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Annex E: Current Early Release Arrangements
Discretionary early release on licence (parole) has operated in Scotland since 1967. The existing statutory regime is contained in the Prisoners and Criminal Proceedings (Scotland) Act 1993 ('the 1993 Act'), as amended. The 1993 Act has been frequently amended since it came into force on 1st October 1993, most recently by the Management of Offenders etc. (Scotland) Act 2005 ('the 2005 Act') which received Royal Assent on 8th December 2005. The 2005 Act introduced a scheme of Home Detention Curfew. It also ended 'unconditional' early release for sex offenders serving sentences of 6 months or more and less than 4 years. With the exception of these recent changes, early release from prison is governed by sentence length.
'Early release' is the term given to the present system which permits the release of a prisoner, on either a discretionary or an automatic basis and either with supervision or without, prior to the expiry of the sentence of imprisonment imposed by the court. The current arrangements are:
- prisoners (short-term prisoners) sentenced to less than a 4-year term of imprisonment, unless made subject to a supervised release order, are released automatically and without supervision after serving one-half of their sentence;
- prisoners (long term prisoners) sentenced to 4 years or more may be released on licence after serving one-half of their sentence if this is directed by the Parole Board for Scotland and must be released on licence after serving two-thirds of their sentence;
- prisoners (extended sentence prisoners) subject to an extended sentence are released on supervised licence; and
- prisoners sentenced to life imprisonment may be released on life licence after serving in full the 'punishment part' of their sentence imposed by the court, if this is directed by the Parole Board.
Where any prisoner is released early, he or she remains liable to recall to custody for the remainder of their sentence if they breach a condition of licence. Once a short-term prisoner has served one-half of their sentence, the Scottish Ministers are under a duty to release them without supervision unless such a prisoner has been made the subject of a supervised release order imposed at the date of the original sentence, provided that they are not a sex offender (see paragraph below) whose offence was committed after 30 September 1998. On release a short-term prisoner is not under any form of compulsory supervision but may be returned to custody by the courts under section 16 of the 1993 Act if he or she commits another imprisonable offence before the expiry of the original sentence.
The Management of Offenders (Scotland) Act 2005 introduced new provisions for sex offenders sentenced to a period of imprisonment of between 6 months and 4 years. These require such short term sentence prisoners to be released on licence, rather than being released unconditionally, at the half-way stage of their sentence.
Once a long-term prisoner has served one-half of their sentence they may be released on licence. The decision rests with the Parole Board. Where the Parole Board recommends release the Scottish Ministers are under a duty to release the prisoner. The Parole Board decides the licence conditions. The licence, unless previously revoked, expires at the sentence end date ( i.e. the date on which the full sentence imposed by the court expires).
Once a long-term prisoner has served two-thirds of their sentence the Scottish Ministers are under a duty to release them on licence. Again, the Parole Board decides the licence conditions. The licence, unless previously revoked, expires at the sentence end date. A long-term prisoner (in the same way as a short-term prisoner) may be returned to custody by the courts under section 16 of the 1993 Act if he or she commits another imprisonable offence before the sentence end date.
The Management of Offenders etc. (Scotland) Act 2005 amended the 1993 Act to allow certain short- and long-term prisoners sentenced to 3 months or more to be released on home detention curfew ( HDC). This is a form of conditional release and was implemented for certain short-term prisoners in July 2006.
An extended sentence may be imposed on certain offenders convicted of a sexual or a violent offence. All prisoners subject to an extended sentence are released on licence. Where the 'custodial term' is less than 4 years the prisoner is released automatically at the half-way stage of the custodial term and is on licence until the end of the 'extension period'. Thereafter, during the remaining half of the 'custodial term', the prisoner is 'at risk' of being returned to custody by the courts under section 16 of the 1993 Act in the same way as any other short-term prisoner (with the exception of short-term sex offenders).
Where the 'custodial term' is 4 years or more the prisoner may be released after serving half of this term if the Parole Board recommends (in effect, directs) early release. If the Board does not recommend release the prisoner will be released after serving two-thirds of the 'custodial term'. In either case the licence, unless previously revoked, does not expire until the end of the full extended sentence imposed by the court, i.e. the custody part and the extension period.
Where a person is sentenced to life imprisonment the court is required to specify the 'punishment part' of the life sentence. When the punishment part has expired the prisoner has the right to require the Scottish Ministers to refer his or her case to the Parole Board. In practice the case is referred to the Parole Board to enable it to consider the prisoner's case on the expiry of the punishment part or as soon as practicable thereafter. In its consideration of life prisoner cases the Parole Board sits as a Tribunal with a legally qualified member in the chair. The prisoner has the right to an oral hearing and to legal representation. If the Parole Board does not direct release it must set a date to carry out a further hearing within a 2 year timescale. If the Parole Board directs release, the prisoner is released on a life licence. This will stipulate a number of conditions which they must adhere to; failure to do so can result in them being recalled to custody where their case for re-release would again be considered by the Parole Board.
The release licence of any prisoner can be revoked and the prisoner returned to custody. Having been informed of a possible breach of licence by either local authority social workers or by the police, Scottish Ministers can issue a warning letter to the offender (for 'minor' breaches), refer the matter to the Parole Board for it to take a decision on whether or not the offender should be recalled to custody, or, if the nature of the breach suggests significant risk, can recall the offender to custody without referring the matter to the Parole Board in the first instance. Where revocation is recommended by the Parole Board the Scottish Ministers are obliged to revoke the licence and, where the person is at liberty, to recall the person to custody. This involves the individual being apprehended by the police and returned to prison.
Where an offender's licence is revoked their case will be referred to the Parole Board unless they receive another custodial sentence. (If the Board was involved in recommending that the licence be revoked then different members of the Board will consider this reference.) If the Parole Board is satisfied that the offender does not require to continue to be detained it will direct immediate re-release and the Scottish Ministers are under a duty to release the offender, on licence, as soon as is reasonably practicable. Where the Parole Board does not direct immediate re-release the offender is liable to be detained until the end of the sentence imposed by the court (plus any during which the prisoner was unlawfully at large) but may subsequently be further reviewed by the Parole Board for release on licence, normally on an annual basis, depending upon how much of the original sentence remains to be served.
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