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Crime and Punishment (Scotland) Act 1997

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Crime and Punishment(Scotland) Act 1997

1997 Chapter 48

An Act to make provision as respects Scotland in relation to criminal appeals, the disposal of offenders, criminal procedure, evidence in criminal proceedings, the treatment and early release of prisoners, offences committed by newly released prisoners, criminal legal assistance, the police, confiscation of alcohol from persons under 18, sex offenders and the payment by the Lord Advocate of grants for the provision of forensic medical services to enable courts in England and Wales and North ern Ireland to remit offenders to courts in Scotland in certain circumstances to make amendments consequential upon the provisions of this Act to the law in other parts of the United Kingdom and for connected purposes.

[21st March 1997]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

I Sentencing

Part I

Sentencing

Automatic sentences

Automatic sentences

S-1 Imprisonment for life on further conviction for certain offences.

1 Imprisonment for life on further conviction for certain offences.

(1) After section 205 of the 1995 Act there shall be inserted the following section—

S-205A

205A ‘Imprisonment for life on further conviction for certain offences.

(1) This section applies where a person—

(a) is convicted on indictment in the High Court of a qualifying offence committed after the relevant date and

(b) at the time whe n the offence mentioned in paragraph (a) above was committed, he had attained the age of at least 18 years and had a conviction for a qualifying offence which was obtained on indictment in the High Court or for any relevant offence, irrespective of—

(i) whether that offence was committed before or after the relevant date and

(ii) his age at the time of th e commission of that offence.

(2) Subject to subsection (3) below, where this section applies the High Court shall sentence the person—

(a) where he has attained the age of 21 years, to imprisonment for life

(b) where he has attained the age of 18 years but is under the age of 21 years, to be detained for life, and a person s o sentenced shall be liable to be detained in a young offenders institution.

(3) Notwithstanding subsection (2) above, if the High Court is of the opinion that it would be in the interests of justice for it to pass a sentence other than the sentence which that subsection would require it to pass, it may decline to pass that sentence and may instead pass any sentence which it otherwise has power to pass in respect of a conviction for that offence.

(4) For the purposes of section 106(2) of this Act a sentence passed under subsection (2) above in respect of a conviction for a qualifying offence shall not be regarded as a sentence fixed by law for that offence.

(5) In this section—

‘qualifying offence’ means any offence mentioned in Part I of Schedule 5A to this Act

‘the relevant date’ means the date on which section 1 of the Crime and Punishment (Scotland) Act 1997 comes into force and

‘relevant offence’ means any offence mentioned in Part II of Schedule 5A to this Act.’.

(2) After Schedule 5 to the 1995 Act, there shall be inserted the following Schedule—

‘Schedule 5A

Offences for the purpose of section 205A of this Act

I Qualifying offences

Part I

Qualifying offences

SCH-5A.1

1. Culpable homicide.

SCH-5A.2

2. Attempted murder, incitement to commit murder or conspiracy to commit murder.

SCH-5A.3

3. Rape or attempted rape.

SCH-5A.4

4. Clandestine injury to women or an attempt to cause such injury.

SCH-5A.5

5. Sodomy or attempted sodomy where, in either case, the complainer, that is to say the person against whom the offence was committed, did not consent.

SCH-5A.6

6. Assault, where the assault—

(a)is aggravated because it was carried out to—

(i) the victim's severe injury or

(ii) the danger of the victim's life or

(b) was carried out with an intention to rape or to ravish the victim.

SCH-5A.7

7. Robbery, where, at some time during the commission of the offence, the offender had in his possession a firearm or an imitation firearm.

SCH-5A.8

8. Any offence committed by contravention of—

(a) section 16 (possession of a firearm with intent to endanger life or cause serious injury)

(b) section 17 (use of firearm to resist arrest) or

(c) section 18 (having a firearm for purpose of committing an offence listed in Schedule 2),

of the Firearms Act 1968.

SCH-5A.9

9. Lewd, indecent or libidinous behaviour or practices.

SCH-5A.10

10. Any offence committed by contravention of section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995(unlawful intercou rse with a girl under the age of thirteen years).

