Convention Rights (Compliance) (Scotland) Act 2001

JurisdictionScotland
Citation2001 asp 7


Convention Rights (Compliance) (Scotland)Act 2001

2001 asp 7

[5th July 2001]

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 30th May 2001 and received Royal Assent on

An Act of the Scottish Parliament to amend certain enactments relating to the sentencing and release of life prisoners, the constitution and powers of the Parole Board, legal advice and assistance and legal aid, homosexual offences and the appointment and removal of the procurator fiscal of the Lyon Court which are or may be incompatible with the European Convention on Human Rights; and to enable further changes in the law where it is or may be incompatible with the Convention.

1 Prisoners and parole

Part 1

Prisoners and parole

S-1 Release of life prisoners

1 Release of life prisoners

1 Release of life prisoners

(1) The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9) (in this Act, ‘the 1993 Act’) is amended as follows.

(2) In section 1 (release of short-term, long-term and life prisoners), subsections (4) to (7) are repealed.

(3) In section 2 (duty to release discretionary life prisoners)—

(a) in subsection (1)—

(i) the word ‘designated’ is repealed;

(ii)after paragraph (a) there is inserted, ‘or

(aa) sentenced to life imprisonment for murder or for any other offence for which that sentence is the sentence fixed by law;’; and

(iii) paragraph (c) and the word ‘or’ immediately preceding it are repealed;

(b) in subsection (2)—

(i) the word ‘designated’ where it first occurs is repealed;

(ii) for ‘the designated part’ there is substituted ‘the punishment part’;

(iii) after ‘appropriate’ where it first occurs there is inserted ‘to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public),’;

(iv) for ‘associated with it’ there is substituted ‘of which the life prisoner is convicted on the same indictment as that offence’;

(v) after paragraph (a) there is inserted—

‘(aa) in the case of a life prisoner to whom paragraph (a) of subsection (1) above applies—

(i) the period of imprisonment, if any, which the court considers would have been appropriate for the offence had the court not sentenced the prisoner to imprisonment for life for it;

(ii) the part of that period of imprisonment which the court considers would satisfy the requirements of retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public); and

(iii) the proportion of the part mentioned in sub-paragraph (ii) above which a prisoner sentenced to it would or might serve before being released, whether unconditionally or on licence, under section 1 of this Act;’; and

(vi) in paragraph (b), the word ‘designated’ is repealed;

(c) for subsection (3) there is substituted—

(3) A court which imposes life imprisonment for an offence such as is mentioned in subsection (1) above shall make such order as is mentioned in subsection (2) above and such order shall constitute part of a person's sentence within the meaning of the 1995 Act for the purposes of any appeal or review.

(3A) An order such as is mentioned in subsection (2) above—

(a) shall specify the period that the court considers appropriate under that subsection in years and months; and

(b) may specify any such period of years and months notwithstanding the likelihood that such a period will exceed the remainder of the prisoner's natural life.’;

(d) in subsection (4), the word ‘designated’ is repealed;

(e) after subsection (5) there is inserted—

(5A) Where, on the disposal of any reference of a life prisoner's case under section 28(4) of the 1989 Act, under subsection (5)(a) above, subsection (5C) or (6) below or section 17(3) of this Act or under paragraph 34, 38 or 42 of the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), the Parole Board declines to direct that the prisoner be released on licence, it shall—

(a) give the prisoner reasons in writing for the decision not to direct his release on licence; and

(b) fix the date when it will next consider the prisoner's case under this section, being a date not later than two years after the date of its decision to decline to direct the release of the prisoner.

(5B) The Scottish Ministers shall refer the case of a life prisoner to the Parole Board so as to enable it to consider the case on the date fixed by the Board under subsection (5A)(b) above.

(5C) The Parole Board, at the request of a life prisoner in respect of whom it has, under subsection (5A)(b) above, fixed the date of the next consideration of his case, may direct the Scottish Ministers to refer that case to the Board before that date.’;

(f) in subsection (6), the word ‘designated’ and the words ‘at any time’ are repealed;

(g) after subsection (6) there is inserted—

(6A) The Scottish Ministers shall not refer the case of a life prisoner to the Parole Board under subsection (6) above if—

(a) they have previously so referred his case to the Board under that subsection;

(b) they have referred his case to the Board without the prisoner requiring them to do so under that subsection; or

(c) the Parole Board has, on a reference to it under section 28(4) of the 1989 Act, under section 17(3) of this Act or under paragraph 34, 38 or 42 of the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), declined to direct that the prisoner be released on licence.’;

(h) in subsection (7), paragraph (b) is repealed;

(i) in subsection (8)—

(i) the word ‘designated’ where it first occurs is repealed; and

(ii) for ‘designated’ where it second occurs there is substituted ‘punishment’; and

(j) in subsection (9)—

(i) paragraph (a) is repealed; and

(ii) in paragraph (b), for ‘designated’ there is substituted ‘punishment’.

