Part 2: Release from custody
Section 8—Prisoners not to be released on certain days of the week
35.Section 8 amends section 27 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“
36.Section 27(7) of the 1993 Act prevents the release of prisoners on certain days. Section 8 of the Act expands on that by adding Fridays and the day before public holidays to the list of days on which prisoners are not to be released. These days, which are referred to as “
37.Section 8 of the Act also provides that a prisoner is not to be released on a Thursday unless they fall to be released on a Thursday only because they were due to be released on an excepted day and a Thursday is the last preceding day which is a suitable release day. In any other case, a prisoner who is due to be released on a Thursday is instead to be released on the last preceding day which is not an excepted day or a Thursday (normally the immediately preceding Wednesday).
38.Examples of how this may work in practice are set out below:
Prisoner A is due to be released on a Friday – their release date is automatically moved to the preceding Thursday (release date brought forward by 1 day)
Prisoner B is due to be released on a Saturday – their release date is automatically moved to the preceding Thursday (release date brought forward by 2 days)
Prisoner C is due to be released on a Sunday – their release date is automatically moved to the preceding Thursday (release date brought forward by 3 days)
Prisoner D is due to be released on a Monday which is a public holiday. Their release date is automatically moved to the preceding Thursday (release date brought forward by 4 days)
Prisoner E is due to be released on a Thursday. Their release date is automatically moved to the preceding Wednesday (release date brought forward by 1 day)
Section 9—Release on licence of long-term prisoners
39.Section 9 makes a change to the regime for release of long-term prisoners under Part 1 of the 1993 Act. Currently, long-term prisoners, recommended by the Parole Board for release on parole licence at the half-way point of their sentences (the “parole qualifying date”), can be released on licence under section 3AA for a period of time before that date. Short-term prisoners can also be released on licence under section 3AA. A licence under section 3AA must include a “curfew condition” as set out in section 12AB of the 1993 Act (as well as “standard conditions” prescribed under section 12AA(3) and may include other conditions the Scottish Ministers consider appropriate, having regard to any recommendations by the Parole Board). A curfew condition is one which requires the person to remain in a specified place for specified periods of time (often the person’s home), or which requires the person to stay away from a specified place or class of place at specified times or for periods of time. Release under section 3AA is known as release on “home detention curfew”.
40.Section 9(5) will insert a new section 3AB into the 1993 Act making different provision for the temporary release of long-term prisoners. Section 9(4) amends section 3AA so that long-term prisoners are no longer covered by that section and will no longer be eligible for release on home detention curfew. Section 3AA will continue to apply to short-term prisoners.
41.New section 3AB will provide for the temporary release of long-term prisoners on licence in two circumstances. First, it will permit the Scottish Ministers (in practice, the Scottish Prison Service) to release a long-term prisoner on temporary licence at any point from 180 days before the prisoner’s parole qualifying date, provided the Parole Board has not recommended the prisoner be released on parole licence. See section 3AB(1) and (5). Secondly, it will require the Scottish Ministers to release a long-term prisoner on licence where the Parole Board, having recommended the prisoner’s release on parole licence, directs them to do so. See section 3AB(3) and (5).
42.Before releasing a prisoner under section 3AB(1), the Scottish Ministers must have regard to the matters mentioned in section 3AB(4)(4) and consult the Parole Board under section 3AB(2). An amendment of section 12(4A) of the 1993 Act (made by section 9(7)(b)) will require Ministers to have regard to any recommendations the Board makes when consulted under section 3AB(2) as to the conditions which should be included in the licence under which the prisoner will be released.
43.As for licences granted under section 3AA, licences granted on release of a prisoner under section 3AB(1) must include the standard conditions and a curfew condition (as a result of amendments made by section 9(8) to section 12AA of the 1993 Act).
