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Crime and Punishment (Scotland) Act 1997 (c. 48)(The document as of February, 2008) Page 5 Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 (6) The period for which a prisoner to whom this section applies is ordered under subsection (2) or (5) above to be returned to prison-- (a) shall be taken to be a sentence of imprisonment for the purposes of this Act and of any appeal; and (b) shall, as the court making the order may direct, either be served before and be followed by, or be served concurrently with, any sentence of imprisonment imposed for the new offence (being in either case disregarded in determining the appropriate length of that sentence). (7) In exercising its powers under section 118(4) or 189(1) of the 1995 Act (disposal of appeals), the court hearing an appeal against an order under subsection (2) or (5) above may, if it thinks fit, substitute for the period specified in the order a period not exceeding the period between the date on which the person was released and the date on which he would (but for his release) have served his sentence in full. (8) This section does not apply to a person upon whom detention has been imposed under section 44 (detention of children convicted in summary proceedings) or 208 (detention of children convicted on indictment) of the 1995 Act and, accordingly where any such person has been awarded early release days, he is not thereafter liable to be returned to prison under this section. 38 Commission of offence within certain period of release from prison to be aggravation(1) Where a person who has been sentenced to imprisonment for a term of twelve months or more commits a further offence within a period-- (a) starting on the date on which he is released from prison; and (b) ending after a period equal to one sixth of the term for which he was sentenced, the court which sentences him for the further offence shall, in determining the appropriate sentence or disposal for that offence, have regard to the fact that the further offence was committed during that period. (2) The court shall not have regard to the fact that the further offence was committed during the period mentioned in subsection (1) above unless written notice that that fact is to be brought to the attention of the court has been served on the person concerned with the complaint or indictment. (3) The fact that the further offence was committed within the period mentioned in subsection (1) above shall, unless challenged-- (a) in the case of proceedings on indictment, by giving notice of a preliminary objection under paragraph (b) of section 72(1) of the 1995 Act (preliminary diet: notice) or under that paragraph as applied by section 71(2) of that Act (first diet); or (b) in summary proceedings, by preliminary objection before his plea is recorded, be held as admitted. (4) Where the maximum penalty in respect of the further offence is specified by or by virtue of any enactment, that maximum penalty shall, for the purposes of the court's determination, by virtue of subsection (1) above, of the appropriate sentence or disposal in respect of that offence, be increased-- (a) where it is a fine, by the amount for the time being equivalent to level 3 on the standard scale; and (b) where it is a period of imprisonment-- (i) as respects a conviction in the High Court or the sheriff court, by six months; and (ii) as respects a conviction in the district court, by 60 days, notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose. (5) Where the sentence or disposal in respect of the further offence is, by virtue of subsection (1) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference. (6) This section applies to a child who-- (a) has been sentenced to a determinate period of detention of twelve months or more under section 208 of the 1995 Act (detention of children following conviction on indictment); and (b) is convicted by a criminal court of a further offence, as it applies to prisoners. Application of early release provisions in certain cases39 Fine defaulters and persons convicted of contempt of court(1) Sections 34 and 37 of this Act apply to persons on whom imprisonment or, as the case may be, detention in a young offenders institution has been imposed-- (a) under section 219 of the 1995 Act (imprisonment for non-payment of fine); or (b) for contempt of court, as they apply to persons sentenced to imprisonment, or on whom detention has been imposed, on conviction of an offence. (2) Section 34 of this Act shall apply to children in respect of whom detention has been imposed for fine default or contempt of court as it applies, by virtue of subsections (5), (6) and (7) of section 35 of this Act, to persons sentenced to be detained under 44 (detention of children in summary proceedings) or detained for determinate periods under section 208 (detention of children convicted on indictment) of the 1995 Act. 40 Persons liable to removal from the United Kingdom(1) Subject to the provisions of this section, sections 34, 35 and 37 of this Act apply to persons liable to removal from the United Kingdom. (2) In calculating any period following the release of such a person for the purposes of any of those sections, no account shall be taken of any period during which that person was furth of the United Kingdom. (3) For the purposes of this section a person is liable to removal from the United Kingdom if he-- (a) is liable to deportation under section 3(5) of the [1971 c. 77.] Immigration Act 1971 and has been notified of a decision to make a deportation order against him; (b) is liable to deportation under section 3(6) of that Act; (c) has been notified of a decision to refuse him leave to enter the United Kingdom; or (d) is an illegal immigrant within the meaning of section 33(1) of that Act. 41 Mentally disordered offenders(1) This section applies to prisoners who