Management of Offenders (Scotland) Act 2019

• (1) The 1993 Act is amended as follows.

• (2) In subsection (3) of section 1, for the words from “his” to the end there is substituted “ the prisoner's sentence, the Scottish Ministers must release the prisoner on licence if recommended to do so by the Parole Board ”.

• (3) Subsection (1) of section 9 is repealed.

Temporary release on licence under prison rules

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• (1) The Prisons (Scotland) Act 1989 is amended as follows.

• (2) In subsection (6) of section 39, after the word “release” there is inserted “ on licence ”.

Co-operation between public authorities

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

• (2) In subsection (1) of section 1—

• (a) for the words “Scottish Ministers, and local authorities” there is substituted “ following public authorities ”,

• (b) after “persons” there is inserted

— (a) the Scottish Ministers, (b) local authorities, (c) the Scottish Courts and Tribunals Service, (d) the chief constable of the Police Service of Scotland

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• (3) In subsection (3) of section 1, after “(c.45)” there is inserted “ and Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9) ”.

Operating protocol for release on licence under section 3AA of the 1993 Act

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• (1) The 1993 Act is amended as follows.

• (2) After section 21 there is inserted—

(21A) (1) The Scottish Ministers must prepare a document that describes— (a) the process of risk assessment that is carried out before a prisoner is released on licence under section 3AA, (b) the factors taken into account in carrying out such risk assessments, (c) the procedures for monitoring a prisoner while released on licence under section 3AA, (d) the process for investigating a suspected failure to comply with a condition included in a licence under section 3AA, (e) the process by which a licence under section 3AA is revoked and a prisoner recalled to prison as a result. (2) The Scottish Ministers must— (a) keep the document under review, and (b) revise it to reflect any changes in the things it describes. (3) When preparing the first version of the document, or a revised version, the Scottish Ministers must consult— (a) the Scottish Courts and Tribunals Service, (b) the Parole Board, (c) the chief constable of the Police Service of Scotland, (d) local authorities, (e) the Risk Management Authority. (4) Having prepared the first version of the document, or a revised version, the Scottish Ministers must— (a) make it publicly available, and (b) lay a copy of it before the Scottish Parliament. (5) A copy of the first version of the document must be laid before the Scottish Parliament within 6 months of the Bill for the Management of Offenders (Scotland) Act 2019 receiving Royal Assent.

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Parole Board recommendations: publication of test

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• (1) The 1993 Act is amended as follows.

• (2) In section 1, after subsection (3A) there is inserted—

(3B) The Parole Board must publish, in such manner as it considers appropriate, the test it will apply in making a recommendation under subsection (3).

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Persons unlawfully at large

Offence of remaining unlawfully at large

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• (1) The Prisons (Scotland) Act 1989 is amended as follows.

• (2) After section 32 there is inserted—

(32A) (1) A person commits an offence if, having been deemed to be unlawfully at large by virtue of— (a) section 17(5) or 17A(6) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, (b) section 28(7) of this Act, or (c) section 40(4) of this Act, the person remains unlawfully at large. (2) A person who commits an offence under subsection (1) is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both). (32B) (1) Subsections (2) and (3) relate to proceedings for an offence under section 32A(1). (2) A qualifying document is sufficient evidence of the fact that a person has been deemed to be unlawfully at large by virtue of a particular section mentioned in section 32A(1). (3) A document is a qualifying document if it— (a) certifies with respect to the person, by reference to the particular section mentioned in section 32A(1)— (i) the matter of being deemed to be unlawfully at large, and (ii) the date from which the deeming took effect, and (b) bears to be signed and dated by or on behalf of the Scottish Ministers. (32C) (1) Section 32A(1) is to be construed as provided for in (as applicable)— (a) subsection (2), or (b) subsection (3) (as read with subsections (4) to (7)). (2) In a case of a person to whom section 32A(1)(c) relates, the person remains unlawfully at large if the person— (a) has been, orally or in writing— (i) informed of the period of temporary release that is the subject of the person's licence, and (ii) warned of the requirement to return to prison after the expiry of the period and of the offence and punishment available for failing to do so, and (b) without reasonable excuse, fails to take all necessary steps in order to return to prison as soon as possible after the period of temporary release expires. (3) In a case of a person to whom section 32A(1)(a), (b) or (c) relates, the person remains unlawfully at large if the person— (a) is given notification of the matter of being deemed to be unlawfully at large, and (b) without reasonable excuse, fails to take all necessary steps in order to return to prison as soon as possible after notification of the matter is given to the person. (4) Notification of the matter to a person is to, as far as practicable— (a) state the date from which the matter has arisen, (b) state that the person has been recalled to prison (and record the reason for recall), and (c) state— (i) that the person must take all necessary steps in order to return to prison at the relevant time (as described in accompanying words), and (ii) that prosecution for an offence punishable by imprisonment or a fine (or both) could result if the person fails to do so. (5) Notification of the matter is given to a person where the person— (a) is actually notified of the matter orally or in writing, or (b) is to be regarded as notified of the matter. (6) A person is to be regarded as notified of the matter if— (a) written notice of the matter— (i) is sent or delivered to an appropriate address, (ii) prescribes a specific period for the purposes of this subsection, and (iii) bears to be signed and dated by or on behalf of the Scottish Ministers, and (b) the specific period so prescribed in the notice expires. (7) An appropriate address is— (a) an address at which the person is, in accordance with the person's licence, permitted to reside or stay, or (b) an address nominated, in accordance with the person's licence, for the purposes of this section. (32D) (1) This section defines certain expressions used in section 32C. (2) A reference to a licence is to a licence under which a person is released from prison under the licence provisions. (3) A reference to prison is to such prison or other institution from which a person can be released on licence under the licence provisions. (4) Here, the licence provisions are— (a) section 22 of this Act, (b) rules for temporary release made under section 39 of this Act, or (c) Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

