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(2) It is immaterial—
(a) for the purposes of paragraph (a) of subsection (1), where the offence by virtue of which the person is subject to the notification requirements was committed (or, if the person is subject to the notification requirements by virtue of a finding under section 80(1)(b) of the Sexual Offences Act 2003 (c. 42), where anything that he was charged with having done took place);
(b) for the purposes of paragraph (b) or (e) of that subsection, where the offence of which the person has been convicted was committed; or
(c) for the purposes of paragraph (c) or (d) of that subsection, where anything that the person was charged with having done took place.
(3) Subject to subsection (11), in the establishment and implementation of those arrangements, the responsible authorities must act in co-operation with such persons as the Scottish Ministers may, by order made by statutory instrument, specify.
(4) Subject to subsection (11), it is the duty of—
(a) any persons specified under subsection (3) to co-operate; and
(b) the responsible authorities to co-operate with each other,
in the establishment and implementation of those arrangements; but only to the extent that such co-operation is compatible with the exercise by those persons and authorities of their functions under any other enactment.
(5) In the area of each local authority the responsible authorities and the persons specified under subsection (3) must together draw up a memorandum setting out the ways in which they are to co-operate with each other.
(6) The Scottish Ministers may issue guidance to responsible authorities on the discharge of the functions conferred on those authorities by this section and section 11.
(7) In this section and in section 11, the “responsible authorities” for the area of a local authority are—
(a) the chief constable of a police force maintained for a police area (or combined police area) any part of which is comprised within the area of the local authority;
(b) the local authority;
(c) a Health Board or Special Health Board for an area any part of which is comprised within the area of the local authority; and
(d) the Scottish Ministers.
(8) The Scottish Ministers may by order made by statutory instrument amend the definition of the “responsible authorities” in subsection (7).
(9) A statutory instrument containing an order under—
(a) subsection (3) is subject to annulment in pursuance of a resolution of the Parliament;
(b) subsection (8) is not made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.
(10) Different provision may be made under subsection (3) for different purposes and for different areas.
(11) The functions and duties, under the preceding provisions of this section and under section 11, of the responsible authorities mentioned in subsection (7)(c) extend only to the establishment, implementation and review of arrangements for the assessment and management of—
(a) persons subject to an order under section 57(2)(b) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (imposition of special restrictions in disposal of case where accused found to be insane);
(b) those subject to a restriction order under section 59 of that Act (provision for restrictions on discharge);
(c) those subject to a hospital direction under section 59A of that Act (direction authorising removal to and detention in specified hospital); or
(d) those subject to a transfer for treatment direction under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (transfer of prisoners for treatment for mental disorder).
(12) But it is the duty of the responsible authorities mentioned in subsection (7)(c) to co-operate (to the extent mentioned in subsection (4)) with the other responsible authorities, with each other and with any persons specified under subsection (3), in the establishment and implementation of arrangements for the assessment and management of persons other than those mentioned in paragraphs (a) to (d) of subsection (11).
(13) In subsection (7)(c)—
“Health Board” means a board constituted by order under section 2(1)(a) of the National Health Service (Scotland) Act 1978 (c. 29); and
“Special Health Board” means a board so constituted under section 2(1)(b) of that Act.
(14) The reference in subsection (7)(d) to the Scottish Ministers is to the Scottish Ministers in exercise of their functions under the Prisons (Scotland) Act 1989 (c. 45).
(1) The responsible authorities must keep the arrangements established by them under section 10 under review for the purpose of monitoring the effectiveness of those arrangements and making any changes to them that appear necessary or expedient.
(2) As soon as practicable after the end of each period of 12 months beginning with 1st. April, the responsible authorities must—
(a) jointly prepare a report on the discharge by them during that period of the functions conferred by section 10;
(b) publish the report in the area of the local authority; and
(c) submit the report to the community justice authority within the area of which the area of the local authority is comprised.
(3) The report must include—
(a) details of the arrangements established by the responsible authorities; and
(b) information of such description as the Scottish Ministers have notified to the responsible authorities that they wish to be included in the report.
