Acts of the Scottish Parliament

2001 asp 7

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 30th May 2001 and received Royal Assent on 5th July 2001

An Act of the Scottish Parliament to amend certain enactments relating to the sentencing and release of life prisoners, the constitution and powers of the Parole Board, legal advice and assistance and legal aid, homosexual offences and the appointment and removal of the procurator fiscal of the Lyon Court which are or may be incompatible with the European Convention on Human Rights; and to enable further changes in the law where it is or may be incompatible with the Convention.

(a) in subsection (1)-

(i) the word "designated" is repealed;

(ii) after paragraph (a) there is inserted,"or

(iii) paragraph (c) and the word "or" immediately preceding it are repealed;

(b) in subsection (2)-

(i) the word "designated" where it first occurs is repealed;

(ii) for "the designated part" there is substituted "the punishment part";

(iii) after "appropriate" where it first occurs there is inserted "to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public),";

(iv) for "associated with it" there is substituted "of which the life prisoner is convicted on the same indictment as that offence";

(v) after paragraph (a) there is inserted-

(vi) in paragraph (b), the word "designated" is repealed;

(c) for subsection (3) there is substituted-

(d) in subsection (4), the word "designated" is repealed;

(e) after subsection (5) there is inserted-

(f) in subsection (6), the word "designated" and the words "at any time" are repealed;

(g) after subsection (6) there is inserted-

(h) in subsection (7), paragraph (b) is repealed;

(i) in subsection (8)-

(i) the word "designated" where it first occurs is repealed; and

(ii) for "designated" where it second occurs there is substituted "punishment"; and

(j) in subsection (9)-

(i) paragraph (a) is repealed; and

(ii) in paragraph (b), for "designated" there is substituted "punishment".

(a) in subsection (2), the words from "and" to the end are repealed;

(b) in subsection (3), for paragraphs (a) and (b) there is substituted "a person recalled under subsection (1) above"; and

(c) after subsection (4) there is inserted-

(a) in paragraph 6-

(i) in sub-paragraph (2), for "sections 1(4) and 2(9)" there is substituted "section 2(9)";

(ii) in each of sub-paragraphs (2)(a) and (3)(a), the word "designated" is repealed; and

(iii) in each of sub-paragraphs (2)(b) and (3)(b), for "designated" there is substituted "punishment"; and

(b) in paragraph 6A(2)-

(i) the word "designated" where it first occurs is repealed; and

(ii) for "designated" where it second occurs there is substituted "punishment".

(a) in subsection (3)-

(i) for "sections 1(4) and 2(9)" there is substituted "section 2(9)";

(ii) in paragraph (a), the word "designated" is repealed; and

(iii) in paragraph (b), for "designated" there is substituted "punishment"; and

(b) in subsection (4)-

(i) in paragraph (a), the word "designated" is repealed; and

(ii) in paragraph (b), for "designated" there is substituted "punishment".

(a) in subsection (1), after "subsections (2) and (3)" there is inserted "and section 205D"; and

(b) subsections (4) to (6) are repealed.

(a) for subsection (1) there is substituted-

(b) for subsection (2) there is substituted the following-

(c) in subsection (3)-

(i) for "sections 1(4) and 2(9)" there is substituted "section 2(9)";

(ii) in paragraph (a), the word "designated" is repealed; and

(iii) in paragraph (b), for "designated" there is substituted "punishment" and for the word "certificate" there is substituted "order under subsection (2J) above";

(d) in subsection (4), in paragraph (b)-

(i) in sub-paragraph (i), after "1997" there is inserted ", other than an order for a restricted transfer within the meaning of paragraph 6(1) of that Schedule to that Act,"; and

(ii) after sub-paragraph (i) there is inserted-

(e) in subsection (5)-

(i) in paragraph (a), the word "designated" is repealed; and

(ii) in paragraph (b)-

(A) for "28" there is substituted "28(2)";

(B) after "1997" there is inserted "section 82A(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (c.6), paragraph 4(1) of Schedule 2 to the Isle of Man Custody Act or under a provision such as is mentioned in subsection (1A) above relating to Northern Ireland"; and

(C) for "certificate under subsection (2)" there is substituted "order under subsection (2J)" and for "relevant" there is substituted "punishment".

(a) in subsection (1) the words "this Part of" are repealed;

(b) in subsection (4), after paragraph (b) there is inserted-

"(ba) enabling the Board to require any person, other than a prisoner whose case the Board is considering, to attend a hearing before it to give evidence or to produce documents;";and

(c) after subsection (4) there is inserted-

    "(4A) In making provision such as is mentioned in subsection (4)(ba) above, the Scottish Ministers may apply subsections (4) and (5) of section 210 of the Local Government (Scotland) Act 1973 (c.65) with such modifications as may be set out in the rules but subject to the limitation that any penalty under subsection (5) of section 210 as so applied shall be restricted to a fine which shall not exceed level 2 on the standard scale.".
 

