Regulation 7 Circumstances in which a person is to be treated as being in prisonI1
United Kingdom
The circumstances in which a person is to be treated as being in prison for the purposes of section 77 of the Act or section 77 of the Northern Ireland Act are that he is –
serving a custodial sentence within the meaning of section 76 of the Powers of Criminal Courts (Sentencing) Act 2000f1, F1section 222 of the Sentencing Code or Article 2(2) of the Criminal Justice (Northern Ireland) Order 1996f2 or a sentence of detention or imprisonment within the meaning of section 307(1) of the Criminal Procedure (Scotland) Act 1995f3, F2of at least 2 years and the other parent is deceased; or
detained in a hospital by order of the court under –
section 5 of the Criminal Procedure (Insanity) Act 1964f6;
section 6 or 14 of the Criminal Appeal Act 1968f7;
Article 44, 45, 50A, or 51(2) and (3) of the Mental Health (Northern Ireland) Order 1986f9; or
section 11 or 13(5A) and (6) of the Criminal Appeal (Northern Ireland) Act 1980 f10.
In calculating the length of the sentence for the purposes of paragraphs (1)(a) above and (4) below –
disregard any reduction made to the length of the sentence to take account of any period spent in custody prior to sentencing; and
include any period spent in custody immediately prior to sentencing, save that where he is serving a custodial sentence or sentence of detention or imprisonment with the meaning of paragraph (1)(a) above immediately prior to sentencing, include only such period of that sentence as remains following sentencing for the later sentence,
but nothing in this paragraph shall permit the payment of guardian’s allowance in respect of any period in custody prior to sentencing.
Subject to paragraph (4) below, a person shall not cease to be treated as being in prison in accordance with paragraph (1) above by virtue of the fact that he is temporarily released, unlawfully at large, or, in the case of a person serving a sentence, transferred to a hospital.
A person serving a sentence in accordance with paragraph (1)(a) above shall cease to be treated as being in prison in accordance with that paragraph where –
he is released on licence, the remainder of his sentence is remitted, his sentence is reduced on appeal to a term of less than 2 years, or his conviction is quashed on appeal; or
he is not in custody and has not been in custody for a period at least equal to the remaining period of his sentence,
but that where a person to whom sub-paragraph (b) applies returns to prison to serve the remainder of the sentence, the length of the sentence for the purposes of paragraph (1)(a) above shall be the period of the remainder of the sentence.
This regulation shall apply, subject to the necessary modifications, to a parent who is outside Great Britain or Northern Ireland and serving a custodial sentence with not less than 2 years remaining from the death of the other parent or detained in a hospital by a court order.
Annotations
Textual amendments
- F1
Words in reg. 7(1)(a) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 334 (with Sch. 27); S.I. 2020/1236, reg. 2
- F2
Words in reg. 7(1)(a) substituted (6.4.2020) by The Tax Credits, Child Benefit, Guardian’s Allowance and Childcare Payments (Miscellaneous Amendments) Regulations 2020 (S.I. 2020/297), regs. 1, 7(2)
- F3
Word in reg. 7(1)(b)(iv) substituted (E.W.N.I.) (5.10.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078), art. 1(1), Sch. 2 para. 24; (S.) (5.10.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Subordinate Legislation) Order 2005 (S.S.I. 2005/445), arts. 1, 2, sch. para. 42
Commencement
Footnotes
- f1
- f2
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S.I. 1996/3160 (N.I. 24) as amended by paragraph 51(b) of Schedule 5 to the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I.9)).
- f3
- f4
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1983 c. 20. Section 37(1) was amended by section 55 of, and paragraph 12(1) of Schedule 4 to, the Crime (Sentences) Act 1997 (c. 43), and section 165(1) of, and paragraphs 90(1) and (2) of Schedule 9 to, the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6).
- f5
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1983 c. 20. Section 45A was inserted by section 46 of the Crime (Sentences) Act 1997 (c. 43).
- f6
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1964 c. 84. Section 5 was substituted by section 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25).
- f7
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1968 c. 19. Sections 6 and 14 were substituted by section 4 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25).
- f8
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1995 c. 46. Section 57 was amended by paragraph 26(1) of Schedule 5 to the Adults with Incapacity (Scotland) Act 2000. Section 58 was amended by paragraph 26(2) of Schedule 5 to the Adults with Incapacity (Scotland) Act 2000, section 3 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, and paragraph 21 of Schedule 1 to the Crime and Punishment (Scotland) Act 1997 (c. 48). Section 59A was inserted by section 6 of the Crime and Punishment (Scotland) Act 1997, and amended by section 3 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.
- f9
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S.I. 1986/595 (N.I.4). Article 44 was amended by Schedule 1 to the Health and Personal Social Services (Northern Ireland) Order 1994 (S.I. 1994/429 (N.I.2)) and paragraph 25 of Schedule 5 to the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I.9)). Article 50A was inserted by Article 51(1) of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I.24)) and amended by paragraph 26 of Schedule 5 to the Criminal Justice (Children) (Northern Ireland) Order 1998. Article 51(2) and (3) was amended by Article 51(2) of the Criminal Justice (Northern Ireland) Order 1996.
- f10
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1980 c. 47. Section 11 was amended by Part I of Schedule 5 to the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I.4)). Section 13 was amended by paragraphs 5 and 6 of Schedule 5 to the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I.24)).