“(1A)
The order may authorise—
(a)
decisions as to cases arising in relation to a scheme of accreditation to be taken by a committee; and
(b)
any appeal as to such a decision to be determined by a committee,
in accordance with such procedure as may be prescribed; and without prejudice to the generality of this subsection the order may make provision as to the membership of the committees and as to any quorum.”.

(3)

In paragraph 4 of schedule 2 (constitution etc. of the Risk Management Authority)—

(a)

for sub-paragraph (1) substitute—

“(1)
Subject to any order under subsection (1) of section 11 of this Act, the Authority may—
(a)
make provision for the appointment and constitution of committees and sub-committees;
(b)
make provision for the exercise of any of its functions by any of its committees, sub-committees, members or employees; and
(c)
regulate its own procedure and the procedure of—
(i)
any of its committees or sub-committees (including any such committee as is mentioned in paragraph (a) or (b) of subsection (1A) of that section); or
(ii)
any member or employee to whom a function has been delegated under head (b) above.
(1A)
Delegation under sub-paragraph (1)(b) is to be without prejudice to the power of the Authority itself to exercise the function in question.
(1B)
Without prejudice to the generality of head (c) of sub-paragraph (1), regulation under that head may include provision as to any quorum.”; and

(b)

in sub-paragraph (2), after “Authority” insert “ or of any of its committees or sub-committees or of any of its members by whom functions are exercised by virtue of sub-paragraph (1)(b) ”.

14Orders after assessment of riskI1

(1)

The Criminal Procedure (Scotland) Act 1995 (c. 46) is amended as follows.

(2)

In section 210F(1) (making of order for lifelong restriction)—

(a)

in paragraph (a), for the word “a” substitute “ any ”;

(b)

for the words from “shall” to the end substitute “ , in a case where it may make a compulsion order in respect of the convicted person under section 57A of this Act, either make such an order or make an order for lifelong restriction in respect of that person and in any other case make an order for lifelong restriction in respect of that person. ”.

(3)

The title of section 210F becomes “ Order for lifelong restriction or compulsion order ”.

15Amendment of Prisoners and Criminal Proceedings (Scotland) Act 1993I1

(1)

The 1993 Act is amended as follows.

(2)

In section 1(1) (release of short-term prisoners), after “short-term prisoner” insert “ , not being a prisoner to whom section 1AA of this Act applies, ”.

(3)

After section 1 insert—

“Release of certain sexual offenders
1AA
(1)
As soon as a prisoner to whom this section applies has served one-half of his sentence the Scottish Ministers are to release him on licence.
(2)
This section applies to any short-term prisoner—
(a)
sentenced to a term of 6 months or more; and
(b)
who, by virtue of the conviction in respect of which that sentence was imposed, is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42).
(3)
It is immaterial, for the purposes of subsections (1) and (2) above, when the offence of which the prisoner was convicted was committed.
(4)
But this section does not apply to a prisoner who was released under section 1(1) of this Act in relation to the sentence mentioned in subsection (2)(a) above before the date on which section 15(3) of the Management of Offenders etc. (Scotland) Act 2005 (asp 14) came into force (except that where the prisoner is serving terms which by virtue of section 27(5) of this Act fall to be treated as a single term, the reference in the preceding provisions of this subsection to his being released in relation to the sentence mentioned in subsection (2)(a) above is to be construed as a reference to his being released in relation to the single term).
(5)
Section 17 of this Act applies to such short-term prisoners as are mentioned in subsection (2) above as that section applies to long-term prisoners.
(6)
Where a prisoner is released on licence under this section, the licence (unless revoked) remains in force until the entire period specified in his sentence (reckoned from the commencement of the sentence) has elapsed; but this subsection is subject to subsections (7) and (8) below.
(7)
Where the prisoner is serving terms which by virtue of section 27(5) of this Act fall to be treated as a single term the licence (unless revoked) remains in force until the relevant period (reckoned from the commencement of the single term) has elapsed.
(8)
The “relevant period” mentioned in subsection (7) above is—
(a)
the single term after deduction of half the number of days (if any) by which that term exceeds what it would be were there disregarded in determining it such terms (if any) as are imposed for a conviction other than one by virtue of which the prisoner is subject to the notification requirements mentioned in subsection (2)(b) above; or
(b)
if to disregard such terms as are so imposed would have the consequence—
(i)
that there would not remain two or more terms to treat as a single term; or
(ii)
that though two or more terms would remain they would no longer be consecutive or wholly or partly concurrent,
the single term after deduction of half the number of days (if any) by which that term exceeds the term imposed for the conviction, or as the case may be the terms imposed for the convictions, by virtue of which the prisoner is subject to those requirements.”.

