Criminal Justice and Licensing (Scotland) Act 2010

Valid from 07/05/2015

SCHEDULE 1STHE SCOTTISH SENTENCING COUNCIL

(introduced by section 1(2))

Procedure for appointment of membersS

2(1)It is for the Lord Justice General, after consulting the Scottish Ministers, to appoint the members of the Council other than the Lord Justice Clerk and the lay members.S

(2)It is for the Scottish Ministers, after consulting the Lord Justice General, to appoint the lay members.

(3)The Lord Justice General may appoint a person to be a member only if the person has been nominated, or otherwise selected for appointment, in accordance with such procedures as the Scottish Ministers may by regulations prescribe.

(4)The regulations may—

(a)in particular, make provision for or in connection with enabling a person to nominate or select persons suitable for appointment,

(b)prescribe different procedures for different categories of membership.

(5)The Scottish Ministers must consult the Lord Justice General before making the regulations.

Valid from 01/02/2011

PART 1 STHE 1995 ACT

The 1995 ActS

1SThe 1995 Act is amended as follows.

2SIn section 52H(3) (early termination of assessment order), the following are repealed—

(a)the word “or” immediately following paragraph (e), and

(b)paragraph (f).

3SIn section 52R(3) (termination of treatment order), the following are repealed—

(a)the word “or” immediately following paragraph (e), and

(b)paragraph (f).

4SIn section 53(12)(a) (interim compulsion orders), for sub-paragraphs (vi) and (vii) substitute—

“(vi)impose a community payback order;

(vii)make a drug treatment and testing order; or

(viii)make a restriction of liberty order,”.

5SIn section 57A(15)(a) (compulsion order), for sub-paragraphs (vi) and (vii) substitute—

“(vi)impose a community payback order;

(vii)make a drug treatment and testing order; or

(viii)make a restriction of liberty order,”.

6SIn section 58(8) (order for hospital admission or guardianship), for “make a probation order or a community service order” substitute “ impose a community payback order or make a drug treatment and testing order ”.

7SIn section 106(1) (right of appeal), for paragraph (d) substitute—

“(d)against any drug treatment and testing order;

(dza)against any disposal under section 227ZC(7)(a) to (c) or (e) or (8)(a) of this Act;”.

8SIn section 108 (Lord Advocate's right of appeal against disposal)—

(a)in subsection (1), paragraphs (d) and (e) are repealed, and

(b)in subsection (2)(b)(iii), for “(d) to (e)” substitute “ (dd) ”.

9SIn section 118(4) (disposal of appeals against sentence), after “(d),” insert “ (dza), ”.

10SIn section 121A(4) (suspension of certain sentences pending determination of appeal), for paragraphs (a) to (c) substitute—

“(aa)a community payback order;”.

11SIn section 173(2) (quorum of High Court in relation to appeals), for “175(2)(b) or (c)” substitute “ 175(2)(b), (c) or (cza) ”.

12SIn section 175 (right of appeal)—

(a)in subsection (2)—

(i)in paragraph (c), for “probation order, drug treatment and testing order or any community service order” substitute “ drug treatment and testing order ”, and

(ii)after paragraph (c), insert—

“(cza)against any disposal under section 227ZC(7)(a) to (c) or (e) or (8)(a) of this Act;”,

(b)in subsection (4), paragraphs (d) and (e) are repealed, and

(c)in subsection (4A)(b)(iii), for “(d) to (e)” substitute “ (dd) ”.

13SIn section 186 (appeals against sentence only), in each of subsections (1), (2)(a), (9) and (10), for “175(2)(b) or (c)” substitute “ 175(2)(b), (c) or (cza) ”.

14SIn section 187(1) (leave to appeal against sentence), for “175(2)(b) or (c)” substitute “ 175(2)(b), (c) or (cza) ”.

15SIn section 189(5) (disposal of appeal against sentence), after “175(2)(c)” insert “ or (cza) ”.

16SIn section 193A(4) (suspension of certain sentences pending determination of appeal)—

(a)for paragraphs (a) to (c) substitute—

“(aa)a community payback order;”, and

(b)paragraph (e) is repealed.

17SSections 228 to 234 (probation) are repealed.

18SIn section 234H (disposal on revocation of drug treatment and testing order)—

(a)in subsection (1), for “drugs” substitute “ drug ”, and

(b)in subsection (3), for the words from “subject to” where they first occur to the end substitute “ , in respect of the same offence, also subject to a community payback order, by virtue of section 234J, or a restriction of liberty order, by virtue of section 245D, the court shall, before disposing of the offender under subsection (1) above, revoke the community payback order or restriction of liberty order (as the case may be). ”.

19(1)Section 234J (concurrent drug treatment and testing and probation orders) is amended as follows.S

(2)In subsection (1)—

(a)for “sections 228(1) and” substitute “ section ”, and

(b)for “probation order” substitute “ community payback order ”.

(3)In subsection (3)—

(a)for “probation order” substitute “ community payback order ”, and

(b) for paragraphs (b) and (c) substitute—

“(ba)the local authority within whose area the offender will reside for the duration of each order.”.

(4)In subsection (4)—

(a)in paragraph (a), for “probation order and is dealt with under section 232(2)(c)” substitute “ community payback order and is dealt with under section 227ZC(7)(d) ”, and

(b)in paragraph (b), for “232(2)(c) of this Act in relation to the probation order” substitute “ 227ZC(7)(d) of this Act in relation to the community payback order ”.

(5)In subsection (5)—

(a)for “probation order” substitute “ community payback order ”, and

(b)for “232(2)” substitute “ 227ZC(7) ”.

20SSections 235 to 245 (supervised attendance orders and community service orders) are repealed.

21(1)Section 245A (restriction of liberty orders) is amended as follows.S

(2)In subsection (2), the words from “but” to the end are repealed.