44.The Scottish Ministers are to specify the period for which the prisoner is to be released on licence under section 3AB(1) (the “release period”) up to a maximum of 180 days. Where they specify a shorter period, they may extend the period later up to that maximum. A long-term prisoner released on licence under section 3AB(1) will be required to return to prison on the expiry of the release period (as a result of amendments made by section 9(6) to section 11 of the 1993 Act). Such a prisoner will also be obliged to return to prison if, while released on licence, the Parole Board decide not to recommend that the prisoner be released on parole licence. That might happen where the Board considers the prisoner’s case in the period leading up to the prisoner’s parole qualifying date or, where the prisoner was not recommended for release at that date, at a subsequent review.(5)
45.A person who fails to return to prison in those circumstances is, by virtue of new subsection (3D) (added to section 11 of the 1993 Act by section 9(6)(b)), deemed to be unlawfully at large and commits an offence (as a result of an amendment made by section 9(13) to section 32A of the Prisons (Scotland) Act 1989).
46.A person released under section 3AB(1) need not return to prison on the expiry of the release period where the person is otherwise released under Part 1 of the 1993 Act. For instance, a prisoner might be released on licence under section 3AB(1) before the prisoner’s parole qualifying date. While so released, the Parole Board may decide to recommend that the prisoner be released on licence under section 1(3) from the parole qualifying date. As new section 11(3C)(a)(iii) of the 1993 Act provides (as added by section 9(6)(b)), the person’s release on section 3AB licence will come to an end but be replaced by release on licence under section 1(3) from the parole qualifying date.
47.Certain long-term prisoners are excluded from release on licence under section 3AB(1), namely, prisoners subject to extended sentences under section 210A of the 1995 Act,(6) prisoners subject to certain mental health orders and prisoners liable to be deported on their release from prison (see section 3AB(9)(a) to (c)), as well as terrorist prisoners (see section 3AB(11)).
48.The Scottish Ministers must also release a long-term prisoner on licence under section 3AB(3) where the Parole Board directs them to do so, having recommended the release of the prisoner on parole licence, the prisoner having served one half of the prisoner’s sentence. In so directing the release, the Parole Board must have regard to the matters mentioned in section 3AB(4). As for release under section 3AB(1), the prisoner cannot be released before the point 180 days before the prisoner’s parole qualifying date. Licences granted on release of a prisoner under section 3AB(3) must include a curfew condition but not the standard conditions (as a result of amendments made by section 9(8) to section 12AA of the 1993 Act). The Parole Board will determine what the other licence conditions are (as a result of section 12(3)(b) of the 1993 Act). The Parole Board will also specify the release period, and may extend that period, up to the maximum of 180 days (see section 3AB(6) and (7)). Unless revoked, the licence granted by virtue of section 3AB(3) will come to an end on the date on which the Parole Board recommends the person be released on parole licence (see section 11(3C)(b)), as it will be effectively replaced from that date by the parole licence.
49.Terrorist prisoners are excluded from release on licence under section 3AB(3), as they are from release under section 3AB(1) (see section 3AB(11)). The other exclusions in section 3AB(9) do not apply, however, to release under section 3AB(3).
50.Section 9(5) also inserts new section 3AC into the 1993 Act, giving the Scottish Ministers power, by regulations, to change a number of matters mentioned in section 3AB, namely, the period before a prisoner’s parole qualifying date during which a prisoner cannot be released on licence under section 3AB, the maximum period for which a prisoner can be released, and the prisoners excluded from release under section 3AB(1).(7)
51.Section 9(10) and (11) amend, respectively, sections 17 and 17A of the 1993 Act, which deal with revocation of licences and recall of persons released on licence to prison on such revocation. The effect of these amendments is that section 17 will apply to licences granted in relation to prisoners released under section 3AB(3) and section 17A will apply to licences granted to prisoners released under section 3AB(1).
52.Section 9(12) amends section 21A of the 1993 Act, which requires the Scottish Ministers to prepare and keep under review an operating protocol covering the risk assessments and other matters that are involved before a prisoner is released on home detention curfew under section 3AA and the procedures for monitoring persons so released. That protocol will now also be required to cover release of prisoners under new section 3AB.
53.In relation to monitoring of persons released on licence, section 9(14) will amend section 7 of the Management of Offenders (Scotland) Act 2019 so that prisoners released under section 3AB can be made subject to a requirement to submit to electronic monitoring in accordance with Part 1 of that Act.
