Criminal Justice (Scotland) Act 2003

JurisdictionScotland
Citation2003 asp 7


Criminal Justice (Scotland) Act 2003

asp 7

[26th March 2003]

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 20th February 2003 and received Royal Assent on

An Act of the Scottish Parliament to make provision in relation to criminal justice, criminal procedure and evidence in criminal proceedings; to make provision as to the arrest, sentencing, custody and release of offenders and the obtaining of reports in relation to offenders; to make provision for the provision of assistance by local authorities to persons who are arrested and are in police custody or who are subject to a deferred sentence and for the making of grants to local authorities exercising jointly certain functions in relation to offenders and other persons; to make provision for the protection of the public at large from persons with a propensity to commit certain offences and for the establishment of the Risk Management Authority; to make provision for the granting of certain rights to the victims of crime; to make provision as to the jurisdiction of courts and the designation of certain courts as drugs courts; to make provision in relation to the physical punishment of children; to create offences in connection with traffic in prostitution or for purposes connected with pornography; to make provision as to the criminal law as it relates to bribery and the acceptance of bribes; to make provision in relation to criminal legal assistance; to require the aggravation of an offence by religious prejudice to be taken into account in sentencing; to make provision as respects police ranks and the powers and duties of certain civilians employed by police authorities; to make provision for the disqualification of convicted persons from jury service in both criminal and civil proceedings and for the separation of juries after retiral; to make provision for the use of live television links between prisons and courts; to make provision in relation to warrants to search; to amend Part V of the Police Act 1997 in its application to Scotland; to make provision in relation to the prohibition of certain matters in respect of cases referred to the Principal Reporter; to amend the law relating to penalties for wildlife offences; and for connected purposes.

1 Protection of the public at large

Part 1

Protection of the public at large

Risk assessment and order for lifelong restriction

Risk assessment and order for lifelong restriction

S-1 Risk assessment and order for lifelong restriction

1 Risk assessment and order for lifelong restriction

1 Risk assessment and order for lifelong restriction

(1) In Part XI of the 1995 Act (sentencing), after section 210AA (which is inserted into that Act by section 20 of this Act) there is inserted—

Risk assessment

‘Risk assessment

S-210B

210B

210B Risk assessment order

(1) This subsection applies where it falls to the High Court to impose sentence on a person convicted of an offence other than murder and that offence—

(a) is (any or all)—

(i) a sexual offence (as defined in section 210A(10) of this Act);

(ii) a violent offence (as so defined);

(iii) an offence which endangers life; or

(b) is an offence the nature of which, or circumstances of the commission of which, are such that it appears to the court that the person has a propensity to commit any such offence as is mentioned in sub-paragraphs (i) to (iii) of paragraph (a) above.

(2) Where subsection (1) above applies, the court, at its own instance or (provided that the prosecutor has given the person notice of his intention in that regard) on the motion of the prosecutor, if it considers that the risk criteria may be met, shall make an order under this subsection (a ‘risk assessment order’) unless—

(a) the court makes an interim hospital order by virtue of section 210D(1) of this Act in respect of the person; or

(b) the person is subject to an order for lifelong restriction previously imposed.

(3) A risk assessment order is an order—

(a) for the convicted person to be taken to a place specified in the order, so that there may be prepared there—

(i) by a person accredited for the purposes of this section by the Risk Management Authority; and

(ii) in such manner as may be so accredited,

a risk assessment report (that is to say, a report as to what risk his being at liberty presents to the safety of the public at large); and

(b) providing for him to be remanded in custody there for so long as is necessary for those purposes and thereafter there or elsewhere until such diet as is fixed for sentence.

(4) On making a risk assessment order, the court shall adjourn the case for a period not exceeding ninety days.

(5) The court may on one occasion, on cause shown, extend the period mentioned in subsection (4) above by not more than ninety days; and it may exceptionally, where by reason of circumstances outwith the control of the person to whom it falls to prepare the risk assessment report (the ‘assessor’), or as the case may be of any person instructed under section 210C(5) of this Act to prepare such a report, the report in question has not been completed, grant such further extension as appears to it to be appropriate.

(6) There shall be no appeal against a risk assessment order or against any refusal to make such an order.

S-210C

210C

210C Risk assessment report

(1) The assessor may, in preparing the risk assessment report, take into account not only any previous conviction of the convicted person but also any allegation that the person has engaged in criminal behaviour (whether or not that behaviour resulted in prosecution and acquittal).

(2) Where the assessor, in preparing the risk assessment report, takes into account any allegation that the person has engaged in criminal behaviour, the report is to—

(a) list each such allegation;

(b) set out any additional evidence which supports the allegation; and

(c) explain the extent to which the allegation and evidence has influenced the opinion included in the report under subsection (3) below.

(3) The assessor shall include in the risk assessment report his opinion as to whether the risk mentioned in section 210B(3)(a) of this Act is, having regard to such standards and guidelines as are issued by the Risk Management Authority in that regard, high, medium or low.

(4) The assessor shall submit the risk assessment report to the High Court by sending it, together with such documents as are available to the assessor and are referred to in the report, to the Principal Clerk of Justiciary, who shall then send a copy of the report and of those documents to the prosecutor and to the convicted person.

(5) The convicted person may, during the period of his detention at the place specified in the risk assessment order, himself instruct the preparation (by a person other than the assessor) of a risk assessment report; and if such a report is so prepared then the person who prepares it shall submit it to the court by sending it, together with such documents as are available to him (after any requirement under subsection (4) above is met) and are referred to in the report, to the Principal Clerk of Justiciary, who shall then send a copy of it and of those documents to the prosecutor.

(6) When the court receives the risk assessment report submitted by the assessor a diet shall be fixed for the convicted person to be brought before it for sentence.

(7) If, within such period after receiving a copy of that report as may be prescribed by Act of Adjournal, the convicted person intimates, in such form, or as nearly as may be in such form, as may be so prescribed—

(a) that he objects to the content or findings of that report; and

(b) what the grounds of his objection are,

the prosecutor and he shall be entitled to produce and examine witnesses with regard to—

(i) that content or those findings; and

(ii) the content or findings of any risk assessment report instructed by the person and duly submitted under subsection (5) above.

S-210D

210D

210D Interim hospital order and assessment of risk

(1) Where subsection (1) of section 210B of this Act applies, the High Court, if—

(a) it may make an interim hospital order in respect of the person under section 53 of this Act; and

(b) it considers that the risk criteria may be met,

shall make such an order unless the person is subject to an order for lifelong restriction previously imposed.

(2) Where an interim hospital order is made by virtue of subsection (1) above, a report as to the risk the convicted person's being at liberty presents to the safety of the public at large shall be prepared by a person accredited for the purposes of this section by the Risk Management Authority and in such manner as may be so accredited.

(3) Section 210C(1) to (4) and (7) (except paragraph (ii)) of this Act shall apply in respect of any such report as it does in respect of a risk assessment report.

S-210E

210E

210E The risk criteria

For the purposes of sections 195(1), 210B(2), 210D(1) and 210F(1) and (3) of this Act, the risk criteria are that the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large.

Order for lifelong restriction etc.

Order for lifelong restriction etc.

S-210F

210F

210F Order for lifelong restriction

(1) The High Court, at its own instance or on the motion of the prosecutor, if it is satisfied, having regard to—

(a) a risk assessment report submitted under section 210C(4) or (5) of this Act;

(b) any report submitted by virtue of section 210D of this Act;

(c) any evidence given under section 210C(7) of this Act; and

(d) any other information before it,

that, on a balance of probabilities, the risk criteria...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT