Office of Public Sector Information
83.This section provides that where the Scottish Ministers have revoked a prisoner’s licence (including compassionate release licences) by virtue of section 37(1) or (4) or 38(2), they must inform the prisoner of the reasons for doing so and, subject to section 40, refer the case to the Parole Board.
84.This section applies where a prisoner whose licence has been revoked has his or her case referred to the Parole Board by virtue of section 41(2)(b), 43(9) or 44(5). Subsection (2) provides that the Board must determine under subsection (3) whether or not it is in the public interest that the prisoner be confined. Subsection (4) provides that where the Board considers subsection (3) does not apply, it must direct the Scottish Ministers to release the prisoner on licence and must specify licence conditions for inclusion in the licence. Subsection (5) provides that where the Parole Board have made such a direction the Scottish Ministers must release the prisoner on a community licence or a life licence as appropriate.
85.Subsection (1) provides that this section applies where the Parole Board considers under section 42(3) that it is in the public interest that a recalled custody and community prisoner be confined. Subsection (2) requires the Board to provide the prisoner with its reasons for making its determination in writing. Subsection (3) provides that if there is less than 4 months of the prisoner’s sentence remaining, the prisoner must remain in custody for the remainder of the sentence. Subsection (4) provides, however, that if there are between 4 months and 2 years of the prisoner’s sentence remaining, the Board must fix a date when it will next review the prisoner’s case within the period mentioned in subsection (5). Subsection (5) specifies that the period begins 4 months after the date of the determination and ends on the expiry of the prisoner’s sentence. Subsection (6) provides that if no date is set under subsection (4) the prisoner must remain in prison to the end of the sentence.
86.Subsection (7) provides that if at least 2 years remain of the prisoner’s sentence then the Parole Board must, subject to section 26, fix a date for when it will next hear the prisoner’s case within the period mentioned in subsection (8). Subsection (8) provides that the period begins 4 months after the date of the determination and ends immediately before the second anniversary of the determination. Subsection (9) requires Scottish Ministers to refer the case to the Parole Board before any date set by the Parole Board under subsection (4) or (7).
87.Subsection (1) provides that this section applies where the Parole Board under section 42(2) considers it to be in the public interest that a recalled life sentence prisoner be confined. Subsection (2) requires the Board to provide the prisoner with its reasons for not re-releasing the prisoner in writing. Subsection (3) provides that the Board must, subject to section 26, set a date for when it will next consider the prisoner’s case within the period mentioned in subsection (4). Subsection (4) provides that the period begins 4 months after the date of the determination and ends immediately before the second anniversary of the determination. Subsection (5) requires Scottish Ministers to refer the case to the Parole Board before the date set under subsection (3).
88.Section 45 provides that prisoners who have had a date set for a further review under sections 43(4), 43(7) or section 44(3) can ask for early consideration of their case by the Parole Board. Subsection (2) provides that the Board may, if it considers it appropriate, to fix an earlier date. In terms of subsection (3) and (4), where the Board does not fix a date under section 43(4), it may, on the prisoner’s request, consider it appropriate, to do so and will fix a date when it will next consider the prisoner’s case.
89.Subsection (1) provides that this section applies to offenders who have been released on licence under this Part and who have received another sentence of imprisonment while that licence remains in force. Subsection (2) provides that, if the original licence is still in force at the time when the prisoner is to be released on licence from the subsequent sentence, then he or she is to be released on a single licence covering both sentences. Subsection (3) provides that the single licence replaces the original one while subsection (4) requires that the single licence includes all conditions from the previous licence.
90.Subsection (5) provides that the new single licence will remain in force, unless revoked, until all licences which would otherwise have been imposed would have expired. Subsection (6) provides that in the case of a prisoner being released unconditionally from a subsequent sentence the licence from the original sentence will remain in place, unless revoked, in the same way as it would have done had the subsequent sentence not been imposed.
