Criminal Procedure (Scotland) Act 1995

[F1Restriction of liberty orders]S

[F2245A Restriction of liberty orders.S

(1)Without prejudice to section 245D of this Act, where a person of 16 years of age or more is convicted of an offence [F3punishable by imprisonment] (other than an offence the sentence for which is fixed by law) the court, F4. . . may [F5, instead of imposing on him a sentence of, or including, imprisonment or any other form of detention,] make an order under this section (in this Act referred to as a “restriction of liberty order”) in respect of him; and in this section and sections 245B to 245I of this Act any reference to an “offender” is a reference to a person in respect of whom an order has been made under this subsection.

(2)A restriction of liberty order may restrict the offender’s movements to such extent as the court thinks fit and, without prejudice to the generality of the foregoing, may include provision—

(a)requiring the offender to be in such place as may be specified for such period or periods in each day or week as may be specified;

(b)requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified,

but the court may not, under paragraph (a) above, require the offender to be in any place or places for a period or periods totalling more than 12 hours in any one day.

(3)A restriction of liberty order may be made for any period up to 12 months.

(4)Before making a restriction of liberty order, the court shall explain to the offender in ordinary language—

(a)the effect of the order, including any requirements which are to be included in the order under section 245C of this Act;

(b)the consequences which may follow any failure by the offender to comply with the requirements of any order; and

(c)that the court has power under section 245E of this Act to review the order on the application either of the offender or of any person responsible for monitoring the order,

and the court shall not make the order unless the offender agrees to comply with its requirements.

(5)The clerk of the court by which a restriction of liberty order is made shall—

(a)cause a copy of the order to be sent—

[F6(i)]to any person who is to be responsible for monitoring the offender’s compliance with the order; [F7 and

(ii)if the offender resides (or is to reside) in a place outwith the jurisdiction of the court making the order, to the clerk of a court within whose jurisdiction that place is;] and

(b)cause a copy of the order to be given to the offender or sent to him by registered post or by the recorded delivery service; and an acknowledgment or certificate of delivery of a letter containing such copy order issued by the Post Office shall be sufficient evidence of the delivery of the letter on the day specified in such acknowledgment or certificate.

(6)Before making a restriction of liberty order which will require the offender to remain in a specified place or places the court shall [F8—

(a)] obtain and consider [F9 a report by an officer of a local authority about—

(i)the place or places proposed to be specified; and

(ii)] the attitude of persons likely to be affected by the enforced presence there of the offender [F10; and

(b)if it considers it necessary, hear the officer who prepared the report.]

(7)A restriction of liberty order shall be taken to be a sentence for the purposes of this Act and of any appeal.

(8)The Secretary of State may by regulations prescribe—

(a)which courts, or class or classes of courts, may make restriction of liberty orders;

(b)what method or methods of monitoring compliance with such orders may be specified in any such order by any such court; and

(c)the class or classes of offenders in respect of which restriction of liberty orders may be made,

and different provision may be made in relation to the matters mentioned in paragraphs (b) and (c) above in relation to different courts or classes of court.

(9)Without prejudice to the generality of subsection (8) above, in relation to district courts, regulations under that subsection may make provision as respects such courts by reference to whether the court is constituted by a stipendiary magistrate or by one or more justices.

(10)Regulations under subsection (8) above may make such transitional and consequential provisions, including provision in relation to the continuing effect of any restriction of liberty order in force when new regulations are made, as the Secretary of State considers appropriate.

(11)A court shall not make a restriction of liberty order which requires an offender to be in or, as the case may be, not to be in, a particular place or places unless it is satisfied that his compliance with that requirement can be monitored by the means of monitoring which it intends to specify in the order.

(12)The Secretary of State may by regulations substitute for the period of—

(a)hours for the time being mentioned in subsection (2) above; or

(b)months for the time being mentioned in subsection (3) above,

such period of hours or, as the case may be, months as may be prescribed in the regulations.

(13)Regulations under this section shall be made by statutory instrument.

(14)A statutory instrument containing regulations made under subsection (8) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(15)No regulations shall be made under subsection (12) above unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.]

[F11245B Monitoring of restriction of liberty orders.S

(1)Where the Secretary of State, in regulations made under section 245A(8) of this Act, empowers a court or a class of court to make restriction of liberty orders he shall notify the court or each of the courts concerned of the person or class or description of persons who may be designated by that court for the purpose of monitoring an offender’s compliance with any such order.

(2)A court which makes a restriction of liberty order in respect of an offender shall include provision in the order for making a person notified by the Secretary of State under subsection (1) above, or a class or description of persons so notified, responsible for the monitoring of the offender’s compliance with it.