(4)

In section 1A(1)(c) (release of persons serving more than one sentence to be on a single licence), after the word “Act” where it first occurs insert “ , other than on licence under section 3AA ”.

(5)

After section 3 insert—

“Further powers to release prisoners
3AA
(1)
Subject to subsections (2) to (5) below, the Scottish Ministers may release on licence under this section—
(a)
a short-term prisoner serving a sentence of imprisonment for a term of three months or more; or
(b)
a long-term prisoner whose release on having served one-half of his sentence has been recommended by the Parole Board.
(2)
The power in subsection (1) above is not to be exercised before the prisoner has served whichever is the greater of—
(a)
one quarter of his sentence; and
(b)
four weeks of his sentence.
(3)
Without prejudice to subsection (2) above, the power in subsection (1) above is to be exercised only during that period of 121 days which ends on the day 14 days before that on which the prisoner will have served one half of his sentence.
(4)
In exercising the power conferred by subsection (1) above, the Scottish Ministers must have regard to considerations of—
(a)
protecting the public at large;
(b)
preventing re-offending by the prisoner; and
(c)
securing the successful re-integration of the prisoner into the community.
(5)
Subsection (1) above does not apply where—
(a)
the prisoner's sentence was imposed under section 210A of the 1995 Act;
(b)
the prisoner is subject to a supervised release order made under section 209 of that Act;
(c)
the prisoner is subject to a hospital direction imposed under section 59A of that Act or a transfer for treatment direction made under section 136(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);
(d)
the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42);
(e)
the prisoner is liable to removal from the United Kingdom (within the meaning of section 9 of this Act);
(f)
the prisoner has been released on licence under this Part of this Act or under the 1989 Act but—
(i)
has been recalled to prison other than by virtue of section 17A(1)(b) of this Act; or
(ii)
before the date on which he would but for his release have served his sentence in full, has received a further sentence of imprisonment; or
(g)
the prisoner has been released (whether or not on licence) during the currency of his sentence but has been returned to custody under section 16(2) or (4) of this Act.
(6)
The Scottish Ministers may by order do any or all of the following—
(a)
amend the number of months for the time being specified in subsection (1)(a) above;
(b)
amend the number of weeks for the time being specified in subsection (2)(b) above;
(c)
amend a number of days for the time being specified in subsection (3) above;
(d)
amend any paragraph of subsection (5) above, add a further paragraph to that subsection or repeal any of its paragraphs.”.

(6)

In section 5(1) (fine defaulters and persons in contempt of court), after the words “except sections” insert “ 3AA, ”.

(7)

In section 9(3) (persons liable to removal from the United Kingdom)—

(a)

in paragraph (d), for the word “immigrant” there is substituted “ entrant ”; and

(b)

(the word “or” immediately preceding that paragraph being omitted) after that paragraph there is added

“or
(e)
if he is liable to removal under section 10 of the Immigration and Asylum Act 1999 (c. 33).”.

(8)

In section 11 (duration of licence), after subsection (3) insert—

“(3A)
Subsections (1) to (3) above do not apply in relation to release on licence under section 3AA of this Act.
(3B)
A licence granted under section 3AA of this Act remains in force (unless it is revoked) until the date on which the released person would, but for his release under that section, fall to be released under section 1 of this Act.”.

