Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Criminal Justice and Licensing (Scotland) Act 2010

Type Act of the Scottish Parliament

Publication 2010-08-06

Last updated 2021-11-08

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(e) premises in respect of which there is a club gaming permit (within the meaning of section 271 of the Gambling Act 2005 (c.19)) or a prize gaming permit (within the meaning of section 289 of that Act of 2005);

(d) the word “or” immediately preceding paragraph (g) is repealed, and

(e) after paragraph (g), add

, or (h) such other premises as the Scottish Ministers may by order made by statutory instrument specify.

(3) After subsection (2) insert—

(2A) A statutory instrument containing an order made under subsection (2)(h) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

Licensing of late night catering

177

(1) Section 42 of the 1982 Act (late hours catering) is amended as follows.

(2) In subsections (1) and (2), for “meals or refreshment” in each place where those words occur substitute “ food ”.

(3) In subsection (2), for “they are” substitute “ it is ”.

(4) In subsection (3), for “meals or refreshments” in both places where those words occur substitute “ food ”.

(5) After subsection (6), add—

(7) In this section “food” has the meaning given in section 1 of the Food Safety Act 1990 (c.16).

Applications for licences

178

(1) The 1982 Act is amended as follows.

(2) In Schedule 1 (further provisions as to the general licensing system)—

(a) in paragraph 1(2)(b), for “and address” in both places where those words occur substitute “ , address and date and place of birth ”,

(b) in paragraph 1(2)(c)—

(i) in sub-paragraph (iii), for “and private addresses” substitute “ , private addresses and dates and places of birth ”, and

(ii) in sub-paragraph (iv), for “and address” substitute “ , address and date and place of birth ”,

(d) in paragraph 2(8)(a), after “application” insert “ (other than the date and place of birth of any person) ”,

(e) in paragraph 3(1)(e), for “21” substitute “ 28 ”,

(f) in paragraph 4(2), for “7” substitute “ 14 ”,

(g) in paragraph 8, after sub-paragraph (5) insert—

(5A) On good cause being shown, a licensing authority may, for the purposes of sub-paragraph (5), deem an application for renewal of a licence made up to 28 days after the expiry of the licence to be an application made before the expiry.

(h) in paragraph 11(8), for “21” substitute “ 14 ”, and

(i) in paragraph 17(2), for “28” substitute “ 21 ”.

(3) In Schedule 2 (control of sex shops)—

(a) in paragraph 6(2), for paragraph (b) substitute—

(b) the date and place of birth of the applicant;

(b) in paragraph 6(2)(c), for “age” substitute “ date and place of birth ”,

(i) in paragraph (c), for “and private addresses” substitute “ , private addresses and dates and places of birth ”, and

(ii) in paragraph (d), for “age” substitute “ date and place of birth ”,

(d) in paragraph 8(7), after “them” insert “ and, where they propose to do so, must, within such reasonable period (not being less than 14 days) of the date of the hearing, notify the applicant and each such person of that date ”,

(e) in paragraph 9(3), in both paragraphs (e) and (f), for “the United Kingdom” substitute “ a member state of the European Union ”,

(f) in paragraph 12, after sub-paragraph (3) insert—

(3A) On good cause being shown, a local authority may, for the purposes of sub-paragraph (3), deem an application for renewal of a licence made up to 28 days after the expiry of the licence to be an application made before the expiry.

(g) in paragraph 13(6), for “21” substitute “ 14 ”, and

(h) in paragraph 23(2), for “28” substitute “ 21 ”.

PART 9 — ALCOHOL LICENSING

Premises licence applications: statements about disabled access etc.

179

(1) Section 20 of the 2005 Act (application for premises licence) is amended as follows.

(2) In subsection (2)(b)—

(a) the word “and” immediately following sub-paragraph (ii) is repealed, and

(b) after that sub-paragraph, insert—

(iia) a disabled access and facilities statement, and

(3) After subsection (5), insert—

(6) A “disabled access and facilities statement” is a statement, in the prescribed form, containing information about— (a) provision made for access to the subject premises by disabled persons, (b) facilities provided on the subject premises for use by disabled persons, and (c) any other provision made on or in connection with the subject premises for disabled persons. (7) In subsection (6), “disabled person” is to be interpreted in accordance with section 6 of the Equality Act 2010 (c.15).

Premises licence applications: notification requirements

180

(1) Section 21 of the 2005 Act (notification of premises licence application) is amended as follows.

(2) For subsection (2), substitute—

(2) On giving notice of an application under subsection (1), the Licensing Board— (a) must provide the appropriate chief constable with a copy of the application, and (b) may provide any other person to whom notice is given with a copy of the application.

(3) In subsection (3), the following are repealed—

(a) the word “and” after paragraph (a), and

(b) paragraph (b).

(4) In subsection (6), the following are repealed—

(a) the definition of “antisocial behaviour”,

(b) the word “and” following the definition of “neighbouring land”, and

Premises licence applications: modification of layout plans

181

In section 23 of the 2005 Act (determination of premises licence application), in subsection (7)(b), after “plan” insert “ or layout plan (or both) ”.

Reviews of premises licences: notification of determinations

182

(1) The 2005 Act is amended as follows.

(2) After section 39 (Licensing Board's powers on review), insert—

(39A) (1) Where a Licensing Board, at a review hearing— (a) decides to take one of the steps mentioned in section 39(2), or (b) decides not to take one of those steps, the Board must give notice of the decision to each of the persons mentioned in subsection (2). (2) The persons referred to in subsection (1) are— (a) the holder of the premises licence, and (b) where the decision is taken in connection with a premises licence review application, the applicant. (3) Where subsection (1)(a) applies, the holder of the premises licence may, by notice to the clerk of the Board, require the Board to give a statement of reasons for the decision. (4) Where— (a) subsection (1)(a) or (b) applies, and (b) the decision is taken in connection with a premises licence review application, the applicant may, by notice to the clerk of the Board, require the Board to give a statement of reasons for the decision. (5) Where the clerk of a Board receives a notice under subsection (3) or (4), the Board must issue a statement of the reasons for the decision to— (a) the person giving the notice, and (b) any other person to whom the Board gave notice under subsection (1). (6) A statement of reasons under subsection (5) must be issued— (a) by such time, and (b) in such form and manner, as may be prescribed.

Premises licence applications: antisocial behaviour reports

183

(1) The 2005 Act is amended as follows.

(2) In section 22 (objections and representations), after subsection (2) insert—

(2A) The appropriate chief constable may, under subsection (1)(b), make representations concerning a premises licence application by giving to the Licensing Board a report detailing— (a) any cases of antisocial behaviour indentified by constables as having taken place on, or in the vicinity of, the premises, (b) any complaints or other representations made to constables concerning antisocial behaviour on, or in the vicinity of, the premises.