Section 10 – Review of recommendations and directions by Parole Board
54.Section 10 amends the 1993 Act to make provision for the review, by the Parole Board, of its decisions to recommend or to direct the release on licence of a prisoner under Part 1 of that Act. A review can take place in three circumstances.
55.The first circumstance is where a long-term prisoner, who has been released on licence under section 3AB(3),(8) has been recalled to prison and the licence under section 3AB(3) has been revoked. Release on licence under section 3AB(3) will occur where the Parole Board has recommended a prisoner be released on parole at a future date and where the Board directs the Scottish Ministers to release the prisoner in advance of that date.
56.Section 10(2) amends section 17 of the 1993 Act (which deals with prisoners whose licences have been revoked and who have been recalled to prison) so that the Parole Board can, if it wishes, take the opportunity to review its earlier decision to recommend that the prisoner be released on parole. That review can take place whether or not the Board is also considering the prisoner’s case by virtue of a referral to the Board under section 17(3) of the 1993 Act.
57.The second circumstance is where a long-term prisoner, who has been released on licence under section 3AB(1),(9) and who subsequently has been recommended by the Parole Board for release on parole at a future date, has, before that date, been recalled to prison and the licence under section 3AB(1) has been revoked. Release on licence under section 3AB(1) will occur where the Scottish Ministers exercise their discretion to release a prisoner on licence in a case where the Parole Board has not yet recommended that the prisoner be released on parole.
58.Section 10(3) amends section 17A of the 1993 Act (which deals with prisoners whose licences under section 3AA(10) or 3AB(1) have been revoked and who have been recalled to prison) so that the Parole Board can, if it wishes, take the opportunity to review its earlier decision to recommend that the prisoner be released on parole. That review can take place whether or not the Board is also considering the prisoner’s case by virtue of a referral to the Board under section 17A(3) of the 1993 Act.
59.Finally, section 10(4) inserts new section 17B into the 1993 Act for the third circumstance. That section provides that where the Parole Board has recommended or directed that a prisoner be released on licence under any provision of Part 1 of the Act, but the prisoner has not yet been released on licence, the Board may review its decision if new information which the Board considers has a significant bearing on the suitability of the prisoner for release on licence comes to the attention of the Board.
Section 11—Power to release early
60.Section 11 amends the 1993 Act to make provision for the early release of prisoners in emergency situations.
61.Section 11(2) inserts new sections 3C to 3E into the 1993 Act. New section 3C creates a new power for the Scottish Ministers to make regulations which provide for defined groups of persons to be released early from prison. The regulations must either specify a release date or make provision for the calculation of the date, with a latest release date of not more than 180 days after the day the regulations are made.
62.Under section 3C(2), the Scottish Ministers may not make regulations under subsection (1) of that section unless they are satisfied that doing so is necessary and proportionate where there is an emergency situation effecting a specific prison, or prisons generally. “Emergency situation” is defined in subsection (11) and includes the incidence or spread of infection or contamination, or a situation resulting in part of the prison estate being unusable, such as where there has been a fire or a flood. Under subsection (2) the Scottish Ministers must also be satisfied that making the regulations will protect the security and good order of the relevant prison, and the health, safety, and welfare of prisoners and staff.
63.Section 3C(3) allows the Scottish Ministers to provide that any long-term prisoners released by virtue of the regulations would be released on licence, and to specify standard conditions which must be included in any such licence. Section 3C(4) restricts eligibility for release by virtue of the regulations to prisoners with not more than 180 days left to serve of their sentence.
64.Section 3C(5) provides for the prisoners who would be excluded from being released by virtue of the regulations. Subsection (5)(a) refers to the list of classes of prisoner set out in subsection (6), including life prisoners, untried prisoners, prisoners serving extended sentences, prisoners subject to Sex Offender Notification Requirements, prisoners serving sentences for certain domestic abuse offences, and terrorist prisoners. Subsection (6)(k) provides that only long-term prisoners who have been recommended for release at the date on which the regulations are made will be released by virtue of the regulations. Subsection (5)(b) gives prison governors a right to veto the release of any person detained in their prison who would otherwise be released by virtue of the regulations, if they consider that that person poses an immediate risk of harm to a particular person or an identified group of people.