(a) three years or more have passed since the person ceased to be a member of the Parole Board; and

(b) the person has not previously been reappointed under this paragraph.

(a) either a Senator of the College of Justice or a sheriff principal (who shall preside);

(b) a person who is, and has been for at least ten years, legally qualified; and

(c) one other person who shall not be legally qualified.

(a) may make provision enabling the tribunal, at any time during an investigation, to suspend a member from office and providing as to the effect and duration of such suspension; and

(b) shall make such further provision as respects the tribunal as the Scottish Ministers consider necessary or expedient, including provision for the procedure to be followed by and before it.".

(a) subsection (5) is repealed; and

(b) at the end there is added-

(a) in subsection (1), after "(2)" there is inserted ", (2A)";

(b) after subsection (2) there is inserted-

(c) after subsection (3) there is inserted-

(a) in subsection (12) (provisions which cease to have effect five years after employed solicitors regulations come into effect)-

(i) in paragraph (c), for "but does not apply" there is substituted "or"; and

(ii) in paragraph (e), after "including" there is inserted ", where it second occurs,"; and

(b) at the end, there is inserted-

(a) in subsection (2), paragraph (a) and the word "or" immediately following it are repealed; and

(b) in subsection (5), in paragraph (b), for "both" there is substituted "the".

(a) the words-

(i) "and procurator fiscal of the Lyon Court";

(ii) "respectively"; and

(iii) "or procurator fiscal",

are repealed; and

(b) for "and procurator fiscal aforesaid have" there is substituted "has".

(a) an Act of Parliament or an Act of the Scottish Parliament;

(b) any subordinate legislation made under any such Act;

(c) any provision of any such Act or subordinate legislation; or

(d) any exercise or purported exercise of functions by a member of the Scottish Executive,

(a) make different provision for different purposes;

(b) relate to-

(i) all cases to which the power to make it extends;

(ii) those cases subject to specified exceptions; or

(iii) any particular case or class of case;

(c) make-

(i) any supplementary, incidental or consequential provision; or

(ii) any transitory, transitional or saving provision,

which the Scottish Ministers consider necessary or expedient;

(d) modify any enactment or prerogative instrument or any other instrument or document relating to the exercise or purported exercise of functions by the Scottish Ministers;

(e) make provision (other than provision creating criminal offences or increasing the punishment for criminal offences) which has retrospective effect;

(f) provide for the delegation of functions.

(a) on summary conviction, with imprisonment for a period exceeding three months or with a fine exceeding the amount specified as level 5 on the standard scale;

(b) on conviction on indictment, with a period of imprisonment exceeding two years.

(a) lay a copy of the proposed draft order, together with a statement of their reasons for proposing to make the order, before the Scottish Parliament;

(b) give such public notice of the contents of the proposed draft order as they consider appropriate and invite persons wishing to make observations on the draft order to do so, in writing, within the period of 60 days beginning with the day on which that public notice was given or the day on which the draft order was laid under this subsection, whichever is earlier, or, if both those actions occurred on the same day, that day;

(c) have regard to any written observations submitted within that period.

(a) summarising all the observations to which they had to have regard under subsection (3)(c) above; and

(b) specifying the changes (if any) which they have made in the draft order and the reasons for them.

(a) give such public notice of the contents of the order as they consider appropriate and invite persons wishing to make observations on the order to do so, in writing, within the period of 60 days beginning with the day on which it was made;

(b) lay the order, together with a statement of their reasons for having made it, before the Scottish Parliament.

(a) summarising all the observations to which they had to have regard under subsection (3) above; and

(b) specifying the modifications (if any) which they consider it appropriate to make to the remedial order.

(a) make a remedial order by virtue of this subsection giving effect to those modifications and replacing the remedial order made under subsection (1) above; and

(b) lay the remedial order made by virtue of this subsection before the Scottish Parliament,

(a) who was, prior to the relevant date, sentenced for murder committed by the prisoner when aged 18 or over; or

(b) in respect of whom, the Lord Justice General or the Lord Justice Clerk has issued a certificate under-

(i) paragraph 6(1) of Schedule 6 to the 1993 Act; or

(ii) section 16(2) of the Crime and Punishment (Scotland) Act 1997 (c.48).

