Prison sentences
Mandatory life sentence
1. The life sentence must be imposed in cases of murder. When passing a mandatory life sentence a judge may make a recommendation as to the minimum period which should elapse before Scottish Ministers release that person on licence. (There are different procedures for persons convicted of murder when under the age of 18.
2. Scottish Ministers may only release an adult mandatory life prisoner if they have a recommendation to do so from the Parole Board and after consulting the Lord Justice General and, if available, the trial judge. Even in these circumstances, Scottish Ministers are not bound to release the prisoner.
3. The decision about when to refer a case to the Parole Board for the first time is taken by Scottish Ministers on the advice of a non-statutory body - the Preliminary Review Committee - which first considers a case at around the four-year stage.
4. Scottish Ministers will specify conditions for any mandatory life prisoner released on licence, and will take into account any recommendations made by the Parole Board. The licence remains in force for the remainder of the prisoner's life and he or she is liable to be recalled to custody for breach of licence conditions. The conditions of a life licence, including the supervision requirements, may be varied or cancelled in the light of the supervision reports received on a prisoner's behaviour in the community.
5. Section 1 of the Crime and Punishment (Scotland) Act 1997 provides for an automatic life sentence in certain situations - essentially where a person is convicted of two or more serious offences. This Section has not been implemented.
Discretionary life sentences
6. A discretionary life sentence may be imposed by the High Court for all common law crimes and certain statutory offences.
7. When a discretionary life sentence is imposed, the minimum time to be served in custody for punishment and deterrence (the'designated part) is set by the court. The 'designated part' is calculated according to the following key principles1:
(a) the period selected must be the minimum period which the prisoner should actually serve in prison as a punishment for his/her crime before he/she can be released;
(b) the designated period should normally bear a fair and reasonable relationship to the minimum period which a prisoner would actually serve under a determinate sentence imposed in circumstances which were similar (although lacked the special requirement of public protection which has led to the life sentence); and
(c) the designated part of a discretionary life sentence should, in the usual case, be set at one half of the period of custody which is considered appropriate purely as a punishment for the crime.
8. Once the designated part is served, the decision on whether or not the person requires to continue to be confined for the protection of the public is determined by the Parole Board (sitting as a Designated Life Tribunal). Where the Board directs release, Scottish Ministers are obliged to implement the direction. Where the Board does not direct release, the prisoner is entitled to another review in a further two years, but his/her case may be reviewed earlier if the Board so recommends and Scottish Ministers so agree.
9. As with adult mandatory life prisoners, release in such cases is on licence and is subject to recall. However, the grounds for recall are narrower than for a mandatory life sentence, and must be based on public protection.
Determinate sentences
10. The current system governing parole and the early release of long-term prisoners was introduced under the Prisoners and Criminal Proceedings (Scotland) Act 1993.
11. For long-term prisoners (defined as those sentenced to four years or more), once one half of the sentence has been served a prisoner is eligible for consideration for parole. Decisions on release of all prisoners sentenced to terms of more than four but less than 10 years are taken by the Parole Board. Decisions on those sentenced to 10 years or more, whose early release has been recommended by the Parole Board, are taken by Scottish Ministers. Once two thirds of the sentence has been served, all prisoners must be released, subject to any extra days added for misconduct in prison.
12. Prisoners on licence (which means both prisoners granted parole, and those released on non-parole licence after serving two thirds of their sentence) are liable to be returned to prison by the court to resume serving their original sentence if convicted of a further offence punishable with imprisonment before their original sentence has expired.
13. All licences contain standard conditions, including keeping in touch with the supervising officer and being of good behaviour and keeping the peace. Additional conditions may be imposed by Scottish Ministers, after consultation with the Parole Board. All prisoners released on licence are liable to recall to custody by Scottish Ministers for breach of licence conditions.
14. A court passing sentence of up to four years, in cases on indictment, may impose a supervised release order requiring the person to be under the supervision of an authority designated by Scottish Ministers on release from custody. The criterion for the imposition of such an order is that the supervision is required to protect the public from serious harm on the release of the offender. The duration of the supervision cannot exceed 12 months, or extend beyond the date on which the full term of imprisonment has elapsed. Supervised release orders are no longer an available disposal for those convicted of sex offences committed on or after 30 September 1998.
Extended sentences
15. Sections 86-88 of the Crime and Disorder Act 1998 introduced 'extended sentences', which include additional post-release supervision for sexual and violent offenders. They enable the courts to add a period of extended post-release supervision to the sentence it would normally impose.
16. The criterion for imposing the extended sentence is that any existing supervision to which the offender is liable would not be adequate to protect the public from the risk of serious harm.
17. An extended sentence can be imposed in indictment cases:
18. The extended sentence has two parts: the custodial sentence the offender would have received for the offence (the 'custodial term'); and the additional period of supervision (the 'extension period').
19. The duration of an extended sentence is the aggregate of the custodial term and the extension period. The 'extension period' is in addition to any licence period to which a long-term prisoner may be subject. The offender is on licence up to the end of the extension period.
20. The maximum length of the extension period is 10 years for sex offenders and five years for violent offenders. Two other restrictions apply:
21. If, while on licence, the offender behaves in such a way as to suggest that he/she presents a risk of serious harm to the public, Scottish Ministers have the power to revoke his/her licence and recall him/her to custody. The offender then has the right to require the case to be referred to the Parole Board, which must order his/her release if it is satisfied that his/her continued detention is not necessary on public protection grounds.
Community disposals
Registration of sex offenders
22. The Sex Offenders Act 1997 requires persons who have committed certain sex offences, including discharged patients where appropriate, to register their name, address and date of birth with the police. The duration of notification requirements depends on the length of sentence or disposal. Failure to notify, or false notification, is an offence punishable on summary conviction by a fine and/or imprisonment for up to six months.