91.Under this section the Scottish Ministers may release, on licence, a custody and community prisoner who is serving a sentence of 3 months or more and is of a description to be specified by the Ministers by order. Such an order is subject to the affirmative resolution procedure. Subsection (3) provides that the licence must include a curfew condition, which is described in section 48.
92.Subsections (2) and (4) specify the period during which a prisoner may be released on a curfew licence. Subsection (2) states that it shall be before the expiry of the custody part of the sentence. Subsection (4) provides that the Scottish Ministers may only release a prisoner after the later of: the day on which the prisoner has served one-quarter or four weeks of the sentence (whichever is the greater), or the day falling 135 days before the expiry of the custody part of the sentence. In addition, release must be before the day falling 14 days before the expiry of the custody part. So the window for release on curfew licence is between 135 days and 14 days before the expiry of the custody so long as the prisoner has served at least one-quarter (or 4 weeks if this is more than one quarter) of his or her sentence at the proposed time of release.
93.Subsection (5) provides that in determining whether to release a prisoner under this section, the Scottish Ministers must have regard to the need to protect the public, prevent re-offending and secure the successful re-integration of the prisoner into the community. Subsections (6) to (8) provide that the Scottish Ministers may include in a curfew licence any other conditions they consider appropriate; that prisoners released on curfew licence must comply with any conditions on it; and that the curfew licence remains in force until the expiry of the custody part of the sentence.
94.Subsection (9) provides that an order made under subsection (1)(b) may apply, with or without modification, relevant provisions of Part 2 of the Act to curfew licences. It may also amend the periods of time mentioned in subsection (4).
95.Subsection (1) defines a curfew condition as being one that requires a person to remain at the place specified in the condition for the periods which are specified. Subsection (2) provides that it may also require the person not to be in a particular place, or class of place, at a specified time or during a specified period and may also specify different places and periods for different days. However, subsection (3) states that it cannot specify, in respect of the condition to remain at a certain place, periods amounting to less than nine hours in any one day (excluding the first and last days of the period for which the condition is in force).
96.Subsection (1) provides that an offender’s compliance with a curfew condition will be monitored remotely. Subsection (2) applies section 245C of the Criminal Procedure (Scotland) Act 1995 in relation to the imposition of, and compliance with, a curfew condition as that section applies to the monitoring of restriction of liberty orders. Section 245C, read with section 38(2) and also with section 118 of the Scotland Act 1998, requires the Scottish Ministers to make regulations specifying the devices which may be used for the remote monitoring of compliance with the curfew condition.
97.Subsection (3) requires the Scottish Ministers to designate in the licence who will be responsible for the remote monitoring, and subsection (4) provides that the Scottish Ministers may replace the responsible person with another person. Subsection (5) requires the Scottish Ministers to send, as soon as practicable after designating any person as the responsible person, a copy of the curfew condition to that person, together with any other relevant information which Ministers consider the person may need for the fulfilment of the remote monitoring responsibility. Subsection (6) provides that, where the Scottish Ministers exercise their power under subsection (4) to designate a new responsible person, they must, where practicable, notify the person who has been replaced.
98.This section provides that where a prisoner is due to be released on a Saturday, Sunday or a public holiday, then he or she will instead be released on the day immediately preceding that day. The reference to “public holiday” is to be read by reference to any holidays in the area in which the prisoner is likely to be upon release.
99.Section 51 provides that Part 2 applies to prisoners given an extended sentence by the court. Subsection (2) to (6) explain that references to a custody and community sentence, where appropriate, can be read as a reference to the confinement term of an extended sentence.
100.Section 52 provides that Schedule 2 (which makes provisions in relation to prisoners serving more than one sentence) has effect.
101.Paragraph 1(1) provides that paragraph 1 applies where a prisoner is serving, or is likely to serve, two or more custody-only sentences and is not serving, or is not likely to serve, any other custodial sentence. Paragraph 1(2) provides that Part 2 of the Act applies subject to the modifications specified in paragraph 1(3) i.e. that a reference to a prisoner’s sentence in sections 5 and 28(1) are to be read as a reference to the sentence with the latest date of expiry.