have to serve some part of their sentence in hospital in consequence of-- (a) a transfer under section 71 of the 1984 Act (removal to hospital of persons serving sentences of imprisonment and other persons); or (b) a hospital direction under section 59A of the 1995 Act (hospital directions), (in this section referred to as "mentally disordered offenders"). (2) For the purposes of section 34 of this Act, where a mentally disordered offender spends any period in hospital, he shall be treated as if he had spent that period in prison, and as if he had been awarded the maximum number of early release days which he could have been awarded under that section had he been detained in a prison during that period. (3) Sections 37 and 38 of this Act apply to a mentally disordered offender who is in hospital on the day on which his sentence (taking into account any early release days which he has been awarded) expires as if he had been released from prison on that day. Chapter II Treatment of prisoners42 Testing of prisoners for alcoholAfter section 41B of the 1989 Act there shall be inserted the following section-- " 41C Testing of prisoners for alcohol(1) If an authorisation is in force for the prison, any officer of the prison may, at the prison, in accordance with rules under section 39 of this Act, require any prisoner who is confined in the prison, and whom he reasonably believes to have taken alcohol, to provide a sample of breath for the purpose of ascertaining whether he has any alcohol in his body. (2) If the authorisation so provides, the power conferred by subsection (1) above shall include the power to require a prisoner to provide a sample of any other description specified in the authorisation, not being an intimate sample, whether instead of or in addition to a sample of breath. (3) In this section--
43 Medical services in prisons(1) In section 3(1) of the 1989 Act (general superintendence of prisons) the words from "including" to the end shall cease to have effect. (2) After section 3 of the 1989 Act there shall be inserted the following section-- " 3A Medical services in prisons(1) Without prejudice to section 11(2) of this Act, the Secretary of State shall secure the provision of appropriate medical services within prisons. (2) The Secretary of State may perform the duty imposed by subsection (1) above by-- (a) appointing for a prison one or more medical officers, each of whom shall be a registered medical practitioner; (b) entering into an arrangement with any person for the provision of appropriate medical services in relation to any prison or prisons; or (c) both making any such appointment as is mentioned in paragraph (a) above and by entering such an arrangement as is mentioned in paragraph (b) above. (3) In this section "appropriate medical services" means such services in relation to-- (a) routine and emergency health care for prisoners; and (b) the provision of advice to the governor on matters related to the medical treatment and health of prisoners generally, as the Secretary of State considers appropriate for the prison in which they are to be provided; and such services shall be provided by or under the supervision of a registered medical practitioner. (4) Any medical officer appointed under subsection (2)(a) above shall, for the purposes of this Act, be an officer of the prison. (5) A registered medical practitioner providing, or supervising the provision of, appropriate medical services in accordance with an arrangement made under subsection (2)(b) above shall be deemed to be a medical officer for the prison for the purposes of-- (a) section 27(5) of this Act (so far as that section continues to have effect by virtue of Schedule 6 to the [1993 c. 9.] Prisoners and Criminal Proceedings (Scotland) Act 1993 (existing provisions which continue to have effect in relation to prisoners sentenced before 1st October 1993)); and (b) any rules or directions made or issued under section 39 of this Act; unless such rules or directions otherwise provide or the context otherwise requires. (6) Subject to subsection (7) below, rules under section 39 of this Act may make provision for the governor to authorise the carrying out by officers of the prison of a search of any person who is in or is seeking to enter the prison for the purpose of providing appropriate medical services in accordance with an arrangement made under subsection (2)(b) above. (7) Nothing contained in rules made by virtue of subsection (6) above shall permit the governor to authorise an officer of a prison to require a person to remove any of his clothing other than an outer coat, jacket, headgear, gloves and footwear. " . (3) In section 19(4) of the 1989 Act (application of enactments to young offenders institutions and remand centres)-- (a) in paragraph (a), after the word "sections" there shall be inserted the words "3A,"; and (b) in paragraph (b), for the words "1 to 7" there shall be substituted the words "1 to 3, 4 to 7". (4) For section 107(6) of the [1994 c. 33.] Criminal Justice and Public Order Act 1994 (medical officers in contracted out prisons), there shall be substituted the following subsections-- " (6) Without prejudice to section 11(2) of the 1989 Act (direction by Secretary of State for prisoner to be taken hospital for treatment), the contractor shall secure the provision of appropriate medical services within the prison by-- (a) appointing one or more registered medical practitioners to the prison; (b) entering into an arrangement with any person for the provision of such services in relation to the prison; or (c) both making any such appointment as is mentioned in paragraph (a) above and entering into such an arrangement as is mentioned in paragraph (b) above. (7) In subsection (6) above "appropriate medical services" means such services in relation to-- (a) routine and emergency health care for prisoners; and (b) the