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Arrest where unlawfully at large

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• (1) The Prisons (Scotland) Act 1989 is amended as follows.

• (2) In section 40—

• (a) in subsection (1), after the word “required” there is inserted “ or liable ”,

• (b) in subsection (4), for the words “For the purposes of this section, a” there is substituted “ A ”,

and the title of section 40 becomes “ Arrest of and rules for absent prisoners ”.

• (3) In section 40A—

• (a) in subsection (1), after the word “application” there is inserted “ by a constable ”,

• (b) after subsection (1) there is inserted—

(1A) A warrant for a person's arrest under this section confers power on a constable— (a) to enter and search any premises or other places specified in the warrant, and (b) to use reasonable force in doing so.

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

• (5) In paragraph 4 of schedule 6, in the provision numbered as if inserted as section 9C(4) of the 1993 Act, the words “for the purposes of section 40 of the Prisons (Scotland) Act 1989 (c.45) (persons unlawfully at large)” are repealed.

PART 5 — FINAL PROVISIONS

Meaning of the 1993 Act

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In this Act, “the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 1993.

Ancillary provision

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• (1) The Scottish Ministers may by regulations make any incidental, supplementary, consequential, transitional, transitory or saving provision that they consider appropriate for the purposes of, in connection with or for giving full effect to this Act.

• (2) Regulations under subsection (1) may—

• (a) modify any enactment (including this Act),

• (b) make different provision for different purposes.

• (3) Regulations under subsection (1)—

• (a) are subject to the affirmative procedure if they add to, replace or omit any part of the text of an Act,

• (b) otherwise, are subject to the negative procedure.

Commencement

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• (1) The following provisions come into force on the day after Royal Assent—

• (a) section 62,

• (b) this section and section 64.

• (2) The other provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint.

• (3) Regulations under subsection (2) may—

• (a) include transitional, transitory or saving provision,

• (b) make different provision for different purposes.

Short title

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This short title of this Act is the Management of Offenders (Scotland) Act 2019.

SCHEDULE 1

PART 1 — Additional provisions

Certain restrictive measures

1

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

• (2) In section 209, after subsection (7A) there is inserted—

(7B) A supervised release order made in relation to a person is to be taken to be of no effect if the person becomes a long-term prisoner, as defined in section 27(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, because of the treating of— (a) a sentence in association with which the order is made, and (b) any other sentence (whenever imposed on the person), together as a single term by virtue of section 27(5) of that Act.

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2

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

• (2) In section 227A, after paragraph (i) of subsection (2) there is inserted—

(j) a restricted movement requirement.

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• (3) In section 227G—

• (a) in subsection (2), in paragraph (b)—

• (i) in sub-paragraph (iv), after the word “health” there is inserted “ treatment ”,

• (ii) the word “or” immediately preceding sub-paragraph (vii) is repealed,

• (iii) after sub-paragraph (vii) there is inserted

, or (viii) a restricted movement requirement.

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• (b) in subsection (4), for the words “subsection (5) and section 227ZE(4)” there is substituted “ subsections (4A) and (5) ”,

• (c) after subsection (4) there is inserted—

(4A) Where an offender supervision requirement is imposed because of the imposition of a restricted movement requirement— (a) the minimum period in subsection (3) does not apply, (b) the court must ensure that the specified period does not expire before the expiry of the period during which the restricted movement requirement has effect by virtue of section 227ZF(5)(b).

