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Explanatory Notes to Criminal Justice (Scotland) Act 2003
2003 Chapter 7 | |
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© Crown Copyright 2003 | |
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These notes relate to the Criminal Justice (Scotland) Act 2003 (asp 7) which received Royal Assent on 26 March 2003 CRIMINAL JUSTICE (SCOTLAND) ACT 2003 EXPLANATORY NOTES INTRODUCTION These Explanatory Notes have been prepared by the Scottish Administration in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament. The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given. THE ACT The Act is in 12 parts. Part 1 (Protection of the public at large) deals with the assessment, treatment and sentencing of serious violent and sexual offenders. The Criminal Procedure (Scotland) Act 1995 will be amended to introduce a new life sentence of an order for lifelong restriction (OLR), to prescribe the procedure for assessing whether an offender meets the criteria for the new disposal and to make the interim hospital order available as a disposal in cases of insanity. This Part also provides for the establishment of a new public body to be known as the Risk Management Authority (RMA) and sets out the functions of the RMA as respects risk assessment and the minimisation of risk. The Risk Management Authority will have specific functions in relation to offenders for whom risk management plans are to be prepared. Part 2 (Victims' rights) implements aspects of the Scottish Strategy for Victims, which was published by the Scottish Executive in January 2001. It establishes the following rights for victims of certain crimes:
Part 2 also contains provisions empowering the police to pass on information about victims of crime to prescribed bodies who can provide counselling and support. Part 3 (Sexual offences etc.) amends the law in relation to serious and sexual offences by:
In addition, Part 3 implements certain of the recommendations of the Expert Panel on Sex Offending relating to reports for the courts. The panel was established in 1998 to advise the Scottish Ministers on relevant issues related to sex offenders and reported in 2001 in "Reducing the Risk: Improving the response to sex offending" ( http://www.scotland.gov.uk/library5/justice/aecr-00.asp). Part 4 (Prisoners etc.) deals with the custody and detention of prisoners, their release and monitoring of their movements while on release. It makes changes to the law in the areas dealing with remanding certain young people in custody and with taking prisoners from prison to another place (such as a police station) at the police's request; and will enable a prisoner arrested in Scotland who is unlawfully at large from another UK jurisdiction to be detained temporarily in a Scottish prison or young offenders institution pending their transfer back to the relevant jurisdiction. In relation to the law covering the release of prisoners, this Part makes changes to the Prisoners and Criminal Proceedings (Scotland) Act 1993 to:
This Part will also enable the Scottish Ministers to set a condition on an offender's licence for the electronic monitoring of that offender when released from custody. Part 5 (Drugs courts) empowers drug courts to impose interim sanctions such as short periods of custody or short periods of community service for non-compliance with a probation order or drug treatment and testing order whilst allowing the original order to continue. Part 6 (Non-custodial punishments) makes changes to the law in relation to:
Part 7 (Children) clarifies the law in relation to the physical punishment of children under 16. Punishment involving a blow to the head or shaking or the use of an implement are prohibited. This Part also prohibits the publication of material intended or likely to identify children in any way concerned in children's hearings and connected proceedings. Further, it enables the Scottish Ministers to inform victims (and parents and relevant persons where victims are children) about key stages of the children's hearings process where offence cases affect them. The Scottish Ministers will be enabled to identify by order certain other persons to whom information may be given, for example third parties concerned in processing compensation claims or providing information, advice and counselling services to victims. Part 8 (Evidential, jurisdictional and procedural matters) amends the Criminal Procedure (Scotland) Act 1995 to:
Part 9 (Bribery and corruption) changes the law on corruption as it relates to the international aspects of corruption. This is to ensure that the law complies with international obligations entered into by the UK Government. Part 10 (Criminal records) extends the provisions of Part V of the Police Act 1997 to give the Scottish Ministers powers to:
It also—
Part 11 (Local authority functions) extends the funding powers for criminal justice social work to include arrest referral schemes and deferred sentences, and allows funding to be paid to groupings of local authorities. Part 12 (Miscellaneous and general) deals with:
This Part also deals with general matters relating to the Act such as transitional provisions, minor and consequential amendments, repeals, interpretation, order making powers, title and commencement. PART 1 - PROTECTION OF THE PUBLIC AT LARGE Risk assessment and order for lifelong restriction; Disposal in case of insanity Sections 1 and 2 and schedule 1 - Risk assessment and order for lifelong restriction; Disposal of case where accused found to be insane 1. Sections 1 and 2 amend Parts XI and VI respectively of the Criminal Procedure (Scotland) Act 1995 to:
