effect in accordance with paragraphs 2 to 4. (2) In section 1 (release of short-term and long-term prisoners), subsection (3) has effect as if for paragraphs (a) and (b) there were substituted “ must, ” (3) Section 9 (persons liable to removal from the United Kingdom) has effect as if— (a) subsection (1) were repealed, and (b) in subsection (3), after “section”, where it first occurs, there were inserted “ and sections 9A and 9B ”. (4) That Part has effect as if after section 9 there were inserted— (9A) (1) For the purposes of this Part, to be “eligible for removal from the United Kingdom” a person must show, to the satisfaction of the Scottish Ministers, that the condition in subsection (2) is met. (2) The condition is that the person has the settled intention of residing permanently outside the United Kingdom if removed from prison under section 9B. (3) The person must not be one who is liable to removal from the United Kingdom. (9B) (1) Subject to subsection (2), where a short-term prisoner is liable to, or eligible for, removal from the United Kingdom, the Scottish Ministers may remove the prisoner from prison under this section at any time during the period of 180 days ending with the day on which the prisoner will have served one-half of the prisoner's sentence. (2) Subsection (1) does not apply in relation to a prisoner unless the prisoner has served one-quarter of the sentence. (3) A prisoner removed from prison under this section— (a) if liable to removal from the United Kingdom, is so removed only for the purpose of enabling the Secretary of State to remove the prisoner from the United Kingdom under powers conferred by— (i) Schedule 2 or 3 to the Immigration Act 1971 (c.77), or (ii) section 10 of the Immigration and Asylum Act 1999 (c.33), (b) if eligible for removal from the United Kingdom, is so removed only for the purpose of enabling the prisoner to leave the United Kingdom in order to reside permanently outside the United Kingdom, and (c) in either case, so long as remaining in the United Kingdom, remains liable to be detained in pursuance of the prisoner's sentence until the prisoner has served one-half of the sentence. (4) So long as a prisoner removed from prison under this section remains in the United Kingdom but has not been returned to prison, any duty or power of the Scottish Ministers under section 1(1), 1AA or 3 is exercisable in relation to the prisoner as if the prisoner were in prison. (5) The Scottish Ministers may by order amend the number of days for the time being specified in subsection (1). (6) A statutory instrument containing an order under subsection (5) may not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament. (9C) (1) This section applies in relation to a person (referred to in this section as “the removed person”) who, after being removed from prison under section 9B, has been removed from the United Kingdom before serving one-half of the sentence. (2) Where the removed person re-enters the United Kingdom at any time before the date on which the person would have served the person's sentence in full (but for the person's removal from prison under section 9B), the person is liable to be detained in pursuance of the person's sentence until the earlier of the following— (a) the date of the expiry of the outstanding custodial period, (b) the date on which the person would have served the person's sentence in full (but for the person's removal from prison under section 9B). (3) In the case of a person liable to be detained under subsection (2), the duty to release the person under section 1(1) or 1AA(1) applies only after the expiry of the outstanding custodial period. (4) A person who is liable to be detained by virtue of subsection (2) is, if at large, to be taken for the purposes of section 40 of the Prisons (Scotland) Act 1989 (c.45) (persons unlawfully at large) to be unlawfully at large. (5) Subsection (2) does not prevent— (a) the further removal from prison under section 9B(1) of a person falling within that subsection, or (b) the further removal from the United Kingdom of such a person. (6) In this section, the “outstanding custodial period” means, in relation to a removed person, a period of time equal to the period beginning with the date of removal from the United Kingdom and ending with the date on which the person would, but for the removal, have served one-half of the sentence. (5) Until the coming into force of the repeal by this Act of Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9), paragraph (c) of section 24 of the International Criminal Court (Scotland) Act 2001 (asp 13) (limited disapplication of certain provisions relating to sentences) has effect as if— (a) after “9” there were inserted “ , 9A, 9B, 9C ”, and (b) after “transfer” there were inserted “ , removal ”.

.

Other sentencing measures

Reports about supervised persons

20

• (1) Section 203 of the 1995 Act (reports) is amended as follows.

• (2) In subsection (3), for the words from “the offender” to the end substitute—

(a) the offender, (b) the offender's solicitor (if any), and (c) the prosecutor.

.

Detention of children convicted on indictment

21

• (1) Section 208 of the 1995 Act (detention of children convicted on indictment) is amended as follows.

• (2) After subsection (1), insert—

(1A) Where the court imposes a sentence of detention on a child, the court must— (a) state its reasons for the opinion that no other method of dealing with the child is appropriate, and (b) have those reasons entered in the record of the proceedings.

