Prisoners and Criminal Proceedings (Scotland) Act 1993
Discretionary early release on licence (parole) has operated in Scotland since 1967. The existing statutory regime is contained in the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"), as amended. The 1993 Act has been frequently amended since it came into force on October 1, 1993, most recently by the Management of Offenders etc. (Scotland) Act 2005 ("the 2005 Act") which received Royal Assent on December 8,2005. The 2005 Act introduced a scheme of Home Detention Curfew. It also ended unconditional early release for sex offenders serving sentences of six months or more and less than four years. With the exception of these recent changes, early release from prison is governed by sentence length.
'Early release' is the term given to the present system which permits the release of a prisoner, either on a discretionary or automatic basis and either conditionally or unconditionally, prior to the expiry of the sentence of imprisonment imposed by the court. The current arrangements are:
- Prisoners ( short term prisoners) sentenced to less than a four year term of imprisonment, unless made subject to a supervised release order, are released automatically and unconditionally (ie not on licence) after serving one-half of their sentence
- Prisoners ( long term prisoners) sentenced to four years or more may be released on licence after serving one half of their sentence if this is directed by the Parole Board for Scotland and must be released on licence after serving two-thirds of their sentence
- Prisoners ( extended sentence prisoners) subject to an extended sentence are released on licence
- Prisoners sentenced to life imprisonment may be released on life licence after serving in full the 'punishment part' of their sentence imposed by the court, if this is directed by the Parole Board
Where prisoners are released on licence they are liable to recall to custody for the remainder of their sentence if they breach a condition of licence.
Custodial Sentences and Weapons (Scotland) Act 2007
The Custodial Sentences and Weapons (Scotland) Act 2007 received Royal Assent on April 19, 2007. The custodial elements of the 2007 Act was intended to end unconditional early release for offenders serving sentences of 15 days or more. Its policy purpose was that where the courts had decided that prison is the appropriate punishment, the measures in the 2007 Act would ensure that the sentence is able to be tailored to address the risk and needs of the offender in a way that contributes to reducing re-offending and enhancing public safety. The intention was that an offender's sentence would be managed in an integrated way, beginning in custody and continuing on into the community, allowing a structured plan specific to the individual's needs to be followed. The arrangements in the 2007 Act are:
- Apart from offenders who are sentenced to 14 days or less, a combined structure for managing sentences comprising a period in custody (the custody part) and a period on licence in the community (the community part). The custody part will be a minimum of 50% of the sentence.
- It will be made clear at the time of sentence that the minimum custody part will be 50% of the total sentence. This will be for the purposes of punishment and deterrence. However, the court will have the power to increase the statutory minimum 50% if required in any particular case.
- Offenders will be subject to continuous review during the custody part. Where Scottish Ministers consider that an offender should not be released at the end of the custody part on grounds of risk, they will refer such cases to the Parole Board with a recommendation that the offender should be kept in custody for longer.
- At the end of the custody part, the offender will be on licence for the entire community part of the sentence. The licence conditions will enable provision for a variable and flexible package of measures including supervision if required and will detail what obligations the offender has to meet.
- Once an offender is released on licence the Scottish Ministers will be solely responsible for deciding to recall an offender to custody for a serious breach of a licence condition and where he or she presents an unacceptable risk to public safety. The decision to continue to detain such a recalled offender will be taken by the Parole Board.
The Scottish Government has made it clear that while committed to ending the current procedure of automatic, unconditional early release, it will not implement the custodial sentence measures in CSaW until the implications for the Scottish criminal justice system are assessed fully. The Cabinet Secretary for Justice has asked the Prisons Commission to deal with this as an early task. It is identified in the Commission's key objectives.