Imprisonment and Detention

Legislation: s204-210AA of the Criminal Procedure (Scotland) Act 1995, s1-27 of the Prisoners and Criminal Proceedings (Scotland) Act 1993

Imprisonment and detention both involve the deprivation of a convicted person’s liberty. They are also known as “custodial sentences”.

Only those aged 21 and over can be sentenced to imprisonment.

For non-child offenders aged between 16 and 21 (excluding those aged between 16 and 18 who are also subject to a Compulsory Supervision Order in terms of s83 of the Children’s Hearings (Scotland) Act 2011, who are defined as children), the appropriate custodial sentence is “detention in a young offenders institution”.

For the sake of completeness, children who have been convicted can also be detained, but in local authority care (as opposed to a prison or young offenders institution).

There are fifteen prisons in Scotland.


Imprisonment as a Sentence of Last Resort

In the vast majority of cases, imprisonment is the sentence of last resort (the obvious exception is murder, for which there is a mandatory life sentence).  This is reflected by section 204 of the Criminal Procedure (Scotland) Act 1995, which provides for restrictions on passing sentences of imprisonment and detention.

s204(1) provides that the court cannot imprison an accused who does not have legal representation unless they have been given the opportunity to apply for Legal Aid (and either had that application refused by SLAB, or refused to apply for it at all).

s204(2) states that a court cannot imprison a person (who has never been sentenced to imprisonment/detention before) “unless the court considers that no other method of dealing with him is appropriate”. In practice, this means firstly that the court will always order a Criminal Justice Social Work Report to be compiled on the convicted person prior to passing sentence. The court will tend to state and record its reasons as to why no other disposal was appropriate; this is mandatory in summary cases (see below). You can find examples of such reasoning in sentencing statements made by judges here.

Presumption Against Short Prison Sentences

The above “last resort” principles also apply, as of 4th July 2019, to all sentences of less than twelve months. This is thanks to the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019, which increased the period in question from three months, following research into the ineffectiveness of short prison sentences.

The result of this is that, in accordance with s204(3A) and (3B) of the 1995 Act, all cases prosecuted by way of summary complaint (for which the maximum sentence is twelve months) now proceed on the presumption that the accused will not end up behind bars at the end of it. As mentioned above, if the court decides to imprison the convicted person anyway, it must state and record the reasons why the presumption has been overcome.

Regardless of the above, s206 of the 1995 Act provides that summary courts cannot sentence someone to imprisonment for fewer than fifteen days.

Backdating Sentences of Imprisonment

Where an accused person is convicted and sentenced to imprisonment or detention, having earlier been remanded in custody following the refusal of bail, they will usually have their sentence “backdated” to the date of their original remand in custody. s210 of the 1995 Act requires the court to take this date into account when specifying the “date of commencement of the sentence”.

Backdating is a general principle rather than a rule; if the court decides against backdating a sentence at all, it must give reasons why. However, if it decides to backdate to a date other than the remand in custody, it does not have to give any reasons for doing so.

Backdating can give rise to a scenario whereby a remanded accused is convicted, sentenced to a backdated period of imprisonment, and immediately released, because the credit given for the time spent on remand takes them up to (and possibly beyond) their liberation date.

Concurrent vs Consecutive Sentences

It is fairly common for an accused person, having been convicted of charges on more than one complaint or indictment, to be sentenced for all matters on a single day. Alternatively, they might have been convicted of a separate offence while already serving a prison sentence (e.g. assaulting a fellow prisoner) If the court imposes periods of imprisonment in respect of each of the complaints/indictments, it has the discretion to make the sentences “concurrent” or “consecutive”.

Concurrent sentences run at the same time. In other words, each day that the person spends in custody will count towards the completion of each concurrent sentence.

Consecutive sentences run one at a time. In other words, the second sentence will begin on the date of expiry of the first sentence. This will affect both the accused’s date of liberation and the “unexpired portion” of any time in custody to be taken into account if the person commits an offence shortly after being subject to early release from custody (see below).

For the purposes of determining whether the convicted person is to be treated as a short or long-term prisoner (see below), consecutive sentences imposed on separate occasions are to be added togeher, provided that the person has not been released between the passing of the first sentence and the passing of any subsequent ones.

Determinate vs Indetermine Sentences

A “determinate sentence” is one that has a specified end point at the time it is imposed (i.e. the time in custody can be measured in weeks/months/years from the outset).

An “indeterminate sentence”, by contrast, does not. These are life sentences (either mandatory or discretionary) and Orders for Lifelong Restriction.

Supervised Release Orders

Where a person is sentenced, after conviction on indictment of a non-sexual offence, to a period of fewer than four years, s209 of the 1995 Act allows the court to impose a Supervised Release Order (“SRO”) on them if “necessary to do so to protect the public from serious harm from the offender on his release”.