(3)Where the Secretary of State changes the person or class or description of persons notified by him under subsection (1) above, any court which has made a restriction of liberty order shall, if necessary, vary the order accordingly and shall notify the variation to the offender.]

[F12245C Remote monitoring.S

(1)The Secretary of State may make such arrangements, including contractual arrangements, as he considers appropriate with such persons, whether legal or natural, as he thinks fit for the remote monitoring of the compliance of offenders with restriction of liberty orders, and different arrangements may be made in relation to different areas or different forms of remote monitoring.

(2)A court making a restriction of liberty order which is to be monitored remotely may include in the order a requirement that the offender [F13—

(a)] shall, either continuously or for such periods as may be specified, wear or carry a device for the purpose of enabling the remote monitoring of his compliance with the order to be carried out [F14, and

(b)shall not tamper with or intentionally damage the device or knowingly allow it to be tampered with or intentionally damaged.]

(3)The Secretary of State shall by regulations specify devices which may be used for the purpose of remotely monitoring the compliance of an offender with the requirements of a restriction of liberty order.

(4)Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]

[F15245D Combination of restriction of liberty order with other orders.S

(1)Subsection (3) applies where the court—

(a)intends to make a restriction of liberty order under section 245A(1) of this Act; and

(b)considers it expedient that the offender should also be subject to a probation order made under section 228(1) of this Act or to a drug treatment and testing order made under section 234B(2) of this Act or to both such orders.

(2)In deciding whether it is expedient to make a probation order or a drug treatment and testing order by virtue of paragraph (b) of subsection (1) above, the court shall—

(a)have regard to the circumstances, including the nature of the offence and the character of the offender; and

(b)obtain a report as to the circumstances and character of the offender.

(3)Where this subsection applies, the court, notwithstanding sections 228(1), 234B(2) and 245A(1) of this Act, may make a restriction of liberty order and either or both of a probation order and a drug treatment and testing order.

(4)Where the court makes a restriction of liberty order and a probation order by virtue of subsection (3) above, the clerk of the court shall send a copy of each order to—

(a)any person responsible for monitoring the offender’s compliance with the restriction of liberty order; and

(b)the officer of the local authority who is to supervise the probationer.

(5)Where the court makes a restriction of liberty order and a drug treatment and testing order by virtue of subsection (3) above, the clerk of the court shall send a copy of each order to—

(a)any person responsible for monitoring the offender’s compliance with the restriction of liberty order;

(b)the treatment provider, within the meaning of section 234C(1) of this Act; and

(c)the officer of the local authority who is appointed or assigned to be the supervising officer under section 234C(6) of this Act.

(6)Where the court makes a restriction of liberty order, a probation order and a drug treatment and testing order the clerk of the court shall send copies of each of the orders to the persons mentioned—

(a)in subsection (4) above;

(b)in paragraph (b) of subsection (5) above; and

(c)in paragraph (c) of that subsection, if that person would not otherwise receive such copies.

(7)Where the offender by an act or omission fails to comply with a requirement of an order made by virtue of subsection (3) above—

(a)if the failure relates to a requirement contained in a probation order and is dealt with under section 232(2)(c) of this Act, the court may, in addition, exercise the powers conferred by section 234G(2)(b) of this Act in relation to a drug treatment and testing order to which the offender is subject by virtue of subsection (3) above and by section 245F(2) of this Act in relation to the restriction of liberty order;

(b)if the failure relates to a requirement contained in a drug treatment and testing order and is dealt with under section 234G(2)(b) of this Act, the court may, in addition, exercise the powers conferred by section 232(2)(c) of this Act in relation to a probation order to which the offender is subject by virtue of subsection (3) above and by section 245F(2)(b) of this Act in relation to the restriction of liberty order; and

(c)if the failure relates to a requirement contained in a restriction of liberty order and is dealt with under section 245F(2)(b) of this Act, the court may, in addition, exercise the powers conferred by section 232(2)(c) of this Act in relation to a probation order and by section 234G(2)(b) of this Act in relation to a drug treatment and testing order to which, in either case, the offender is subject by virtue of subsection (3) above.

(8)In any case to which this subsection applies, the offender may, without prejudice to subsection (7) above, be dealt with as respects that case under section 232(2) or, as the case may be, section 234G or section 245F(2) of this Act but he shall not be liable to be otherwise dealt with as respects that case.