(1) The Criminal Procedure (Scotland) Act 1995 (c. 46) is amended as follows.
(2) After section 229 insert—
(1) A court may, in making a probation order, provide for the order to be reviewed at a hearing held for the purpose by the court.
(2) The officer responsible for the probationer’s supervision is, before the hearing, to make a report in writing to the court on the probationer’s progress under the order.
(3) The probationer must, and that officer may, attend the hearing.
(4) The hearing may be held whether or not the prosecutor elects to attend.
(5) Where the probationer fails to attend the hearing the court may issue a warrant for his arrest.
(6) At the hearing the court, after considering the report made under subsection (2) above, may amend the probation order.
(7) But before amending the order the court is to explain to the probationer, in ordinary language, the effect of making the amendment; and may proceed to make it only if the probationer expresses his willingness to comply with the requirements of the order as amended.
(8) Sub-paragraph (2) of paragraph 3 of Schedule 6 to this Act applies to amending under subsection (6) above as that sub-paragraph applies to amending under sub-paragraph (1) of that paragraph.
(9) At the hearing the court may provide for the order to be reviewed again at a subsequent hearing held for the purpose by the court; and subsections (2) to (8) above and this subsection apply in relation to a review under this subsection as they apply in relation to a review under subsection (1) above.”.
(3) In section 232(2) (powers of court where satisfied that a probationer has failed to comply with a requirement of his probation order), after the words “subsection (1) above” insert “or of section 229A of this Act”.
(1) The Criminal Justice (Scotland) Act 2003 (asp 7) is amended as follows.
(2) In section 11 (accreditation, education and training), after subsection (1) insert—
“(1A) The order may authorise—
(a) decisions as to cases arising in relation to a scheme of accreditation to be taken by a committee; and
(b) any appeal as to such a decision to be determined by a committee,
in accordance with such procedure as may be prescribed; and without prejudice to the generality of this subsection the order may make provision as to the membership of the committees and as to any quorum.”.
(3) In paragraph 4 of schedule 2 (constitution etc. of the Risk Management Authority)—
(a) for sub-paragraph (1) substitute—
“(1) Subject to any order under subsection (1) of section 11 of this Act, the Authority may—
(a) make provision for the appointment and constitution of committees and sub-committees;
(b) make provision for the exercise of any of its functions by any of its committees, sub-committees, members or employees; and
(c) regulate its own procedure and the procedure of—
(i) any of its committees or sub-committees (including any such committee as is mentioned in paragraph (a) or (b) of subsection (1A) of that section); or
(ii) any member or employee to whom a function has been delegated under head (b) above.
(1A) Delegation under sub-paragraph (1)(b) is to be without prejudice to the power of the Authority itself to exercise the function in question.
(1B) Without prejudice to the generality of head (c) of sub-paragraph (1), regulation under that head may include provision as to any quorum.”; and
(b) in sub-paragraph (2), after “Authority” insert “ or of any of its committees or sub-committees or of any of its members by whom functions are exercised by virtue of sub-paragraph (1)(b)”.
(1) The Criminal Procedure (Scotland) Act 1995 (c. 46) is amended as follows.
(2) In section 210F(1) (making of order for lifelong restriction)—
(a) in paragraph (a), for the word “a” substitute “any”;
(b) for the words from “shall” to the end substitute “, in a case where it may make a compulsion order in respect of the convicted person under section 57A of this Act, either make such an order or make an order for lifelong restriction in respect of that person and in any other case make an order for lifelong restriction in respect of that person.”.
(3) The title of section 210F becomes “Order for lifelong restriction or compulsion order”.
(1) The 1993 Act is amended as follows.
(2) In section 1(1) (release of short-term prisoners), after “short-term prisoner” insert “, not being a prisoner to whom section 1AA of this Act applies,”.
(3) After section 1 insert—
(1) As soon as a prisoner to whom this section applies has served one-half of his sentence the Scottish Ministers are to release him on licence.
(2) This section applies to any short-term prisoner—
(a) sentenced to a term of 6 months or more; and
(b) who, by virtue of the conviction in respect of which that sentence was imposed, is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42).