(3) After section 24 insert—

(24A) (1) A Licensing Board may, at any time before determining a premises licence application, request the appropriate chief constable to give the Board a report detailing— (a) all cases of antisocial behaviour indentified within the relevant period by constables as having taken place on, or in the vicinity of, the premises, (b) all complaints or other representations made within the relevant period to constables concerning antisocial behaviour on, or in the vicinity of, the premises. (2) The appropriate chief constable must give the report within 21 days of the request. (3) Where the Licensing Board requests a report under subsection (1), the Board must suspend consideration of the application until it receives the report. (4) On receipt of the chief constable's report under subsection (2), the Licensing Board must— (a) give a copy of the report to the applicant in such manner and by such time as may be prescribed by regulations, and (b) resume consideration of the application and determine it in accordance with section 23. (5) In this section— - “antisocial behaviour” has the same meaning as in section 143 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), and - “relevant period” means the period of one year ending with the date of the request.

Premises licences: connected persons and interested parties

184

(1) The 2005 Act is amended as follows.

(2) After section 40 insert—

(40A) (1) A premises licence holder must, not later than one month after a person becomes or ceases to be— (a) a connected person in relation to the licence holder, or (b) an interested party in relation to the licensed premises, give the appropriate Licensing Board notice of that fact. (2) A notice under subsection (1) that a person has become a connected person or an interested party must specify— (a) the name and address of the person, and (b) if the person is an individual, the person's date of birth. (3) Where a Licensing Board receives a notice under subsection (1), the Board must give a copy of the notice to the appropriate chief constable. (4) A premises licence holder who fails, without reasonable excuse, to comply with subsection (1) commits an offence. (5) A person guilty of an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(3) In section 48 (notification of change of name or address)—

(a) in subsection (1)—

(i) the word “or” immediately following paragraph (a) is repealed, and

(ii) after paragraph (b) insert

, or (c) the name or address of any person who is— (i) a connected person in relation to the licence holder, or (ii) an interested party in relation to the licensed premises,

(b) after subsection (2) insert—

(2A) Where a Licensing Board receives a notice under subsection (1), the Board must give a copy of the notice to the appropriate chief constable.

(4) In section 147 (interpretation), after subsection (4) insert—

(5) For the purposes of this Act, a person is an interested party in relation to licensed premises if the person is not the holder of the premises licence nor the premises manager in respect of the premises but— (a) has an interest in the premises as an owner or tenant, or (b) has management and control over the premises or the business carried on on the premises.

(5) In section 148 (index of defined expressions), in the table, insert at the appropriate place—

interested party	section 147(5).

Provisional premises licences: duration

185

In section 45 of the 2005 Act (provisional premises licence), in subsection (6), for “2” substitute “ 4 ”.

Premises licence applications: food hygiene certificates

186

(1) Section 50 of the 2005 Act (certificates as to planning, building standards and food hygiene) is amended as follows.

(2) In subsection (7), for the words from “the requirements” to the end substitute “ such requirements as the Scottish Ministers may, by order, specify. ”.

(3) After subsection (7), insert—

(7A) An order under subsection (7) may specify requirements by reference to provision contained in another enactment.

(4) In subsection (8)(c), for “the 1990 Act” substitute “ section 5 of the Food Safety Act 1990 (c.16) ”.

Provision of copies of licences to chief constable

187

(1) The 2005 Act is amended as follows.

(2) In section 26 (issue of licence and summary), after subsection (2) insert—

(3) Where a Licensing Board grants a premises licence application, the Board must send a copy of the premises licence to the appropriate chief constable.

(3) In section 47 (temporary premises licence), after subsection (4) insert—

(4A) Where a Licensing Board issues a temporary premises licence, the Board must send a copy of the temporary premises licence to the appropriate chief constable.

(4) In section 49 (Licensing Board's duty to update premises licence), after subsection (2) insert—

(2A) Where a Licensing Board issues a new summary of the licence under subsection (2), the Board must send a copy of the new summary of the licence to the appropriate chief constable.

(5) In section 56 (occasional licence), after subsection (9) insert—

(10) Where a Licensing Board issues an occasional licence under subsection (1), the Board must send a copy of the occasional licence to the appropriate chief constable.

Sale of alcohol to trade

188

(1) The 2005 Act is amended as follows.

(2) In section 63 (prohibition of sale, consumption and taking away of alcohol outwith licensed hours), in subsection (2)(f), after “on” where it first occurs insert “ or taken from ”.

(3) In section 117 (offence relating to sale of alcohol to trade), in subsection (1), after “from” insert “ licensed premises or ”.

Occasional licences

189

(1) The 2005 Act is amended as follows.

(2) In section 57 (notification of application to chief constable and Licensing Standards Officer), after subsection (3), add—

(4) Subsection (5) applies where the Licensing Board is satisfied that the application requires to be dealt with quickly. (5) Subsections (2) and (3) have effect in relation to the application as if the references to the period of 21 days were references to such shorter period of not less than 24 hours as the Board may determine.

(3) In paragraph 10 of schedule 1 (delegation of functions of Licensing Boards), in sub-paragraph (4), after “Board” in the second place where it appears insert “ or to a member of staff provided under paragraph 8(1)(b) ”.

Extended hours applications: notification period

190

(1) Section 69 of the 2005 Act (notification of extended hours application) is amended as follows.

(2) After subsection (3), add—

(4) Subsections (5) and (6) apply where the Licensing Board is satisfied that the application requires to be dealt with quickly. (5) Subsections (2) and (3) have effect in relation to the application as if the references to the period of 10 days were references to such shorter period of not less than 24 hours as the Board may determine. (6) Subsection (3) has effect in relation to the application as if for the word “must” there were substituted “ may ”.

Extended hours applications: variation of conditions

191

After section 70 of the 2005 Act insert—

(70A) (1) On granting an extended hours application under section 68(1) in respect of a premises licence, the Licensing Board may make such variation of the conditions to which the licence is subject as the Board considers necessary or expedient for the purposes of any of the licensing objectives. (2) A variation made under subsection (1)— (a) may have effect only in relation to a period of licensed hours which is extended under section 68(1), and (b) ceases to have effect at the end of the period for which the extension of the licensed hours has effect under section 68(2). (3) In subsection (1), “variation” includes addition, deletion or other modification.

Personal licences

192

(1) The 2005 Act is amended as follows.

(2) In section 74 (determination of personal licence application)—

(a) in subsection (2)—

(i) the word “and” immediately following paragraph (a) is repealed, and

(ii) after paragraph (b) add—

(c) the notice does not include a recommendation under section 73(4), (d) the applicant has signed the application, and (e) subsection (8) does not apply,

(b) in subsection (3)—

(i) the word “and” immediately following paragraph (b) is repealed, and

(ii) after paragraph (b) insert—

(ba) the applicant does not already hold a personal licence, and

, and

(7) Subsection (8) applies if— (a) all of the conditions specified in subsection (3) are met in relation to the applicant, (b) the Board has received from the appropriate chief constable a notice under section 73(3)(a), and (c) the applicant has held a personal licence which— (i) expired within the period of 3 years ending on the day on which the application was received, or (ii) was surrendered by the applicant by notice under section 77(6) received within that period. (8) The Licensing Board may— (a) hold a hearing for the purposes of considering and determining the application, and (b) after having regard to the circumstances in which the personal licence previously held expired or, as the case may be, was surrendered— (i) refuse the application, or (ii) grant the application.