provision of advice to the director on matters related to the medical treatment and health of prisoners generally, as the Secretary of State may direct or, in the absence of such a direction, as the contractor considers appropriate for the prison in which they are to be provided; and such services shall be provided by or under the supervision of a registered medical practitioner. (8) In subsections (6) and (7) above "contractor", where the contract provides for the running of prison by a sub-contractor, means that sub-contractor. " . (5) In section 110 of that Act (application of enactments)-- (a) in subsection (3), after the word "sections" there shall be inserted the words "3A(6) (power to authorise searches of persons providing medical services),"; (b) in subsection (4), after the word "sections" there shall be inserted the words "3A(6) (power to carry out searches of persons providing medical services),"; (c) after subsection (4) there shall be inserted the following subsection-- " (4A) A registered medical practitioner appointed to a contracted out prison or providing, or supervising the provision of, appropriate medical services in accordance with an arrangement made under section 107(6)(b) of this Act shall be deemed to be a medical officer for the prison for the purposes of-- (a) section 111(3)(c) of this Act; (b) section 27(5) of the 1989 Act (so far as that section continues to have effect by virtue of Schedule 6 to the [1993 c. 9.] Prisoners and Criminal Proceedings (Scotland) Act 1993 (existing provisions which continue to have effect in relation to prisoners sentenced before 1st October 1993)); and (c) any rules or directions made or issued under section 39 of the 1989 Act, unless such rules or directions otherwise provide or the context otherwise requires. " ; and (d) in subsection (6), after the word "Sections" there shall be inserted the words "3A(1) to (5)(medical services),". (6) In section 112(4) of that Act (contracted out functions at directly managed prisons)-- (a) before paragraph (a) there shall be inserted the following paragraph-- " (aa) section 3A(6) and (7) of the 1989 Act (searches of persons providing medical services); " ; and (b) in paragraph (a) for the words "the 1989" there shall be substituted the word "that". 44 Unlawful disclosure of information(1) After section 41B of the 1989 Act there shall be inserted the following section-- " 41D Unlawful disclosure of information by medical officer(1) This section applies to-- (a) a registered medical practitioner appointed under paragraph (a) of section 107(6) of the [1994 c. 33.] Criminal Justice and Public Order Act 1994 (medical services in contracted out prisons); (b) a registered medical practitioner providing appropriate medical services under an arrangement entered into under section 3A(2)(b) of this Act or paragraph (b) of the said section 107(6); and (c) any person acting under the supervision of such a practitioner. (2) Any person to whom this section applies who discloses, otherwise than in the course of his duty or as authorised by the Secretary of State, any information relating to a particular prisoner which he has acquired in the course of carrying out his duties shall be guilty of an offence. (3) A person guilty of an offence under subsection (2) above shall be liable-- (a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both; (b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both. " . Part IV PolicePolice funding and organisation45 Police grant(1) For section 32 of the [1967 c. 77.] Police (Scotland) Act 1967 there shall be substituted the following section-- " 32 Police grant(1) Subject to the following provisions of this section, the Secretary of State shall for the financial year 1997-98 and for each subsequent financial year make grants out of money provided by Parliament for police purposes to police authorities and joint police boards. (2) Where a grant is made under subsection (1) above to a joint police board, no grant under that subsection shall be payable to a constituent authority. (3) For each financial year the Secretary of State shall with the approval of the Treasury by order determine-- (a) the aggregate amount of grants to be made under subsection (1) above; and (b) the amount of the grant to be made to each police authority or joint police board, and any determination under this subsection for any financial year may be varied or revoked by a subsequent such determination for that year. (4) In making a determination under subsection (3)(b) above, the Secretary of State may exclude certain categories of expenditure for police purposes from a grant made under subsection (1) above. (5) A grant made to a police authority or to a joint police board by virtue of an order made under subsection (3) above may be subject to such conditions and shall be paid at such times and in such manner as the Secretary of State may with the approval of the Treasury by order determine; and any such time may fall within or after the financial year concerned. (6) The Secretary of State shall prepare a report stating the considerations which he took into account in making the determinations mentioned in subsection (3) above. (7) The considerations which the Secretary of State takes into account in making a determination under subsection (3)(b) above may be different for different authorities or different joint police boards. (8) A statutory instrument containing an order made under subsection (3) above shall be subject to annulment in pursuance of a resolution of either House of Parliament. (9) A copy of a report prepared under subsection (6) above shall be laid before each House of Parliament at the time at which the statutory instrument containing the order made under subsection (3) above to which it relates is so laid. (10) Where in consequence of the variation or revocation of an order made under subsection (3) above the amount