(3) It is immaterial, for the purposes of subsections (1) and (2) above, when the offence of which the prisoner was convicted was committed.
(4) But this section does not apply to a prisoner who was released under section 1(1) of this Act in relation to the sentence mentioned in subsection (2)(a) above before the date on which section 15(3) of the Management of Offenders etc. (Scotland) Act 2005 (asp 14) came into force (except that where the prisoner is serving terms which by virtue of section 27(5) of this Act fall to be treated as a single term, the reference in the preceding provisions of this subsection to his being released in relation to the sentence mentioned in subsection (2)(a) above is to be construed as a reference to his being released in relation to the single term).
(5) Section 17 of this Act applies to such short-term prisoners as are mentioned in subsection (2) above as that section applies to long-term prisoners.
(6) Where a prisoner is released on licence under this section, the licence (unless revoked) remains in force until the entire period specified in his sentence (reckoned from the commencement of the sentence) has elapsed; but this subsection is subject to subsections (7) and (8) below.
(7) Where the prisoner is serving terms which by virtue of section 27(5) of this Act fall to be treated as a single term the licence (unless revoked) remains in force until the relevant period (reckoned from the commencement of the single term) has elapsed.
(8) The “relevant period” mentioned in subsection (7) above is—
(a) the single term after deduction of half the number of days (if any) by which that term exceeds what it would be were there disregarded in determining it such terms (if any) as are imposed for a conviction other than one by virtue of which the prisoner is subject to the notification requirements mentioned in subsection (2)(b) above; or
(b) if to disregard such terms as are so imposed would have the consequence—
(i) that there would not remain two or more terms to treat as a single term; or
(ii) that though two or more terms would remain they would no longer be consecutive or wholly or partly concurrent,
the single term after deduction of half the number of days (if any) by which that term exceeds the term imposed for the conviction, or as the case may be the terms imposed for the convictions, by virtue of which the prisoner is subject to those requirements.”.
(4) In section 1A(1)(c) (release of persons serving more than one sentence to be on a single licence), after the word “Act” where it first occurs insert “, other than on licence under section 3AA”.
(5) After section 3 insert—
(1) Subject to subsections (2) to (5) below, the Scottish Ministers may release on licence under this section—
(a) a short-term prisoner serving a sentence of imprisonment for a term of three months or more; or
(b) a long-term prisoner whose release on having served one-half of his sentence has been recommended by the Parole Board.
(2) The power in subsection (1) above is not to be exercised before the prisoner has served whichever is the greater of—
(a) one quarter of his sentence; and
(b) four weeks of his sentence.
(3) Without prejudice to subsection (2) above, the power in subsection (1) above is to be exercised only during that period of 121 days which ends on the day 14 days before that on which the prisoner will have served one half of his sentence.
(4) In exercising the power conferred by subsection (1) above, the Scottish Ministers must have regard to considerations of—
(a) protecting the public at large;
(b) preventing re-offending by the prisoner; and
(c) securing the successful re-integration of the prisoner into the community.
(5) Subsection (1) above does not apply where—
(a) the prisoner’s sentence was imposed under section 210A of the 1995 Act;
(b) the prisoner is subject to a supervised release order made under section 209 of that Act;
(c) the prisoner is subject to a hospital direction imposed under section 59A of that Act or a transfer for treatment direction made under section 136(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);
(d) the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42);
(e) the prisoner is liable to removal from the United Kingdom (within the meaning of section 9 of this Act);
(f) the prisoner has been released on licence under this Part of this Act or under the 1989 Act but—
(i) has been recalled to prison other than by virtue of section 17A(1)(b) of this Act; or
(ii) before the date on which he would but for his release have served his sentence in full, has received a further sentence of imprisonment; or
(g) the prisoner has been released (whether or not on licence) during the currency of his sentence but has been returned to custody under section 16(2) or (4) of this Act.
(6) The Scottish Ministers may by order do any or all of the following—
(a) amend the number of months for the time being specified in subsection (1)(a) above;
(b) amend the number of weeks for the time being specified in subsection (2)(b) above;
(c) amend a number of days for the time being specified in subsection (3) above;
(d) amend any paragraph of subsection (5) above, add a further paragraph to that subsection or repeal any of its paragraphs.”.