(3) In section 76 (issue of licence), after subsection (3) add—

(4) A person who holds a void personal licence must surrender it to the Licensing Board. (5) A person who, without reasonable excuse, fails to comply with subsection (4) commits an offence. (6) A person who passes off a void personal licence as a valid personal licence knowing that the licence is void commits an offence. (7) A person guilty of an offence under subsection (5) or (6) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) In section 92 (theft, loss etc. of personal licence), after subsection (3) insert—

(3A) A replacement personal licence is void if at the time it is issued the personal licence in respect of which it was issued is not lost, stolen, damaged or destroyed. (3B) Where a replacement personal licence is issued in respect of a personal licence which has been lost or stolen, the replacement personal licence becomes void if the personal licence is subsequently found or recovered. (3C) A person who holds a void replacement personal licence must surrender it to the Licensing Board. (3D) A person who, without reasonable excuse, fails to comply with subsection (3C) commits an offence. (3E) A person who passes off a void replacement personal licence as a valid licence, knowing that the licence is void, commits an offence. (3F) A person guilty of an offence under subsection (3D) or (3E) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Emergency closure orders

193

(1) The 2005 Act is amended as follows.

(2) In section 97 (closure orders)—

(a) in subsection (2), for “senior police officer may, if the officer” substitute “ constable of or above the rank of inspector may, if the constable ”, and

(b) in subsection (4), the words “by a senior police officer” are repealed.

(3) In section 98 (termination of closure orders)—

(a) in subsection (1)—

(i) for “senior police officer” substitute “ constable of or above the rank of inspector ”, and

(ii) for “the officer” substitute “ the constable ”, and

(b) in subsection (2)—

(i) for “senior police office” substitute “ constable ”, and

(ii) for “the officer” substitute “ the constable ”.

(4) In section 99 (extension of emergency closure order), in subsection (1)—

(a) for “senior police officer” substitute “ constable of or above the rank of inspector ”, and

(b) in paragraph (b), for “officer” substitute “ constable ”.

Appeals

194

In section 131(2) of the 2005 Act (appeals), the words “by way of stated case, at the instance of the appellant,” are repealed.

Liability for offences

195

(1) The 2005 Act is amended as follows.

(2) In each of the following provisions, the word “knowingly” is repealed—

(a) section 1(3)(b),

(b) section 103(1),

(d) section 107(1),

(e) section 118(1),

(f) section 120(2) and (3),

(g) section 121(1),

(h) section 127(4), and

(i) section 128(5).

(3) After section 141 (offences by bodies corporate etc.) insert—

(141A) (1) It is a defence for a person charged with an offence to which this section applies to prove that the person— (a) did not know that the offence was being committed, and (b) exercised all due diligence to prevent the offence being committed. (2) This section applies to an offence under any of the following provisions of this Act— - section 1(3)(b), - section 103(1), - section 106(2), - section 107(1), - section 118(1), - section 120(2) or (3), - section 121(1), - section 127(4), - section 128(5). (141B) (1) Subsection (2) applies where, on or in relation to any licensed premises, a person commits an offence to which this section applies while acting as the employee or agent of— (a) the holder of the premises licence, or (b) an interested party. (2) The holder of the premises licence or, as the case may be, the interested party is also guilty of the offence and liable to be proceeded against and punished accordingly. (3) It is a defence for a holder of a premises licence or an interested party charged with an offence to which this section applies by virtue of subsection (2) to prove that the holder of the licence or, as the case may be, the interested party— (a) did not know that the offence was being committed by the employee or agent, and (b) exercised all due diligence to prevent the offence being committed. (4) Proceedings may be taken against the holder of the premises licence or the interested party in respect of the offence whether or not proceedings are also taken against the employee or agent who committed the offence. (5) This section applies to an offence under any of the following provisions of this Act— - section 1(3), - section 15(5), - section 63(1), - section 97(7), - section 102(1), - section 103(1), - section 106(2), - section 107(1), - section 108(2) or (3), - section 113(1), - section 114, - section 115(2), - section 118(1), - section 119(1), - section 120(2), - section 121(1), - section 138(5).

False statements in applications: offence

196

After section 134 of the 2005 Act insert—

(134A) (1) A person who knowingly makes a false statement in an application under this Act commits an offence. (2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Powers of Licensing Standards Officers

197

(1) Section 15 of the 2005 Act is amended as follows.

(2) The section title becomes “Powers of entry, inspection and seizure”.

(3) In subsection (2)—

(a) the word “and” immediately preceding paragraph (b) is repealed, and

(b) after that paragraph insert—

(c) power to take copies of, or of an entry in, any document found on the premises, and (d) power to seize and remove any substances, articles or documents found on the premises.

(4) In subsection (3)—

(a) for “either” substitute “ any ”, and

(b) in paragraph (b), after “information” insert “ or explanation ”.

(5) After subsection (4) insert—

(4A) Subsection (3)(c) includes power to require any document which is stored in electronic form and which is accessible from the premises to be produced in a form— (a) in which it is legible, and (b) in which it can be removed from the premises. (4B) Nothing in subsection (3) requires a person to produce any document if the person would be entitled to refuse to produce that document in any proceedings in any court on the grounds of confidentiality of communications. (4C) Nothing in subsection (3) requires a person to provide any information or explanation or produce any document if to do so would incriminate that person or that person's spouse or civil partner.

(6) After subsection (6) insert—

(7) The Scottish Ministers may by regulations make further provision about the procedure to be followed in the exercise of a power under this section. (8) Where a Licensing Standards Officer seizes any substance, article or document under subsection (2)(d), the Officer must leave on the premises a notice— (a) stating what was seized, and (b) explaining why it was seized. (9) The Scottish Ministers may by regulations make provision about the treatment of substances, articles or documents seized under subsection (2)(d). (10) Regulations under subsection (9) may, in particular, make provision— (a) about the retention, use, return, disposal or destruction of anything seized, (b) about compensation for anything seized.

Further modifications of 2005 Act

198

Schedule 6 makes further modifications of the 2005 Act (including extending police powers to object).

PART 10 — MISCELLANEOUS

Annual report on Criminal Justice (Terrorism and Conspiracy) Act 1998

199

Section 8 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 (c.40) (requirement for annual report on working of the Act) is repealed.

Modification of references to “Act”, “enactment” etc. in certain Acts of Parliament

200

(1) The 1982 Act is amended as follows—

(a) in section 8 (interpretation of Parts 1 and 2), insert at the appropriate place—

“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;

(b) in section 49 (dangerous and annoying creatures), after subsection (8), add—

(9) In subsection (7), “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.

, and

“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;

(2) The Criminal Law (Consolidation) (Scotland) Act 1995 is amended as follows—

(a) in section 30 (disclosure of information), after subsection (7) add—

(8) In subsection (2) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.

(b) in section 44 (false statements and declarations), in each of the following provisions, namely subsection (2)(b) and (c), subsection (3)(a) and subsection (4), after “Act of Parliament” insert “ or any Act of the Scottish Parliament ”,

(6) In subsections (4) and (5), “other Act” includes an Act of the Scottish Parliament.