(3)After subsection (2) insert—

“(2A)In making a restriction of liberty order containing provision under subsection (2)(a), the court must ensure that the offender is not required, either by the order alone or the order taken together with any other relevant order or requirement, to be in any place or places for a period or periods totalling more than 12 hours in any one day.

(2B)In subsection (2A), “other relevant order or requirement” means—

(a)any other restriction of liberty order in effect in respect of the offender at the time the court is making the order referred to in subsection (2A), and

(b)any restricted movement requirement under section 227ZF in effect in respect of the offender at that time.”.

(4)In subsection (12)(a), for “subsection (2)” substitute “ subsection (2A) ”.

22(1)Section 245D (combination of restriction of liberty orders with other orders) is amended as follows.S

(2)In subsection (1)(b)—

(a)in sub-paragraph (i), for “probation order made under section 228(1)” substitute “ community payback order imposed under section 227A(1) ”, and

(b)in sub-paragraph (ii)—

(i)for “probation order made under section 228(1) of this Act,” substitute “ community payback order imposed under section 227A(1) of this Act or ”, and

(ii)the words “or both such orders” are repealed.

(3)In subsection (2), for “probation order” substitute “ community payback order ”.

(4)In subsection (3)—

(a)the word “228(1),” is repealed,

(b)in paragraph (a), for “probation order” substitute “ community payback order ”, and

(c)in paragraph (b), for “either or both of a probation order and” substitute “ either a community payback order or ”.

(5)In subsection (4)—

(a)for “probation order” substitute “ community payback order ”, and

(b)for paragraph (b) substitute—

“(b)the local authority within whose area the offender will reside for the duration of each order.”.

(6)Subsection (6) is repealed.

(7)In subsection (7)—

(a)in paragraph (a)—

(i)for “contained in a probation order and is dealt with under section 232(2)(c)” substitute “ imposed by a community payback order and is dealt with under section 227ZC(7)(d) ”, and

(ii)the words from “234G(2)(b)” to “section” where it third occurs are repealed,

(b)in paragraph (b), the words from “232(2)(c)” to “section” where it third occurs are repealed, and

(c)in paragraph (c), for “232(2)(c) of this Act in relation to a probation order” substitute “ 227ZC(7)(d) of this Act in relation to a community payback order ”.

(8)In subsection (8), for “232(2)” substitute “ 227ZC ”.

(9)In subsection (9)—

(a)in paragraph (a), for “probation order” substitute “ community payback order ”, and

(b)paragraph (c) is repealed.

23(1)Section 245G (disposal on revocation of restriction of liberty order) is amended as follows.S

(2)In subsection (2), for the words from “by virtue” to the end substitute “ in respect of the same offence, also subject to a community payback order or a drug treatment and testing order, by virtue of section 245D(3), it shall before disposing of the offender under subsection (1) above, revoke the community payback order or drug treatment and testing order. ”.

(3)In subsection (3), for “probation order discharged” substitute “ community payback order ”.

(4)Subsection (4) is repealed.

24SIn section 245J (breach of certain orders: adjourning hearing and remanding in custody etc.)—

(a)in subsection (1)—

(i)for “a probationer or” substitute “ an ”,

(ii)for “probation order” substitute “ community payback order ”, and

(iii)the words “supervised attendance order, community service order” are repealed,

(b)in subsection (2), the words “probationer or” are repealed, and

(c)in subsection (4), for “A probationer or” substitute “ An ”.

25SSections 245K to 245Q (community reparation orders) are repealed.

26SIn section 246 (admonition and absolute discharge), in each of subsections (2) and (3), the words “and that a probation order is not appropriate” are repealed.

27SIn section 249(2) (compensation order against convicted person), for paragraph (b) substitute—

“(ab)where, under section 227A of this Act, it imposes a community payback order;”.

28SIn section 307 (interpretation)—

(a)in subsection (1)—

(i)insert at the appropriate places—

““alcohol treatment requirement” has the meaning given in section 227V(1);”

““community payback order” means a community payback order (within the meaning of section 227A(2)) imposed under section 227A(1) or (4) or 227M(2);”

““compensation requirement” has the meaning given in section 227H(1);”

““conduct requirement” has the meaning given in section 227W(1);”

““drug treatment requirement” has the meaning given in section 227U(1);”

““mental health treatment requirement” has the meaning given in section 227R(1);”

““offender supervision requirement” has the meaning given in section 227G(1);”

““programme requirement” has the meaning given in section 227P(1);”

““residence requirement” has the meaning given in section 227Q(1);”

““responsible officer”, in relation to a community payback order, is to be construed in accordance with section 227C;”

““restricted movement requirement” has the meaning given in section 227ZF(1);”

““unpaid work or other activity requirement” has the meaning given in section 227I(1), and “level 1 unpaid work or other activity requirement” and “level 2 unpaid work or other activity requirement” are to be construed in accordance with section 227I(5) and (6) respectively;”, and

(ii)the definitions of the following terms are repealed—

• “appropriate court”

• “community service order”

• “probationer”

• “probation order”

• “probation period”, and

(b)subsection (3) is repealed.

29SSchedules 6 and 7 are repealed.

Valid from 01/02/2011

The Firearms Act 1968 (c.27)S

30(1)The Firearms Act 1968 is amended as follows.S

(2)In section 21(3ZA) (possession of firearms by persons previously convicted of crime), for paragraph (b) substitute—

“(b)a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46).”.

(3)In section 52(1A) (forfeiture and disposal of firearms: cancellation of certificate by convicting court), for paragraph (b) substitute—

“(b)a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46).”.

Valid from 01/02/2011

The Social Work (Scotland) Act 1968 (c.49)S

31(1)The Social Work (Scotland) Act 1968 is amended as follows.S

(2)In section 27 (supervision and care of persons put on probation or released from prisons etc.), in subsection (1)(b)—

(a)in paragraph (iii), for the words from “community service order” to the end substitute “ community payback order imposed under section 227A or 227M of the Criminal Procedure (Scotland) Act 1995 imposing an unpaid work or other activity requirement ”, and

(b)sub-paragraphs (iv) and (va) are repealed.

(3)In section 86(3) (adjustments between authority providing accommodation etc. and authority of area of residence), after “supervision order” insert “ , community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995, ”.

Valid from 01/02/2011

The Rehabilitation of Offenders Act 1974 (c.53)S

32(1)The Rehabilitation of Offenders Act 1974 is amended as follows.S

(2)In section 5(4A)(rehabilitation periods for particular sentences), the words “a probation order or” are repealed.

(3)In section 6(3)(the rehabilitation period applicable to a conviction), the following are repealed—

(a)the words “or a probation order was made”,

(b)the words “or a breach of the order”, and

(c)the words “or probation order”.

Valid from 01/02/2011

The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55)S

33SIn Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, in Part 2 (ineligibility for and disqualification and excusal from jury service), in paragraph (bb)—

(a)for sub-paragraph (i) substitute—

“(i)a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46);”, and

(b)sub-paragraph (iii) is repealed.

Valid from 01/02/2011

The Local Government and Planning (Scotland) Act 1982 (c.43)S

34SIn section 24 of the Local Government and Planning (Scotland) Act 1982 (councils' functions in relation to the provision of gardening assistance for the disabled and the elderly), in subsection (3), for the words from “instruction” to “that Act” substitute “ determination that may be made or instruction that may be given, for the purposes of an unpaid work or other activity requirement imposed in a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46), by the responsible officer in relation to the order, ”.

Valid from 01/02/2011

The 1982 ActS

35(1)The 1982 Act is amended as follows.S

(2)In section 49(6) (dangerous and annoying creatures), the words “or makes a probation order in relation to him” are repealed.

(3)In section 58(3) (convicted thief in possession)—

(a)the words “or makes a probation order in relation to him” are repealed, and

(b)for the words from “discharged absolutely,” to the end substitute “ discharged absolutely. ”.

Valid from 01/02/2011

The Foster Children (Scotland) Act 1984 (c.56)S

36SIn section 2 of the Foster Children (Scotland) Act 1984 (exceptions to section 1), in subsection (3), for “probation order” substitute “ community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46) ”.

Valid from 01/02/2011

The Road Traffic Offenders Act 1988 (c.53)S

37SIn section 46(3)(b) of the Road Traffic Offenders Act 1988 (combination of disqualification and endorsement with probation orders and orders for discharge), the words “section 228 (probation) or” are repealed.

Valid from 01/02/2011

The Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c.40)S

39SIn Schedule 3 to the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (transitional provisions, transitory modifications and savings), in Part 2, paragraph 13 is repealed.

Valid from 01/02/2011

The Proceeds of Crime (Scotland) Act 1995 (c.43)S

40(1)The Proceeds of Crime (Scotland) Act 1995 is amended as follows.S

(2)In section 25(9) (recall or variation of suspended forfeiture order), the words “probation order or” are repealed.

(3)In section 26(9) (property wrongly forfeited: return or compensation), the words “probation order or” are repealed.

Valid from 01/02/2011

The Crime and Punishment (Scotland) Act 1997 (c.48)S

41SIn the Crime and Punishment (Scotland) Act 1997, the following provisions are repealed—

(a)section 26 (evidence concerning certain orders), and

(b)in Schedule 1 (minor and consequential amendments), in paragraph 21, sub-paragraphs (27) to (29).

Valid from 01/02/2011

The Crime and Disorder Act 1998 (c.37)S

42SIn the Crime and Disorder Act 1998, in Schedule 6 (drug treatment and testing orders: amendment of the 1995 Act), in Part 1, paragraphs 1 and 2 are repealed.

Valid from 01/02/2011

The Powers of Criminal Courts (Sentencing) Act 2000 (c.6)S

43SIn Schedule 9 to the Powers of Criminal Courts (Sentencing) Act 2000 (consequential amendments), paragraphs 176 to 178 are repealed.

Valid from 01/02/2011

The Criminal Justice and Court Services Act 2000 (c.43)S

44(1)Schedule 7 to the Criminal Justice and Court Services Act 2000 (minor and consequential amendments) is amended as follows.S

(2)In paragraph 4(2), in the entry relating to the Criminal Procedure (Scotland) Act 1995, for “sections 209(3)(a) and 234(1)(a)” substitute “ section 209(3)(a) ”.

(3)Paragraphs 122 to 125 are repealed.

Valid from 01/02/2011

The Social Security Fraud Act 2001 (c.11)S

45(1)The Social Security Fraud Act 2001 is amended as follows.S

(2)In section 6C(5)(b)(i) (provisions supplementary to section 6B), the words “or a court in Scotland makes a probation order” are repealed.

(3)In section 7(9)(b) (loss of benefit for commission of benefit offences), the words “or a court in Scotland makes a probation order” are repealed.

Valid from 01/02/2011

The Justice (Northern Ireland) Act 2002 (c.26)S

46SIn Schedule 4 to the Justice (Northern Ireland) Act 2002 (functions of justices of the peace), paragraph 37 is repealed.