65.Section 3C(7) places an obligation on the Scottish Ministers to publish guidance about the application by prison governors of their right, under subsection (5)(b), to veto the release of prisoners by virtue of regulations made under section 3C(1). Subsection (8) allows the Scottish Ministers to update that guidance, and subsection (9) requires prison governors to have regard to the guidance when considering whether to exercise their power of veto, to ensure that the right is applied consistently. New section 3D makes provision for the parliamentary scrutiny to which regulations made under section 3C will be subject. Under subsection (1), the regulations will be subject to the affirmative procedure, unless subsection (2) applies. Subsection (2) applies if the instrument containing the regulations includes a statement of urgency by the Scottish Ministers. If that requirement is met, then subsection (3) will apply and the regulations will be subject to the made affirmative procedure.
66.New section 3E makes provision for prisoners released by virtue of the regulations to be deemed, for the purposes of the 1993 Act, to have been released under the specified provision of that Act.
67.Section 10(3) inserts a new subsection into section 12 of the 1993 Act, with the effect that subsection (3)(b) of that section, which prevents the inclusion of licence conditions which have not been recommended by the Parole Board, will not apply to standard conditions in licences granted by virtue of the regulations.
68..Section 10(4) inserts new section 12ZA after section 12 of the 1993 Act. The new section makes provision for the standard conditions to be contained in licences granted by virtue of the regulations. Subsection (1) provides that the standard conditions remain in force, unless cancelled, until the date on which the released person would otherwise have been released under section 1(3). This is the date on which they will move to a standard parole licence. Subsection (2) states that the standard conditions may include a curfew condition. A curfew condition is one which requires the person to remain in a specified place for specified periods of time (often the person’s home), or which requires the person to stay away from a specified place or class of place at specified times or for periods of time.
Section 12—Duty to engage in release planning
69.Section 12 amends the Community Justice (Scotland) Act 2016 (“
70.In practice, it is expected that the Scottish Prison Service will represent the Scottish Ministers in making requests to engage in release planning and in release planning itself. The Scottish Prison Service is not a statutory body as such, being an Executive Agency of the Scottish Ministers, so is not normally mentioned in legislation. But it carries out the statutory and other functions of the Scottish Ministers in relation to prisons and prisoners. It is also expected that Social Security Scotland will engage in release planning, although not mentioned in the list of persons in section 34A(2) on whom the duty to engage (on request) is imposed. Social Security Scotland is also not a statutory body but is an Executive Agency of the Scottish Ministers. As the request to engage in release planning is issued by the Scottish Ministers, they will already be engaged in the appropriate capacity. The list of persons in section 34A(2) may be modified by regulations made by the Scottish Ministers.
71.Subsection (4) of section 34A provides that a person complying with a request to engage in release planning must have regard to the role which third sector bodies are able to play in relation to the release plan. The person may, if appropriate, commission services from, or co-ordinate with existing services provided by, third sector bodies.
72.Subsection (5) of section 34A allows the Scottish Ministers to make further provision about engagement under subsection (1), and to modify the list of bodies on whom the duty to engage is imposed under subsection (2). Subsection (6) sets out more detail about the sort of provision that may be made by such regulations, although the examples given are not exhaustive. They include provision in relation to individuals who are released directly from court following a period on remand, the appointment of a lead person in relation to a particular release plan, and the operation of the duty of co-operation already set out in the 2016 Act in relation to the duty to engage under section 34A(1).
73.Section 34B(1) requires the Scottish Ministers to publish guidance about the duty of engagement imposed by section 34A(1). The guidance must be published with one year of the day on which section 12(2) of the Act comes into force. Subsection (2) sets out particular examples of the sort of provision which may be included in the guidance, while subsection (3) sets out a list of bodies who are to be consulted when the guidance is prepared, and any time it is reviewed or revised. Subsection (4) requires the Scottish Ministers to keep the guidance under review and update it when appropriate. Subsection (6) places a duty on persons who comply with a request to engage under section 34A(1) to have regard to the guidance, to ensure a consistent approach to engagement.