, and

(d) in section 46 (proceedings for a contravention of section 44)—

(i) in subsection (4), the words “(including subordinate legislation)” are repealed, and

(ii) after subsection (4) add—

(5) In subsection (4), “enactment” includes— (a) an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and (b) subordinate legislation.

(3) Section 307(1) of the 1995 Act (interpretation) is amended as follows—

(a) in the definition of “crime”, after “this Act,” insert “ or under any Act of the Scottish Parliament (whenever passed), ”,

(b) for the definition of “enactment” substitute—

“enactment” includes— (a) an enactment contained in any local Act or any order, regulation or other instrument having effect by virtue of an Act, and (b) an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;

, and

“statute” means— (a) any Act of Parliament, public, general, local or private, (b) any Provisional Order confirmed by Act of Parliament, or (c) any Act of the Scottish Parliament;

PART 11 — GENERAL

Orders and regulations

201

(1) Any power of the Scottish Ministers to make regulations or an order under this Act is exercisable by statutory instrument.

(2) Any such power includes power to make—

(a) such incidental, supplementary, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,

(b) different provision for different purposes or different areas.

(3) Subject to subsection (4), a statutory instrument containing regulations or an order under this Act (except an order under section 206(1)) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(4) A statutory instrument containing—

(a) an order under section 27(1),

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) an order under section 204(1) containing provisions which modify any enactment (including this Act), or

(e) an order under section 205(1) containing provisions which add to, replace or omit any part of the text of an Act,

is not to be made unless a draft of the instrument containing the order has been laid before, and approved by resolution of, the Parliament.

Interpretation

202

In this Act—

“the 1982 Act” means the Civic Government (Scotland) Act 1982 (c.45),

“the 1995 Act” means the Criminal Procedure (Scotland) Act 1995 (c.46), and

“the 2005 Act” means the Licensing (Scotland) Act 2005 (asp 16).

Modification of enactments

203

Schedule 7 modifies enactments.

Ancillary provision

204

(1) The Scottish Ministers may by order make such supplementary, incidental or consequential provision as they consider appropriate for the purposes of, in consequence of or for giving full effect to any provision of this Act.

(2) An order under subsection (1) may modify any enactment (including this Act).

Transitional provision etc.

205

(1) The Scottish Ministers may by order make such provision as they consider necessary or expedient for transitory, transitional or saving purposes in connection with the coming into force of any provision of this Act.

(2) An order under subsection (1) may modify any enactment (including this Act).

Commencement and short title

206

(1) The provisions of this Act, other than this section and sections 201, 202, 204 and 205, come into force in accordance with provision made by order by the Scottish Ministers.

(2) This Act may be cited as the Criminal Justice and Licensing (Scotland) Act 2010.

SCHEDULE 1

Membership

1

(1) The Council consists of a chairing member, other judicial members, legal members and lay members.

(2) The chairing member is the Lord Justice Clerk.

(3) The other judicial members comprise—

(a) one other person holding the office of judge who normally sits as a judge of the Outer House of the Court of Session or the High Court of Justiciary,

(b) one person holding the office of sheriff (other than a sheriff principal),

(d) one other person holding—

(i) any of the offices mentioned in paragraphs (a) to (c), or

(ii) the office of sheriff principal.

(4) The legal members comprise—

(a) one prosecutor within the meaning of section 307 of the 1995 Act,

(b) one advocate practising as such in Scotland (other than one who is a prosecutor), and

(5) The lay members comprise—

(a) one constable,

(b) one person appearing to the Scottish Ministers to have knowledge of the issues faced by victims of crime, and

Procedure for appointment of members

2

(1) It is for the Lord Justice General, after consulting the Scottish Ministers, to appoint the members of the Council other than the Lord Justice Clerk and the lay members.

(2) It is for the Scottish Ministers, after consulting the Lord Justice General, to appoint the lay members.

(3) The Lord Justice General may appoint a person to be a member only if the person has been nominated, or otherwise selected for appointment, in accordance with such procedures as the Scottish Ministers may by regulations prescribe.

(4) The regulations may—

(a) in particular, make provision for or in connection with enabling a person to nominate or select persons suitable for appointment,

(b) prescribe different procedures for different categories of membership.

(5) The Scottish Ministers must consult the Lord Justice General before making the regulations.

Persons disqualified from membership

3

A person is disqualified from appointment, and from holding office, as a member of the Council if the person is or becomes—

(a) a member of the House of Commons,

(b) a member of the Scottish Parliament,

(d) a councillor of any council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39),

(e) a Minister of the Crown, or

(f) a member of the Scottish Executive.

Term of office

4

(1) A member holds office for such period not exceeding 5 years as the Lord Justice General or, as the case may be, the Scottish Ministers may, at the time of appointment, determine.

(2) A member ceases to hold office—

(a) on becoming disqualified from holding office as a member, or

(b) on ceasing to fall within the category of membership under which the member was appointed.

(3) A person who has previously been a member may not be re-appointed.

(4) In this paragraph, “a member” means a member appointed by the Lord Justice General or the Scottish Ministers.

Resignation and removal of members

5

(1) A member appointed by the Lord Justice General may resign office by giving notice in writing to the Lord Justice General.

(2) A member appointed by the Scottish Ministers may resign office by giving notice in writing to the Scottish Ministers.

(3) The Lord Justice General may, by notice in writing, remove a judicial or legal member if satisfied that the member is unfit to be a member by reason of inability, neglect of duty or misbehaviour.

(4) The Scottish Ministers may, by notice in writing, remove a lay member if satisfied that the member is unfit to be a member by reason of inability, neglect of duty or misbehaviour.

Suspension of judicial members

6

A judicial member is suspended from acting as such during any period in which the member is suspended from the judicial office which the member holds.

Chairing of the Council

7

(1) The Lord Justice Clerk is to chair meetings of the Council.

(2) If the Lord Justice Clerk is for any reason unable to chair a meeting, the meeting may be chaired by another judicial member nominated—

(a) by the Lord Justice Clerk, or

(b) if the Lord Justice Clerk is unable to make such a nomination, by the Council.

(3) The Lord Justice Clerk may nominate another judicial member to chair meetings of the Council for a temporary period.

Committees

8

The Council may establish committees comprising members of the Council.

Proceedings

9

The Council may determine—

(a) its own procedure (including the number of members required to constitute a quorum), and

(b) the procedure (including the number of members required to constitute a quorum) of any committees established by it.

Validity of acts

10

The validity of proceedings or actings of the Council is not affected by—

(a) any vacancy in the membership of the Council,

(b) any defect in the appointment of a member of the Council, or

Ancillary powers

11

The Council may do anything which it considers necessary or expedient for the purposes of or in connection with its functions.

Delegation

12

(1) Any function of the Council, other than the function of submitting sentencing guidelines to the High Court of Justiciary for approval, may be carried out on its behalf by—

(a) a member of the Council,

(b) a committee, or

authorised (whether specially or generally) by it for the purpose.

(2) Nothing in sub-paragraph (1) prevents the Council from exercising any function delegated under that sub-paragraph.