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• (4) In section 227ZE—

• (a) before subsection (1) there is inserted—

(A1) Despite the generality of sections 227Z(2) and 227ZC(7)(d) for variation of a community payback order— (a) a restricted movement requirement put or kept in the order must be accompanied in the order by an offender supervision requirement, and (b) the court must ensure that the offender supervision requirement does not cease to have effect before the restricted movement requirement ceases to have effect.

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• (b) subsections (1) to (4) are repealed,

• (c) in subsection (5)—

• (i) for the words “varies the order” there is substituted “ makes or varies a community payback order ”,

• (ii) for the words “the order making the variation” there is substituted “ the order imposing the requirement ”.

• (5) In section 227ZF, in subsection (7)—

• (a) in the opening text, for the words from “in the case of” to “requirement of” there is substituted “ as follows in relation to ”,

• (b) in paragraph (a), at the beginning there is inserted “in the case of any restricted movement requirement imposed by the order,”,

• (c) in paragraph (b), for the words “where the only requirement” there is substituted “ in the case of a restricted movement requirement imposed under section 227ZC(7)(d), where the only requirement (apart from the restricted movement requirement) ”.

3

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

• (2) In section 234AZA, in paragraph (a) of subsection (4), after the word “consider” there is inserted “ the question of ”.

Notification, reports and addresses

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

• (2) After section 245D there is inserted—

(245DA) (1) Subsection (2) applies where the court— (a) makes any of the listed orders in relation to an offender, and (b) knows that the offender is already subject to another of the listed orders. (2) The clerk of court must send a copy of whichever of the listed orders is then made to— (a) any person responsible for monitoring the offender's compliance with whichever of the other listed orders the offender is already subject to (so far as the person's identity can reasonably be ascertained), and (b) the local authority within whose area the offender resides. (3) The listed orders are— (a) a restriction of liberty order, (b) a community payback order, (c) a drug treatment and testing order. (4) In the listed orders, the reference to a community payback order does not include such an order if imposed under section 227M(2).

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5

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

• (2) In section 227ZG, in subsection (2)—

• (a) in the opening text, before the word “report” there is inserted “written”,

• (b) after paragraph (a) there is inserted—

(aa) the suitability of the place (particularly with a view to maximising the prospect of the offender's compliance with the requirement and minimising the risk of reoffending by the offender),

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• (3) In section 227ZH, in subsection (2)—

• (a) in the opening text, before the word “report” there is inserted “written”,

• (b) after paragraph (a) there is inserted—

(aa) the suitability of the new place (particularly with a view to maximising the prospect of the offender's compliance with the requirement and minimising the risk of reoffending by the offender),

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• (4) In section 245A, in paragraph (a) of subsection (6)—

• (a) in the opening text, before the word “report” there is inserted “written”,

• (b) after sub-paragraph (i) there is inserted—

(ia) the suitability of what is proposed (particularly with a view to maximising the prospect of the offender's compliance with the order and minimising the risk of reoffending by the offender);

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• (5) In section 245E—

• (a) in paragraph (a) of subsection (4A)—

• (i) in the opening text, before the word “report” there is inserted “written”,

• (ii) after sub-paragraph (i) there is inserted—

(ia) the suitability of what is proposed (particularly with a view to maximising the prospect of the offender's compliance with the order and minimising the risk of reoffending by the offender);

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• (b) in sub-paragraph (i) of paragraph (a) of subsection (6), for the words from “the place” to the end there is substituted “ the same matters as are to be included in a report under subsection (4A)(a); ”.

PART 2 — Consequential provisions

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• (1) The Prisoners and Criminal Proceedings (Scotland) Act 1993 is amended as follows.

• (2) In section 12AB, subsections (3) to (7) are repealed.

7

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

• (2) These sections are repealed—

• (a) section 227ZI,

• (b) section 227ZK,

• (c) section 245B,

• (d) section 245C,

• (e) section 245H.

• (3) In addition—

• (a) in the title of section 227ZE, the word “: rules” is added at the end,

• (b) in section 234CA, in subsection (5)—

• (i) for the word “Sections” there is substituted “ Section ”,

• (ii) the words “, 245B and 245C” are repealed”,

• (c) in the title of section 234CA, the word “remote” is repealed,

• (d) in section 245A, in paragraph (a) of subsection (4), the words from “, including” to the end are repealed.

8

• (1) The Crime and Punishment (Scotland) Act 1997 is amended as follows.

• (2) In section 63, paragraph (a)(i) of subsection (1) is repealed.

9

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

• (2) Section 40 is repealed.

10

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

• (2) Section 49 is repealed.

SCHEDULE 2

1

• (1) The 1974 Act is amended as follows.