(9)Subsection (8) applies in a case where—

(a)the offender by an act or omission fails to comply with both a requirement contained in a restriction of liberty order and in a probation order to which he is subject by virtue of subsection (3) above;

(b)the offender by an act or omission fails to comply with both a requirement contained in a restriction of liberty order and in a drug treatment and testing order to which he is subject by virtue of subsection (3) above;

(c)the offender by an act or omission fails to comply with a requirement contained in each of a restriction of liberty order, a probation order and a drug treatment and testing order to which he is subject by virtue of subsection (3) above.]

[F16245E Variation of restriction of liberty order.S

(1)Where a restriction of liberty order is in force either the offender or any person responsible for monitoring his compliance with the order may

[F17(a)][F18except in a case to which paragraph (b) below applies,] apply to the court which made the order [F19 or]

[F20(b)where a copy of the order was, under section 245A(5)(a)(ii) of this Act or subsection (7)(a) below, sent to the clerk of a different court, to that different court (or, if there has been more than one such sending, the different court to which such a copy has most recently been so sent),]

for a review of it.

(2)On an application made under subsection (1) above, and after hearing both the offender and any person responsible for monitoring his compliance with the order, the court may by order, if it appears to it to be in the interests of justice to do so—

(a)vary the order by—

(i)amending or deleting any of its requirements;

(ii)inserting further requirements; or

(iii)subject to subsection (3) of section 245A of this Act, increasing the period for which the order has to run; or

(b)revoke the order.

(3)Where the court, on the application of a person other than the offender, proposes to—

(a)exercise the power conferred by paragraph (a) of subsection (2) above to vary (otherwise than by deleting a requirement) a restriction of liberty order, it shall issue a citation requiring the offender to appear before the court and section 245A(4) shall apply to the variation of such an order as it applies to the making of an order; and

(b)exercise the power conferred by subsection (2)(b) above to revoke such an order and deal with the offender under section 245G of this Act, it shall issue a citation requiring him to appear before the court.

[F21(3A)The unified citation provisions apply in relation to a citation under this section as they apply in relation to a citation under section 216(3)(a) of this Act.]

(4)If an offender fails to appear before the court after having been cited in accordance with subsection (3) above, the court may issue a warrant for his arrest.

[F22(4A)Before varying a restriction of liberty order so as to require the offender to remain in a specified place or places or so as to specify a different place or different places in which the offender is to remain, the court shall—

(a)obtain and consider a report by an officer of a local authority about—

(i)the place or places proposed to be specified, and

(ii)the attitude of persons likely to be affected by any enforced presence there of the offender; and

(b)if it considers it necessary, hear the officer who prepared the report.]

[F23(5)Where a reason for an application by the offender under subsection (1) above is that he proposes to reside in a place outwith the jurisdiction of the court to which that application is made, and the court is satisfied that suitable arrangements can be made, in the district where that place is, for monitoring his compliance with the order it may—

(a)vary the order to permit or make practicable such arrangements; and

(b)where the change in residence necessitates or makes desirable a change in who is designated for the purpose of such monitoring, vary the order accordingly.

(6)Before varying a restriction of liberty order for the reason mentioned in subsection (5) above, the court shall—

(a)if the order will require the offender to remain in a specified place or in specified places—

[F24(i)] obtain and consider [F25a report by an officer of a local authority about the place or places proposed to be specified and] the attitude of persons likely to be affected by any enforced presence there of the offender; [F26 and

(ii)if it considers it necessary, hear the officer who prepared the report;] and

(b)satisfy itself that his compliance with that requirement can be monitored by the means of monitoring specified, or which it intends to specify, in the order.

(7)Where a restriction of liberty order is varied as is mentioned in subsection (5) above, the clerk of the court shall send a copy of the order as so varied to—

(a)the clerk of a court within whose jurisdiction the place of proposed residence is;

(b)the person who, immediately before the order was varied, was responsible for monitoring the person’s compliance with it; and

(c)the person who, in consequence of the variation, is to have that responsibility.

(8)If, in relation to an application made for such reason as is mentioned in subsection (5) above, the court is not satisfied as is mentioned in that subsection, it may—

(a)refuse the application; or

(b)revoke the order.]]

[F27245F Breach of restriction of liberty order.S

(1)If at any time when a restriction of liberty order is in force it appears

[F28(a)][F29except in a case to which paragraph (b) below applies,] to the court which made the order[F30 or]

[F31(b)where a copy of the order was, under section 245A(5)(a)(ii) or 245E(7)(a) of this Act, sent to the clerk of a different court, to that different court (or, if there has been more than one such sending, the different court to which such a copy has most recently been so sent),]

that the offender has failed to comply with any of the requirements of the order the court [F32in question] may issue a citation requiring the offender to appear before [F33it] at such time as may be specified in the citation or, if it appears to [F34that court] to be appropriate, it may issue a warrant for the arrest of the offender.