Maladministration

13

In the Scottish Public Services Ombudsman Act 2002 (asp 11), in schedule 2 (which lists the authorities subject to investigation under that Act), in Part 2 (entries amendable by Order in Council), after paragraph 50 insert—

(50A) The Scottish Sentencing Council.

Freedom of information

14

In the Freedom of Information (Scotland) Act 2002 (asp 13), in schedule 1 (which lists the Scottish public authorities subject to that Act), in Part 7 (other authorities), after paragraph 98 insert—

(98A) The Scottish Sentencing Council.

SCHEDULE 2

PART 1 — THE 1995 ACT

The 1995 Act

1

The 1995 Act is amended as follows.

2

In section 52H(3) (early termination of assessment order), the following are repealed—

(a) the word “or” immediately following paragraph (e), and

(b) paragraph (f).

3

In section 52R(3) (termination of treatment order), the following are repealed—

(a) the word “or” immediately following paragraph (e), and

(b) paragraph (f).

4

In section 53(12)(a) (interim compulsion orders), for sub-paragraphs (vi) and (vii) substitute—

(vi) impose a community payback order; (vii) make a drug treatment and testing order; or (viii) make a restriction of liberty order,

5

In section 57A(15)(a) (compulsion order), for sub-paragraphs (vi) and (vii) substitute—

(vi) impose a community payback order; (vii) make a drug treatment and testing order; or (viii) make a restriction of liberty order,

6

In section 58(8) (order for hospital admission or guardianship), for “make a probation order or a community service order” substitute “ impose a community payback order or make a drug treatment and testing order ”.

7

In section 106(1) (right of appeal), for paragraph (d) substitute—

(d) against any drug treatment and testing order; (dza) against any disposal under section 227ZC(7)(a) to (c) or (e) or (8)(a) of this Act;

8

In section 108 (Lord Advocate's right of appeal against disposal)—

(a) in subsection (1), paragraphs (d) and (e) are repealed, and

(b) in subsection (2)(b)(iii), for “(d) to (e)” substitute “ (dd) ”.

9

In section 118(4) (disposal of appeals against sentence), after “(d),” insert “ (dza), ”.

10

In section 121A(4) (suspension of certain sentences pending determination of appeal), for paragraphs (a) to (c) substitute—

(aa) a community payback order;

11

In section 173(2) (quorum of High Court in relation to appeals), for “175(2)(b) or (c)” substitute “ 175(2)(b), (c) or (cza) ”.

12

In section 175 (right of appeal)—

(a) in subsection (2)—

(i) in paragraph (c), for “probation order, drug treatment and testing order or any community service order” substitute “ drug treatment and testing order ”, and

(ii) after paragraph (c), insert—

(cza) against any disposal under section 227ZC(7)(a) to (c) or (e) or (8)(a) of this Act;

(b) in subsection (4), paragraphs (d) and (e) are repealed, and

13

In section 186 (appeals against sentence only), in each of subsections (1), (2)(a), (9) and (10), for “175(2)(b) or (c)” substitute “ 175(2)(b), (c) or (cza) ”.

14

In section 187(1) (leave to appeal against sentence), for “175(2)(b) or (c)” substitute “ 175(2)(b), (c) or (cza) ”.

15

In section 189(5) (disposal of appeal against sentence), after “175(2)(c)” insert “ or (cza) ”.

16

In section 193A(4) (suspension of certain sentences pending determination of appeal)—

(a) for paragraphs (a) to (c) substitute—

(aa) a community payback order;

, and

(b) paragraph (e) is repealed.

17

Sections 228 to 234 (probation) are repealed.

18

In section 234H (disposal on revocation of drug treatment and testing order)—

(a) in subsection (1), for “drugs” substitute “ drug ”, and

(b) in subsection (3), for the words from “subject to” where they first occur to the end substitute “ , in respect of the same offence, also subject to a community payback order, by virtue of section 234J, or a restriction of liberty order, by virtue of section 245D, the court shall, before disposing of the offender under subsection (1) above, revoke the community payback order or restriction of liberty order (as the case may be). ”.

19

(1) Section 234J (concurrent drug treatment and testing and probation orders) is amended as follows.

(2) In subsection (1)—

(a) for “sections 228(1) and” substitute “ section ”, and

(b) for “probation order” substitute “ community payback order ”.

(3) In subsection (3)—

(a) for “probation order” substitute “ community payback order ”, and

(b) for paragraphs (b) and (c) substitute—

(ba) the local authority within whose area the offender will reside for the duration of each order.

(4) In subsection (4)—

(a) in paragraph (a), for “probation order and is dealt with under section 232(2)(c)” substitute “ community payback order and is dealt with under section 227ZC(7)(d) ”, and

(b) in paragraph (b), for “232(2)(c) of this Act in relation to the probation order” substitute “ 227ZC(7)(d) of this Act in relation to the community payback order ”.

(5) In subsection (5)—

(a) for “probation order” substitute “ community payback order ”, and

(b) for “232(2)” substitute “ 227ZC(7) ”.

20

Sections 235 to 245 (supervised attendance orders and community service orders) are repealed.

21

(1) Section 245A (restriction of liberty orders) is amended as follows.

(2) In subsection (2), the words from “but” to the end are repealed.

(3) After subsection (2) insert—

(2A) In making a restriction of liberty order containing provision under subsection (2)(a), the court must ensure that the offender is not required, either by the order alone or the order taken together with any other relevant order or requirement, to be in any place or places for a period or periods totalling more than 12 hours in any one day. (2B) In subsection (2A), “other relevant order or requirement” means— (a) any other restriction of liberty order in effect in respect of the offender at the time the court is making the order referred to in subsection (2A), and (b) any restricted movement requirement under section 227ZF in effect in respect of the offender at that time.

(4) In subsection (12)(a), for “subsection (2)” substitute “ subsection (2A) ”.

22

(1) Section 245D (combination of restriction of liberty orders with other orders) is amended as follows.

(2) In subsection (1)(b)—

(a) in sub-paragraph (i), for “probation order made under section 228(1)” substitute “ community payback order imposed under section 227A(1) ”, and

(b) in sub-paragraph (ii)—

(i) for “probation order made under section 228(1) of this Act,” substitute “ community payback order imposed under section 227A(1) of this Act or ”, and

(ii) the words “or both such orders” are repealed.

(3) In subsection (2), for “probation order” substitute “ community payback order ”.

(4) In subsection (3)—

(a) the word “228(1),” is repealed,

(b) in paragraph (a), for “probation order” substitute “ community payback order ”, and

(5) In subsection (4)—

(a) for “probation order” substitute “ community payback order ”, and

(b) for paragraph (b) substitute—

(b) the local authority within whose area the offender will reside for the duration of each order.

(6) Subsection (6) is repealed.