102.Paragraph 2(1) provides that paragraph 2 applies where a prisoner is serving, or is likely to serve, two or more custody and community sentences and is not serving, or is not likely to serve, any other custodial sentence.
103.Where a prisoner is serving two or more custody and community sentences, references in Part 2 to the expiry of the custody part will be to the latest expiry date. This prevents the case being referred to the Parole Board until shortly before the expiry of all custody parts. The prisoner will only be released on licence on expiry of the latest custody part.
104.Paragraph 2(5) provides that the prisoner can, following review by the Parole Board, be detained on the grounds of risk until he or she has served at least three-quarters of each of the sentences. Paragraph 2(6) provides that the sentence end date is the latest expiry date of the sentences.
105.Paragraph 3(1) provides that paragraph 3 has effect where a prisoner is serving, or is likely to serve, a combination of at least one custody-only and one custody and community sentence.
106.References in Part 2 to the expiry of the custody part will be to the expiry of whichever is the later (or latest) of the custody parts and custody-only sentences imposed on the prisoner. This prevents the case being referred to the Parole Board until shortly before the expiry of all custody parts and custody-only sentences.
107.Paragraph 3(5) provides that the prisoner can, following review by the Parole Board, be detained on the grounds of risk until he or she has served at least three-quarters of each of the sentences and the custody-only sentence. Paragraph 5(6) provides that the sentence end date is the latest expiry date of the sentences.
108.Paragraph 4(1) provides that paragraph 4 has effect where a prisoner is serving, or is likely to serve, two or more life sentences. Where a prisoner is serving two or more life sentences, his case will not be able to be referred to the Parole Board until shortly before the expiry of the latest punishment part.
109.Paragraph 5(1) provides that paragraph 5 has effect where a prisoner is serving, or is likely to serve, a combination of at least one life sentence and any number or combination of custody-only or custody and community sentences.
110.Where a prisoner is serving such a combination of sentences. This prevents the case being referred to the Parole Board until shortly before the expiry of the latest custody only sentence, custody part of a custody and community sentence or punishment part of a life sentence. The prisoner will only be released on licence on expiry of the latest custody only sentence, custody part or punishment part.
111.Paragraph 6 provides that where paragraph 2, 3, 4 or 5 applies to a prisoner, he will be released on a single licence covering all sentences of imprisonment.
112.Paragraph 7 provides that where a custody and community sentence mentioned in paragraphs 2 and 3 is an extended sentence, references to the prisoner’s sentences are to be read as references to the confinement period/s of the extended sentence/s.
113.Section 53 provides that Schedule 3 (which makes provisions in relation to sentences framed to take effect on the expiry of another sentence) has effect.
114.Paragraph 1 provides the main power to impose a sentence to run consecutively to other sentences. It is intended to apply to the case where the prisoner is already serving another sentence and the court wants the new sentence to run consecutively to that existing sentence; and to the case where the court is imposing more than one sentence and it wants them to run consecutively.
115.Paragraph 2 provides that the where the court is required to sentence a person who is awaiting the setting of a custody or punishment part for a previous offence, the court may not set the custody or punishment part of the subsequent offence until the previous custody or punishment part has been set.