(9)

In section 12 (conditions in licence)—

(a)

after subsection (2) insert—

“(2A)
In its application to a licence granted under section 3AA of this Act, subsection (2) above is to be construed as if, for the words “shall include” there were substituted “ may include ”.”; and

(b)

after subsection (4) insert—

“(4A)
Subsection (3)(b) above does not apply in relation to a condition in a licence granted under section 3AA of this Act; but in exercising their powers under this section in relation to a long-term prisoner released on such a licence the Scottish Ministers must have regard to any recommendations which the Parole Board has made for the purposes of section 1(3) of this Act as to conditions to be included on release.”.

(10)

After section 12 insert—

“Conditions for persons released on licence under section 3AA
12AA
(1)
Without prejudice to the generality of section 12(1) of this Act, any licence granted under section 3AA of this Act must include—
(a)
the standard conditions; and
(b)
a curfew condition complying with section 12AB of this Act.
(2)
Subsection (1) above is without prejudice to any power exercisable under section 12 of this Act.
(3)
In this section, “the standard conditions” means such conditions as may be prescribed as such for the purposes of this section.
(4)
In subsection (3) above, “prescribed” means prescribed by order by the Scottish Ministers.
(5)
Different standard conditions may be so prescribed for different classes of prisoner.
(6)
Subsection (4) of section 3AA of this Act applies in relation to—
(a)
the exercise of the power of prescription conferred by subsection (3) above; and
(b)
the specification, variation or cancellation of conditions, other than the standard conditions, in a licence granted under section 3AA of this Act,
as it applies in relation to the exercise of the power conferred by subsection (1) of that section.
Curfew condition
12AB
(1)
For the purposes of this Part, a curfew condition is a condition which—
(a)
requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified; and
(b)
may require him not to be in a place, or class of place, so specified at a time or during a period so specified.
(2)
The curfew condition may specify different places, or different periods, for different days but a condition such as is mentioned in paragraph (a) of subsection (1) above may not specify periods which amount to less than nine hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).
(3)
Section 245C of the 1995 Act (contractual and other arrangements for, and devices which may be used for the purposes of, remote monitoring) applies in relation to the imposition of, and compliance with, a condition specified by virtue of subsection (1) above as that section applies in relation to the making of, and compliance with, a restriction of liberty order.
(4)
A curfew condition is to be monitored remotely and the Scottish Ministers must designate in the licence a person who is to be responsible for the remote monitoring and must, as soon as practicable after they do so, send that person a copy of the condition together with such information as they consider requisite to the fulfilment of the responsibility.
(5)
Subject to subsection (6) below, the designated person's responsibility—
(a)
commences on that person's receipt of the copy so sent;
(b)
is suspended during any period in which the curfew condition is suspended; and
(c)
ends when the licence is revoked or otherwise ceases to be in force.
(6)
The Scottish Ministers may from time to time designate a person who, in place of the person designated under subsection (4) above (or last designated under this subsection), is to be responsible for the remote monitoring; and on the Scottish Ministers amending the licence in respect of the new designation, that subsection and subsection (5) above apply in relation to the person designated under this subsection as they apply in relation to the person replaced.
(7)
If a designation under subsection (6) above is made, the Scottish Ministers must, in so far as it is practicable to do so, notify the person replaced accordingly.”.

(11)

In section 12B (certain licences to be replaced by one), after subsection (3) insert—

“(4)
References in this section to release on licence do not include release on licence under section 3AA of this Act.”.

(12)

In section 17 (revocation of licence), at the end add—

“(7)
References in this section to release on licence do not include release on licence under section 3AA of this Act.”.

(13)

After section 17 insert—

“Recall of prisoners released under section 3AA
17A
(1)
If it appears to the Scottish Ministers as regards a prisoner released on licence under section 3AA of this Act that—
(a)
he has failed to comply with any condition included in his licence; or
(b)
his whereabouts can no longer be monitored remotely at the place for the time being specified in the curfew condition included in the licence,
they may revoke the licence and recall the person to prison under this section.
(2)
A person whose licence is revoked under subsection (1) above—
(a)
must, on his return to prison, be informed of the reasons for the revocation and of his right under paragraph (b) below; and
(b)
may make representations in writing with respect to the revocation to the Scottish Ministers.
(3)
The Scottish Ministers are to refer to the Parole Board the case of any person who makes such representations.
(4)
After considering the case the Parole Board may direct, or decline to direct, the Scottish Ministers to cancel the revocation.
(5)
Where the revocation of a person's licence is cancelled by virtue of subsection (4) above, the person is to be treated for the purposes of section 3AA of this Act as if he had not been recalled to prison under this section.
(6)
On the revocation under this section of a person's licence, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.”.