2. Schedule 1 provides for consequential amendments to the Prisoners and Criminal Proceedings (Scotland) Act 1993 concerning the release on licence of offenders sentenced to an OLR and to the Criminal Procedure (Scotland) Act 1995 in relation to the notification of previous conviction information, the accused's right of appeal against sentence and the power of the sheriff to remit cases to the High Court for sentencing. 3. Section 1 amends the 1995 Act by inserting new sections 210B to 210H. It introduces a new sentence for the lifetime control of serious violent and sexual offenders who present a continuing risk to the public (the order for lifelong restriction (OLR)) and sets out the process by which such a sentence may be imposed. 4. Section 210B defines the offences for which the OLR may be imposed and prescribes that the disposal is available to the High Court only, although offenders can be remitted for sentence from the sheriff court where the offence falls within the relevant definition and it appears to the sheriff that the offender may meet the statutory criteria in the new section 210E. The relevant offences, excluding murder, are:
5. "Sexual offence" is defined in section 210A of the 1995 Act as:
6. "Violent offence" is defined in section 210A of the 1995 Act as "any offence (other than an offence which is a sexual offence within the meaning of this section) inferring personal violence". 7. Section 210B also deals with the circumstances in which the court may make a new order called a risk assessment order (RAO). This in an order to be made by the court, either following a motion by the prosecutor or at its own instance. 8. Section 210B(2) provides that where an offender is convicted of an offence defined at 210B(1) and where it appears that the risk criteria set out in the new section 210E may be met, and provided that the prosecution has given prior notice to the accused of the intention to make a motion to the court, the prosecutor will ask the court to make a RAO. Alternatively, the court may make a RAO of its own accord where it is satisfied that the same statutory tests may be met. The court cannot make a RAO if the offender is already subject to an OLR or if it is satisfied that it is appropriate to make an interim hospital order under 210D(1). 9. The risk assessment order has the effect of adjourning the case for the purpose of an assessment to be carried out under section 210B(3) as to what risk is posed to the public by the offender being at liberty and for a report (a risk assessment report or "RAR") of that assessment to be prepared and submitted to the court. The RAR is to be prepared by a person accredited for that purpose by the Risk Management Authority and in a manner which will also be accredited by the RMA. The accreditation procedures are set out in section 11. 10. Section 210B(3) further provides that the RAO is authority for the offender to be taken to a place specified in that order and remanded in custody there pending the preparation of the RAR and a date being fixed for the sentencing hearing. 11. Section 210B(4) provides that when the risk assessment order is made, the case will be adjourned for no more than 90 days for the assessment to be carried out and the risk assessment report prepared. Under section 210B(5) if cause is shown, the court may extend the adjournment for a further period not exceeding 90 days. Where, because of circumstances outwith the control of the risk assessor, the assessor has been unable to complete the report within the period allowed by the extension the court may exceptionally grant a further extension for such period as appears to it to be appropriate. There is no right of appeal against the granting or refusal to grant a risk assessment order. 12. Section 210C deals with the risk assessment report (RAR). It provides that in preparing the RAR the assessor may take into account any allegation that the offender has engaged in criminal behaviour whether or not it resulted in prosecution and acquittal. Where the assessor takes such allegations into account in preparing the RAR each allegation must be listed in the report along with details of any additional evidence supporting the allegation. The assessor must also include in the risk assessment report an opinion as to whether the risk mentioned at 210B(3)(a) is high, medium or low and explain the extent to which any allegation and evidence has influenced that opinion. In reaching that assessment, the assessor must have regard to any relevant guidelines or standards issued by the Risk Management Authority. 13. Section 210C sets out the process for submitting the RAR and any accompanying documents to the court and to the other parties including the offender. On receipt of the RAR, the court must set a date for the sentencing hearing. 14. Section 210C also gives the offender a right to instruct a risk assessment report to be prepared at the same time as the RAR is being prepared by the court appointed risk assessor. The report instituted by the offender will be subject to the same conditions for completion and extension as provided at 210B(5) in respect of the RAR being prepared by virtue of the RAO. Provision is made for this report to be submitted to the court and other parties in the same fashion as the RAR. 15. Section 210C provides for the offender to object to the content or findings of the risk assessment report. The form of the objection will be prescribed by Act of Adjournal (a statutory instrument made by the High Court). In pursuance of such an objection, the prosecutor and offender will be able to produce witnesses and examine them about the content or findings of the RAR or alternative report prepared at the instruction of the offender. 