Section 13—Throughcare support
74.Section 13 amends the 2016 Act by inserting new sections 34C and 34D which deal with throughcare support. Throughcare support is defined in new section 34C(6) as the provision of certain types of support in relation to individuals who have been remanded in custody or sentenced to imprisonment or detention in penal institutions, from the point they are imprisoned or detained (whether on remand or after sentencing) until after their release, and the engagement in release planning under section 34A. The types of support are listed in paragraphs (a) to (e) of the definition.
75.Section 34C(1) requires the Scottish Ministers to publish standards applicable to throughcare support within two years of section 13(2) of this Act(11) coming into force. Subsection (2) sets out the type of provision to be included in the standards. They must make provision for minimum standards and outcomes to be met by providers of throughcare support. Subsection (3) provides that the Scottish Ministers must keep the standards under review and may publish amended standards. Subsection (4) requires the Scottish Ministers to consult the persons listed in subsection (4) in preparing, reviewing and revising the standards. This includes persons providing support services to victims. A definition of support services is included in subsection (6), and the Scottish Ministers have the power, under subsection (8), to amend that definition. In the case of the first standards prepared under section 34C, the Scottish Ministers must publish a draft of those standards for public consultation and thereafter publish a report detailing the consultation process followed and the ways in which views expressed during the consultation have (or have not) been taken into account in preparing the published version of the first standards.
76.Section 34D creates a duty to comply with the standards published or revised under section 34B. The duty is imposed on the persons listed in subsection (2) and the duty applies when they exercise functions relating to the provision of throughcare support. Subsection (3) provides that the list of persons in subsection (2) may be modified by regulations made by the Scottish Ministers.
Section 14—Provision of information to victim support organisations
77.Section 14 will amend the Criminal Justice (Scotland) Act 2003 (“
78.Section 14(2) inserts a new section 16ZA into the 2003 Act. Under this section, victim support organisations can be provided with the information mentioned in section 16(3) where either the victim has requested this or the organisation itself has done so and the Scottish Ministers are satisfied that the victim consents to the organisation being given the information. A “
79.The information that can be provided to a victim support organisation is set out in section 16(3) of the 2003 Act and is information about the dates on which the prisoner is to be or may be released from prison, whether or not the prisoner has died, if the prisoner has been transferred outside Scotland, if the prisoner is unlawfully at large, the date a prisoner released or unlawfully at large is returned to prison, and if the prisoner is made subject to various orders relating to mental health and detained in hospital rather than prison.
80.Section 14 also inserts a new section 17ZA into the 2003 Act. This makes provision for victim support organisations which is equivalent to that made in relation to victims of crime by section 17 of the 2003 Act, other than in one respect. Section 17 requires a victim to be provided with the opportunity to make representations to the Scottish Ministers and the Parole Board where a prisoner is being considered for release. To facilitate that, the victim is informed of a number of matters, including dates by which such representations need to be made. Section 17ZA will enable victim support organisations to receive such information so that they can provide support services to victims. As with section 16ZA, the Scottish Ministers and the Parole Board will be required to provide the information to a victim support organisation where the victim request this or where the organisation itself does so and the victim consents. But a victim support organisation does not, by virtue of section 17ZA, have the right to be given an opportunity to make representations about the release of a prisoner. Only the victim has that right.
81.Further amendments are made to section 17A of the 2003 Act, which deals with the victim’s right to information where a prisoner is being considered for temporary release, so that a victim support organisation can also be given this information. As with sections 17 and 17ZA, however, only the victim will have the right to be given an opportunity to make representations about the release.
82.Section 14 also inserts two new sections into the 2003 Act which make provision for information to be provided to victim support organisations where the offender involved has been made subject to certain mental health orders under the criminal justice system (instead of being sentenced to imprisonment).
83.Under new section 16D, a victim support organisation (a “supporter”) can be provided with the information mentioned in section 16C(2) of the 2003 Act about an offender who has been made subject to a compulsion order and a restriction order.(12) The information in section 16C(2) is similar to the sort of information mentioned in section 16(3) which is provided in relation to prisoners, but tailored to the particular circumstances of an offender subject to the relevant mental health orders. So it includes information as to whether an order has been varied or revoked, whether the offender has been conditionally discharged (and the conditions of that conditional discharge), or whether the offender, having been released, has been recalled to hospital. As with new section 16ZA, the organisation can be given information where either the victim has requested this or the organisation itself has done so and the Scottish Ministers are satisfied that the victim consents.
84.Under new section 17DA, the supporter can be given information about decisions mentioned in section 17B(5) of the 2003 Act made in relation to the offender if nominated by the victim to receive that information or if the supporter asks for it (and the Scottish Ministers are satisfied that the victim has consented to the supporter being given the information). Those decisions are - a decision by the offender’s responsible medical officer to suspend, for the first time, the offender’s detention without imposing a supervision requirement; a decision by the Mental Health Tribunal about what (if any) conditions to impose on the patient's conditional discharge; and a decision by the Scottish Ministers to impose, alter or remove a condition which is (or would be) relevant to the victim.
85.Section 17DA also gives the supporter the right to information that the victim would be entitled to receive under section 17D, namely that the Court of Session has, on appeal against a decision of the Mental Health Tribunal mentioned in section 17B(5), made an order which requires the offender to continue to be detained and that the compulsion order, restriction order, hospital direction or transfer for treatment direction to which the offender is subject is to continue in effect.
86.The 2003 Act provisions relate to prisoners serving sentences of 18 months or more and to prisoners serving life sentences. Section 27A of the 2014 Act makes provision where prisoners are serving sentences of less than 18 months. Section 27A gives victims the right to be informed of the prisoner’s release from prison or if the prisoner has escaped from prison.
87.Section 14(7) will amend the 2014 Act to insert a new section 27B which will make provision similar to section 16ZA of the 2003 Act for the provision of information to victim support organisations where prisoners are serving less than 18 months. As with section 16ZA, a victim support organisation will be provided with information where either the victim has requested this or the organisation itself has done so and the Scottish Ministers are satisfied that the victim consents. The information provided by virtue of section 27B is the same information as is provided under section 27A, namely information about the prisoner’s release or escape from prison.
Section 15 – Report on operation of Part 2
88.Section 15 imposes a duty on the Scottish Ministers to prepare and lay before the Scottish Parliament a report on the operation during the “reporting period” of the changes to the law made by the other provisions of Part 2 of this Act. They must do so as soon as reasonably practicable after the end of the reporting period, which is the 5-year period after the day on which the Bill for this Act receives Royal Assent.
89.In preparing the report, Ministers must consult the bodies and persons listed in section 15(2). Section 15(3) contains definitions of expressions used in this section, including the definition of “reporting period” and of “
See the Home Detention Curfew (Prescribed Standard Conditions) (Scotland) (No. 2) Order 2008 (SSI 2008/125) - here.
Those matters are largely the same as the matters previously listed in section 3AA(4) of the 1993 Act but with two changes. First, the reference to protecting the public at large is revised to make clear that this includes identifiable groups of people. Secondly, express reference to protecting victims and their families is added. Section 9(4) amends section 3AA(4) to bring it into line with new section 3AB(4).
Including on a review undertaken by virtue of section 3B of the 1993 Act, when it is brought into force. Section 3B was inserted by the Management of Offenders (Scotland) Act 2019, section 51(3).
Such as prisoners convicted of certain sexual, violent or terrorism offences – see section 210A(10) of the 1995 Act.
But the power does not extend to modifying section 3AB(11), so terrorist prisoners will remain excluded from release under section 3AB.
As inserted into the 1993 Act by section 7.
Again, as inserted into the 1993 Act by section 7.
Release under section 3AA of the 1993 Act is known as release on home detention curfew. As a result of this Act, release on home detention curfew will only be available for short-term prisoners.
Which inserts new section 34C into the 2016 Act.
Under Part 6 of the Criminal Procedure (Scotland) Act 1995.
