The Scottish Government

The Management of Offenders etc. (Scotland) Act 2005 amended the 1993 Act to allow certain short and long term prisoners sentenced to 3 months or more to be released on home detention curfew (HDC). This is a form of conditional release and was implemented for certain short term prisoners in July 2006.

Once a short-term prisoner has served one-half of their sentence, the Scottish Ministers are under a duty to release them unconditionally (i.e. not on licence); but such a prisoner can be the subject of a supervised release order imposed at the date of the original sentence, provided that they are not a sex offender (see paragraph below) whose offence was committed after 30 September 1998. On release a short-term prisoner is not under any form of compulsory supervision but are "at risk" of being returned to custody by the courts under section 16 of the 1993 Act if he or she commits another imprisonable offence before the expiry of the original sentence. The Management of Offenders (Scotland) Act 2005 introduced new provisions for sex offenders sentenced to a period of imprisonment of between 6 months and 4 years. These require these short term sentence prisoners to be released on licence, rather than be released unconditionally, at the half-way stage of their sentence.

Once a long-term prisoner has served one-half of their sentence they may be released on licence. The decision rests with the Parole Board. Where the Parole Board recommends release the Scottish Ministers are under a duty to release the prisoner. The Parole Board decides the licence conditions. The licence, unless previously revoked, expires at the sentence end date (ie the date on which the full sentence imposed by the court expires). Once a long-term prisoner has served two-thirds of their sentence the Scottish Ministers are under a duty to release them on licence. Again, the Parole Board decides the licence conditions. The licence, unless previously revoked, expires at the sentence end date. A long-term prisoner (in the same way as a short-term prisoner) may be returned to custody by the courts under section 16 of the 1993 Act if he or she commits another imprisonable offence before the sentence end date.

An extended sentence may be imposed on certain offenders convicted of a sexual or a violent offence. All prisoners subject to an extended sentence are released on licence. Where the "custodial term" is less than four years the prisoner is released automatically at the half-way stage of the custodial term and is on licence until the end of the "extension period". Thereafter, during the remaining half of the "custodial term", the prisoner is "at risk" of being returned to custody by the courts under section 16 of the 1993 Act in the same way as any other short-term prisoner (with the exception of short-term sex offenders). Where the "custodial term" is four years or more the prisoner may be released after serving half of this term if the Parole Board recommends (in effect, directs) early release. If the Board does not recommend release the prisoner will be released after serving two-thirds of the "custodial term". In either case the licence, unless previously revoked, does not expire until the end of the full extended sentence imposed by the court ie the custody part and the extension period.

Where a person is sentenced to life imprisonment the court is required to specify the "punishment part" of the life sentence. When the punishment part has expired the prisoner has the right to require the Scottish Ministers to refer his or her case to the Parole Board. In practice the case is referred to the Parole Board to enable it to consider the prisoner's case on the expiry of the punishment part or as soon as practicable thereafter. In its consideration of life prisoner cases the Parole Board sits as a Tribunal with a legally qualified member in the chair. The prisoner has the right to an oral hearing and to legal representation. If the Parole Board does not direct release it must set a date to carry out a further hearing within a 2-year timescale. If the Parole Board directs release, the prisoner is released on a life licence. This will stipulate a number of conditions which they must adhere to; failure to do so can result in the them being recalled to custody where their case for re-release would again be considered by the Parole Board.

The release licence of any prisoner can be revoked and the prisoner returned to custody. Having been informed of a possible breach of licence by either local authority social workers or by the police, Scottish Ministers can issue a warning letter to the offender (for 'minor' breaches), refer the matter to the Parole Board for it to take a decision on whether or not the offender should be recalled to custody, or, if the nature of the breach suggests significant risk, can recall the offender to custody without referring the matter to the Parole Board in the first instance. Where revocation is recommended by the Parole Board the Scottish Ministers are obliged to revoke the licence and, where the person is at liberty, to recall the person to custody. This involves the individual being apprehended by the police and returned to prison. Where an offender's licence is revoked their case will be referred to the Parole Board unless they receive another custodial sentence. (If the Board was involved in recommending that the licence be revoked then different members of the Board will consider this reference.) If the Parole Board is satisfied that the offender does not require to continue to be detained it will direct immediate re-release and the Scottish Ministers are under a duty to release the offender, on licence, as soon as is reasonably practicable. Where the Parole Board does not direct immediate re-release the offender is liable to be detained until the end of the sentence imposed by the court (plus any during which the prisoner was unlawfully at large) but may subsequently be further reviewed by the Parole Board for release on licence, normally on an annual basis, depending upon how much of the original sentence remains to be served.