Detail of Provisions Automatic early release Section 4 – persons transferred to Scotland from outwith the United Kingdom
45.This section inserts a new section 27B into the 1993 Act which deals with persons who are transferred under the Repatriation of Prisoners Act 1984 from outwith the UK to serve their sentence of detention or imprisonment in Scotland. This applies where the UK is a party to international arrangements providing for the transfer of prisoners and it has been agreed that a person should be transferred to serve the remainder of their sentence elsewhere (for example, where a Scottish person has been convicted of and imprisoned for a crime while on holiday).
46.Inserted subsection (1)(a) allows the Scottish Ministers to determine that where a person is being repatriated from overseas to serve a sentence for an offence for which they were convicted as a child, they are to be treated for the purposes of section 7 of the 1993 Act as if they had been detained under section 208 of the 1995 Act. The effect of this power being exercised is that their release will then take place in accordance with section 7 of the 1993 Act. This mechanism will allow for clarity as to the law to which an individual is subject, and allows those who are detained abroad as children to be treated in the same way as those detained as children in Scotland.
47.Under inserted subsection (1)(b), where an adult or child is transferred to Scotland from abroad to serve their sentence of imprisonment/detention, the Scottish Ministers can determine that the person is to be treated for the purposes of sections 1(1) and 7(1)(a) as though they are serving a sentence for a sexual offence or domestic abuse offence committed in Scotland. Any prisoner subject to such a determination would then be automatically released after serving 50% of their sentence (instead of 40% of their sentence) – i.e. they will be automatically released at the same point that they would have been released at had the sexual/domestic abuse offence been committed in Scotland. However, under inserted subsection (2), such a determination will only be able to be made where the act, omission or behaviour for which the person was convicted abroad was something that could, if it had occurred in Scotland, have resulted in a conviction in Scotland for domestic abuse or a sexual offence.
48.Inserted subsection (3) provides the Scottish Ministers with a regulation-making power to enable further provision to be made about or in connection with this process. Inserted subsection (4) provides that such regulations would be subject to the affirmative procedure and the power has the usual ancillary powers attached to it.
49.New section 27B is relevant only to transfers into Scottish prisons from outwith the UK. Where a prisoner is transferred to a Scottish prison from within the UK, they are transferred under different legislation which allows them to be transferred on the basis that their release point is determined by reference to the law of the part of the UK in which they were sentenced.