(14)

In section 45 (making of rules and orders)—

(a)

in subsection (2), after the word “Any” insert “ order made under section 12AA(3) or ”; and

(b)

in subsection (3), after the word “section” insert “ 3AA(6), ”.

16Testing prisoners for drugs

In section 41B of the Prisons (Scotland) Act 1989 (c. 45) (testing prisoners for drugs)—

(a)

in subsection (1), after the word “urine” insert “ or saliva ”;

(b)

in subsection (2), at the end add “or saliva”; and

(c)

in subsection (3)—

(i)

in the definition of “intimate sample”, for the words from “blood” to the end substitute

“—
(a)
blood, semen or any other tissue fluid;
(b)
pubic hair; or
(c)
material from a body orifice other than the mouth;”;

(ii)

the word “and” which immediately follows the definition of “drug” is repealed; and

(iii)

at the end add

“; and
“saliva” includes oral fluid”.

21Further amendments and repealI1

(1)

In section 27 of the Social Work (Scotland) Act 1968 (c. 49) (supervision and care of persons put on probation or released from prisons etc.)—

(a)

in subsection (1)—

(i)

at the beginning insert “ Subject to any order or determination under section 8 of the Management of Offenders etc. (Scotland) Act 2005 (asp 14), ”; and

(ii)

after paragraph (ad) insert—

“(ae)
making available to the Scottish Ministers such background and other reports as the Scottish Ministers may request in relation to the exercise of their functions under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9);”;

(b)

after subsection (1B) insert—

“(1C)
In paragraphs (ac) and (b)(i) and (ii) of subsection (1) above, “enactment” includes an Act of the Scottish Parliament.
(1D)
The Scottish Ministers may by order amend subsection (1) above so as (any or all)—
(a)
to add to the functions for the time being described;
(b)
to omit any of those functions;
(c)
to alter any of those functions.”; and

(c)

in subsection (2), for the words “the foregoing subsection” substitute “ subsection (1) above ”.

(2)

In section 27A of that Act (grants in respect of community service facilities)—

(a)

for subsection (1) substitute—

“(1)
The Scottish Ministers may (any or all)—
(a)
pay to a community justice authority, for allocation under section 3(5)(e)(i) of the Management of Offenders etc. (Scotland) Act 2005 (asp 14) as grants to the local authorities within its area;
(b)
make a grant to a local authority of;
(c)
make a grant to a community justice authority, in respect of any function exercisable by that authority by virtue of section 8(2) or (3) of that Act of 2005, of,
such amount as the Scottish Ministers may determine in respect of expenditure incurred by, as the case may be, those local authorities, that local authority or that community justice authority, in providing a relevant service.
(1A)
In subsection (1) above, a “relevant service” means a service—
(a)
for the purposes mentioned in section 27(1) of this Act;
(b)
for enabling those local authorities, that local authority or that community justice authority to comply with the area plan prepared by the community justice authority under section 3(5)(a)(i) of that Act of 2005; or
(c)
for such other similar purposes as the Scottish Ministers may prescribe.
(1B)
Any grant made under, or paid by virtue of, subsection (1) above is subject to such conditions as the Scottish Ministers may determine.”; and

(b)

in subsection (2), for the words “(1)(b)” substitute “ (1)(c) ”.