116.The provisions in paragraphs 3 and 4 deal with the situations where consecutive sentences are intended to intertwine rather than run purely consecutively. There are two circumstances where this might happen. The table below sets out how this schedule deals with the various permutations of sentences running consecutively.
| Previous Sentence (PS) | Further Sentence (FS) | Order to be served | Relevant provisions of schedule |
|---|---|---|---|
| Custody-only | Custody-only | Custody-only PS – Custody-only FS | Para 1 |
| Custody-only | Custody and community | Custody-only PS – Custody part of FS – Community part of FS | Para 1 |
| Custody-only | Life | Custody-only PS – Punishment Part of FS – Life licence |
Para 1 |
| Custody and community | Custody-only | Custody part of PS – Custody-only FS – Community part of PS | Paras 1 and 3 |
| Custody and community | Custody and community | Custody part of PS – Custody part of FS – Community part of PS – Community part of FS |
Paras 1 and 4 |
| Custody and community | Life | Custody Part of PS – Punishment Part of FS – Life licence |
Para 1 |
| Life | Custody-only | Punishment part of PS – Custody-only FS – Life licence |
Para 1 (the multiple sentence provisions make it clear when the life licence is due to begin) |
| Life | Custody and community | Punishment part of PS – Custody Part of FS – Life licence | Para 1 |
| Life | Life | Punishment part of PS – Punishment Part of FS – Life licence |
Para 1 |
117.Paragraph 5 provides the arrangements for the effects of extended sentences to be framed consecutively. The table below sets out how this schedule deals with the various permutations of sentences running consecutively.
| Previous Sentence (PS) | Further Sentence (FS) | Order to be served | Relevant provisions of schedule |
|---|---|---|---|
| Custody and community (Extended) | Custody-only | Custody part of PS – Custody-only FS – Community part of PS – Extension period of PS | Paras 1, 3 and 5(1) |
| Custody and community (Extended) | Custody and community | Custody part of PS – Custody part of FS – Community part of PS – Community part of FS – Extension period of PS | Paras 1, 4 and 5(2) |
| Custody and community | Custody and community (Extended) | Custody part of PS – Custody part of FS – Community part of PS – Community part of FS – Extension period of FS | Paras 1, 4 and 5(3) |
| Custody and community (Extended) | Custody and community (Extended) | Custody part of PS – Custody part of FS – Community part of PS – Community part of FS – Aggregated extension period for PS and FS (limited to a maximum of ten years) | Paras 1, 4 and 5(4) |
118.Paragraph 6 provides Scottish Ministers with an order making power to make provision to apply this section where a previous sentence has been passed in a court in any part of the United Kingdom outwith Scotland.
119.This section provides that Part 2 of the Act applies to the following categories of prisoner as if they had continued to serve their sentence in prison rather than in a hospital:
those transferred to hospital under a transfer direction made in accordance with section 136(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003; and
those conveyed to and detained in a hospital for treatment of a mental disorder in accordance with section 59A of the Criminal Procedure (Scotland) Act 1995.
120.This section deals with the application of the provisions of Part 2 to young offenders and children. A young offender is a person who is under 21 years old at the point of sentence (and who is not a child). A child a person who is under 16 years old or who is under 18 years old and in respect of whom a supervision requirement is in force.
121.Where the sentence on a young person or child is of less than 15 days, Part 2 applies to them as if they were a custody-only prisoner. Where the sentence is of 15 days or more, it applies as if they were a custody and community prisoner. And where the sentence is indeterminate, it applies as if they were a life prisoner.
122.Subsection (7) provides that references to “imprisonment” in Part 2 are to be read as references to detention and cognate expressions are to be construed accordingly. This is because young offenders and children are sentenced to detention and not to imprisonment.
123.This section provides that Part 2 of the Act will apply as it applies to custody-only prisoners to:
those who are in custody as a result of a failure to pay a fine, and
to persons who are in custody having been found in contempt of court.
124.This means that these categories of person will serve their full sentence in custody regardless of the length of the period of custody imposed on such a person.
125.Subsection (3) states that this section will only apply where the relevant act which leads to imprisonment or detention occurs after the coming into force of Part 2.
126.Subsection (1) provides that the Scottish Ministers may, by order, make provisions dealing with the transfer of a person serving a custodial sentence in Scotland to a place outwith Scotland, and for the transfer to and confinement in Scotland of a person serving a sentence outwith Scotland.