Sex offender order
23. Section 20 of the Crime and Disorder Act 1998 created a new civil order - the sex offender order. The police can apply for an order against anyone with a conviction for a sex offence whose present behaviour in the community gives them reasonable cause for concern that an order is necessary. The order may impose any prohibitions on the person's behaviour which are considered necessary to protect the public from serious harm. The orders require sex offenders to register under the Sex Offenders Act 1997 while they are in effect. Breach of an order without reasonable excuse is a criminal offence with a maximum penalty on indictment of five years in prison.
Restriction of liberty order
24. Restriction of liberty orders, introduced under Section 5 of the Crime and Punishment (Scotland) Act 1997, include provision for the electronic monitoring of offenders. The maximum length of a restriction of liberty order is 12 months.
Probation
25. A probation order can last between six months and three years, and provides for community-based supervision. Specialised probation programmes may be provided and specific conditions may be attached to the probation regarding, for example, the undertaking of unpaid work; place of residence; curfew times; financial recompense to the victim. Any further offending behaviour is a breach of the order and the offender is returned to the courts.
Other orders
26. Other orders which can be imposed include antisocial behaviour orders and non-harassment orders.
Mental health disposals
Hospital order
27. A court may make a hospital order, under which a convicted person will be detained in a psychiatric hospital, if the court is satisfied that the person meets the criteria for detention in hospital under the 1984 Act, and that it is necessary for his/her health and safety or the protection of the others that he/she should receive such treatment.
28. A hospital order has no specified duration. The responsible medical officer is under an obligation to discharge the patient once he/she is satisfied that the patient no longer meets the criteria for detention. It is also possible (though rare) for the Mental Welfare Commission to discharge the patient.
29. The hospital order falls to be renewed after six months and one year, and annually thereafter. On renewal, the patient can appeal to the sheriff for discharge, on the grounds that the criteria for detention no longer apply.
30. Throughout, the criteria for continuing detention are the same as for civil mental health legislation. These relate to the person's continuing need for treatment. The nature of the original offence is irrelevant, except insofar as it is evidence of the person's mental state and level of risk presented if the patient should relapse.
Restriction order
31. If the court considers it necessary for the protection of the public from serious harm, a person subject to a hospital order may also be made subject to a restriction order. He/she will then be subject to the special restrictions set out in Section 62 (1) of the Mental Health (Scotland) Act 1984. Restriction orders are without limit of time.
32. The patient's management, including transfer, leave of absence and discharge, is the responsibility of Scottish Ministers who receive regular reports from the patient's responsible medical officer.
33. The patient can appeal to the sheriff to be discharged, between six and 12 months after the order, and once in every 12 months thereafter.
34. Under the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, if a person is suffering from a mental disorder (which under the provisions of the Act explicity includes personality disorder), whether medical treatment is required or not, and if the sheriff is satisfied that continued detention in hospital is necessary to protect the public from serious harm, he/she must refuse an appeal against the person's detention. Prior to this Act coming into force, the grounds for continued detention were similar to those for a civil detention or a hospital order without restriction, being based on the continuing need for treatment. Where a restricted patient does not present a serious risk of harm, these criteria continue to apply.
35. If satisfied that it is appropriate that the patient remain liable to be recalled to hospital, the sheriff can order a conditional discharge. The sheriff may specify conditions, which can subsequently be varied by Scottish Ministers.
36. Scottish Ministers can discharge a restricted patient if satisfied that the order is no longer necessary for the protection of the public from serious harm. Alternatively, Scottish Ministers may discharge the patient subject to certain conditions. In that event, the patient remains liable to be recalled at any time, although the European Convention on Human Rights case of Kay v UK2 established that there must be evidence of mental disorder to justify recall.
Hospital direction
37. Hospital directions allow a person who is convicted of an offence and sentenced to imprisonment, but who is mentally disordered and requires treatment in hospital, to be sent straight to hospital.
38. The hospital direction remains in force until the person is considered by his/her Responsible Medical Officer to no longer require detention in hospital for treatment, or until the expiry of the prison sentence.
39. If the patient does not pose a risk of serious harm, and should his mental state improve so that he no longer requires to remain in hospital for medical treatment, he will be discharged under the 1984 Act and transferred to prison to serve the remainder of his sentence (if any) or discharged direct from hospital if his sentence has expired. Whilst the hospital direction remains in force, the Mental Health (Public Safety and Appeals)(Scotland) Act gives Scottish Ministers the power to order that the person remain in hospital if a danger to the public and suffering from a mental disorder (which need not require treatment).
40. If the person's mental health subsequently deteriorates on return to prison he may be transferred to hospital by way of a transfer direction. Should the grounds for detention continue to apply after the expiry of the prison sentence, the patient's responsible medical officer may make an application for his/her continued detention in hospital under the Mental Health (Scotland) Act 1984.
Other mental health disposals
41. In addition to these sentencing options, there is a range of procedures under which prisoners serving sentences or awaiting trial can be transferred to hospital if they are mentally disordered: both under the Mental Health (Scotland) Act 1984 and the Criminal Procedure (Scotland) Act 1995. Also, the court can, before making a final disposal, make an interim hospital order, if there is reason to believe that a hospital order naming the State Hospital might be made. The interim order lasts for up to 12 weeks and can be renewed for up to 28 days at a time, with a maximum total duration of 12 months.
42. Other disposals which can be made at sentencing include guardianship under the 1984 Act (guardianship will continue as an option under the Adults with Incapacity (Scotland) Act 2000 when introduced) and, for accused persons found either not guilty by reason of insanity or insane in bar of trial, a hospital order; a hospital order and restriction order; or a supervision and treatment order. The latter provides for community treatment subject to specified conditions.