A SRO acts in a similar way to a supervision requirement of a Community Payback Order. Once the convicted person has been released from custody (see below), they are required to follow the directions of a local authority officer, “for the purpose of securing the good conduct of the person or preventing, or lessening the possibility of, his committing a further offence (whether or not an offence of the kind for which he was sentenced)”.

A SRO can be imposed for up to twelve months, and must expire prior to the expiry of the entirety of the original sentence imposed.

Breaching a SRO can result in the person being returned to prison for a period equivalent to the first date of breach to the point at which the SRO would have concluded.

Extended Sentences

Where any person is convicted on indictment of a sexual offence, or where a person is convicted on indictment for a “violent or terrorism offence” and the court intends to sentence them to four years imprisonment or more, s210A of the 1995 Act allows the court to impose an extended sentence “for the purpose of protecting the public from serious harm from the offender”.

An extended sentence is in two parts:

  • The “custodial term” – the ordinary term of imprisonment that the court would have imposed anyway, and;
  • The “extension period” of up to ten years (five years in the Sheriff Court) – during which time the convicted person will be subject to licence conditions.

The effect of this is that, once the person is released from the custodial part of their sentence, they will be subject to licence conditions (see below) for much longer than they would otherwise be. If they breach any licence conditions, they can be “recalled” to prison up until the end of the extension period.

Release from Imprisonment

The Prisoners and Criminal Proceedings (Scotland) Act 1993 governs the release (and potential recall) of prisoners prior to the expiry of the sentence of imprisonment imposed in the courtroom.

“Short-term prisoners” are defined by the 1993 Act as those serving a term of imprisonment of less than four years. “Long-term prisoners” are defined as non-life prisoners who are serving four years or more.

The general rule is that short-term prisoners are to be released, unconditionally, after serving half of their sentence. So, twelve months imprisonment actually means six months in custody, in the first instance.

The exception is for short-term prisoners sentenced to six months or more for sexual offending, who are released on licence at the halfway point. Those subject to SROs are still released after serving half, but subject to the SRO conditions.

Until relatively recently, long-term prisoners were to be released on licence after serving two thirds of their sentence. This is still the case for those sentenced prior to 1st February 2016.

Following political and public pressure, the Prisoners (Control of Release) (Scotland) Act 2015 modified the 1993 Act. Long-term prisoners (who are not subject to an extended sentence) sentenced on or after 1st February 2016 will not be released on licence until they have served all but the final six months of their sentence. However, they can apply to the Parole Board for Scotland for release on licence from the halfway point of their sentence onwards.

Life prisoners are not automatically released at any point. They can apply for parole at any point following the expiry of the “punishment part” (minimum custodial term) of their sentence, but there is no guarantee that they will ever be recommended for release on licence.

Licence: Conditions, Expiry, Revocation and Recall

Licence conditions are generally designed to (a) keep tabs on a released person, and (b) promote their safe reintegration into the community. s12(2) of the 1993 Act provides that someone released on licence “shall be under supervision of a relevant [local authority or private probation] officer, and shall comply with such requirements as that officer may specify for the purposes of the supervision.”

Long-term prisoners released on licence are subject to its conditions until their entire sentence (the period imposed by the court) expires. If a life prisoner is fortunate enough to be released, the licence period lasts for the remainder of their life – it never expires.

The licence period matters because, at any time before it expires, a prisoner can have their licence revoked and be “recalled” to prison (in accordance with s17 of the 1993 Act. The decision is made by the Scottish Ministers; either on recommendation by the Parole Board, or without such a recommendation “if revocation and recall are, in their opinion, expedient in the public interest and it is not practicable to await such a recommendation”.

If a licence is revoked and the person recalled to prison, their case will be referred to the Parole Board for Scotland for consideration. The Board may recommend the person’s re-release (with amended licence conditions if necessary). Otherwise the person is “liable to be detained in pursuance of his sentence” (i.e. made to serve the remaining time in custody). In the case of extended sentences or life prisoners, this threat can clearly be a significant incentive to comply with licence conditions and stay out of trouble once released.

Unexpired Portions of Sentences

If someone has been released from a sentence of imprisonment early, and then proceeds to commit a further offence (punishable by imprisonment) in the time period between their release and the expiry of the original sentence, the court can order their return to prison to serve all or part of the “unexpired portion” of the original sentence (from the date of the offence to the expiry of the original sentence), before sentencing them for the new offence. It can also be made concurrent with the new sentence.

This power is conferred by s16 of the 1993 Act. It is a discretionary power, which ought to be considered by the same court (though not necessarily the same judge) which imposed the original sentence. For example, if the released person is convicted in the JP Court of a new offence, the JP Court could choose to refer the s16 question to the Sheriff Court for consideration before sentencing the person for the new offence.




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