127.Part 3 of the Bill contains two sets of provisions relating to the control of swords, non-domestic knives and other weapons. The first set of provisions relates to the licensing of sellers of knives etc. while the second introduces new provisions relating to restricting the sale etc. of swords and other weapons; increasing the age limit for purchase or possession of crossbows; and making it an offence to possess an offensive weapon in prisons.
128.This section inserts new provisions on the licensing of sellers of knives etc. into the Civic Government (Scotland) Act 1982 and amends existing provisions of the 1982 Act to accommodate this new regime. The provisions should be read alongside the 1982 Act.
129.The 1982 Act makes provision for a civic government licensing system, operated by local authorities (as the “licensing authority”). Sections 1 to 8 of, and Schedule 1 to, the 1982 Act contain general provisions which apply to the licensing of all activities covered by the 1982 Act. These include-
procedures for application and renewal, variation and suspension of licences;
powers of entry and search of both licensed and unlicensed premises; and
offences in connection with carrying out unlicensed activities, failure to comply with licence conditions, making false statements and failure to notify changes of circumstances.
130.Sections 10 to 43 of the 1982 Act make specific provision in relation to the licensing of e.g. taxis and private hire cars, public entertainment, second hand dealers, metal dealers, street trading and window cleaning. These supplement the general provisions and, with the exception of those for metal dealers, are “optional provisions” (defined in section 9 of the 1982 Act) – they do not apply in an area unless the licensing authority decides that they should. Section 44 of the 1982 Act allows further activities to be designated and brought within the licensing scheme.
131.Section 58 of the Bill inserts new sections 27A to 27S into the 1982 Act. These new provisions are not “optional provisions”, and will apply automatically in every local authority area. Section numbers 27I and 27O are omitted deliberately.
132.Section 27A (Knife dealers’ licences) provides that a “knife dealer’s licence” is required to carry on business as a dealer in knives and other specified articles. A licence is not therefore required for private sales between individuals.
133.Section 27A(2) provides that the section applies to knives, knife blades, swords or other bladed or pointed articles designed or adapted for causing injury (e.g. arrows or crossbow bolts). Knives and knife blades designed for domestic use are excluded. Section 27A(6) allows the list of articles covered by the section to be altered by an order made by Scottish Ministers.
134.Section 27A(3) provides that a knife dealer’s licence shall specify the premises to which it relates.
135.Section 27A(4) gives a wide definition of a “dealer” and includes those whose business involves not only selling knives etc. but also hiring, lending, giving and offering or exposing for sale or hire such items. The subsection only applies to businesses which sell to private purchasers and therefore sales etc. to persons acting in the course of business or a profession are excluded from these licensing provisions. Sections 27A(7) & (8) allows the definition of dealer to be altered by an order made by Scottish Ministers.
136.Sections 27A(5) and (6) clarify the meaning of “selling”, particularly in relation to sale by auction. These provisions ensure that the requirements for a licence apply to the owner of the goods rather than to any intermediary such as an auction house or online marketplace.
137.Section 27B (Applications for knife dealers’ licences: notice) requires the licensing authority to publicise applications for the grant or renewal of knife dealers’ licences. This replaces the general public notice provisions in paragraphs 2(7) and (9) of Schedule 1 to the 1982 Act, which require notice to be given only for certain classes of licence application. Section 27B(2) applies paragraph 2(8) of the Schedule to the 1982 Act, which requires the notice to be published in a newspaper stating the particulars of the application and the process for making objections and representations.
138.Section 27C (Knife dealers’ licences: conditions) makes provision for the conditions to be attached to knife dealers’ licences. Under paragraph 5 of Schedule 1 to the 1982 Act, the licensing authority has a general power to grant or renew licences subject to such “reasonable conditions” as it thinks fit. Section 27C allows the licensing authority to include conditions in relation to record-keeping and the storage and display of knives etc. It also gives Scottish Ministers the power to specify minimum conditions which must be included in all licences. These conditions may be specified in either particular or general terms, and different conditions may be specified for different classes of article, e.g. different conditions for swords and for knives.