"existing life prisoner" means a life prisoner to whom this Part of this schedule applies by virtue of paragraph 1 above;

"incapable" means incapable by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise);

"life prisoner" has the same meaning as it has in section 27(1) as read with section 6 of the 1993 Act;

"mental disorder" has the same meaning as it has in section 87 of the Adults with Incapacity (Scotland) Act 2000 (asp 4);

"punishment part" has the same meaning as it has in section 2(2) of the 1993 Act;

"relevant date" means the date when this Part of this schedule comes into force.

(a) the prisoner has been recalled to prison under section 17(1) of the 1993 Act; and

(b) the Parole Board has not directed that the prisoner be released on licence immediately under section 17(4) of that Act.

(a) has, under paragraph 7 below, waived the entitlement to such a hearing; or

(b) has served the part of the sentence specified in the certificate referred to in paragraph 1(b) above issued in respect of that prisoner.

(a) the prisoner has had independent legal advice or has declined such advice; and

(b) a copy in writing of the waiver is sent to the Scottish Ministers.

(a) who has not, under paragraph 7 above, waived the entitlement to a hearing; or

(b) who has not served the part of the sentence specified in the certificate referred to in paragraph 1(b) above issued in respect of that prisoner,

(a) the High Court of Justiciary;

(b) the Lord Advocate; and

(c) the existing life prisoner.

(a) a copy of the indictment;

(b) subject to paragraph 11 below, a copy of any report by the trial judge;

(c) a copy of any certificate as is referred to in paragraph 1(b) above;

(d) any other documents or information which the Scottish Ministers consider relevant.

(a) may be sent under paragraph 9 above notwithstanding that it was prepared on the basis that it would not be disclosed to the existing life prisoner; and

(b) shall be so sent for the purposes only of the hearing under paragraph 12 below.

(a) who is serving more than one sentence of imprisonment for life; and

(b) two or more of whose life sentences were imposed in proceedings on a single indictment,

(a) whose case was, before the relevant date, referred to the Parole Board under section 28(4) of the Prisons (Scotland) Act 1989 (c.45) (in this schedule, "the 1989 Act") or under section 2 or 17(3) of the 1993 Act and, in respect of whom, the Board declined to direct the prisoner's release on licence; or

(b) who was, before the relevant date, recalled to prison under section 28(1) or (2) of the 1989 Act or section 17(1) of the 1993 Act and not thereafter released,

(a) who was sentenced before the relevant date; and

(b) in respect of whom the court made an order under section 2(2) of the 1993 Act that subsections (4) to (6) of that section apply to the prisoner as soon as the prisoner has served the part of the sentence ("the designated part") specified in the order.

"life prisoner" and "punishment part" have respectively the same meanings as they have in Part 1 of this schedule;

"relevant date" means the date when this Part of this schedule comes into force; and

(a) whose case was, before the relevant date, referred to the Parole Board under section 2 or 17(3) of the 1993 Act and, in respect of whom, the Board declined to direct the prisoner's release on licence; or

(b) who was, before the relevant date, recalled to prison under section 17(1) of the 1993 Act and not thereafter released,

(a) in respect of whom, before the relevant date, the Parole Board has recommended a provisional release date on which the prisoner should be released on licence under the 1989 Act or the 1993 Act;

(b) whose case has not been the subject of a hearing under paragraph 12 above; and

(c) to whose release neither the Lord Justice General, whom failing the Lord Justice Clerk, nor, if available, the trial judge objects.

"existing life prisoner" means a person who is an existing life prisoner for the purposes of Part 1 of this schedule by virtue only of paragraph 1(a) above;

"provisional release date" means, where that date has been fixed by reference to a month but not to a specific day in the month, the first day of that month, and, where that date would (but for this provision) be a Saturday, Sunday or public holiday and the prisoner would fall to be released then, means the last preceding day which is not a Saturday, Sunday or public holiday;

"public holiday" has the meaning given by section 27(8) of the 1993 Act;

"punishment part" has the same meaning as it has in Part 1 of this schedule;

"relevant date" means the date when this Part of this schedule comes into force.

(a) direct that the provisional release date fixed for the prisoner be adhered to and that he or she be released then in accordance with paragraph 33 above or, if the direction is made on or after that provisional release date, that the prisoner be released as soon as reasonably practicable after the direction is made in accordance with paragraph 39 below; or

(b) direct that the provisional release date so fixed no longer applies.

(a) direct that the recommended provisional release date be adhered to and that the prisoner be released then or, if the direction is made on or after that recommended provisional release date, that the prisoner be released as soon as reasonably practicable after the direction is made in accordance with paragraph 48 below; or

(b) direct that the recommended provisional release date no longer applies.