(4) In section 6 (application of Part I of the Act to young offenders and to children detained without limit of time), subsections (2) and (3) are repealed.

(5) In section 17 (revocation of licence)—

(a) in subsection (2), the words from ‘and’ to the end are repealed;

(b) in subsection (3), for paragraphs (a) and (b) there is substituted ‘a person recalled under subsection (1) above’; and

(c) after subsection (4) there is inserted—

(4AA) Where the Parole Board directs the release of a prisoner under subsection (4) above it may recommend that the Scottish Ministers insert, vary or cancel conditions in the prisoner's licence.’.

(6) In section 27 (interpretation), in subsection (1), the definition of ‘discretionary life prisoner’ is repealed.

(7) In Schedule 6 (transitional provisions and savings)—

(a) in paragraph 6—

(i) in sub-paragraph (2), for ‘sections 1(4) and 2(9)’ there is substituted ‘section 2(9)’;

(ii) in each of sub-paragraphs (2)(a) and (3)(a), the word ‘designated’ is repealed; and

(iii) in each of sub-paragraphs (2)(b) and (3)(b), for ‘designated’ there is substituted ‘punishment’; and

(b) in paragraph 6A(2)—

(i) the word ‘designated’ where it first occurs is repealed; and

(ii) for ‘designated’ where it second occurs there is substituted ‘punishment’.

(8) In section 16 (designated life prisoners) of the Crime and Punishment (Scotland) Act 1997 (c.48)

(a) in subsection (3)—

(i) for ‘sections 1(4) and 2(9)’ there is substituted ‘section 2(9)’;

(ii) in paragraph (a), the word ‘designated’ is repealed; and

(iii) in paragraph (b), for ‘designated’ there is substituted ‘punishment’; and

(b) in subsection (4)—

(i) in paragraph (a), the word ‘designated’ is repealed; and

(ii) in paragraph (b), for ‘designated’ there is substituted ‘punishment’.

S-2 Amendment of Criminal Procedure \\(Scotland) Act 1995

2 Amendment of Criminal Procedure \\(Scotland) Act 1995

2 Amendment of Criminal Procedure (Scotland) Act 1995

(1) In section 205 (punishment for murder) of the Criminal Procedure (Scotland) Act 1995 (c.46) (in this Act, ‘the 1995 Act’)—

(a) in subsection (1), after ‘subsections (2) and (3)’ there is inserted ‘and section 205D’; and

(b) subsections (4) to (6) are repealed.

(2) After section 205 of the 1995 Act there is inserted—

S-205D

205D

‘205D Only one sentence of imprisonment for life to be imposed in any proceedings

Where a person is convicted on the same indictment of more than one offence for which the court must impose or would, apart from this section, have imposed a sentence of imprisonment for life, only one such sentence shall be imposed in respect of those offences.’.

S-3 Amendment of provisions relating to transferred life prisoners

3 Amendment of provisions relating to transferred life prisoners

3 Amendment of provisions relating to transferred life prisoners

(1) In section 10 (life prisoners transferred to Scotland) of the 1993 Act—

(a) for subsection (1) there is substituted—

(1) This Part of this Act, except section 2(9), shall apply to a transferred life prisoner (whether transferred before or after the commencement of this enactment or section 3 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7)) who is a life prisoner—

(a) transferred from England and Wales and to whom—

(i) section 28(1)(a) (duty to release certain life prisoners) of the Crime (Sentences) Act 1997 (c.43) (in this section, ‘the 1997 Act’) applies and in respect of whom the court has made an order under section 28(2)(b) of that Act; or

(ii) section 82A (determination of tariffs) of the Powers of Criminal Courts (Sentencing) Act 2000 (c.6) (in this section, ‘the 2000 Act’) applies and in respect of whom the court has made an order under section 82A(2) of that Act;

(b) transferred from the Isle of Man and to whom paragraph...

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