II Relevant offences

Part II

Relevant offences

SCH-5A.11

11. Any of the following offences committed in England and Wales, namely—

(a) an attempt to commit murder, a conspiracy to commit murder or an incitement to murder

(b)an offence under section 4 of the Offences Against the Person Act 1861(solicitingmurder)

(c) manslaughter

(d) an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent)

(e) rape or an attempt to commit rape

(f)an offence under section 5 of the Sexual Offences Act 1956(intercoursewith a girl under 13)
(g)any offence committed by contravention of—

(i) section 16 (possession of a firearm with intent to endanger life or cause serious injury)

(ii) section 17 (use of firearm to resist arrest) or

(iii) section 18 (carrying a firearm with criminal intent)

of the Firearms Act 1968

(h) robbery, where, at some time during the commission of the offence the offender had in his possession a firearm or imitation firearm.

SCH-5A.12

12. Any of the following offences committed in Northern Ireland, namely—

(a) an offence mentioned in sub-paragraphs (a) to (e) of paragraph 11 above

(b)an offence under section 4 of the Criminal Law Amendment Act 1885(intercoursewith a girl under 14)
(c)an offence under Article 17 (possession of a fi rearm with intent to injure), Article 18(1) (use of a firearm to resist arrest) or Article 19 (carrying a firearm with criminal intent) of the Firearms (Northern Ireland) Order 1981and

(d) robbery, where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Order.

III Interpretation

Part III

Interpretation

SCH-5A.13

13. In paragraphs 7 and 11(h) above ‘firearm’ and ‘imitation firearm’ have the meanings respectively given to them by section 57 of the Firearms Act 1968.’.

S-2 Minimum sentence for third conviction of certain offences relating to drug trafficking.

2 Minimum sentence for third conviction of certain offences relating to drug trafficking.

(1) After section 205 of the 1995 Act there shall be inserted the following section—

S-205B

205B ‘Minimum sentence for third conviction of certain offences relating to drug trafficking.

(1) This section applies where—

(a) a person is convicted on indictment in the High Court of a class A drug trafficking offence committed after the commencement of section 2 of the Crime and Punishment (Sco tland) Act 1997

(b) at the time when that offence was committed, he had attained the age of at least 18 years and had been convicted in any part of the United Kingdom of two other class A drug trafficking offences, irrespective of—

(i) whether either of those offences was committed before or after the commencement of section 2 of the Crime and Punishment (Scotland) Act 1997

(ii) the court in which any such conviction was obtained and

(iii) his age at the time of the commission of either of those offences and

(c) one of the offences mentioned in paragraph (b) above was committed after he had been convicted of the other.

(2) Subject to subsection (3) below, where this section applies the court shall sentence the person—

(a) where he has attained the age of 21 years, to a term of imprisonment of at least seven years and

(b) where he has attained the age of 18 years but is under the age of 21 years, to detention in a young offenders institution for a period of at least seven years.

(3) The court shall not impose the sentence otherwise required by subsection (2) above where it is of the opinion that there are specific circumstances which—

(a) relate to any of the offences or to the offender and

(b) would make that sentence unjust.

(4) For the purposes of section 106 (2) of this Act a sentence passed under subsection (2) above in respect of a conviction for a class A drug trafficking offence shall not be regarded as a sentence fixed by law for that offence.

(5) In this section ‘class A drug trafficking offence’ means a drug trafficking offence committed in respect of a class A drug and for this purpose—

‘class A drug’ has the same meaning as in the Misuse of Drugs Act 1971

‘drug trafficking offence’ means a drug trafficking offence within the meaning of—

(i) the Drug Trafficking Act 1994

(ii) the Proceeds of Crime (Scotland) Act 1995 or

(iii) the Proceeds of Crime (Northern Ireland) Order 1996 .’.

(2) In section 196 of the 1995 Act (sentence following guilty plea)—

(a) the existing words shall become subsection (1) and

(b) at the end there shall be added the following subsection—

(2) Where the court is passing sentence on an offender under section 205B(2) of this Act and that offender has pled guilty to the offence for which he is being so sentenced, the court may, after taking into account the matters mentioned in paragraphs (a) and (b) of subsection (1) above, pass a sentence of less than seven years imprisonment or, as the case may be, detention but any such...

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