Valid from 01/02/2011

The Criminal Justice (Scotland) Act 2003 (asp 7)S

47(1)The Criminal Justice (Scotland) Act 2003 is amended as follows.S

(2)In section 42 (drugs courts)—

(a)in subsection (4)—

(i)for “probationer with the requirements of a probation order” substitute “ community payback order ”,

(ii)in paragraph (b), for the words from “make” to “work” substitute “ in the case of a failure to comply with the requirements of a drug treatment and testing order, make a community payback order imposing a level 1 unpaid work or other activity requirement, so however that the total hours of unpaid work or other activity ”, and

(iii)for “probation order” where those words second occur substitute “ community payback order ”,

(b)in subsection (6), for paragraph (b) substitute—

“(b)alleged at—

(i)a progress review carried out by such a court in relation to a community payback order; or

(ii)a diet of such a court to which an offender has been cited under section 227ZC(2) of that Act (breach of community payback order),

that the offender has failed to comply with a requirement imposed by a community payback order,”,

(c)in subsection (7)—

(i)the words “or probationer” are repealed, and

(ii)for “232” substitute “ 227ZC ”,

(d)for subsection (9) substitute—

“(9)If a community payback order is revoked under section 227ZC(7)(b) of the 1995 Act, the court (whether or not a drugs court) must, in dealing with the offender by virtue of that section, take into account any sentence which has been imposed under paragraph (a) of subsection (4) of this section in relation to a failure to comply with the community payback order.”,

(e)in subsection (10)—

(i)insert at the appropriate places—

““community payback order” means an order imposed under section 227A of the 1995 Act;”

““level 1 unpaid work or other activity requirement” has the meaning given in section 227I(5) of the 1995 Act;”, and

(ii)the definition of “probation order” is repealed, and

(f)in subsection (11), paragraphs (a) and (b) are repealed.

(3)Section 46 (requirement for remote monitoring in probation order) is repealed.

(4)In section 50 (amendments in relation to certain non-custodial sentences), subsections (1), (2) and (4) are repealed.

(5)In section 60 (unified citation provisions)—

(a)in subsection (1), paragraphs (a), (b), (e) and (f) are repealed, and

(b)subsections (3) and (4) are repealed.

Valid from 01/02/2011

The Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)S

48SIn the Mental Health (Care and Treatment) (Scotland) Act 2003, the following provisions are repealed—

(a)section 135 (amendment of 1995 Act: probation for treatment of mental disorder), and

(b)in schedule 4 (minor and consequential amendments), in paragraph 8, sub-paragraph (15).

Valid from 01/02/2011

The Criminal Justice Act 2003 (c.44)S

49SIn Schedule 32 to the Criminal Justice Act 2003 (amendments relating to sentencing), paragraphs69 to 72 are repealed.

Valid from 01/02/2011

The Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8)S

50SIn the Antisocial Behaviour etc. (Scotland) Act 2004, the following provisions are repealed—

(a)section 120 (community reparation orders), and

(b)in schedule 4 (minor and consequential amendments), in paragraph 5, sub-paragraphs (3), (5), (6) and (11).

Valid from 01/02/2011

The Management of Offenders etc. (Scotland) Act 2005 (asp 14)S

51(1)The Management of Offenders etc. (Scotland) Act 2005 is amended as follows.S

(2)In section 10 (arrangements for assessing and managing risks posed by certain offenders), in subsection (1)(b), for sub-paragraph (i) substitute—

“(i)is subject to a community payback order imposed under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46) imposing an offender supervision requirement (within the meaning given by section 227G(1) of that Act) whether alone or along with any other requirement, or”.

(3)Section 12(probation progress review) is repealed.

Valid from 01/02/2011

The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6)S

52SIn the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, the following provisions are repealed—

(a)in section 49 (compensation orders), subsection (4),

(b)section 57(probation and community service orders), and

(c)in paragraph 26 of the schedule (modification of enactments), sub-paragraphs (l) and (n).

Valid from 01/02/2011

The Criminal Justice and Immigration Act 2008 (c.4)S

53SIn Part 1 of Schedule 4 to the Criminal Justice and Immigration Act 2008 (youth rehabilitation orders: consequential amendments), paragraphs 43 to 46 are repealed.

Prospective

SCHEDULE 3SSHORT-TERM CUSTODY AND COMMUNITY SENTENCES: CONSEQUENTIAL AMENDMENTS

(introduced by section 18(9))

Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17)S

1SThe Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17) is amended in accordance with paragraphs 2 to 14.

2SIn section 34 (period during which licence in force), for subsection (1) substitute—

“(1)Where a short-term custody and community prisoner is released on short-term community licence by virtue of section 5, 27(1) or, as the case may be, 42(4)(a), the licence remains in force until the expiry of the prisoner's sentence.”.

3SIn the following places after “section” insert “ 5, ”

(a)section 35 (prisoner to comply with licence conditions),

(b)subsection (1)(a) of section 36 (suspension of licence conditions while detained), and

(c)subsections (1)(a) and (4)(a) of section 37 (revocation of licence).

4SIn section 40 (compassionate release: effect of revocation in certain circumstances), in subsection (3), for paragraph (a) substitute—

“(a)in the case of a short-term custody and community prisoner, one-half of the prisoner's sentence,”.

5(1)Section 42 (consideration by Parole Board) is amended as follows.S

(2)In subsection (1), after “41(2)(b)” insert “ , 42A(9) ”.

(3)In subsection (5), after “on” insert “ short-term community licence, ”.

6SAfter section 42 insert—

“42ADetermination that section 42(3) applicable: consequences for short-term custody and community prisoners

(1)This section applies where the Parole Board determines, under subsection (2) of section 42, that subsection (3) of that section applies to a short-term custody and community prisoner.

(2)The Parole Board must give the prisoner reasons in writing for its determination.

(3)If on the day of the determination less than 4 months of the prisoner's sentence remain to be served, the prisoner must be confined until the expiry of the prisoner's sentence.

(4)If on the day of the determination at least 4 months but no more than 2 years of the prisoner's sentence remain to be served, the Parole Board may, subject to section 26, fix a date falling within the period mentioned in subsection (5) on which it will next consider the prisoner's case.