(6) In section 5(1) (fine defaulters and persons in contempt of court), after the words “except sections” insert “3AA,”.
(7) In section 9(3) (persons liable to removal from the United Kingdom)—
(a) in paragraph (d), for the word “immigrant” there is substituted “entrant”; and
(b) (the word “or” immediately preceding that paragraph being omitted) after that paragraph there is added “or
(e) if he is liable to removal under section 10 of the Immigration and Asylum Act 1999 (c. 33).”.
(8) In section 11 (duration of licence), after subsection (3) insert—
“(3A) Subsections (1) to (3) above do not apply in relation to release on licence under section 3AA of this Act.
(3B) A licence granted under section 3AA of this Act remains in force (unless it is revoked) until the date on which the released person would, but for his release under that section, fall to be released under section 1 of this Act.”.
(9) In section 12 (conditions in licence)—
(a) after subsection (2) insert—
“(2A) In its application to a licence granted under section 3AA of this Act, subsection (2) above is to be construed as if, for the words “shall include” there were substituted “may include”.”; and
(b) after subsection (4) insert—
“(4A) Subsection (3)(b) above does not apply in relation to a condition in a licence granted under section 3AA of this Act; but in exercising their powers under this section in relation to a long-term prisoner released on such a licence the Scottish Ministers must have regard to any recommendations which the Parole Board has made for the purposes of section 1(3) of this Act as to conditions to be included on release.”.
(10) After section 12 insert—
(1) Without prejudice to the generality of section 12(1) of this Act, any licence granted under section 3AA of this Act must include—
(a) the standard conditions; and
(b) a curfew condition complying with section 12AB of this Act.
(2) Subsection (1) above is without prejudice to any power exercisable under section 12 of this Act.
(3) In this section, “the standard conditions” means such conditions as may be prescribed as such for the purposes of this section.
(4) In subsection (3) above, “prescribed” means prescribed by order by the Scottish Ministers.
(5) Different standard conditions may be so prescribed for different classes of prisoner.
(6) Subsection (4) of section 3AA of this Act applies in relation to—
(a) the exercise of the power of prescription conferred by subsection (3) above; and
(b) the specification, variation or cancellation of conditions, other than the standard conditions, in a licence granted under section 3AA of this Act,
as it applies in relation to the exercise of the power conferred by subsection (1) of that section.
(1) For the purposes of this Part, a curfew condition is a condition which—
(a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified; and
(b) may require him not to be in a place, or class of place, so specified at a time or during a period so specified.
(2) The curfew condition may specify different places, or different periods, for different days but a condition such as is mentioned in paragraph (a) of subsection (1) above may not specify periods which amount to less than nine hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).
(3) Section 245C of the 1995 Act (contractual and other arrangements for, and devices which may be used for the purposes of, remote monitoring) applies in relation to the imposition of, and compliance with, a condition specified by virtue of subsection (1) above as that section applies in relation to the making of, and compliance with, a restriction of liberty order.
(4) A curfew condition is to be monitored remotely and the Scottish Ministers must designate in the licence a person who is to be responsible for the remote monitoring and must, as soon as practicable after they do so, send that person a copy of the condition together with such information as they consider requisite to the fulfilment of the responsibility.
(5) Subject to subsection (6) below, the designated person’s responsibility—
(a) commences on that person’s receipt of the copy so sent;
(b) is suspended during any period in which the curfew condition is suspended; and
(c) ends when the licence is revoked or otherwise ceases to be in force.
(6) The Scottish Ministers may from time to time designate a person who, in place of the person designated under subsection (4) above (or last designated under this subsection), is to be responsible for the remote monitoring; and on the Scottish Ministers amending the licence in respect of the new designation, that subsection and subsection (5) above apply in relation to the person designated under this subsection as they apply in relation to the person replaced.
(7) If a designation under subsection (6) above is made, the Scottish Ministers must, in so far as it is practicable to do so, notify the person replaced accordingly.”.