• (2) In section 1—

• (a) in subsection (2), for the word “rehabilitated” in both places where it occurs there is substituted “ protected ”,

• (b) in subsection (3), after paragraph (za) there is inserted—

(zb) a hospital direction under section 59A of the Criminal Procedure (Scotland) Act 1995; (zc) a victim surcharge imposed under section 253F of the Criminal Procedure (Scotland) Act 1995;

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• (c) in subsection (4), for the word “rehabilitated” there is substituted “ protected ”,

• (d) after subsection (4) there is inserted—

(4A) In this Act, an “excluded sentence” is a sentence listed in section 5(1).

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• (3) In the title of section 1, for the word “Rehabilitated” there is substituted “ Protected ”.

• (4) In the title of section 2, the words “Rehabilitation of” are repealed.

• (5) In the title of section 3, the words “under the Social Work (Scotland) Act 1968” are repealed.

• (6) In section 4, in subsection (1), for the word “rehabilitated” there is substituted “ protected ”.

• (7) In the title of section 4, for the word “rehabilitation” there is substituted “ becoming a protected person ”.

• (8) In section 5—

• (a) in subsection (1)—

• (i) for the words “excluded from rehabilitation under” there is substituted “ which are excluded sentences for the purposes of ”,

• (ii) for the words “sentence subject to rehabilitation under this Act” there is substituted “ disclosable sentence ”,

• (b) after subsection (1A) there is inserted—

(1B) In subsection (1), “disclosable sentence” means a sentence imposed in relation to a conviction in respect of which a person may, under this Act, become a protected person.

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• (9) In the title of section 5, for the word “Rehabilitation” there is substituted “ Disclosure ”.

• (10) In section 6—

• (a) in subsection (1)—

• (i) the words from “(not” to “Act)” are repealed,

• (ii) for the word “rehabilitation” in the second place where it occurs there is substituted “ disclosure ”,

• (b) in subsection (2)—

• (i) the words from “and” to “Act,” are repealed,

• (ii) for “rehabilitation” in the second place where it occurs there is substituted “ disclosure ”,

• (c) after subsection (2) there is inserted—

(2A) In subsections (1) and (2), the references to sentences do not include excluded sentences.

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• (d) in subsection (3A)—

• (i) for the word “rehabilitation” in each place where it occurs there is substituted “ disclosure ”,

• (ii) for the word “rehabilitated” there is substituted “ protected ”.

• (11) In the title of section 6, for the word “rehabilitation” there is substituted “ disclosure ”.

• (12) In section 7, in subsection (1)(d)—

• (a) for the words “or other penalty” there is substituted “ requirement, restriction or other way of regulating the person's behaviour ”,

• (b) for the word “rehabilitation” there is substituted “ disclosure ”.

• (13) In the title of section 7, for the words “rehabilitation under this Act, etc.” there is substituted “ protection under section 4(1) ”.

• (14) In section 8, in subsection (1), for the word “rehabilitated” there is substituted “ protected ”.

• (15) In section 9—

• (a) in subsection (1), for the words “rehabilitated living person” there is substituted “ living protected person ”,

• (b) in subsection (3)—

• (i) in paragraph (a), for the word “rehabilitated” in both places where it occurs there is substituted “ protected ”,

• (ii) in paragraph (b), for the word “rehabilitated” in both places where it occurs there is substituted “ protected ”.

• (16) In schedule 1, in paragraph 1, for the words “period of rehabilitation” there is substituted “ disclosure period ”.

• (17) In schedule 2—

• (a) in paragraph 1(3)(a) and (b), for the word “rehabilitation” in each place where it occurs there is substituted “ disclosure ”,

• (b) in paragraph 5(b), for the word “rehabilitation” there is substituted “ disclosure ”.

• (18) In schedule 3, in paragraph 1—

• (a) in sub-paragraph (5), for the word “rehabilitation” in both places where it occurs there is substituted “ disclosure ”,

• (b) in sub-paragraph (6), for the word “rehabilitation” in both places where it occurs there is substituted “ disclosure ”.

Particular rules regarding disposals

Excluded sentences: convictions prevented from becoming spent

Disclosure periods for particular sentences

Table B – disclosure periods: service sentences

Disclosure period: service discipline

How particular powers are exercisable

Administrative arrangements

References to the chairperson

Repeal of statutory provisions

Release on licence under section 3AA of the 1993 Act

Release timed to benefit re-integration

Frequency of review of particular decisions

Long-term prisoners due for removal from the UK

Temporary release on licence under prison rules

Co-operation between public authorities

Parole Board recommendations: publication of test

Ancillary provision

Certain restrictive measures

Notification, reports and addresses

Editorial notes