(5)That period is the period—

(a)beginning with the day falling 4 months after the day of the determination, and

(b)ending on the expiry of the prisoner's sentence.

(6)If no date is fixed under subsection (4) the prisoner must be confined until the expiry of the prisoner's sentence.

(7)If on the day of the determination at least 2 years of the prisoner's sentence remain to be served, the Parole Board must, subject to section 26, fix a date falling within the period mentioned in subsection (8) on which it will next consider the prisoner's case.

(8)That period is the period—

(a)beginning with the day falling 4 months after the day of the determination, and

(b)ending immediately before the second anniversary of the day of the determination.

(9)Where a date is fixed under subsection (4) or (7), the Scottish Ministers must refer the case to the Parole Board before that date.”.

7(1)Section 45 (prisoner's right to request early reconsideration by Parole Board) is amended as follows.S

(2)In subsection (1), after “under—” insert—

“(za)section 42A(4),

(zb)section 42A(7),”.

(3)In subsection (2), after “section” insert “ 42A(4), 42A(7), ”.

(4)In subsection (3), after “section” insert “ 42A(4) or ”.

(5)In subsection (4), after “section” insert “ 42A(4) or, as the case may be, ”.

8SIn section 46 (multiple licences to be replaced by single licence), in subsection (1)(a), after “section” insert “ 5, ”.

9(1)Section 51 (prisoners serving extended sentences) is amended as follows.S

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

(3)After that subsection insert—

“(1A)In section 5, the reference to the prisoner's short-term custody and community sentence is to be read as a reference to the confinement term of the prisoner's extended sentence.”.

10(1)Section 55 (application to young offenders and children) is amended as follows.S

(2)In subsection (1), for “custody-only” substitute “ short-term custody and community ”.

(3)In subsection (2)(a), for “15 days” substitute “ the prescribed period ”.

(4)In subsection (4)(a), for “15 days or more” substitute “ at least the prescribed period ”.

11SIn section 56 (fine defaulters and persons in contempt of court), in subsection (1), for “custody-only” substitute “ short-term custody and community ”.

12SIn section 65 (rules, regulations and orders), in subsection (4)(a), for “4(2), 7, 47(1)(b)” substitute “ 4(1), 7, 47(1)(b), 55(2) or (4) ”.

13(1)Schedule 2 (prisoners serving more than one sentence) is amended as follows.S

(2)Before paragraph 1, in the italic heading, for “custody-only” substitute “ short-term custody and community ”.

(3)In paragraph 1—

(a)in sub-paragraph (1)(a), for “custody-only” substitute “ short-term custody and community ”,

(b)in sub-paragraph (3)—

(i)for “and 34(1)” substitute “ , 34(1) and 42A ”, and

(ii)for “custody-only” in both places where it occurs substitute “ short-term custody and community ”, and

(c)after sub-paragraph (3) add—

“(4)In section 47(3A)—

(a)references to the expiry of one-half of the prisoner's sentence are to be read as references to the expiry of one-half of the short-term custody and community sentence that expires after the expiry of one-half of the other short-term custody and community sentence (or sentences),

(b)in paragraph (a)(i), the reference to the expiry of the prisoner's sentence is to be read as a reference to the longer (or longest) of the sentences imposed on the prisoner.”.

(4)Before paragraph 3, in the italic heading, for “custody-only” substitute “ short-term custody and community ”.

(5)In paragraph 3—

(a)in sub-paragraph (1)(a), for “custody-only” substitute “ short-term custody and community ”,

(b)in sub-paragraph (3), for “and 34(1)” substitute “ , 34(1), 42A and subsections (3A) and (8)(a) of section 47 ”,

(c)in sub-paragraph (4)—

(i)for “the custody-only” substitute “ one-half of the short-term custody and community ”, and

(ii)in paragraph (a), for “any other custody-only” substitute “ one-half of any other short-term custody and community ”, and

(d)in sub-paragraph (5)(b)(ii) and (6)(b), for “the custody-only” substitute “ at least one-half of the short-term custody and community ”.

(6)In paragraph 5—

(a)in sub-paragraph (1), in both paragraphs (a) and (b), for “custody-only” substitute “ short-term custody and community ”,

(b)in sub-paragraph (3)—

(i)after “19” insert “ , 29A, 29B ”, and

(ii)after “(2)” insert “ , 42A ”, and

(c)in sub-paragraph (4)—

(i)for “the custody-only” substitute “ one-half of the short-term custody and community ”, and

(ii)in paragraph (a), for “any other custody-only” substitute “ one-half of any other short-term custody and community ”.

(7)In paragraph 6, in sub-paragraph (1)(b), after “section” insert “ 5, ”.

(8)In paragraph 7, after sub-paragraph (1) insert—

“(1A)Where a short-term custody and community sentence imposed on a prisoner is an extended sentence, the modifications in paragraphs 1(3) and (4) and 3(4), (5)(b)(ii), (6) and (8A) are to be read subject to sub-paragraph (2).”.

14(1)Schedule 3 (sentences framed to run consecutively) is amended as follows.S

(2)In paragraph 1(4)(a), for “custody-only sentence, that sentence” substitute “ short-term custody and community sentence, one-half of that sentence ”.

(3)Before paragraph 3 insert—

“2A(1)This paragraph applies where—

(a)the court imposes a short-term custody and community sentence as a further sentence,

(b)the court frames the sentence to take effect in accordance with paragraph 1(2) or (3), and

(c)the prisoner's previous sentence (or one of the prisoner's previous sentences) is a short-term custody and community sentence.

(2)In determining the date on which the previous sentence expires, no account is to be taken of the period of confinement served under the further sentence.

(3)In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.”.

(4)In paragraph 3—

(a)in sub-paragraph (1)(a), for “custody-only” substitute “ short-term custody and community ”, and

(b)after sub-paragraph (2) insert—

“(3)In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.”.