(11) In section 12B (certain licences to be replaced by one), after subsection (3) insert—
“(4) References in this section to release on licence do not include release on licence under section 3AA of this Act.”.
(12) In section 17 (revocation of licence), at the end add—
“(7) References in this section to release on licence do not include release on licence under section 3AA of this Act.”.
(13) After section 17 insert—
(1) If it appears to the Scottish Ministers as regards a prisoner released on licence under section 3AA of this Act that—
(a) he has failed to comply with any condition included in his licence; or
(b) his whereabouts can no longer be monitored remotely at the place for the time being specified in the curfew condition included in the licence,
they may revoke the licence and recall the person to prison under this section.
(2) A person whose licence is revoked under subsection (1) above—
(a) must, on his return to prison, be informed of the reasons for the revocation and of his right under paragraph (b) below; and
(b) may make representations in writing with respect to the revocation to the Scottish Ministers.
(3) The Scottish Ministers are to refer to the Parole Board the case of any person who makes such representations.
(4) After considering the case the Parole Board may direct, or decline to direct, the Scottish Ministers to cancel the revocation.
(5) Where the revocation of a person’s licence is cancelled by virtue of subsection (4) above, the person is to be treated for the purposes of section 3AA of this Act as if he had not been recalled to prison under this section.
(6) On the revocation under this section of a person’s licence, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.”.
(14) In section 45 (making of rules and orders)—
(a) in subsection (2), after the word “Any” insert “order made under section 12AA(3) or”; and
(b) in subsection (3), after the word “section” insert “3AA(6),”.
In section 41B of the Prisons (Scotland) Act 1989 (c. 45) (testing prisoners for drugs)—
(a) in subsection (1), after the word “urine” insert “or saliva”;
(b) in subsection (2), at the end add “or saliva”; and
(c) in subsection (3)—
(i) in the definition of “intimate sample”, for the words from “blood” to the end substitute “—
(a) blood, semen or any other tissue fluid;
(b) pubic hair; or
(c) material from a body orifice other than the mouth;”;
(ii) the word “and” which immediately follows the definition of “drug” is repealed; and
(iii) at the end add “; and
“saliva” includes oral fluid”.
(1) In the table in section 82(1) of the Sexual Offences Act 2003 (c. 42) (notification period for persons convicted of sexual offences under requirement to notify the police about certain matters), in the entry relating to a person sentenced to imprisonment for life or for a term of 30 months or more, for the words “or for” substitute “, to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 or to imprisonment for”.
(2) This section applies in relation to sentences passed before the date on which this section comes into force, as well as to those passed on or after that date.
In section 91 of the Sexual Offences Act 2003 (c. 42) (offences relating to the notification requirements of Part 2 of that Act), for subsection (4) substitute—
“(4) Proceedings for an offence under this section may be commenced in any court—
(a) having jurisdiction in any place where the accused—
(i) resides;
(ii) is last known to have resided; or
(iii) is found;
(b) which has convicted the accused of an offence if the accused is subject to the notification requirements of this Part by virtue of that conviction; or
(c) which has made an order under section 104(1)(b) in respect of the accused if the accused is subject to those requirements by virtue of that order.”.
After section 210E of the Criminal Procedure (Scotland) Act 1995 (c. 46) insert—
(1) Sections 271 to 271M, 274 to 275C and 288C to 288F of this Act (in this section referred to as the “applied sections”) apply in relation to proceedings under section 210C(7) of this Act as they apply in relation to proceedings in or for the purposes of a trial, references in the applied sections to the “trial” and to the “trial diet” being construed accordingly.
(2) But for the purposes of this section the references—
(a) in sections 271(1)(a) and 271B(1)(b) to the date of commencement of the proceedings in which the trial is being held or is to be held; and
(b) in section 288E(2)(b) to the date of commencement of the proceedings,
are to be construed as references to the date of commencement of the proceedings in which the person was convicted of the offence in respect of which sentence falls to be imposed (such proceedings being in this section referred to as the “original proceedings”).
Management of Offenders etc (Scotland) Act 2005