139.Section 27D (Provision of information to holder of knife dealer’s licence) provides for a new offence of providing false information to the holder of a knife dealer’s licence. Section 27D provides that where the dealer requests information from a person (either the customer or a third party) and that person knowingly or recklessly provides false information, then that person is guilty of an offence. The maximum penalty on summary conviction is a fine of up to level 3 on the standard scale (currently £1,000).
140.Sections 27E (Knife dealers’ licences: warrants to enter, search and seize articles) to 27H (Sections 27E to 27G: interpretation) provide powers of entry, inspection, search and seizure in relation to licensed and unlicensed premises.
141.Sections 27E and 27F (Powers of constables and authorised officers) replace section 6 of the 1982 Act, which is disapplied in relation to knife dealers’ licences by section 59(2) of this Bill. They provide that a justice of the peace or sheriff may grant a warrant authorising entry and search of premises and the seizure and removal of relevant articles. The power is broader than that contained in section 6 of the 1982 Act in that it includes power to seize and remove articles and that authority may be given to an authorised officer of the licensing authority (e.g. a trading standards officer) as well as to a police constable. Section 27F(6) provides that it shall be an offence to obstruct or fail to permit such a search, with a maximum penalty on summary conviction of a fine of up to of level 3 on the standard scale.
142.Section 27G (Power to inspect documents) provides that where it is suspected that unlicensed activity is taking place, police constables and authorised officers of the licensing authority have the power to inspect and copy records held by persons having access to such documents. It is an offence for such persons to fail to produce records or documents requested without reasonable excuse. That offence is punishable on summary conviction with a fine of up to level 3 on the standard scale. Section 5 of the 1982 Act already provides, among other things, a power of entry and inspection in respect of licensed premises.
143.Sections 27J (Forfeiture orders) and 27K (Effect of forfeiture order) provide for the forfeiture of articles where an offender is convicted of offences of dealing without a licence or failure to comply with licence conditions. Following conviction, the court may make a forfeiture order, forfeiting any items seized under warrant or which the offender had at the time of arrest or when cited in respect of the offence. The order deprives the offender of any rights he has in the property. Rights of third parties are protected by the inclusion of provisions for owners of goods to recover them.
144.Section 27L (Offences by partnerships) contains provisions about offences committed by partnerships which supplement the standard provisions of the 1982 Act.
145.Section 27M (Appropriate licence required) and 27Q (Duty to avoid conflict between conditions of licences) deal with the interaction between the new knife dealer licensing provisions and the existing provisions on second-hand dealers’ licences in the 1982 Act. Section 27M makes it clear that where a person carries on business as a dealer in second-hand knives etc., then both a knife dealer’s licence and a second-hand dealer’s licence will be required (assuming that the licensing authority requires second-hand dealers’ licences for these classes of item). Section 27P avoids any conflict between the requirements of these licences, effectively providing that the terms of the knife dealer’s licence take precedence.
146.The licensing provisions in the 1982 Act are generally based on the location of business premises and the responsible local authority will therefore be clear where licensable activity takes place within Scotland. Section 27N (Remote sales of knives, etc.) deals with licensing requirements for remote sales, e.g. by mail order, telephone or internet. Section 27N provides that where orders are taken and articles are despatched from separate premises, and only the place of despatch is in Scotland, then that place is treated as the place where the sale happens and for which a licence is required.
147.Section 27P (Sales and dispatches in different local authority areas) provides that, where the sale and despatch of an item take place in Scotland but in separate premises in different local authority areas, the sale takes place at both locations. This means that a knife dealer’s licence will be required for both locations.
148.Section 27R (Offences in relation to knife dealers’ licences: exceptions) provides a power for Ministers, by order, to provide for exceptions to the new offences created in the Bill and to the existing offences in sections 5 and 7 of the 1982 Act as they relate to knife dealers’ licences.