(7) In subsection (7)—

(a) in paragraph (a)—

(i) for “contained in a probation order and is dealt with under section 232(2)(c)” substitute “ imposed by a community payback order and is dealt with under section 227ZC(7)(d) ”, and

(ii) the words from “234G(2)(b)” to “section” where it third occurs are repealed,

(b) in paragraph (b), the words from “232(2)(c)” to “section” where it third occurs are repealed, and

(c) in paragraph (c), for “232(2)(c) of this Act in relation to a probation order” substitute “ 227ZC(7)(d) of this Act in relation to a community payback order ”.

(8) In subsection (8), for “232(2)” substitute “ 227ZC ”.

(9) In subsection (9)—

(a) in paragraph (a), for “probation order” substitute “ community payback order ”, and

(b) paragraph (c) is repealed.

23

(1) Section 245G (disposal on revocation of restriction of liberty order) is amended as follows.

(2) In subsection (2), for the words from “by virtue” to the end substitute “ in respect of the same offence, also subject to a community payback order or a drug treatment and testing order, by virtue of section 245D(3), it shall before disposing of the offender under subsection (1) above, revoke the community payback order or drug treatment and testing order. ”.

(3) In subsection (3), for “probation order discharged” substitute “ community payback order ”.

(4) Subsection (4) is repealed.

24

In section 245J (breach of certain orders: adjourning hearing and remanding in custody etc.)—

(a) in subsection (1)—

(i) for “a probationer or” substitute “ an ”,

(ii) for “probation order” substitute “ community payback order ”, and

(iii) the words “supervised attendance order, community service order” are repealed,

(b) in subsection (2), the words “probationer or” are repealed, and

25

Sections 245K to 245Q (community reparation orders) are repealed.

26

In section 246 (admonition and absolute discharge), in each of subsections (2) and (3), the words “and that a probation order is not appropriate” are repealed.

27

In section 249(2) (compensation order against convicted person), for paragraph (b) substitute—

(ab) where, under section 227A of this Act, it imposes a community payback order;

28

In section 307 (interpretation)—

(a) in subsection (1)—

(i) insert at the appropriate places—

“alcohol treatment requirement” has the meaning given in section 227V(1);

“community payback order” means a community payback order (within the meaning of section 227A(2)) imposed under section 227A(1) or (4) or 227M(2);

“compensation requirement” has the meaning given in section 227H(1);

“conduct requirement” has the meaning given in section 227W(1);

“drug treatment requirement” has the meaning given in section 227U(1);

“mental health treatment requirement” has the meaning given in section 227R(1);

“offender supervision requirement” has the meaning given in section 227G(1);

“programme requirement” has the meaning given in section 227P(1);

“residence requirement” has the meaning given in section 227Q(1);

“responsible officer”, in relation to a community payback order, is to be construed in accordance with section 227C;

“restricted movement requirement” has the meaning given in section 227ZF(1);

“unpaid work or other activity requirement” has the meaning given in section 227I(1), and “level 1 unpaid work or other activity requirement” and “level 2 unpaid work or other activity requirement” are to be construed in accordance with section 227I(5) and (6) respectively;

, and

(ii) the definitions of the following terms are repealed—

“appropriate court”

“community service order”

“probationer”

“probation order”

“probation period”, and

(b) subsection (3) is repealed.

29

Schedules 6 and 7 are repealed.

PART 2 — OTHER ENACTMENTS

The Firearms Act 1968 (c.27)

30

(1) The Firearms Act 1968 is amended as follows.

(2) In section 21(3ZA) (possession of firearms by persons previously convicted of crime), for paragraph (b) substitute—

(b) a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46).

(3) In section 52(1A) (forfeiture and disposal of firearms: cancellation of certificate by convicting court), for paragraph (b) substitute—

(b) a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46).

31

(1) The Social Work (Scotland) Act 1968 is amended as follows.

(2) In section 27 (supervision and care of persons put on probation or released from prisons etc.), in subsection (1)(b)—

(a) in paragraph (iii), for the words from “community service order” to the end substitute “ community payback order imposed under section 227A or 227M of the Criminal Procedure (Scotland) Act 1995 imposing an unpaid work or other activity requirement ”, and

(b) sub-paragraphs (iv) and (va) are repealed.

(3) In section 86(3) (adjustments between authority providing accommodation etc. and authority of area of residence), after “supervision order” insert “ , community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995, ”.

The Rehabilitation of Offenders Act 1974 (c.53)

32

(1) The Rehabilitation of Offenders Act 1974 is amended as follows.

(2) In section 5(4A)(rehabilitation periods for particular sentences), the words “a probation order or” are repealed.

(3) In section 6(3)(the rehabilitation period applicable to a conviction), the following are repealed—

(a) the words “or a probation order was made”,

(b) the words “or a breach of the order”, and

The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55)

33

In Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, in Part 2 (ineligibility for and disqualification and excusal from jury service), in paragraph (bb)—

(a) for sub-paragraph (i) substitute—

(i) a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46);

, and

(b) sub-paragraph (iii) is repealed.

The Local Government and Planning (Scotland) Act 1982 (c.43)

34

In section 24 of the Local Government and Planning (Scotland) Act 1982 (councils' functions in relation to the provision of gardening assistance for the disabled and the elderly), in subsection (3), for the words from “instruction” to “that Act” substitute “ determination that may be made or instruction that may be given, for the purposes of an unpaid work or other activity requirement imposed in a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46), by the responsible officer in relation to the order, ”.

The 1982 Act

35

(1) The 1982 Act is amended as follows.

(2) In section 49(6) (dangerous and annoying creatures), the words “or makes a probation order in relation to him” are repealed.

(3) In section 58(3) (convicted thief in possession)—

(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 “ discharged absolutely. ”.

The Foster Children (Scotland) Act 1984 (c.56)

36

In section 2 of the Foster Children (Scotland) Act 1984 (exceptions to section 1), in subsection (3), for “probation order” substitute “ community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46) ”.

The Road Traffic Offenders Act 1988 (c.53)

37

In section 46(3)(b) of the Road Traffic Offenders Act 1988 (combination of disqualification and endorsement with probation orders and orders for discharge), the words “section 228 (probation) or” are repealed.

The Jobseekers Act 1995 (c.18)

38

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c.40)

39

In Schedule 3 to the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (transitional provisions, transitory modifications and savings), in Part 2, paragraph 13 is repealed.

The Proceeds of Crime (Scotland) Act 1995 (c.43)

40

(1) The Proceeds of Crime (Scotland) Act 1995 is amended as follows.

(2) In section 25(9) (recall or variation of suspended forfeiture order), the words “probation order or” are repealed.

(3) In section 26(9) (property wrongly forfeited: return or compensation), the words “probation order or” are repealed.

The Crime and Punishment (Scotland) Act 1997 (c.48)

41

In the Crime and Punishment (Scotland) Act 1997, the following provisions are repealed—

(a) section 26 (evidence concerning certain orders), and

(b) in Schedule 1 (minor and consequential amendments), in paragraph 21, sub-paragraphs (27) to (29).

The Crime and Disorder Act 1998 (c.37)

42

In the Crime and Disorder Act 1998, in Schedule 6 (drug treatment and testing orders: amendment of the 1995 Act), in Part 1, paragraphs 1 and 2 are repealed.

