SCHEDULE 3SHORT-TERM CUSTODY AND COMMUNITY SENTENCES: CONSEQUENTIAL AMENDMENTS
Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17)
1
The Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17) is amended in accordance with paragraphs 2 to 14.
2
In section 34 (period during which licence in force), for subsection (1) substitute—
1
Where a short-term custody and community prisoner is released on short-term community licence by virtue of section 5, 27(1) or, as the case may be, 42(4)(a), the licence remains in force until the expiry of the prisoner's sentence.
3
In the following places after “section” insert “
5,
”
a
section 35 (prisoner to comply with licence conditions),
b
subsection (1)(a) of section 36 (suspension of licence conditions while detained), and
c
subsections (1)(a) and (4)(a) of section 37 (revocation of licence).
4
In section 40 (compassionate release: effect of revocation in certain circumstances), in subsection (3), for paragraph (a) substitute—
a
in the case of a short-term custody and community prisoner, one-half of the prisoner's sentence,
5
1
Section 42 (consideration by Parole Board) is amended as follows.
2
In subsection (1), after “41(2)(b)” insert “
, 42A(9)
”
.
3
In subsection (5), after “on” insert “
short-term community licence,
”
.
6
After section 42 insert—
42ADetermination that section 42(3) applicable: consequences for short-term custody and community prisoners
1
This section applies where the Parole Board determines, under subsection (2) of section 42, that subsection (3) of that section applies to a short-term custody and community prisoner.
2
The Parole Board must give the prisoner reasons in writing for its determination.
3
If on the day of the determination less than 4 months of the prisoner's sentence remain to be served, the prisoner must be confined until the expiry of the prisoner's sentence.
4
If on the day of the determination at least 4 months but no more than 2 years of the prisoner's sentence remain to be served, the Parole Board may, subject to section 26, fix a date falling within the period mentioned in subsection (5) on which it will next consider the prisoner's case.
5
That period is the period—
a
beginning with the day falling 4 months after the day of the determination, and
b
ending on the expiry of the prisoner's sentence.
6
If no date is fixed under subsection (4) the prisoner must be confined until the expiry of the prisoner's sentence.
7
If on the day of the determination at least 2 years of the prisoner's sentence remain to be served, the Parole Board must, subject to section 26, fix a date falling within the period mentioned in subsection (8) on which it will next consider the prisoner's case.
8
That period is the period—
a
beginning with the day falling 4 months after the day of the determination, and
b
ending immediately before the second anniversary of the day of the determination.
9
Where a date is fixed under subsection (4) or (7), the Scottish Ministers must refer the case to the Parole Board before that date.
7
1
Section 45 (prisoner's right to request early reconsideration by Parole Board) is amended as follows.
2
In subsection (1), after “under—” insert—
za
section 42A(4),
zb
section 42A(7),
3
In subsection (2), after “section” insert “
42A(4), 42A(7),
”
.
4
In subsection (3), after “section” insert “
42A(4) or
”
.
5
In subsection (4), after “section” insert “
42A(4) or, as the case may be,
”
.
8
In section 46 (multiple licences to be replaced by single licence), in subsection (1)(a), after “section” insert “
5,
”
.
9
1
Section 51 (prisoners serving extended sentences) is amended as follows.
2
In subsection (1), for “(2)” substitute “
(1A)
”
.
3
After that subsection insert—
1A
In section 5, the reference to the prisoner's short-term custody and community sentence is to be read as a reference to the confinement term of the prisoner's extended sentence.
10
1
Section 55 (application to young offenders and children) is amended as follows.
2
In subsection (1), for “custody-only” substitute “
short-term custody and community
”
.
3
In subsection (2)(a), for “15 days” substitute “
the prescribed period
”
.
4
In subsection (4)(a), for “15 days or more” substitute “
at least the prescribed period
”
.
11
In section 56 (fine defaulters and persons in contempt of court), in subsection (1), for “custody-only” substitute “
short-term custody and community
”
.
12
In section 65 (rules, regulations and orders), in subsection (4)(a), for “4(2), 7, 47(1)(b)” substitute “
4(1), 7, 47(1)(b), 55(2) or (4)
”
.
13
1
Schedule 2 (prisoners serving more than one sentence) is amended as follows.
2
Before paragraph 1, in the italic heading, for “custody-only” substitute “
short-term custody and community
”
.
3
In paragraph 1—
a
in sub-paragraph (1)(a), for “custody-only” substitute “
short-term custody and community
”
,
b
in sub-paragraph (3)—
i
for “and 34(1)” substitute “
, 34(1) and 42A
”
, and
ii
for “custody-only” in both places where it occurs substitute “
short-term custody and community
”
, and
c
after sub-paragraph (3) add—
4
In section 47(3A)—
a
references to the expiry of one-half of the prisoner's sentence are to be read as references to the expiry of one-half of the short-term custody and community sentence that expires after the expiry of one-half of the other short-term custody and community sentence (or sentences),
b
in paragraph (a)(i), the reference to the expiry of the prisoner's sentence is to be read as a reference to the longer (or longest) of the sentences imposed on the prisoner.