(a) a life prisoner to whom subsection (1) of section 10 of the 1993 Act applied and in respect of whom the Secretary of State has issued a certificate under section 28(4) of the Crime (Sentences) Act 1997 (c.43);

(b) a life prisoner to whom subsection (2), but not subsections (1) or (3), of section 10 of the 1993 Act applied; or

(c) a life prisoner to whom subsections (2) and (3) of that section applied, including one to whom those subsections applied by virtue of paragraph 7 of Schedule 6 to that Act,

"existing transferred life prisoner" means a life prisoner to whom this Part of this schedule applies by virtue of paragraph 49 above;

"incapable", "life prisoner", "mental disorder" and "punishment part" have respectively the same meanings as they have in Part 1 of this schedule;

"relevant date" means the date when this Part of this schedule comes into force.

(a) has, under paragraph 54 below, waived the entitlement to such a hearing; or

(b) has served the part of the sentence specified in the certificate referred to in sub-paragraph (c) of paragraph 57 below issued in respect of that prisoner.

(a) the prisoner has had independent legal advice or has declined such advice; and

(b) a copy in writing of the waiver is sent to the Scottish Ministers.

(a) who has not, under paragraph 54 above, waived the entitlement to a hearing; or

(b) who has not served the part of the sentence specified in the certificate referred to in sub-paragraph (c) of paragraph 57 below issued in respect of that prisoner,

(a) the High Court of Justiciary;

(b) the Lord Advocate; and

(c) the existing transferred life prisoner.

(a) a copy of any indictment or corresponding document;

(b) subject to paragraph 58 below, a copy of any report by the trial judge;

(c) a copy of any certificate under-

(i) section 10(2) of the 1993 Act;

(ii) section 48 of or paragraph 9 of Schedule 12 to the Criminal Justice Act 1991 (c.53); or

(iii) section 28(4) or 33 of the Crime (Sentences) Act 1997 (c.43);

(d) any other documents or information which the Scottish Ministers consider relevant.

(a) may be sent under paragraph 56 above notwithstanding that it was prepared on the basis that it would not be disclosed to the existing transferred life prisoner; and

(b) shall be so sent for the purposes only of the hearing under paragraph 59 below.

(a) the prisoner had been sentenced for the offence in Scotland; and

(b) that section, as amended by this Act, had been in force at the time when the prisoner was sentenced.

(a) any certificate referred to in paragraph 57(c) above;

(b) in the case of a prisoner transferred to Scotland from England and Wales, any recommendation made by the Lord Chief Justice to the Secretary of State as to the period of the life sentence that the prisoner should be required to serve before becoming eligible for release on licence;

(c) any other certificate issued or any recommendation, declaration, decision, direction or order made in respect of the prisoner, under any enactment applying in any part of the United Kingdom or in the Channel Islands or the Isle of Man, as to the period that the prisoner should or must serve before becoming eligible for release on licence.

(a) Part 1 of the 1993 Act, except section 2(9), as amended by this Act shall apply to the existing transferred life prisoner as if-

(i) the existing transferred life prisoner were a life prisoner within the meaning of section 2 of that Act; and

(ii) the punishment part of that prisoner's sentence within the meaning of that section were the part specified in the order under paragraph 59 above; and

(b) any certificate such as is referred to in sub-paragraph (c) of paragraph 57 above shall have no further effect.

(a) who is serving more than one sentence of imprisonment for life; and

(b) two or more of whose life sentences were imposed in proceedings on a single indictment or corresponding document,

(a) whose case was, before the relevant date, referred to the Parole Board under section 2 or 17(3) of the 1993 Act and, in respect of whom, the Board declined to direct the prisoner's release on licence; or

(b) who was, before the relevant date, recalled to prison under section 17(1) of the 1993 Act and not thereafter released,

(a) to whom-

(i) section 80 (removal to Scotland of patients from England and Wales) of the Mental Health Act 1983 (c.20) applies; or

(ii) to whom section 81 (removal to Scotland of patients from Northern Ireland) of the Mental Health (Scotland) Act 1984 (c.36) applies; and

(b) who was transferred to Scotland before the relevant date.

"life prisoner" and "punishment part" have respectively the same meanings as they have in Part 1 of this schedule;

"relevant date" means the date when this Part of this schedule comes into force.

(a) to whom this Part of this schedule applies; and

(b) to whom, had the prisoner been transferred after the relevant date, section 10(1) would have applied.

(a) an existing member's most recent appointment or reappointment; and

(b) the coming into force of section 5 of this Act,

(a) the period of appointment provided for in the member's instrument of appointment; or

(b) a period of appointment of six years beginning with the date when the member was first appointed to the Parole Board.

"existing member" means a person who is a member of the Parole Board when section 5 of this Act comes into force;

"current appointment", in relation to any existing member, means the appointment then held by that member;

"public advertisement" means advertisement in a newspaper circulating throughout Scotland.