The Powers of Criminal Courts (Sentencing) Act 2000 (c.6)

43

In Schedule 9 to the Powers of Criminal Courts (Sentencing) Act 2000 (consequential amendments), paragraphs 176 to 178 are repealed.

The Criminal Justice and Court Services Act 2000 (c.43)

44

(1) Schedule 7 to the Criminal Justice and Court Services Act 2000 (minor and consequential amendments) is amended as follows.

(2) In paragraph 4(2), in the entry relating to the Criminal Procedure (Scotland) Act 1995, for “sections 209(3)(a) and 234(1)(a)” substitute “ section 209(3)(a) ”.

(3) Paragraphs 122 to 125 are repealed.

45

(1) The Social Security Fraud Act 2001 is amended as follows.

(2) In section 6C(5)(b)(i) (provisions supplementary to section 6B), the words “or a court in Scotland makes a probation order” are repealed.

(3) In section 7(9)(b) (loss of benefit for commission of benefit offences), the words “or a court in Scotland makes a probation order” are repealed.

The Justice (Northern Ireland) Act 2002 (c.26)

46

In Schedule 4 to the Justice (Northern Ireland) Act 2002 (functions of justices of the peace), paragraph 37 is repealed.

The Criminal Justice (Scotland) Act 2003 (asp 7)

47

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

(2) In section 42 (drugs courts)—

(a) in subsection (4)—

(i) for “probationer with the requirements of a probation order” substitute “ community payback order ”,

(ii) in paragraph (b), for the words from “make” to “work” substitute “ in the case of a failure to comply with the requirements of a drug treatment and testing order, make a community payback order imposing a level 1 unpaid work or other activity requirement, so however that the total hours of unpaid work or other activity ”, and

(iii) for “probation order” where those words second occur substitute “ community payback order ”,

(b) in subsection (6), for paragraph (b) substitute—

(b) alleged at— (i) a progress review carried out by such a court in relation to a community payback order; or (ii) a diet of such a court to which an offender has been cited under section 227ZC(2) of that Act (breach of community payback order), that the offender has failed to comply with a requirement imposed by a community payback order,

(i) the words “or probationer” are repealed, and

(ii) for “232” substitute “ 227ZC ”,

(d) for subsection (9) substitute—

(9) If a community payback order is revoked under section 227ZC(7)(b) of the 1995 Act, the court (whether or not a drugs court) must, in dealing with the offender by virtue of that section, take into account any sentence which has been imposed under paragraph (a) of subsection (4) of this section in relation to a failure to comply with the community payback order.

(e) in subsection (10)—

(i) insert at the appropriate places—

“community payback order” means an order imposed under section 227A of the 1995 Act;

“level 1 unpaid work or other activity requirement” has the meaning given in section 227I(5) of the 1995 Act;

, and

(ii) the definition of “probation order” is repealed, and

(f) in subsection (11), paragraphs (a) and (b) are repealed.

(3) Section 46 (requirement for remote monitoring in probation order) is repealed.

(4) In section 50 (amendments in relation to certain non-custodial sentences), subsections (1), (2) and (4) are repealed.

(5) In section 60 (unified citation provisions)—

(a) in subsection (1), paragraphs (a), (b), (e) and (f) are repealed, and

(b) subsections (3) and (4) are repealed.

The Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)

48

In the Mental Health (Care and Treatment) (Scotland) Act 2003, the following provisions are repealed—

(a) section 135 (amendment of 1995 Act: probation for treatment of mental disorder), and

(b) in schedule 4 (minor and consequential amendments), in paragraph 8, sub-paragraph (15).

The Criminal Justice Act 2003 (c.44)

49

In Schedule 32 to the Criminal Justice Act 2003 (amendments relating to sentencing), paragraphs69 to 72 are repealed.

The Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8)

50

In the Antisocial Behaviour etc. (Scotland) Act 2004, the following provisions are repealed—

(a) section 120 (community reparation orders), and

(b) in schedule 4 (minor and consequential amendments), in paragraph 5, sub-paragraphs (3), (5), (6) and (11).

The Management of Offenders etc. (Scotland) Act 2005 (asp 14)

51

(1) The Management of Offenders etc. (Scotland) Act 2005 is amended as follows.

(2) In section 10 (arrangements for assessing and managing risks posed by certain offenders), in subsection (1)(b), for sub-paragraph (i) substitute—

(i) is subject to a community payback order imposed under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46) imposing an offender supervision requirement (within the meaning given by section 227G(1) of that Act) whether alone or along with any other requirement, or

(3) Section 12(probation progress review) is repealed.

The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6)

52

In the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, the following provisions are repealed—

(a) in section 49 (compensation orders), subsection (4),

(b) section 57(probation and community service orders), and

The Criminal Justice and Immigration Act 2008 (c.4)

53

In Part 1 of Schedule 4 to the Criminal Justice and Immigration Act 2008 (youth rehabilitation orders: consequential amendments), paragraphs 43 to 46 are repealed.

SCHEDULE 3

Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17)

1

The Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17) is amended in accordance with paragraphs 2 to 14.

2

In section 34 (period during which licence in force), for subsection (1) substitute—

(1) Where a short-term custody and community prisoner is released on short-term community licence by virtue of section 5, 27(1) or, as the case may be, 42(4)(a), the licence remains in force until the expiry of the prisoner's sentence.

3

In the following places after “section” insert “ 5, ”

(a) section 35 (prisoner to comply with licence conditions),

(b) subsection (1)(a) of section 36 (suspension of licence conditions while detained), and

4

In section 40 (compassionate release: effect of revocation in certain circumstances), in subsection (3), for paragraph (a) substitute—

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

5

(1) Section 42 (consideration by Parole Board) is amended as follows.

(2) In subsection (1), after “41(2)(b)” insert “ , 42A(9) ”.

(3) In subsection (5), after “on” insert “ short-term community licence, ”.

6

After section 42 insert—

(42A) (1) This section applies where the Parole Board determines, under subsection (2) of section 42, that subsection (3) of that section applies to a short-term custody and community prisoner. (2) The Parole Board must give the prisoner reasons in writing for its determination. (3) If on the day of the determination less than 4 months of the prisoner's sentence remain to be served, the prisoner must be confined until the expiry of the prisoner's sentence. (4) If on the day of the determination at least 4 months but no more than 2 years of the prisoner's sentence remain to be served, the Parole Board may, subject to section 26, fix a date falling within the period mentioned in subsection (5) on which it will next consider the prisoner's case. (5) That period is the period— (a) beginning with the day falling 4 months after the day of the determination, and (b) ending on the expiry of the prisoner's sentence. (6) If no date is fixed under subsection (4) the prisoner must be confined until the expiry of the prisoner's sentence. (7) If on the day of the determination at least 2 years of the prisoner's sentence remain to be served, the Parole Board must, subject to section 26, fix a date falling within the period mentioned in subsection (8) on which it will next consider the prisoner's case. (8) That period is the period— (a) beginning with the day falling 4 months after the day of the determination, and (b) ending immediately before the second anniversary of the day of the determination. (9) Where a date is fixed under subsection (4) or (7), the Scottish Ministers must refer the case to the Parole Board before that date.