149.Section 27S (Orders under sections 27A to 27R) sets out the Parliamentary procedure for the five new order-making powers:
27A(7) – power to modify the articles or classes of article for which a knife dealer’s licence is required;
27A(8) – power to modify the definition of “dealer” in section 27A(3);
27C(1)(a) – power to specify conditions to be attached to a knife dealer’s licence;
27K(7) – power to make provision for the disposal of property forfeited under a forfeiture order; and
27R – power to specify exceptions to the offences.
All orders under these powers are to be made by statutory instrument and are subject to negative resolution procedure in the Scottish Parliament, with the exception of orders made under section 27Q which are subject to affirmative resolution.
150.This section makes a number of amendments to the provisions of the Civic Government (Scotland) Act 1982 to accommodate the new licensing provisions inserted by section 58.
151.Section 59(2) disapplies section 6 (powers of entry to and search of unlicensed premises) of the 1982 Act, as alternative provision has been made in new sections 27E to 27H.
152.Section 59(3) increases the penalties for offences set out in section 7 of the 1982 Act:
Paragraph (a) provides that dealing without a knife dealer’s licence is an offence punishable on summary conviction by imprisonment for up to 12 months or a fine up to the statutory maximum or both. The statutory maximum is currently £5,000, though section 48 of the Criminal Proceedings etc. Reform (Scotland) Act 2007 provides for it be increased to £10,000. The maximum penalty, on conviction on indictment, is imprisonment for up to 2 years or an unlimited fine or both. Paragraph (b) disapplies the general section 7(1) offence which is triable only summarily and for which the maximum penalty is a fine of level 4 on the standard scale (currently £2,500).
Paragraph (c) provides that a licence holder guilty of failure to comply with a condition attached to a knife dealer’s licence is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale (currently £5,000) rather than the usual maximum of level 3.
Paragraph (d) provides that a person who, in making an application for a knife dealer’s licence, knowingly or recklessly makes a false statement is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale rather than the usual maximum of level 4.
153.Section 60 amends section 141 of the Criminal Justice Act 1988 in two ways. Section 60(1)(a) alters the statutory defences to an offence under section 141 of the 1988 Act by requiring an accused to ‘show’ that they have a defence, rather than prove it on a balance of probabilities.
154.Section 60(1)(b) inserts subsections (11A) to (11J) into section 141 of the 1988 Act. Subsections (11A) to (11E) provide for further statutory defences to an offence under section 141(1) and ensure that the new defences interface effectively with the import regime. Subsection (11F) supplements the changes made by section 60(1)(a) to make clear that the burden of proof in relation to a defence to an offence under section 141 of the 1988 Act will be placed on the Crown.
155.Subsection (11G) provides that Scottish Ministers may make an order which modifies the application of section 141 of the 1988 Act in respect of specified weapons (for instance to provide for exceptions, exemptions and defences to an offence under that section). In terms of subsection (11J), all such orders are subject to affirmative resolution procedure in the Scottish Parliament.
156.Section 61 contains new provisions relating to restricting the sale etc. of swords. It adds a new section into the Criminal Justice Act 1988 which is to be read alongside section 141 of that Act. Section 141 contains the power to make restrictions on offensive weapons.
157.Section 141(1) of the 1988 Act provides that any person who manufactures, sells or hires, or offers for sale or hire, exposes or has in his or her possession for the purpose of sale or hire, or lends or gives to any other person, a specified offensive weapon is guilty of an offence. Section 141(4) also prohibits the importation of these weapons. The weapons to which the section applies are specified in the Criminal Justice Act 1988 (Offensive Weapons) (Scotland) Order 2005 (SSI 2005/483), and include knuckledusters, swordsticks, handclaws, stealth knives and push daggers. Antique items are excluded.
Custodial Sentences and Weapons (Scotland) Act 2007