The Act: Section by Section Part 2: Release from custody Section 11—Power to release early
60.Section 11 amends the 1993 Act to make provision for the early release of prisoners in emergency situations.
61.Section 11(2) inserts new sections 3C to 3E into the 1993 Act. New section 3C creates a new power for the Scottish Ministers to make regulations which provide for defined groups of persons to be released early from prison. The regulations must either specify a release date or make provision for the calculation of the date, with a latest release date of not more than 180 days after the day the regulations are made.
62.Under section 3C(2), the Scottish Ministers may not make regulations under subsection (1) of that section unless they are satisfied that doing so is necessary and proportionate where there is an emergency situation effecting a specific prison, or prisons generally. “Emergency situation” is defined in subsection (11) and includes the incidence or spread of infection or contamination, or a situation resulting in part of the prison estate being unusable, such as where there has been a fire or a flood. Under subsection (2) the Scottish Ministers must also be satisfied that making the regulations will protect the security and good order of the relevant prison, and the health, safety, and welfare of prisoners and staff.
63.Section 3C(3) allows the Scottish Ministers to provide that any long-term prisoners released by virtue of the regulations would be released on licence, and to specify standard conditions which must be included in any such licence. Section 3C(4) restricts eligibility for release by virtue of the regulations to prisoners with not more than 180 days left to serve of their sentence.
64.Section 3C(5) provides for the prisoners who would be excluded from being released by virtue of the regulations. Subsection (5)(a) refers to the list of classes of prisoner set out in subsection (6), including life prisoners, untried prisoners, prisoners serving extended sentences, prisoners subject to Sex Offender Notification Requirements, prisoners serving sentences for certain domestic abuse offences, and terrorist prisoners. Subsection (6)(k) provides that only long-term prisoners who have been recommended for release at the date on which the regulations are made will be released by virtue of the regulations. Subsection (5)(b) gives prison governors a right to veto the release of any person detained in their prison who would otherwise be released by virtue of the regulations, if they consider that that person poses an immediate risk of harm to a particular person or an identified group of people.
65.Section 3C(7) places an obligation on the Scottish Ministers to publish guidance about the application by prison governors of their right, under subsection (5)(b), to veto the release of prisoners by virtue of regulations made under section 3C(1). Subsection (8) allows the Scottish Ministers to update that guidance, and subsection (9) requires prison governors to have regard to the guidance when considering whether to exercise their power of veto, to ensure that the right is applied consistently. New section 3D makes provision for the parliamentary scrutiny to which regulations made under section 3C will be subject. Under subsection (1), the regulations will be subject to the affirmative procedure, unless subsection (2) applies. Subsection (2) applies if the instrument containing the regulations includes a statement of urgency by the Scottish Ministers. If that requirement is met, then subsection (3) will apply and the regulations will be subject to the made affirmative procedure.
66.New section 3E makes provision for prisoners released by virtue of the regulations to be deemed, for the purposes of the 1993 Act, to have been released under the specified provision of that Act.
67.Section 10(3) inserts a new subsection into section 12 of the 1993 Act, with the effect that subsection (3)(b) of that section, which prevents the inclusion of licence conditions which have not been recommended by the Parole Board, will not apply to standard conditions in licences granted by virtue of the regulations.
68..Section 10(4) inserts new section 12ZA after section 12 of the 1993 Act. The new section makes provision for the standard conditions to be contained in licences granted by virtue of the regulations. Subsection (1) provides that the standard conditions remain in force, unless cancelled, until the date on which the released person would otherwise have been released under section 1(3). This is the date on which they will move to a standard parole licence. Subsection (2) states that the standard conditions may include a curfew condition. A curfew condition is one which requires the person to remain in a specified place for specified periods of time (often the person’s home), or which requires the person to stay away from a specified place or class of place at specified times or for periods of time.