4
Before paragraph 3, in the italic heading, for “custody-only” substitute “
short-term custody and community
”
.
5
In paragraph 3—
a
in sub-paragraph (1)(a), for “custody-only” substitute “
short-term custody and community
”
,
b
in sub-paragraph (3), for “and 34(1)” substitute “
, 34(1), 42A and subsections (3A) and (8)(a) of section 47
”
,
c
in sub-paragraph (4)—
i
for “the custody-only” substitute “
one-half of the short-term custody and community
”
, and
ii
in paragraph (a), for “any other custody-only” substitute “
one-half of any other short-term custody and community
”
, and
d
in sub-paragraph (5)(b)(ii) and (6)(b), for “the custody-only” substitute “
at least one-half of the short-term custody and community
”
.
6
In paragraph 5—
a
in sub-paragraph (1), in both paragraphs (a) and (b), for “custody-only” substitute “
short-term custody and community
”
,
b
in sub-paragraph (3)—
i
after “19” insert “
, 29A, 29B
”
, and
ii
after “(2)” insert “
, 42A
”
, and
c
in sub-paragraph (4)—
i
for “the custody-only” substitute “
one-half of the short-term custody and community
”
, and
ii
in paragraph (a), for “any other custody-only” substitute “
one-half of any other short-term custody and community
”
.
7
In paragraph 6, in sub-paragraph (1)(b), after “section” insert “
5,
”
.
8
In paragraph 7, after sub-paragraph (1) insert—
1A
Where a short-term custody and community sentence imposed on a prisoner is an extended sentence, the modifications in paragraphs 1(3) and (4) and 3(4), (5)(b)(ii), (6) and (8A) are to be read subject to sub-paragraph (2).
14
1
Schedule 3 (sentences framed to run consecutively) is amended as follows.
2
In paragraph 1(4)(a), for “custody-only sentence, that sentence” substitute “
short-term custody and community sentence, one-half of that sentence
”
.
3
Before paragraph 3 insert—
2A
1
This paragraph applies where—
a
the court imposes a short-term custody and community sentence as a further sentence,
b
the court frames the sentence to take effect in accordance with paragraph 1(2) or (3), and
c
the prisoner's previous sentence (or one of the prisoner's previous sentences) is a short-term custody and community sentence.
2
In determining the date on which the previous sentence expires, no account is to be taken of the period of confinement served under the further sentence.
3
In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.
4
In paragraph 3—
a
in sub-paragraph (1)(a), for “custody-only” substitute “
short-term custody and community
”
, and
b
after sub-paragraph (2) insert—
3
In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.
5
After paragraph 3 insert—
3A
1
This paragraph applies where—
a
the court imposes a custody and community sentence as a further sentence,
b
the court frames the sentence to take effect in accordance with paragraph 1(2) or (3), and
c
the prisoner's previous sentence (or one of the prisoner's previous sentences) is a short-term custody and community sentence.
2
In determining the date on which the previous sentence expires, no account is to be taken of the period of confinement served under the further sentence.
3
In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.
6
In paragraph 5—
a
sub-paragraph (1) is repealed,
b
in sub-paragraphs (2) and (3), for “paragraph 4” substitute “
the relevant paragraph
”
,
c
in sub-paragraph (4)—
i
in paragraph (a), for “4(2) and (3)” substitute “
sub-paragraphs (2) and (3) of the relevant paragraph
”
, and
ii
in paragraph (c), for “paragraph 4(3)” substitute “
sub-paragraph (3) of the relevant paragraph
”
,
d
after sub-paragraph (4) insert—
4A
Where a short-term custody and community sentence or custody and community sentence imposed on a prisoner is an extended sentence, references in this schedule to—
a
the prisoner's “previous sentence” are to be read as references to the “previous confinement term” of the prisoner's sentence,
b
the prisoner's “further sentence” are to be read as references to the “further confinement term” of the prisoner's sentence.
e
after sub-paragraph (5) insert—
6
In this paragraph “the relevant paragraph” means paragraph 2A, 3, 3A or 4 (whichever applies in the circumstances described).
The 1995 Act
15
The 1995 Act is amended in accordance with paragraphs 16 and 17.
16
1
Section 167 (forms of finding and sentence in summary proceedings) is amended as follows.
2
In subsection (7D), for “any previous custody-only” substitute “
one-half of any previous short-term custody and community
”
.
3
In subsection (7E), for “custody-only” substitute “
short-term custody and community
”
.
17
1
Section 210A (extended sentences for sex and violent offenders) is amended as follows.
2
In subsections (1)(b) and (2)(b), after “a” insert “
short-term community or
”
.
3
In subsection (10), after the definition of “sexual offence” insert—
“short-term community licence” has the same meaning as in Part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17);”.