126.Section 40 makes changes to Part 2 of the 2003 Act in relation to how the rights under section 16 operate when offenders are transferred to or from Scotland. Subsection (2) amends section 16 itself. Paragraph (a) adds a new subsection (1A), which sets out the circumstances in which the section 16 rights apply in relation to the victim of an offender transferred to Scotland. Where the offender is transferred by way of an unrestricted transfer section 16 will apply; where the offender is transferred by way of a restricted transfer section 16 will not apply. Section 40(4) inserts definitions of restricted and unrestricted transfers into section 18A(1) of the 2003 Act. These are tied to the Crime (Sentences) Act 1997, and whether a transfer is restricted or unrestricted determines the extent to which the Scottish Ministers are responsible for the management of the offender.
127.Subsection (2)(b) makes changes to section 16(3) of the 2003 Act, which sets out the information which is to be provided in relevant cases. Subparagraph (i) amends paragraph (c), which requires that victims be informed when the offender is transferred outwith Scotland, to provide that they must also be informed of the jurisdiction to which the offender 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. Subparagraph (ii) adds a new paragraph (ca) into section 16(3) which requires that where an offender had previously been transferred out of Scotland, the victim is to be told if and when the offender is transferred back into Scotland.
128.Subsection (3) inserts a new run of sections 16ZB, 16ZC and 16ZD into the 2003 Act. Section 16ZB deals with the rights to receive information under section 16 where the offender is transferred out of Scotland to another part of the United Kingdom, to one of the Channel Islands, or to the Isle of Man, on an unrestricted transfer – a definition of which is inserted into section 18A of the 2003 Act by section 40(4).
129.Subsection (2) of new section 16ZB provides that section 16 will no longer apply in relation to the offender, meaning that no further information will fall to be given under that section, beginning with the day on which the Scottish Ministers notify the relevant person under section 16 that the transfer has taken place. If that notification were not given, then the Scottish Ministers would be liable to continue providing information.
130.Because the rights granted by the other relevant sections of Part 2 of the 2003 Act flow from a person being entitled to receive information under section 16, those other rights are also extinguished on the day on which section 16 ceases to apply in relation to an offender.
131.Subsection (3) of new section 16ZB sets out further information which the Scottish Ministers must provide to the person receiving information under section 16 when notifying them that the offender has been transferred. The additional information will ensure that the person is aware that they won’t receive further information from the Scottish Ministers unless the offender is returned to Scotland, and that there may be an equivalent scheme in the place to which the offender has been transferred through which they can receive information.
132.Subsection (4) of new section 16ZB provides that if the offender is transferred back into Scotland while serving the sentence relating to the offence to which the rights under section 16 relate, the rights under section 16 recommence in relation to that offender on the day on which they are transferred.
133.Subsection (5) of new section 16ZB makes provision about what happens when a person applies to be given information under section 16, but the relevant offender has already been transferred out of Scotland to another part of the UK, to one of the Channel Islands, or to the Isle of Man, on an unrestricted transfer. It sets out the information which the Scottish Ministers must provide in such cases to ensure that the person applying to receive information is made aware that they may have rights to receive information from the relevant authorities in the place to which the offender has been transferred, and that they may be entitled to receive information from the Scottish Ministers in the future if the offender is returned to Scotland.
134.New section 16ZC deals with the rights to receive information under section 16 where the offender is transferred out of Scotland to another part of the United Kingdom, to one of the Channel Islands, or to the Isle of Man, on a restricted transfer – a definition of which is inserted into section 18A of the 2003 Act by section 40(4).
135.Subsection (1) of new section 16ZC provides that section 16 will continue to apply in relation to the offender, subject to the modifications set out in subsection (3). The first of those modifications is that the Scottish Ministers will only be obliged to use reasonable endeavours to supply information, instead of being under an absolute obligation do so (unless, as set out in section 16(1), there are exceptional circumstances which make it inappropriate to do so). The second modification is that the Scottish Ministers may supply information about an event which is equivalent to an event set out in section 16(3). This reflects the fact that the offender will be in a different jurisdiction and so the exact details in section 16(3) might not apply, while ensuring that the victim will receive the same type of information.
136.Subsection (1)(b) of new section 16ZC sets out further information which the Scottish Ministers must provide to the person receiving information under section 16 when notifying them that the offender has been transferred. The additional information will ensure that the person is aware that they will continue to receive information from the Scottish Ministers, and that there may be an equivalent scheme in the place to which the offender has been transferred through which they can receive further information.
137.Subsection (3) of new section 16ZC sets out what happens if an offender has been transferred out of Scotland on a restricted transfer, and that transfer has become an unrestricted transfer because a condition of the transfer has been removed. This process is set out in paragraph 6(1)(a) of schedule 1 to the Crime (Sentences) Act 1997.
138.In such cases, the offender will, from the date that the condition is removed, be treated as though they are on an unrestricted transfer, and no information will fall to be given under section 16. The Scottish Ministers will be required to notify persons receiving information under section 16 of the change to the type of transfer, and of the information set out in new section 16ZB(3) – which is the information given to victims when an offender is transferred on unrestricted transfer. This includes the fact that the person will no longer be entitled to receive information from the Scottish Ministers about the offender. Section 16ZB(4) and (5) will apply in relation to the offender from the date that the condition is removed.
139.New section 16ZD deals with cases where an offender is transferred to Scotland after having been convicted and sentenced to imprisonment or detention in a place that is not the United Kingdom, one of the Channel Islands, or the Isle of Man. Subsection (2) empowers the Scottish Ministers to give information about the victim notification scheme to the relevant authorities in the place from which the person is transferred, request that that information be passed on to any person who would be entitled to request information under section 16 if the person had been convicted and sentenced in Scotland, and request from those authorities the details of any such person. If the Scottish Ministers receive that information, they are empowered to use reasonable endeavours to inform that person of their right to receive information.
140.Subsection (2) of new section 16ZD provides for section 16 to apply in relation to a person transferred to Scotland from outwith the United Kingdom, Channel Islands, or Isle of Man, subject to Scottish Ministers only being obliged to use reasonable endeavours to supply the relevant information.
Crown Application Part 3 – Victims’ Rights to Receive Information Section 40 – transfers of convicted persons