Prisoners and Criminal Proceedings (Scotland) Act 1993

Part I — Detention, Transfer and Release of Offenders

Early release

Supervision of persons released on licence.

1

• (1) Where section 1AA (release of certain sexual offenders) does not apply to the prisoner, the Scottish Ministers must release a short-term prisoner—

• (a) where subsection (1ZA) applies, as soon as the prisoner has served one-half of the prisoner’s sentence,

• (b) in any other case, as soon as the prisoner has served two-fifths of the prisoner’s sentence,

and, subject to section 26A(4) (extended sentences: release on licence) and to any supervised release order which applies to the prisoner, such release is to be unconditional.

• (1ZA) This subsection applies where the prisoner is serving a sentence of imprisonment which is for, or (in the case of a sentence treated as a single term under section 27(5)) which includes a sentence passed in respect of—

• (a) an offence listed in paragraphs 36 to 60 of schedule 3 of the Sexual Offences Act 2003, or

• (b) a domestic abuse offence.

• (1A) Subsections (2) and (2A) apply as follows—

• (a) subsection (2) applies in relation to a long-term prisoner who is serving a sentence imposed before 1st February 2016,

• (b) subsection (2A) applies in relation to a long-term prisoner who is—

• (i) serving a sentence imposed on or after 1st February 2016, and

• (ii) not subject to an extended sentence within the meaning of section 210A of the 1995 Act.

• (1B) For the purpose of subsection (1A), a sentence specified on appeal in substitution for a sentence imposed earlier is to be regarded as imposed when the earlier sentence was imposed.

• (2) As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him on licence unless he has before that time been so released, in relation to that sentence, under any provisionof this Act.

• (2A) As soon as a long-term prisoner has only 6 months of the prisoner's sentence left to serve, the Scottish Ministers must release the prisoner on licence unless the prisoner has previously been so released in relation to that sentence under any provision of this Act.

• (3) After a long-term prisoner has served one-half of the prisoner's sentence, the Scottish Ministers must release the prisoner on licence if recommended to do so by the Parole Board.

• (3A) Subsections (1) to (3) above are subject to sections 1A and 1B of this Act.

• (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).

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) Schedule 1 to this Act, which makes special provision as respects the release of persons serving both a sentence of imprisonment imposed on conviction of an offence and a term of imprisonment or detention referred to in section 5(1)(a) or (b) of this Act, shall have effect.

• (9) This section does not apply in relation to a person to whom section 1AB applies to the extent that the person is serving a sentence of imprisonment imposed

• (a) in respect of an offence within section 1AB(2) , or

• (b) under section 205ZC of the 1995 Act in respect of an offence listed in Part 2 of Schedule 5ZB to that Act (offences involving or connected with a threat to national security).

• (10) In this section, “domestic abuse offence” means—

• (a) an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, or

• (b) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018.

Duty to release discretionary life prisoners

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• (1) In this Part of this Act “ . . . life prisoner”, . . . except where the context otherwise requires, means a person—

• (a) sentenced to life imprisonment for an offence for which, subject to paragraph (b) below, such a sentence is not the sentence fixed by law; or

• (aa) sentenced to life imprisonment for murder or for any other offence for which that sentence is the sentence fixed by law; or

• (ab) who is subject to an order for lifelong restriction in respect of an offence,

• (b) whose sentence was imposed under section 205A(2) of the 1995 Act (imprisonment for life on further conviction for certain offences); . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and in respect of whom the court whichsentenced him for that offence made the order mentioned in subsection (2) below.

• (2) The order referred to in subsection (1) above is an order that subsections (4) and (6) below shall apply to the . . . life prisoner as soon as he has served such part of his sentence (the punishment part) as is specified in the order, being , subject to section 205ZB(2) of the 1995 Act, such part as the court considers appropriate to satisfy the requirements for retribution and deterrence ..., taking into account—

• (a) the seriousness of the offence, or of the offence combined with other offences of which the life prisoner is convicted on the same indictment as that offence; . . .

• (aa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) any previous conviction of the . . . life prisoner ; ...

• (c) where appropriate (and except in the case of a prisoner to whom section 205ZB of the 1995 Act applies), the matters mentioned in paragraphs (a) and (b) of section 196(1) of the 1995 Act ; and

• (d) in the case of a life prisoner to whom paragraph (a) or (ab) of subsection (1) above applies, the matters mentioned in section 2A(1).

• (2A) The matters mentioned in subsection (2)(a) to (c) above (taken together) are for the case of a life prisoner to whom paragraph (aa) of subsection (1) above applies; and, as respects the punishment part in the case of such a prisoner, the court is to ignore any period of confinement which may be necessary for the protection of the public.