16. Section 210D deals with offenders who may meet the risk criteria and may be suffering from a mental disorder. The provisions will enable the court to get information on the nature of the offender's mental disorder and how that relates to the risk the offender's being at liberty presents to the safety of the public at large. To achieve this the court must, instead of making a RAO, make an interim hospital order (IHO), where it appears to the court that the offender may meet the risk criteria and also the criteria for an interim hospital order as set out in section 53(1) of the 1995 Act unless the offender is already subject to an order for lifelong restriction previously imposed. 17. Section 210D also provides that where an IHO is made, a report assessing the risk the individual presents to the public at large shall also be prepared by a person accredited for that purpose by the RMA and in a manner that will also be subject to RMA accreditation. The assessment of risk is in addition to any psychiatric or medical report that is required to be submitted to the court under the IHO provisions. The process for submitting a RAR and the information it may contain as set out in section 210C(1) to (3) and the procedure for objecting to its content or findings as set out in section 210C(6)(a) and (b)(i) apply equally to the assessment of risk under section 210D(2). 18. Section 210E sets out the risk criteria to be considered at the stage when the court is considering whether to make a RAO (whether following a motion by the prosecutor or of its own accord) or an interim hospital order and at the stage when imposing or considering a motion to impose an OLR. The criteria will be applied in these circumstances to cases tried before the High Court and to those remitted from the sheriff court for sentence. 19. Section 210F deals with the new sentence - the order for lifelong restriction (OLR). The section provides that the OLR is a sentence of imprisonment or detention for an indeterminate period. 20. The section sets out the circumstances where a court must impose an OLR. Where however the offender has a mental disorder and satisfies the requirements of section 58 of the 1995 Act and the court considers it appropriate to make a hospital order with restriction, section 58(8) will apply and the court will not have power to impose an OLR even if the offender is also high risk. 21. The prosecutor has the right of appeal against a refusal by the court to make an OLR on the grounds that, on the balance of probabilities, the risk criteria are met. 22. Section 210G clarifies the court's powers where following upon conviction for a serious violent or sexual offence falling within section 210B:
23. In these circumstances the court may deal with the case in any way that it considers appropriate. 24. Section 210G also provides that where following upon a RAO an offender is not given an OLR under section 210F because the court is not satisfied that the risk criteria are met, it may impose any competent disposal except a life sentence or detention without limit of time. 25. Section 210H requires a judge (including a sheriff where the case has been prosecuted on indictment in the sheriff court), following conviction for an offence of the type listed in section 210B(1) (except murder), to prepare a report of the circumstances of the case including all information which the judge considers appropriate. This report will be done in writing as soon as practicable after the case is dealt with, unless a report has been called for under the provisions of section 21(4) of the Act (which deals with sexual offences and offences with a significant sexual element). The form of the report will be prescribed by Act of Adjournal. It is intended that such a report may be provided to and used by the assessor in preparing the RAR. Section 2 - Disposal of case where accused found to be insane 26. Section 2 amends section 57 of the 1995 Act which provides the disposals for cases where the accused is found insane. This is where the accused is acquitted on grounds of insanity at the time of the act (or omission) constituting the offence (section 54(6)), the accused is acquitted following an examination of the facts (section 55(3)) or, following an examination of the facts, the court concludes that there are no grounds for acquitting the accused (section 55(2)). In these circumstances, the court can at present dispose of the case in the following ways:
27. Section 2 amends these provisions to add to the list of disposals a power for the court to make an interim hospital order (IHO) under section 53 of the 1995 Act. An IHO may be imposed by the court after it is satisfied, on the evidence of two medical practitioners, that the offender is suffering from a mental disorder that requires the offender to be remanded to the State Hospital or other appropriate hospital. Section 53 also sets in place the procedure to be followed for the imposition, renewal and cessation of an IHO. 28. Section 2 replaces section 57(3) of the 1995 Act to provide that where an assessment following an IHO finds that an offender poses a high risk to the public and meets the criteria for compulsory detention, the court must impose a hospital order with restrictions. 29. The replacement removes the existing provisions which had the effect of requiring the court to make a hospital order and a restriction order where section 57(1) applied and the charge was murder even although the offender might not have a mental disorder. The effect of removing this provision is that where the charge is murder the court will have all the disposals under 57(2) available to it. | |
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| © Crown Copyright 2003 | Prepared: 12 May 2003 |