(5)After paragraph 3 insert—

“3A(1)This paragraph applies where—

(a)the court imposes a custody and community sentence as a further sentence,

(b)the court frames the sentence to take effect in accordance with paragraph 1(2) or (3), and

(c)the prisoner's previous sentence (or one of the prisoner's previous sentences) is a short-term custody and community sentence.

(2)In determining the date on which the previous sentence expires, no account is to be taken of the period of confinement served under the further sentence.

(3)In determining the date on which the further sentence expires, no account is to be taken of the balance of the previous sentence.”.

(6)In paragraph 5—

(a)sub-paragraph (1) is repealed,

(b)in sub-paragraphs (2) and (3), for “paragraph 4” substitute “ the relevant paragraph ”,

(c)in sub-paragraph (4)—

(i)in paragraph (a), for “4(2) and (3)” substitute “ sub-paragraphs (2) and (3) of the relevant paragraph ”, and

(ii)in paragraph (c), for “paragraph 4(3)” substitute “ sub-paragraph (3) of the relevant paragraph ”,

(d)after sub-paragraph (4) insert—

“(4A)Where a short-term custody and community sentence or custody and community sentence imposed on a prisoner is an extended sentence, references in this schedule to—

(a)the prisoner's “previous sentence” are to be read as references to the “previous confinement term” of the prisoner's sentence,

(b)the prisoner's “further sentence” are to be read as references to the “further confinement term” of the prisoner's sentence.”, and

(e)after sub-paragraph (5) insert—

“(6)In this paragraph “the relevant paragraph” means paragraph 2A, 3, 3A or 4 (whichever applies in the circumstances described).”.

The 1995 ActS

15SThe 1995 Act is amended in accordance with paragraphs 16 and 17.

16(1)Section 167 (forms of finding and sentence in summary proceedings) is amended as follows.S

(2)In subsection (7D), for “any previous custody-only” substitute “ one-half of any previous short-term custody and community ”.

(3)In subsection (7E), for “custody-only” substitute “ short-term custody and community ”.

17(1)Section 210A (extended sentences for sex and violent offenders) is amended as follows.S

(2)In subsections (1)(b) and (2)(b), after “a” insert “ short-term community or ”.

(3)In subsection (10), after the definition of “sexual offence” insert—

““short-term community licence” has the same meaning as in Part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17);”.”.

Valid from 13/12/2010

SCHEDULE 4SCONVICTIONS BY COURTS IN OTHER EU MEMBER STATES: MODIFICATIONS OF ENACTMENTS

(introduced by section 71(1))

PART 1 STHE 1995 ACT

The 1995 ActS

1SThe 1995 Act is amended as follows.

2SIn section 23C(2)(d)(i) (previous convictions to be taken into consideration in determining bail), for “outwith Scotland” substitute “ by courts outside the European Union ”.

3SIn section 27 (breach of bail conditions: offences), after subsection (3) insert—

“(3A)The reference in subsection (3)(b) to any previous conviction of an offence under subsection (1)(b) includes any previous conviction by a court in England and Wales, Northern Ireland or a member State of the European Union other than the United Kingdom of an offence that is equivalent to an offence under subsection (1)(b).

(3B)The references in subsection (3)(c) to subsection (3) are to be read, in relation to a previous conviction by a court referred to in subsection (3A), as references to any provision that is equivalent to subsection (3).

(3C)Any issue of equivalence arising in pursuance of subsection (3A) or (3B) is for the court to determine.”.

4SIn section 202(2) (deferred sentence), for “Great Britain” substitute “ the United Kingdom or in another member State of the European Union ”.

5SIn section 204 (restrictions on passing sentence of imprisonment or detention)—

(a)in each of subsections (1) and (2), after “United Kingdom” insert “ or in another member State of the European Union ”, and

(b)after subsection (4) insert—

“(4A)The court shall, for the purpose of determining whether a person has been previously sentenced to imprisonment or detention by a court in a member State of the European Union other than the United Kingdom—

(a)disregard any previous sentence of imprisonment which, being the equivalent of a suspended sentence, has not taken effect;

(b)construe detention as meaning an equivalent sentence to any of those mentioned in subsection (4)(b).

(4B)Any issue of equivalence arising in pursuance of subsection (4A) is for the court to determine.”.

6SIn section 205B (minimum sentence for third conviction of certain offences relating to drug trafficking)—

(a)in subsection (1)(b), for “been convicted in any part of the United Kingdom of two other class A drug trafficking offences” substitute “ two previous convictions for relevant offences ”, and

(b)after subsection (1) insert—

“(1A)In subsection (1), “relevant offence” means—

(a)in relation to a conviction by a court in any part of the United Kingdom, a class A drug trafficking offence;

(b)in relation to a conviction by a court in a member State of the European Union other than the United Kingdom, an offence that is equivalent to a class A drug trafficking offence.

(1B)Any issue of equivalence arising in pursuance of subsection (1A)(b) is for the court to determine.”.

7SIn section 275A (disclosure of accused's previous convictions where court allows questioning or evidence under section 275)—

(a)in subsection (10)—

(i)the word “or” immediately following paragraph (a) is repealed, and

(ii)after paragraph (a) insert—

“(aa)a conviction by a court in England and Wales, Northern Ireland or a member State of the European Union other than the United Kingdom of an offence that is equivalent to one to which section 288C of this Act applies by virtue of subsection (2) thereof; or”, and

(b)after subsection (10) insert—

“(10A)Any issue of equivalence arising in pursuance of subsection (10)(aa) is for the court to determine.”.