of a police authority's or a joint police board's grant is less than the amount already paid to it for the year concerned, a sum equal to the difference shall be paid by the authority or, as the case may be, board to the Secretary of State on such day as he may specify. (11) In this section "financial year" has the meaning assigned to it by section 116 of the [1992 c. 14.] Local Government Finance Act 1992. " . (2) A determination made under section 32(3) (police grant) of the [1967 c. 77.] Police (Scotland) Act 1967 (as inserted into that Act by subsection (1) above) for the financial year 1997-98 may, notwithstanding that this section comes into force after the beginning of that financial year, relate to the whole of that year; and the first such determination shall take effect in place of any determination made for that year under section 32(1) of that Act as it had effect prior to the coming into force of this section. 46 Common police services(1) For section 36 of the Police (Scotland) Act 1967 there shall be substituted the following section-- " 36 Common services(1) The Secretary of State may-- (a) himself-- (i) provide and maintain facilities and services; or (ii) establish and maintain institutions and organisations; or (b) contribute, by way of financial assistance, grant or otherwise, to-- (i) the provision and maintenance of facilities and services; or (ii) the establishment and maintenance of institutions and organisations, by others, where he considers that to do so is necessary or expedient for promoting the efficiency or effectiveness of the police. (2) The Secretary of State may by regulations make provision for requiring all police forces in Scotland to use specified facilities or services, or facilities or services of a specified description (whether or not provided under subsection (1) above), if he considers that it would be in the interests of the efficiency or effectiveness of the police for them to do so. (3) The Secretary of State may recover from police authorities and joint police boards the whole or any part of any expenditure which he incurs under subsection (1) above and, for that purpose, he may-- (a) fix charges to be paid to him in respect of the use by police forces of any facilities or services such as are mentioned in subsection (1) above; and (b) determine amounts to be paid to him by police authorities and joint police boards, and he may determine different amounts in respect of different police authorities and joint police boards. (4) Before exercising the powers conferred by any of subsections (1) to (3) above the Secretary of State shall consult the Joint Central Committee and such bodies or associations as appear to him to be representative of police authorities or of chief constables or superintendents. (5) Any sum due by a police authority or joint police board to the Secretary of State under this section-- (a) may be deducted by him from the amount of police grant payable to that authority or board under section 32 of this Act; or (b) failing such deduction, shall be defrayed in like manner as other expenses incurred for the purposes of this Act by that authority or board. " . (2) In section 38(5) of that Act (central service on police duties), for the definition of "central service" there shall be substituted the following definition-- " "central service" means temporary service under the Crown, with the consent of the appropriate authority, in connection with-- (a) facilities and services provided and maintained by the Secretary of State under section 36(1)(a)(i) of this Act; (b) facilities and services provided by organisations or institutions established and maintained by the Secretary of State under section 36(1)(a)(ii) of this Act; and (c) research or other services connected with the police provided by the Secretary of State, and temporary service under section 34 of this Act. " . (3) Section 36, and the definition of "central services" in section 38(5), of the [1967 c. 77.] Police (Scotland) Act 1967, as substituted respectively by subsections (1) and (2) above, shall come into force or, if this section comes into force after that date, be deemed to have come into force, on 1st April 1997. (4) The first determination made by the Secretary of State under section 36(3) of that Act, as so substituted, for the recovery of any expenditure incurred by him under that section-- (a) may be applied by him in relation to any expenditure so incurred during the period beginning on 1st April 1997 and ending on the date on which the determination is made; and (b) subject to subsection (5) below, shall take effect in place of any provision for such recovery made in an order under the said section 36 as it had effect prior to the coming into force of this section. (5) Nothing in subsection (4) above shall entitle the Secretary of State to recover a higher proportion of his expenditure in relation to the period mentioned in that subsection than he would have been entitled to recover in relation to that period under any such order. Collection and use of records47 Record of evidence taken from external parts of body(1) In section 18 of the 1995 Act (prints and samples in criminal investigations)-- (a) in subsection (2)-- (i) for the words from "fingerprints" to "body" there shall be substituted the words ", or require the person to provide him with, such relevant physical data"; and (ii) at the end there shall be inserted the words "from him or require him to provide, and the person so required shall comply with that requirement"; (b) in subsection (3), for the words from "prints or impressions taken", there shall be substituted the words "relevant physical data taken from or provided by a person"; (c) subsection (7) shall cease to have effect; and (d) after subsection (7) there shall be inserted the following subsections-- " (7A) For the purposes of this section and sections 19 to 