(3)

In section 27B of that Act (grants in respect of hostel accommodation for persons under supervision)—

(a)

for subsection (1) substitute—

“(1)
The Scottish Ministers may (any or all)—
(a)
pay to a community justice authority, for allocation under section 3(5)(e)(ii) of the Management of Offenders etc. (Scotland) Act 2005 (asp 14) as grants to the local authorities within its area;
(b)
make a grant to a local authority of;
(c)
make a grant to a community justice authority, in respect of any function exercisable by that authority by virtue of section 8(2) or (3) of that Act of 2005, of,
such amount as the Scottish Ministers may determine in respect of relevant expenditure.
(1A)
In subsection (1) above, “relevant expenditure” means expenditure incurred by, as the case may be, those local authorities or that local authority in—
(a)
providing; or
(b)
contributing by way of grant under section 10(3) of this Act to the provision by a voluntary organisation of,
residential accommodation wholly or mainly for the persons mentioned in subsection (2) below.
(1B)
Any grant made under, or paid by virtue of, subsection (1) above is subject to such conditions as the Scottish Ministers may determine.”; and

(b)

in subsection (2), for “subsection (1)” substitute “ subsection (1A) ”.

(4)

In section 90 of that Act (orders, regulations etc.), after subsection (3) add—

“(4)
A statutory instrument containing an order under section 27(1D) or 27A(1A)(c) of this Act is not made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.”.

(5)

In the Schedule to the Repatriation of Prisoners Act 1984 (c. 47) (operation of certain enactments in relation to prisoner), in paragraph 2 as substituted by section 33(1)(b)(i) of the Criminal Justice (Scotland) Act 2003 (asp 7) (prisoners repatriated to Scotland)—

(a)

in sub-paragraph (1), for the words “2(2) and (7)” substitute “ 1AA, 2(2) and (7), 3AA ”; and

(b)

in sub-paragraph (2), for the words “or 2(2) or (7)” substitute “ , 2(2) or (7) or 3AA ”.

F1(6)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)

In section 27(4A) of the 1993 Act (construction of references in Part 1 of that Act to wholly concurrent or partly concurrent terms of imprisonment or detention), in sub-paragraph (i) of paragraph (a) and in each of sub-paragraphs (i) and (ii) of paragraph (b), for the words “is imposed” substitute “ commences ”.

C1(8)

In Schedule 1 to the Crime (Sentences) Act 1997 (c. 43) (transfer of prisoners within the British Isles)—

(a)

in paragraph 10—

(i)

in sub-paragraph (2)(a), for the words “1A, 3” substitute “ 1AA, 1A, 3, 3AA ”; and

(ii)

in sub-paragraph (5)(a), for the words “1A, 2(4)” substitute “ 1AA, 1A, 2(4), 3AA ”;

(b)

in paragraph 11(2)—

(i)

for the word “or”, where it occurs for the second time, substitute “ to ”; and

(ii)

in head (a), for the words “1A, 3” substitute “ 1AA, 1A, 3, 3AA ”; and

(c)

in paragraph 11(4)(a), for the words “1A” substitute “ 1AA, 1A, 3AA ”.

F2(9)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)

In section 24(c) of the International Criminal Court (Scotland) Act 2001 (asp 13) (limited disapplication of certain provisions relating to sentences), for the words “1A, 2, 3” substitute “ 1AA, 1A, 2, 3, 3AA ”.

F3(11)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13)

In section 40(1) of the Criminal Justice (Scotland) Act 2003 (asp 7) (remote monitoring of released prisoners), the words from “but” to the end are repealed.

22Supplementary and consequential provision etc.

(1)

The Scottish Ministers may by order made by statutory instrument make—

(a)

any supplementary, incidental or consequential provision;

(b)

any transitory, transitional or saving provision,

which they consider necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.

(2)

An order under subsection (1) may amend or repeal any enactment (including any provision of this Act).

(3)

Subject to subsection (4), a statutory instrument containing an order under subsection (1) is subject to annulment in pursuance of a resolution of the Parliament.

(4)

A statutory instrument containing an order made by virtue of subsection (2) is not made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

24CommencementP1

(1)

This section and sections 13, 17, 20, 22, 23, and 25 come into force on Royal Assent.

(2)

The remaining provisions of this Act come into force in accordance with provision made by the Scottish Ministers by order made by statutory instrument.

(3)

Different provision may be made under subsection (2) for different purposes and for different areas.

25Short title

This Act may be cited as the Management of Offenders etc. (Scotland) Act 2005

Management of Offenders etc. (Scotland) Act 2005 in England

Contents