8SIn section 307 (interpretation)—

(a)in subsection (1), insert the following definition at the appropriate place—

““conviction”, in relation to a previous conviction by a court outside Scotland, means a final decision of a criminal court establishing guilt of a criminal offence;”, and

(b)for subsection (5) substitute—

“(5)Except where the context requires otherwise—

(a)any reference in this Act to a previous conviction is to be construed as a reference to a previous conviction by a court in any part of the United Kingdom or in any other member State of the European Union;

(b)any reference in this Act to a previous sentence is to be construed as a reference to a previous sentence passed by any such court;

(c)any reference to a previous conviction of a particular offence is to be construed, in relation to a previous conviction by a court outside Scotland, as a reference to a previous conviction of an equivalent offence; and

(d)any reference to a previous sentence of a particular kind is to be construed, in relation to a previous sentence passed by a court outside Scotland, as a reference to a previous sentence of an equivalent kind.”.

PART 2 SOTHER ENACTMENTS

The 1982 ActS

9SIn section 58 of the 1982 Act, after subsection (4) insert—

“(4A)In subsection (4), the reference to a conviction for theft includes a reference to a conviction by a court in England and Wales, Northern Ireland or a member State of the European Union other than the United Kingdom of an offence that is equivalent to theft.

(4B)Any issue of equivalence arising in pursuance of subsection (4A) is for the court to determine.”.

The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9)S

10SIn section 27(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (interpretation of Part 1), insert at the appropriate place—

““previous conviction” means a previous conviction by a court in any part of the United Kingdom or in any other member State of the European Union;”.

The Criminal Law (Consolidation) (Scotland) Act 1995 (c.39)S

11(1)Section 9 of the Criminal Law (Consolidation) (Scotland) Act 1995 (permitting girl to use premises for intercourse) is amended as follows.S

(2)In subsection (2A)—

(a)the word “or” immediately following paragraph (a) is repealed, and

(b)after paragraph (a) insert—

“(aa)that person has a previous conviction for a relevant foreign offence committed against a person under the age of 16; or”.

(3)In subsection (3)—

(a)the word “and” immediately following paragraph (a) is repealed, and

(b)after paragraph (a) insert—

“(aa)“a previous conviction for a relevant foreign offence” has the same meaning as in section 39(5)(aa) of that Act; and”.

The Sexual Offences (Scotland) Act 2009 (asp 9)S

13(1)Section 39 of the Sexual Offences (Scotland) Act 2009 (defences in relation to offences against older children) is amended as follows.S

(2)In subsection (2)—

(a)in paragraph (a)—

(i)the word “or” immediately following sub-paragraph (i) is repealed, and

(ii)after sub-paragraph (i) insert—

“(ia)if A has a previous conviction for a relevant foreign offence committed against a person under the age of 16, or”, and

(b)in paragraph (b)—

(i)the word “or” immediately following sub-paragraph (i) is repealed, and

(ii)after sub-paragraph (i) insert—

“(ia)if B has a previous conviction for a relevant foreign offence committed against a person under the age of 16, or”.

(3)In subsection (5), after paragraph (a) insert—

“(aa)“a previous conviction for a relevant foreign offence” means a previous conviction by a court in a member State of the European Union other than the United Kingdom for an offence that is equivalent to one listed in paragraph 1, 4, 7, 10, 13 (so far as applying to an offence listed in paragraph 1, 4, 7 or 10) or 14 of schedule 1,”.

(4)After subsection (5) insert—

“(5A)Any issue of equivalence arising in pursuance of subsection (5)(aa) is for the court to determine.

(5B)For that purpose, an offence may be equivalent to one listed in paragraph 1, 4, 7, 10, 13 (so far as applying to an offence listed in paragraph 1, 4, 7 or 10) or 14 of schedule 1 even though, under the law of the member State (or part of the member State) in question, it is an offence—

(a)regardless of the age of the victim, or

(b)only if committed against a person under an age other than 16 years.”.

Valid from 28/03/2011

SCHEDULE 5SWITNESS ANONYMITY ORDERS: TRANSITIONAL

(introduced by section 90(5))

InterpretationS

1SIn this schedule—

• “commencement” means the day on which section 90 comes into force,

• “pre-commencement anonymity order” means an order made by a court before commencement under any rule of law relating to the power of the court to make an order for securing that the identity of a witness in criminal proceedings is withheld from the accused (or, on a defence application, from other accused),

• “witness anonymity order” has the meaning given by section 271N of the 1995 Act.

Pre-commencement anonymity orders: appealsS

2(1)This paragraph applies where—S

(a)the High Court of Justiciary is considering an appeal against a conviction in a case where the trial began before commencement, and

(b)the court from which the appeal lies (“the trial court”) made a pre-commencement anonymity order in relation to a witness at the trial.

(2)The High Court—

(a)may not quash the conviction solely on the ground that the trial court had no power under any rule of law to make the order mentioned in sub-paragraph (1)(b), but

(b)must quash the conviction if it considers that, as a result of the order, the accused did not receive a fair trial.

Valid from 13/12/2010

SCHEDULE 6SFURTHER MODIFICATIONS OF 2005 ACT

(introduced by section 198)

1SThe 2005 Act is amended in accordance with the following paragraphs.

3SIn section 21 (notification of premises licence applications), subsection (5) is repealed.

4SIn section 22 (objections and representations), subsection (2) is repealed.

5SIn section 23 (determination of premises licence application), for subsection (6) substitute—

“(6)In considering whether the granting of the application would be inconsistent with one or more of the licensing objectives, the Licensing Board must in particular take into account—

(a)any conviction, notice of which is given by the appropriate chief constable under subsection (4)(b) of section 21, and

(b)any report given by the appropriate chief constable under section 24A(2).”.

6(1)Section 24 (applicant's duty to notify Licensing Board of convictions) is amended as follows.S

(2)In subsection (8)(b), for “the crime prevention objective” substitute “ any of the licensing objectives ”.