20 of this Act "relevant physical data" means any-- (a) fingerprint; (b) palm print; (c) print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body; (d) record of a person's skin on an external part of the body created by a device approved by the Secretary of State. (7B) The Secretary of State by order made by statutory instrument may approve a device for the purpose of creating such records as are mentioned in paragraph (d) of subsection (7A) above. " . (2) In section 19 of the 1995 Act (taking of prints etc from convicted persons)-- (a) in subsection (1)-- (i) in paragraph (a), for the words "a sample, print or impression" there shall be substituted the words "taken from him, or been required to provide, any relevant physical data or had any impression or sample"; and (ii) in paragraph (b), for the words from "(whether" to "taken", in the second place where it occurs, there shall be substituted the words " at any time had-- (i) taken from him or been required (whether under paragraph (a) above or under section 18 or 19A of this Act or otherwise) to provide any relevant physical data; or (ii) any impression or sample taken from him, which was not suitable for the means of analysis for which the data were taken or required or the impression or sample was taken " ; (b) for paragraph (a) of subsection (2), there shall be substituted the following paragraph-- " (a) take from or require the convicted person to provide him with such relevant physical data as he reasonably considers it appropriate to take or, as the case may be, require the provision of; " ; and (c) in subsection (4)(b)-- (i) after the words "intimation that" there shall be inserted the words "the relevant physical data were or"; and (ii) the words ", print or impression" shall cease to have effect. (3) In section 20 of the 1995 Act (use of prints etc.)-- (a) for the word "prints", in the place where it first occurs, there shall be substituted the words "relevant physical data"; and (b) for the word "prints", in the place where it second occurs, there shall be substituted the word "data". (4) In section 284 of the 1995 Act (evidence in relation to fingerprints)-- (a) in subsection (1)-- (i) for the words "two constables" there shall be substituted the words "a person authorised in that behalf by a chief constable"; and (ii) for the words from "the fingerprints" to "from" there shall be substituted the words "relevant physical data (within the meaning of section 18(7A) of this Act) was taken from or provided by"; (b) for subsection (2) there shall be substituted the following subsections-- " (2) A party proposing to rely on subsection (1) above ("the first party") shall, not less than 14 days before the trial diet, serve on any other party to the proceedings a copy of the certificate, and such other party shall not be entitled to challenge the sufficiency of the evidence contained within the certificate. (2A) Where the first party does not serve a copy of the certificate on any other party as mentioned in subsection (2) above, he shall not be entitled to rely on subsection (1) above as respects that party. " . (5) In section 285 of the 1995 Act (proof of previous convictions), after subsection (9) there shall be inserted the following subsection-- " (10) In this section "fingerprint" includes any record of the skin of a person's finger created by a device approved by the Secretary of State under section 18(7B) of this Act. " . 48 Samples etc. from persons convicted of sexual and violent offences(1) In section 19 of the 1995 Act (taking of prints and samples after conviction) in subsection (1) for the word "This" there shall be substituted the words "Without prejudice to any power exercisable under section 19A of this Act, this". (2) After section 19 of the 1995 Act there shall be inserted the following sections-- " 19A Samples etc. from persons convicted of sexual and violent offences(1) This section applies where a person-- (a) is convicted on or after the relevant date of a relevant offence and is sentenced to imprisonment; (b) was convicted before the relevant date of a relevant offence, was sentenced to imprisonment and is serving that sentence on or after the relevant date; (c) was convicted before the relevant date of a specified relevant offence, was sentenced to imprisonment, is not serving that sentence on that date or at any time after that date but was serving it at any time during the period of five years ending with the day before that date. (2) Subject to subsections (3) and (4) below, where this section applies a constable may-- (a) take from the person or require the person to provide him with such relevant physical data as the constable reasonably considers appropriate; and (b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to (d) of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample. (3) The power conferred by subsection (2) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under section 19(1)(a) of this Act or under this section unless the data so taken or required have been or, as the case may be, the sample so taken or required has been lost or destroyed. (4) Where this section applies by virtue of-- (a) paragraph (a) or (b) of subsection (1) above, the powers conferred by subsection (2) above may be exercised at any time when the person is serving his sentence; and (b) paragraph (c) of the said subsection (1), those powers may only be exercised within a period of three months beginning on the relevant date. (5) Where a person in respect of whom the power conferred by subsection (2) above may be exercised-- (a) is no longer serving his sentence of imprisonment, subsections (3)(a), (5) and (6); (b) is serving his sentence of imprisonment, subsection (3)(b), of section 19 of this Act shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section. (6) In this section--
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