.

• (3) In subsection (2), for “Subsection (1) above is” substitute “ Subsections (1) and (1A) above are ”.

Pre-sentencing reports about organisations

22

After section 203 of the 1995 Act (reports), insert—

(203A) (1) This section applies where an organisation is convicted of an offence. (2) Before dealing with the organisation in respect of the offence, the court may obtain a report into the organisation's financial affairs and structural arrangements. (3) The report is to be prepared by a person appointed by the court. (4) The person appointed to prepare the report is referred to in this section as the “reporter”. (5) The court may issue directions to the reporter about— (a) the information to be contained in the report, (b) the particular matters to be covered by the report, (c) the time by which the report is to be submitted to the court. (6) The court may order the organisation to give the reporter and any person acting on the reporter's behalf— (a) access at all reasonable times to the organisation's books, documents and other records, (b) such information or explanation as the reporter thinks necessary. (7) The reporter's costs in preparing the report are to be paid by the clerk of court, but the court may order the organisation to reimburse to the clerk all or a part of those costs. (8) An order under subsection (7) may be enforced by civil diligence as if it were a fine. (9) On submission of the report to the court, the clerk of court must provide a copy of the report to— (a) the organisation, (b) the organisation's solicitor (if any), and (c) the prosecutor. (10) The court must have regard to the report in deciding how to deal with the organisation in respect of the offence. (11) If the court decides to impose a fine, the court must, in determining the amount of the fine, have regard to— (a) the report, and (b) if the court makes an order under subsection (7), the amount of costs that the organisation is required to reimburse under the order. (12) Where the court— (a) makes an order under subsection (7), and (b) imposes a fine on the organisation, any payment by the organisation is first to be applied in satisfaction of the order under subsection (7). (13) Where the court also makes a compensation order in respect of the offence, any payment by the organisation is first to be applied in satisfaction of the compensation order before being applied in accordance with subsection (12).

.

Extended sentences for certain sexual offences

23

In section 210A of the 1995 Act (extended sentences for sex and violent offenders)—

• (a) in subsection (10), at the end of the definition of “sexual offence” add—

(xxviii) an offence (other than one mentioned in the preceding paragraphs) where the court determines for the purposes of this paragraph that there was a significant sexual aspect to the offender's behaviour in committing the offence;

, and

• (b) after subsection (11) add—

(12) An extended sentence may be passed by reference to paragraph (xxviii) only if the offender is or is to become, by virtue of Schedule 3 to the Sexual Offences Act 2003 (c.42), subject to the notification requirements of Part 2 of that Act.

.

Effect of probation and absolute discharge

24

• (1) In section 1(4) of the Rehabilitation of Offenders Act 1974 (c.53) (construction of references in Act to “conviction”), for “section 9 of the Criminal Justice (Scotland) Act 1949” substitute “ section 247 of the Criminal Procedure (Scotland) Act 1995 (c.46) ”.

• (2) In section 49(6) of the 1982 Act (offences relating to dangerous and annoying creatures: power to order disposal of creature), the words “or makes a probation order in relation to him” are repealed.

• (3) In section 58(3) of the 1982 Act (convicted thief in possession: power to order forfeiture of tools etc.)—

• (a) the words “or makes a probation order in relation to him” are repealed, and

• (b) for the words from “discharged absolutely” to the end substitute “ , as the case may be, discharged absolutely. ”.

• (4) In section 96 of the 2005 Act (exclusion orders: supplementary provision), after subsection (2) insert—

(2A) For the purposes of section 94, section 247(1) of the Criminal Procedure (Scotland) Act 1995 (c.46) (convictions deemed not be convictions where offender placed on probation or discharged absolutely) does not apply to a conviction for a violent offence within the meaning of section 94.

.

• (5) In section 129 of the 2005 Act (relevant and foreign offences), after subsection (4) add—

(5) For the purposes of the provisions of this Act specified in subsection (6), section 247(1) and (2) of the Criminal Procedure (Scotland) Act 1995 (c.46) (convictions deemed not to be convictions where offender placed on probation or discharged absolutely) does not apply to a conviction for a relevant offence. (6) Those provisions are— (a) section 21(4), (b) section 23(6), (c) section 24, (d) section 33(6), (e) sections 41 to 44, (f) section 73(3), (g) section 75, (h) sections 80 to 83, (i) section 89(4) and (5), (j) subsection (3) of this section, and (k) section 130.

.

Offences aggravated by racial or religious prejudice

25

• (1) In section 96 of the Crime and Disorder Act 1998 (c.37) (racially aggravated offences), for subsection (5) substitute—