154.Section 16A of the 2003 Act is about the provision of information to a victim of an offence where the offender has been made subject to a compulsion order and a restriction order as a result of that offence. Subsection (2) of section 45 amends section 16A so that it also applies in two further circumstances. The first additional circumstance is where the offender is transferred to Scotland and is treated as subject to a compulsion order and a restriction order, as a result of having been subject to equivalent measures in the place from which they were transferred. This means that victims of an offence committed outwith Scotland may qualify to receive information under this section.
155.The second additional circumstance is where the offender, after having been made subject to the compulsion order and restriction order, was removed from Scotland and, in the country to which they were removed, made subject to that country’s equivalent of a compulsion order and a restriction order, then subsequently returned to Scotland and treated as subject to a compulsion and restriction order by virtue of the original offence. This means that if the offender is transferred out of Scotland and then back again, while being subject to measures relating to the original offence, the victim does not lose their entitlement to receive information.
156.Section 16C of the 2003 Act sets out what information is to be given to a victim who is entitled to receive information by virtue of section 16A. Section 16C(2)(f) requires victims to be told when the person in respect of whom they are entitled to receive information is transferred out of Scotland. Subsection (3)(a) of section 45 amends section 16C(2)(f) to provide that victims must be told, in addition, the jurisdiction to which the person has been transferred. The information does not need to be given if the Scottish Ministers believe it would not be in the interest of justice to do so.
157.Subsection (3)(b) adds further information to 16C(2), to the effect that a victim entitled to receive information by virtue of section 16A is entitled to be told when the person in respect of whom they are entitled to receive information returns to Scotland, where that person was previously transferred outwith Scotland.
158.Subsection (4) inserts new sections 16E and 16F into the 2003 Act. New section 16E makes provision about the rights of a victim to receive information under section 16A when the person to whom that information relates is transferred outwith Scotland in accordance with regulations made under section 290 of the Mental Health (Care and Treatment) (Scotland) Act 2003. New section 16E(2) provides that the right to receive information about the person under section 16A(2) stops on the day that the victim is told that the person has been transferred. The Scottish Ministers must also, when notifying the victim of the transfer, inform them that they will not receive any further information unless the person is transferred back to Scotland and that they may be entitled to receive information about the person under an equivalent scheme in the place to which the person has been transferred, and give the person any information that the Scottish Ministers are able to provide about any such scheme. Section 16E(4) makes provision about what happens when a victim applies to receive information under section 16A, and the person about whom they would be entitled to receive information has already been transferred. In that case, the Scottish Ministers are required to tell the person applying that the person has been transferred, and where they have been transferred, that as a result the victim has no entitlement to receive information about that person, that they will be notified if the person is transferred back to Scotland and will receive information from that date, that they might be entitled to receive information under an equivalent scheme in the place to which the person has been transferred, and any information that the Scottish Ministers are able to give about any such scheme.
159.New section 16F makes provision about the rights of a victim to receive information where a person is transferred to Scotland other than by virtue of regulations made under section 290 of the Mental Health (Care and Treatment) Scotland Act 2003, and is subject, or treated as subject, to a compulsion order and a restriction order by virtue of that transfer. Such transfers are likely to be in relation to persons who are transferred from outwith the United Kingdom, the Channel Islands, the Isle of Man, or the European Union. Under the new section 16F, the Scottish Ministers will be required to notify the relevant authorities in the country from which the person is transferred of the rights of victims under Part 2 of the 2003 Act, to request that that information is passed on to any person who would be entitled to receive information under section 16A if the offender had been made subject to a compulsion order and restriction order in Scotland, and to further request that the relevant authorities give the Scottish Ministers the details of any such person. If the Scottish Ministers receive such details, they are then to use reasonable endeavours to notify the person of their right to receive information, and to continue to supply information under section 16A.
160.Section 18B(2) of the 2003 Act allows the Scottish Ministers to amend section 16A so that information may be given to a victim where the offender has been made subject to a compulsion order but not a restriction order. Section 45(5) of the Act provides that, if this power has been exercised, then the Scottish Ministers may also provide for the provision of information to victims where an offender is transferred to Scotland and treated as being subject to a compulsion order by virtue of having been subject to equivalent measures in the country from which they were transferred.
Crown Application Part 3 – Victims’ Rights to Receive Information Section 45 - victim’s right to receive information concerning offender subject to compulsion order by virtue of cross-border transfer