(3)For subsection (10) substitute—

“(10)In considering for the purposes of section 23 whether the granting of the application would be inconsistent with one or more of the licensing objectives, the Licensing Board must take into account, in addition to the matters in subsection (6) of that section—

(a)any conviction confirmation of which is given by the appropriate chief constable in a notice under subsection (7)(b) of this section, or

(b)any recommendation of the chief constable included in such a notice.”.

7(1)Section 33 (transfer of premises licence on application of licence holder) is amended as follows.S

(2)For subsections (7) to (9) substitute—

“(7)On giving a notice under subsection (6)(a) or (b), if the appropriate chief constable considers that it is necessary for the purposes of any of the licensing objectives that the application for the transfer of the licence to the transferee be refused, the chief constable may include in the notice a recommendation to that effect.

(8)Where, in relation to an application under subsection (1)—

(a)the Licensing Board receives a notice under subsection (6)(a), and

(b)the notice does not include a recommendation under subsection (7),

the Board must grant the application.

(9)In any other case, the Licensing Board must hold a hearing for the purpose of considering and determining the application.”.

(3)In subsection (10)(a), for “the crime prevention objective” substitute “ any of the licensing objectives ”.

8SIn section 44 (procedure where Licensing Board receives notice of conviction), in subsection (5)(b), for “the crime prevention objective” substitute “ any of the licensing objectives ”.

11SIn section 69 (notification of extended hours application), in subsection (2), for “the crime prevention objective” substitute “ any of the licensing objectives ”.

12SIn section 73 (notification of personal licence application to chief constable), for subsection (4) substitute—

“(4)On giving a notice under subsection (3)(a) or (b), if the appropriate chief constable considers that it is necessary for the purposes of any of the licensing objectives that the personal licence application be refused, the chief constable may include in the notice a recommendation to that effect.”.

13(1)Section 74 (determination of personal licence application) is amended as follows.S

(2)In subsection (5), for paragraph (b) substitute—

“(b)the notice received from the appropriate chief constable under subsection (3)(a) or (b) of section 73 includes a recommendation under subsection (4) of that section,”.

(3)After subsection (5) insert—

“(5A)If—

(a)all of those conditions are met in relation to the applicant,

(b)the Board has received from the appropriate chief constable a notice under subsection (3)(b) of section 73, and

(c)the notice does not include a recommendation under subsection (4) of that section,

the Board may hold a hearing for the purpose of considering and determining the application.

(5B)If the Board decides not to hold a hearing under subsection (5A), the Board must grant the application.”.

(4)In subsection (6)—

(a)after “subsection (5)” insert “ or (5A) ”, and

(b)in paragraph (a), for “the crime prevention objective” substitute “ any of the licensing objectives ”.

14(1)Section 75 (applicant's duty to notify Licensing Board of convictions) is amended as follows.S

(2)In subsection (7)(b), for “the crime prevention objective” substitute “ any of the licensing objectives ”.

(3)In subsection (9)—

(a)the word “and” immediately following paragraph (a) is repealed, and

(b)after paragraph (b) add “, and

(c)references in it to a recommendation under section 73(4) include references to a recommendation under subsection (7) of this section.”.

15(1)Section 83 (procedure where Licensing Board receives notice of conviction) is amended as follows.S

(2)In subsection (5)(b), for “the crime prevention objective” substitute “ any of the licensing objectives ”.

(3)In subsection (8)(c), for “the crime prevention objective” substitute “ any of the licensing objectives ”.

16SAfter section 84 insert—

“84APower of chief constable to report conduct inconsistent with the licensing objectives

(1)If a chief constable considers that any personal licence holder has acted in a manner which is inconsistent with any of the licensing objectives, the chief constable may report the matter to the relevant Licensing Board.

(2)Where a Licensing Board receives a report from a chief constable under subsection (1), the Board must hold a hearing.

(3)Subsections (6), (7) and (8)(a) of section 84 and subsection (1)(b) of section 85 apply in relation to a hearing under subsection (2) of this section as they apply in relation to a hearing under subsection (3)(a) or (5) of section 84.

(4)In subsection (1), “relevant Licensing Board” has the meaning given in section 83(11).”.

18SIn schedule 1 (Licensing Boards), in paragraph 10(4), the words from “, or no notice” to the end are repealed.

Valid from 13/12/2010

SCHEDULE 7SMODIFICATIONS OF ENACTMENTS

(introduced by section 203)

The Public Records (Scotland) Act 1937 (c.43)S

4SIn section 14 of the Public Records (Scotland) Act 1937 (interpretation)—

(a)for the definition of “court records” substitute—

““court records” includes (in addition to records of the ordinary courts) records of the Scottish Land Court;”, and

(b)for subsection (2) substitute—

“(2)Any question as to whether or not a document is part of the records of a particular court is to be determined—

(a)in the case of the High Court, by the Lord Justice General,

(b)in any other case, by the Lord President.”.

The Law Officers Act 1944 (c.25)S

5SIn section 2(3) of the Law Officers Act 1944 (Lord Advocate and Solicitor General for Scotland), for the words from “three” to the end substitute “ 287 of the Criminal Procedure (Scotland) Act 1995 (c.46) ”.

The 1982 ActS

13SIn section 52 (indecent photographs etc. of children), subsection (7) is repealed.

The 1995 ActS

48SIn section 85 (juries: citation and attendance of jurors), in subsection (6), after “section 1” insert “ or 1A ”.

49SIn section 90D (review of orders under section 90B(1)(a) or (b)), in subsection (3)(b), for “any other any” substitute “ any other ”.

The Sexual Offences (Scotland) Act 2009 (asp 9)S

86SIn section 55(7) of the Sexual Offences (Scotland) Act 2009 (offences committed outside the United Kingdom), for “proceeded against, indicted” substitute “ prosecuted ”.