• (3) A court which imposes life imprisonment for an offence such as is mentioned in subsection (1) above or makes an order for lifelong restriction shall make such order as is mentioned in subsection (2) above and such order shall constitute part of a person’s sentence within the meaning of the 1995 Act for the purposes of any appeal or review.

• (3A) An order such as is mentioned in subsection (2) above—

• (a) shall specify the period that the court considers appropriate under that subsection in years and months; and

• (b) may specify any such period of years and months notwithstanding the likelihood that such a period will exceed the remainder of the prisoner’s natural life.

• (4) Where this subsection applies, the Secretary of State shall, if directed to do so by the Parole Board, release a . . . life prisoner on licence.

• (5) The Parole Board shall not give a direction under subsection (4) above unless—

• (a) the Secretary of State has referred the prisoner’s case to the Board; and

• (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

• (5A) Where, on the disposal of any reference of a life prisoner’s case under section 28(4) of the 1989 Act, under subsection (5)(a) above, subsection (5C) or (6) below or section 17(3) of this Act or under paragraph 34, 38 or 42 of the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), the Parole Board declines to direct that the prisoner be released on licence, it shall—

• (a) give the prisoner reasons in writing for the decision not to direct his release on licence; and

• (b) fix the date when it will next consider the prisoner’s case under this section, being , subject to subsections (5AB) to (5AD) below, a date not later than two years after the date of its decision to decline to direct the release of the prisoner.

• (5AB) Where a reference has been made to the Parole Board under any of the provisions mentioned in subsection (5A) above and the prisoner receives another sentence of imprisonment (whether for life or for a term) before a date has been fixed for considering his case, the Board shall, if he would not be eligible for release from the other sentence on the date which would (apart from this subsection) have been fixed for considering his case, fix a date (other than that date) for considering his case.

• (5AC) Where, at any time after such a reference has been made—

• (a) a date has been fixed for considering the prisoner’s case; or

• (b) following the disposal of the reference, a date has been fixed under subsection (5A)(b) above,

and, before that date, the prisoner receives any other sentence of imprisonment (whether for life or for a term), the Board shall, if he would not be eligible for release from any such other sentence on that date, fix a different date for considering his case (and where he receives any further sentence of imprisonment from which he would not be eligible for release on that different date, the Board shall fix a further different date).

• (5AD) Any date fixed under subsection (5AB) or (5AC) above shall—

• (a) be—

• (i) the date on which the prisoner would be eligible to be released, or considered for release, from all such other sentences (subject to any change to the date on which he would be so eligible); or

• (ii) a date as soon as practicable after that date; and

• (b) replace any date previously fixed for considering the prisoner’s case.

• (5B) The Scottish Ministers shall refer the case of a life prisoner to the Parole Board so as to enable it to consider the case on the date fixed by the Board under subsection (5A)(b) , (5AB) or (5AC) above.

• (5C) The Parole Board, at the request of a life prisoner in respect of whom it has, under subsection (5A)(b) , (5AB) or (5AC) above, fixed the date of the next consideration of his case, may direct the Scottish Ministers to refer that case to the Board before that date.

• (6) Where this subsection applies, a . . . life prisoner may, subject to subsections (6B) , (6C) and (7) below, . . . require the Secretary of State to refer his case to the Parole Board.

• (6A) The Scottish Ministers shall not refer the case of a life prisoner to the Parole Board under subsection (6) above if—

• (a) they have previously so referred his case to the Board under that subsection;

• (b) they have referred his case to the Board without the prisoner requiring them to do so under that subsection; or

• (c) the Parole Board has, on a reference to it under section 28(4) of the 1989 Act, under section 17(3) of this Act or under paragraph 34, 38 or 42 of the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), declined to direct that the prisoner be released on licence.

• (6B) No requirement may be made under subsection (6) by a life prisoner who is also serving or liable to serve a sentence of imprisonment in respect of an offence within section 1AB(2)—

• (a) in the case of a prisoner to whom section 1AB(3) applies, before the day on which the Scottish Ministers are required to refer the prisoner's case to the Parole Board under section 1AB(3), or

• (b) in the case of a prisoner to whom section 1AB(3) does not apply by virtue of section 1AB(2A), before the day on which the Scottish Ministers are required to release the prisoner under section 26ZA(5).

• (6C) No requirement may be made under subsection (6) by a life prisoner who is also serving or liable to serve a sentence of imprisonment imposed under section 205ZC of the 1995 Act in respect of an offence listed in Part 2 of Schedule 5ZB to that Act (offences involving or connected with a threat to national security) before the day on which the Scottish Ministers are required to refer the prisoner’s case to the Parole Board under section 1AB(3).

• (7) No requirement shall be made under subsection (6) above by a life prisoner (other than a prisoner to whom subsection (6B) or (6C) applies) who is also serving or liable to serve a sentence of imprisonment for a term, before he has served the appropriate part of the term.

• (7A) The appropriate part of the term is—

• (a) one half, where the term is—

• (i) less than 4 years; or

• (ii) 4 years or more and is imposed by a sentence of imprisonment on conviction of an offence; or

• (b) two thirds, where the term is 4 years or more and is a term of imprisonment or detention mentioned in section 5(1)(a) or (b) of this Act.

• (7B) Section 5(1) of this Act, in so far as relating to the construction of references to sentences of imprisonment, does not apply to subsection (7A)(b) above.

• (8) In determining for the purposes of subsection (4) or (6) above whether a . . . life prisoner has served the punishment part of his sentence, no account shall be taken of any time during which he was unlawfully at large.

• (9) Where a life prisoner is serving or is liable to serve two or more sentences of imprisonment for life—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) notwithstanding the terms of any order under subsection (2) above, subsections (4) and (6) above shall not apply to him until he has served the punishment part of each of those sentences; and

• (c) he shall, if released on licence under subsection (4) above, be so released on a single licence.

• (10) In subsection (9) above, the reference to “sentences of imprisonment for life” is to be construed as including a reference to any sentence constituted by an order for lifelong restriction.

Power to release prisoners on compassionate grounds

3

• (1) The Secretary of State may at any time, if satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence.

• (2) Before so releasing any long-term prisoner or any life prisoner, the Secretary of State shall consult the Parole Board unless the circumstances are such as to render consultation impracticable.

• (3) The release of a person under subsection (1) above shall not constitute release for the purpose of a supervised release order.

Persons detained under Mental Health (Scotland) Act 1984

4

• (1) Notwithstanding that a transfer for treatment direction under section 136(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) is made in respect of a person serving a sentence of imprisonment, this Part of this Act shall apply to the person as if he continued to serve that sentence while detained in, and as if he had not been removed to, hospital.

• (1A) This Part of this Act shall apply to a person conveyed to and detained in a hospital pursuant to a hospital direction under section 59A of the 1995 Act as if, while so detained, he was serving the sentence of imprisonment imposed on him at the time at which that direction was made.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Fine defaulters and persons in contempt of court

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• (1) Subject to sections 1(8) and 2(7B) of this Act and to subsections (2) to (4) below, this Part of this Act (except sections 3AA, 1(3), 16 and 27(5)) applies to a person on whom imprisonment, or as the case may be detention in a young offenders institution, has been imposed—

• (a) under section 219 of the 1995 Act (imprisonment for non-payment of fine or, by virtue of that section, under section 207 of that Act (detention of young offenders); or

• (b) for contempt of court,

as it applies to a person sentenced to imprisonment, or on whom detention has been imposed, on conviction of an offence; and references in this Part of this Act to prisoners (whether short-term or long-term), or to prison, imprisonment, detention or sentences of imprisonment shall be construed accordingly.

• (2) Subject to section 1B, where section 1(1) or (2) of this Act applies to a person by virtue of subsection (1) above, that section shall be construed as requiring the Secretary of State to release the person unconditionally as soon as, in the case of—

• (a) a short-term prisoner, he has served two-fifths of his term of imprisonment; or

• (b) a long-term prisoner, he has served two-thirds of his term of imprisonment,

and if during the term in question the prisoner is released on licence under section 3 of this Act and, subsequently, the licence is revoked under section 17(1), (1A) or (1B) thereof, the period during which he is thereby lawfully at large shall be taken, for the purposes of paragraph (a) or (b) above, to be a period of imprisonment served.

• (2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Notwithstanding subsection (1) above, section 11 of this Act shall not apply to a person to whom this Part of this Act applies by virtue of that subsection but whose release on licence is under section 3 of this Act; and that licence shall (unless revoked) remain in force only until the date on which, by virtue of subsection (2) above, his release would have been required had he not been released earlier.

• (4) Where a person has had imposed on him two or more terms of imprisonment or detention mentioned in subsection (1)(a) or (b) above, sections 1A , 1B and 27(5) of this Act shall apply to those terms as if they were terms of imprisonment.

Application to young offenders and to children detained without limit of time

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• (1) This Part of this Act applies—

• (a) to—

• (i) persons on whom detention in a young offenders institution has been imposed under section 205ZA(6) of the 1995 Act,

• (ii) persons on whom detention in a young offenders institution has been imposed under section 205ZC(4) of that Act, and

• (iii) persons on whom detention in a young offenders institution (other than detention without limit of time or for life) has been imposed under section 207(2) of that Act,

as the Part applies to persons serving equivalent sentences of imprisonment;

• (b) to—