Sentencing Explained

Introduction

The Scottish Prison Service exists in order to keep in safe custody all those who are required by law to be kept in prison. We have a legal duty to carry out the orders of the Court in relation to imprisonment. This means that we must keep in custody all those who require to be kept in prison by virtue of a court order, for as long as that order requires; and also release such prisoners when the period of their imprisonment comes to an end.

Sentencing can be confusing for prisoners, their families and members of the public to understand. To fulfil these duties, we must ensure that the release dates of all prisoners have been calculated accurately and in accordance with the law. This document is intended to help clear any confusion. Any outstanding queries should be addressed to the Communications Branch.

Definitions of Different Types of Prisoners and Release Schemes

Untried Prisoner
An "untried prisoner" means a person who is committed to prison:

•  For examination or trial on any criminal charge
•  By virtue of remand in custody under the Extradition Act 1989; or
•  By virtue of detention under the Immigration Act.

Civil Prisoner
A "civil prisoner" means a prisoner who is generally committed to prison for contempt of court or for non-payment of a fine imposed for contempt of court or breach of interdict.

Short-term Prisoner
A "short-term" prisoner means a person serving a sentence of imprisonment for a term of less than 4 years. As soon as a short-term prisoner has served one half of his sentence he is released unconditionally except in a case where he is subject to a supervised release order or an extended sentence or is convicted of a sexual offence. He can be returned to prison to serve the remainder of his sentence if he is found guilty of having committed an offence which is punishable by imprisonment before the original sentence expires.

Long-Term Prisoner
A "long-term" prisoner means a person serving a sentence of imprisonment for a term of 4 years or more. After a long-term prisoner has served one-half of his sentence the Parole Board may consider him for early release. In the case of a prisoner serving a term of imprisonment of less than 10 years, the Parole Board decides whether to release the prisoner on licence. For those sentenced to 10 years or over, the Board makes its recommendations to the Scottish Ministers who then decide whether to release on licence. A person released on parole licence is supervised by a social worker. Any breach of the terms of the Parole licence can lead to the prisoner's recall to custody.

Life Sentence Prisoner
A life sentence prisoner means a person serving an indeterminate sentence of imprisonment. When imposing a life sentence, the trial judge is required to stipulate the minimum period ("the punishment part") for which the person is to be detained in custody before he is eligible for consideration for release on life licence by a Tribunal of the Parole Board. If a Tribunal of the Parole Board directs a prisoner's release on the expiry of his punishment part, Scottish Ministers are obliged to release the prisoner on a life licence. Where the Tribunal decides not to direct release, it gives reasons in writing, makes recommendations on the steps required to enable the prisoner to reduce the risk that he/she presents to the public, and sets a date for further review within 2 years.

Extended Sentences
Extended sentences were introduced in 1998 and allow the judge to set a period in prison followed by a term spent under strict supervision in the community. Social workers and police monitor the offender. An extended sentence can be imposed on a sex offender (to a maximum of 10 years' extension) convicted on indictment, sentenced to a custodial term of any length, and on a violent offender (maximum of 5 years' extension) who would otherwise be sentenced to a custodial term of four years or more. All prisoners subject to an extended sentence are released on licence.

Temporary Release
The SPS has a duty to help prisoners prepare for their release back into society. This preparation often includes gradually giving the prisoner increasing amounts of freedom, which sometimes includes work outside prison and visits to places where they will be likely to stay once they are released.

For long-term and life-sentenced prisoners, if they are regarded as less likely to re-offend and have behaved well in prison, preparation for release can start some time before the point that they qualify to be considered for Parole. To begin with, they may have a couple of visits away from the prison, accompanied by prison officers. Then, if there are no problems, the prisoner might move to "top end" facility (a closed prison hall that is able to provide access to work placements, but not home leave) or an open prison.

Once in an open prison, the prisoner will usually be given a chance to go to a supervised work or college placement for up to five days during each week. The prisoner will also be able to go an address away from the prison for 48 hours every second weekend, under licence.

Parole
A long-term prisoner may be released on licence after serving one-half of the sentence imposed if this is recommended (in effect directed) by the Parole Board because it is satisfied that the risk to the public of the offender's release is acceptable. If not released before then, the prisoner must be released on licence on reaching the two-thirds point of the sentence imposed. Prisoners are liable to be recalled to prison for breach of licence conditions and on return to custody have their cases reviewed by a tribunal of the Parole Board. SPS normally aims to help the prisoner prepare for release by the half-way point, or before the expiry of the punishment part in order to allow the Parole Board to reach a well informed decision about the person's level of risk

Parole Board
The Parole Board for Scotland is a Non-departmental Public Body; the members of which are appointed by the Scottish Ministers and who direct the Scottish Ministers on matters relating to the release of prisoners on licence.

The Board has powers to:

• direct the release of prisoners serving 4 years or more and it may also make directions as to the licence conditions of such prisoners;
• direct the release on life licence of life prisoners;
• direct the recall to custody of prisoners serving sentences of 4 years' imprisonment or more, life sentence prisoners who have been released on parole or life licence and extended sentence prisoners in circumstances where such action is considered to be in the public interest.
• www.scottishparoleboard.gov.uk

Licences
A licence is the legal document on behalf of the Scottish Ministers, which allows an offender to be in the community and not in prison. There are various types of licence, some with particular conditions attached.

For example, with regard to Temporary Release, Special Escorted Leave, unescorted or escorted leave for compassionate reasons, the SPS generate licences that offenders must carry with them or be carried by the supervising officer during the applicable period.

The three main licences are Parole Licence, Non-Parole Licence and Life licence.

Parole Licence
At the halfway point of a long-term sentence (4 or more years) a prisoner is eligible to be considered for parole. If the Parole Board recommend (in effect, direct) parole then the prisoner can be released on a parole licence.

The licence will require the individual to report promptly to their supervising (social work) officer, to co-operate with their supervising officer, and to tell them of current address, or change in job circumstance. The individual may also be required to stay at a specific address or to undertake counselling on particular problems such as alcohol, drugs or anger management.

If the individual does not keep in touch with their supervising officer, break the law or fail to co-operate with any other licence conditions they may be recalled to custody to resume serving their sentence.

Non-Parole Licences
Offenders not recommended for release by the Parole board, or who have opted out of the parole system, or who have been unsuccessful in applying at the half-way stage, must be released on licence at the two-thirds stage of their sentence. The term 'non-parole' is used to describe this period of supervision in the community. Offenders released on non-parole licence are generally those whose conduct in prison and other circumstances (e.g., failure to address drug issues) present an unacceptable risk of re-offending without supervision. The conditions of the licence may be very similar to those of parole licences. In each case, parole or non-parole, the licence - unless previously revoked - does not expire until the end of the full sentence imposed by the court

Life Licence
Once the punishment part of the sentence has been served a life prisoner must have the grounds of her/his continued imprisonment or detention reviewed by the Parole Board. The prisoner has the right to be present at the Parole Board hearing and to be represented. If the decision of the Parole Board is that the prisoner should not be released on life licence the prisoner has the right to be considered again no more than two years after the decision, but could be seen earlier if the Board recommends it. Life prisoners who breach the terms of their life licence (which exists to the end of the person's natural life) are liable to be recalled to custody by the Scottish Ministers, with or without a recommendation from the Parole Board.

If not released on Parole Licence at the half-way point of his sentence, a "long-term" prisoner will be released conditionally (on a non-parole licence) as soon as he has served two-thirds of his sentence.