7

(1) Section 45 (prisoner's right to request early reconsideration by Parole Board) is amended as follows.

(2) In subsection (1), after “under—” insert—

(za) section 42A(4), (zb) section 42A(7),

(3) In subsection (2), after “section” insert “ 42A(4), 42A(7), ”.

(4) In subsection (3), after “section” insert “ 42A(4) or ”.

(5) In subsection (4), after “section” insert “ 42A(4) or, as the case may be, ”.

8

In section 46 (multiple licences to be replaced by single licence), in subsection (1)(a), after “section” insert “ 5, ”.

9

(1) Section 51 (prisoners serving extended sentences) is amended as follows.

(2) In subsection (1), for “(2)” substitute “ (1A) ”.

(3) After that subsection insert—

(1A) In section 5, the reference to the prisoner's short-term custody and community sentence is to be read as a reference to the confinement term of the prisoner's extended sentence.

10

(1) Section 55 (application to young offenders and children) is amended as follows.

(2) In subsection (1), for “custody-only” substitute “ short-term custody and community ”.

(3) In subsection (2)(a), for “15 days” substitute “ the prescribed period ”.

(4) In subsection (4)(a), for “15 days or more” substitute “ at least the prescribed period ”.

11

In section 56 (fine defaulters and persons in contempt of court), in subsection (1), for “custody-only” substitute “ short-term custody and community ”.

12

In section 65 (rules, regulations and orders), in subsection (4)(a), for “4(2), 7, 47(1)(b)” substitute “ 4(1), 7, 47(1)(b), 55(2) or (4) ”.

13

(1) Schedule 2 (prisoners serving more than one sentence) is amended as follows.

(2) Before paragraph 1, in the italic heading, for “custody-only” substitute “ short-term custody and community ”.

(3) In paragraph 1—

(a) in sub-paragraph (1)(a), for “custody-only” substitute “ short-term custody and community ”,

(b) in sub-paragraph (3)—

(i) for “and 34(1)” substitute “ , 34(1) and 42A ”, and

(ii) for “custody-only” in both places where it occurs substitute “ short-term custody and community ”, and

(4) In section 47(3A)— (a) references to the expiry of one-half of the prisoner's sentence are to be read as references to the expiry of one-half of the short-term custody and community sentence that expires after the expiry of one-half of the other short-term custody and community sentence (or sentences), (b) in paragraph (a)(i), the reference to the expiry of the prisoner's sentence is to be read as a reference to the longer (or longest) of the sentences imposed on the prisoner.

(4) Before paragraph 3, in the italic heading, for “custody-only” substitute “ short-term custody and community ”.

(5) In paragraph 3—

(a) in sub-paragraph (1)(a), for “custody-only” substitute “ short-term custody and community ”,

(b) in sub-paragraph (3), for “and 34(1)” substitute “ , 34(1), 42A and subsections (3A) and (8)(a) of section 47 ”,

(i) for “the custody-only” substitute “ one-half of the short-term custody and community ”, and

(ii) in paragraph (a), for “any other custody-only” substitute “ one-half of any other short-term custody and community ”, and

(d) in sub-paragraph (5)(b)(ii) and (6)(b), for “the custody-only” substitute “ at least one-half of the short-term custody and community ”.

(6) In paragraph 5—

(a) in sub-paragraph (1), in both paragraphs (a) and (b), for “custody-only” substitute “ short-term custody and community ”,

(b) in sub-paragraph (3)—

(i) after “19” insert “ , 29A, 29B ”, and

(ii) after “(2)” insert “ , 42A ”, and

(i) for “the custody-only” substitute “ one-half of the short-term custody and community ”, and

(ii) in paragraph (a), for “any other custody-only” substitute “ one-half of any other short-term custody and community ”.

(7) In paragraph 6, in sub-paragraph (1)(b), after “section” insert “ 5, ”.

(8) In paragraph 7, after sub-paragraph (1) insert—

(1A) Where a short-term custody and community sentence imposed on a prisoner is an extended sentence, the modifications in paragraphs 1(3) and (4) and 3(4), (5)(b)(ii), (6) and (8A) are to be read subject to sub-paragraph (2).

14

(1) Schedule 3 (sentences framed to run consecutively) is amended as follows.

(2) In paragraph 1(4)(a), for “custody-only sentence, that sentence” substitute “ short-term custody and community sentence, one-half of that sentence ”.

(3) Before paragraph 3 insert—

(2A) (1) This paragraph applies where— (a) the court imposes a short-term custody and community sentence as a further sentence, (b) the court frames the sentence to take effect in accordance with paragraph 1(2) or (3), and (c) the prisoner's previous sentence (or one of the prisoner's previous sentences) is a short-term custody and community sentence. (2) In determining the date on which the previous sentence expires, no account is to be taken of the period of confinement served under the further sentence. (3) In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.

(4) In paragraph 3—

(a) in sub-paragraph (1)(a), for “custody-only” substitute “ short-term custody and community ”, and

(b) after sub-paragraph (2) insert—

(3) In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.

(5) After paragraph 3 insert—

(3A) (1) This paragraph applies where— (a) the court imposes a custody and community sentence as a further sentence, (b) the court frames the sentence to take effect in accordance with paragraph 1(2) or (3), and (c) the prisoner's previous sentence (or one of the prisoner's previous sentences) is a short-term custody and community sentence. (2) In determining the date on which the previous sentence expires, no account is to be taken of the period of confinement served under the further sentence. (3) In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.

(6) In paragraph 5—

(a) sub-paragraph (1) is repealed,

(b) in sub-paragraphs (2) and (3), for “paragraph 4” substitute “ the relevant paragraph ”,

(i) in paragraph (a), for “4(2) and (3)” substitute “ sub-paragraphs (2) and (3) of the relevant paragraph ”, and

(ii) in paragraph (c), for “paragraph 4(3)” substitute “ sub-paragraph (3) of the relevant paragraph ”,

(d) after sub-paragraph (4) insert—

(4A) Where a short-term custody and community sentence or custody and community sentence imposed on a prisoner is an extended sentence, references in this schedule to— (a) the prisoner's “previous sentence” are to be read as references to the “previous confinement term” of the prisoner's sentence, (b) the prisoner's “further sentence” are to be read as references to the “further confinement term” of the prisoner's sentence.

, and

(e) after sub-paragraph (5) insert—

(6) In this paragraph “the relevant paragraph” means paragraph 2A, 3, 3A or 4 (whichever applies in the circumstances described).

The 1995 Act

15

The 1995 Act is amended in accordance with paragraphs 16 and 17.

16

(1) Section 167 (forms of finding and sentence in summary proceedings) is amended as follows.

(2) In subsection (7D), for “any previous custody-only” substitute “ one-half of any previous short-term custody and community ”.

(3) In subsection (7E), for “custody-only” substitute “ short-term custody and community ”.

17

(1) Section 210A (extended sentences for sex and violent offenders) is amended as follows.

(2) In subsections (1)(b) and (2)(b), after “a” insert “ short-term community or ”.

(3) In subsection (10), after the definition of “sexual offence” insert—

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