[F35(1A)The unified citation provisions apply in relation to a citation under this section as they apply in relation to a citation under section 216(3)(a) of this Act.]

(2)If it is proved to the satisfaction of [F36that court] that the offender has failed without reasonable excuse to comply with any of the requirements of the order [F37it] may by order—

(a)without prejudice to the continuance in force of the order, impose a fine not exceeding level 3 on the standard scale;

(b)vary the restriction of liberty order; or

(c)revoke that order.

(3)A fine imposed under this section in respect of a failure to comply with the requirements of a restriction of liberty order shall be deemed for the purposes of any enactment to be a sum adjudged to be paid by or in respect of a conviction or a penalty imposed on a person summarily convicted.

(4)Where [F38a court] varies a restriction of liberty order under subsection (2) above it may do so in any of the ways mentioned in paragraph (a) of section 245E(2) of this Act.]

[F39245G Disposal on revocation of restriction of liberty order.S

(1)Where the court revokes a restriction of liberty order under section 245E(2)(b) or 245F(2) of this Act, it may dispose of the offender in any way which would have been competent at the time when the order was made, but in so doing the court shall have regard to the time for which the order has been in operation.

(2)Where the court revokes a restriction of liberty order as mentioned in subsection (1) above, and the offender is, [F40by virtue of section 245D(3) of this Act, subject to a probation order or a drug treatment and testing order or to both such orders, it shall, before disposing the offender under subsection (1) above—.

(a)where he is subject to a probation order, discharge that order;

(b)where he is subject to a drug treatment and testing order, revoke that order; and

(c)where he is subject to both such orders, discharge the probation order and revoke the drug treatment and testing order.]]

[F41(3)Where the court orders a probation order discharged or a drug treatment and testing order revoked the clerk of the court shall forthwith give copies of that order to the persons mentioned in subsection (4) or, as the case may be, (5) of section 245D of this Act.

(4)Where the court orders a probation order discharged and a drug treatment and testing order revoked, the clerk of the court shall forthwith give copies of that order to the persons mentioned in section 245D(6) of this Act.]

[F42245H Documentary evidence in proceedings under section 245F.S

(1)Evidence of the presence or absence of the offender at a particular place at a particular time may, subject to the provisions of this section, be given by the production of a document or documents bearing to be—

(a)a statement automatically produced by a device specified in regulations made under section 245C of this Act, by which the offender’s whereabouts were remotely monitored; and

(b)a certificate signed by a person nominated for the purpose of this paragraph by the Secretary of State that the statement relates to the whereabouts of the person subject to the order at the dates and times shown in the statement.

(2)The statement and certificate mentioned in subsection (1) above shall, when produced at a hearing, be sufficient evidence of the facts set out in them.

(3)Neither the statement nor the certificate mentioned in subsection (1) above shall be admissible in evidence unless a copy of both has been served on the offender prior to the hearing and, without prejudice to the foregoing, where it appears to the court that the offender has had insufficient notice of the statement or certificate, it may adjourn a hearing or make any order which it thinks appropriate in the circumstances.]

[F43245I Procedure on variation or revocation of restriction of liberty order.S

Where a court exercises any power conferred by sections 232(3A), 245E(2) or 245F(2)(b) or (c) of this Act, the clerk of the court shall forthwith give copies of the order varying or revoking the restriction of liberty order to any person responsible for monitoring the offender’s compliance with that order and that person shall give a copy of the order to the offender.]

[F44245JBreach of certain orders: adjourning hearing and remanding in custody etc.S

(1)Where a probationer or offender appears before the court in respect of his apparent failure to comply with a requirement of, as the case may be, a probation order, drug treatment and testing order, supervised attendance order, community service order or restriction of liberty order the court may, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with him, adjourn the hearing.

(2)Where, under subsection (1) above, the court adjourns a hearing it shall remand the probationer or offender in custody or on bail or ordain him to appear at the adjourned hearing.

(3)A court shall not so adjourn a hearing for any single period exceeding four weeks or, on cause shown, eight weeks.

(4)A probationer or offender remanded under this section may appeal against the refusal of bail, or against the conditions imposed, within 24 hours of his remand.

(5)Any such appeal shall be by note of appeal presented to the High Court, who, either in court or in chambers, may after hearing the prosecutor and the appellant—

(a)review the order appealed against and either grant bail on such conditions as it thinks fit or ordain the appellant to appear at the adjourned hearing; or

(b)confirm the order.]