Office of the Queen's Printer for Scotland
(1) Where at any diet in proceedings on indictment in the sheriff court, sentence falls to be imposed but the sheriff holds that any competent sentence which he can impose is inadequate so that the question of sentence is appropriate for the High Court, he shall—
(a) endorse upon the record copy of the indictment a certificate of the plea or the verdict, as the case may be;
(b) by interlocutor written on the record copy remit the convicted person to the High Court for sentence; and
(c) append to the interlocutor a note of his reasons for the remit,
and a remit under this section shall be sufficient warrant to bring the accused before the High Court for sentence and shall remain in force until the person is sentenced.
(2) Where under any enactment an offence is punishable on conviction on indictment by imprisonment for a term exceeding three years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding three years, it shall be competent for the sheriff to remit the accused to the High Court for sentence under subsection (1) above; and it shall be competent for the High Court to pass any sentence which it could have passed if the person had been convicted before it.
(3) When the Clerk of Justiciary receives the record copy of the indictment he shall send a copy of the note of reasons to the convicted person or his solicitor and to the Crown Agent.
(4) Subject to subsection (3) above, the note of reasons shall be available only to the High Court and the parties.
In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court may take into account—
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which that indication was given.
Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant opinion pronounced under section 118(7) or section 189(7) of this Act.
(1) In any case the sentence to be pronounced shall be announced by the judge in open court and shall be entered in the record in the form prescribed by Act of Adjournal.
(2) In recording a sentence of imprisonment, it shall be sufficient to minute the term of imprisonment to which the court sentenced the accused, without specifying the prison in which the sentence is to be carried out; and an entry of sentence, signed by the clerk of court, shall be full warrant and authority for any subsequent execution of the sentence and for the clerk to issue extracts for the purposes of execution or otherwise.
(3) In extracting a sentence of imprisonment, the extract may be in the form set out in an Act of Adjournal or as nearly as may be in such form.
(1) Subject to subsection (3) below, where a person is convicted of the contravention of an enactment and the penalty which may be imposed involves—
(a) imprisonment;
(b) the imposition of a fine;
(c) the finding of caution for good behaviour or otherwise whether or not imposed in addition to imprisonment or a fine,
subsection (2) below shall apply.
(2) Where this subsection applies, the court, in addition to any other power conferred by statute, shall have power—
(a) to reduce the period of imprisonment;
(b) to substitute for imprisonment a fine (either with or without the finding of caution for good behaviour);
(c) to substitute for imprisonment or a fine the finding of caution;
(d) to reduce the amount of the fine;
(e) to dispense with the finding of caution.
(3) Subsection (2) above shall not apply—
(a) in relation to an enactment which carries into effect a treaty, convention, or agreement with a foreign state which stipulates for a fine of a minimum amount; or
(b) to proceedings taken under any Act relating to any of Her Majesty’s regular or auxiliary forces.
(4) Where, in summary proceedings, a fine is imposed in substitution for imprisonment, the fine—
(a) in the case of an offence which is triable either summarily or on indictment, shall not exceed the prescribed sum; and
(b) in the case of an offence triable only summarily, shall not exceed level 4 on the standard scale.
(5) Where the finding of caution is imposed under this section—
(a) in respect of an offence which is triable only summarily, the amount shall not exceed level 4 on the standard scale and the period shall not exceed that which the court may impose under this Act; and
(b) in any other case, the amount shall not exceed the prescribed sum and the period shall not exceed 12 months.
(1) Without prejudice to any powers exercisable by a court under section 201 of this Act, where—
(a) the court finds that an accused has committed an offence punishable with imprisonment; and
(b) it appears to the court that before the method of dealing with him is determined an inquiry ought to be made into his physical or mental condition,
subsection (2) below shall apply.
(2) Where this subsection applies the court shall—
(a) for the purpose of inquiry solely into his physical condition, remand him in custody or on bail;
(b) for the purpose of inquiry into his mental condition (whether or not in addition to his physical condition), remand him in custody or on bail or, where the court is satisfied—
(i) on the written or oral evidence of a medical practitioner, that the person appears to be suffering from a mental disorder; and
(ii) that a hospital is available for his admission and suitable for his detention,
make an order committing him to that hospital,
for such period or periods, no single period exceeding three weeks, as the court thinks necessary to enable a medical examination and report to be made.
(3) Where the court is of the opinion that a person ought to continue to be committed to hospital for the purpose of inquiry into his mental condition following the expiry of the period specified in an order for committal to hospital under paragraph (b) of subsection (2) above, the court may—
(a) if the condition in sub-paragraph (i) of that paragraph continues to be satisfied and a suitable hospital is available for his continued detention, renew the order for such further period not exceeding three weeks as the court thinks necessary to enable a medical examination and report to be made; and
(b) in any other case, remand the person in custody or on bail in accordance with subsection (2) above.
(4) An order under subsection (3)(a) above may, unless objection is made by or on behalf of the person to whom it relates, be made in his absence.
(5) Where, before the expiry of the period specified in an order for committal to hospital under subsection (2)(b) above, the court considers, on an application made to it, that committal to hospital is no longer required in relation to the person, the court shall revoke the order and may make such other order, under subsection (2)(a) above or any other provision of this Part of this Act, as the court considers appropriate.
(6) Where an accused is remanded on bail under this section, it shall be a condition of the order granting bail that he shall—
(a) undergo a medical examination by a duly qualified registered medical practitioner or, where the inquiry is into his mental condition, and the order granting bail so specifies, two such practitioners; and
(b) for the purpose of such examination, attend at an institution or place, or on any such practitioner specified in the order granting bail and, where the inquiry is into his mental condition, comply with any directions which may be given to him for the said purpose by any person so specified or by a person of any class so specified,
and, if arrangements have been made for his reception, it may be a condition of the order granting bail that the person shall, for the purpose of the examination, reside in an institution or place specified as aforesaid, not being an institution or place to which he could have been remanded in custody, until the expiry of such period as may be so specified or until he is discharged therefrom, whichever first occurs.
(7) On exercising the powers conferred by this section to remand in custody or on bail the court shall—
(a) where the person is remanded in custody, send to the institution or place in which he is detained; and
(b) where the person is released on bail, send to the institution or place at which or the person by whom he is to be examined,
a statement of the reasons for which it appears to the court that an inquiry ought to be made into his physical or mental condition, and of any information before the court about his physical or mental condition.
(8) On making an order of committal to hospital under subsection (2)(b) above the court shall send to the hospital specified in the order a statement of the reasons for which the court is of the opinion that an inquiry ought to be made into the mental condition of the person to whom it relates, and of any information before the court about his mental condition.
(9) A person remanded under this section may appeal against the refusal of bail or against the conditions imposed and a person committed to hospital under this section may appeal against the order of committal within 24 hours of his remand or, as the case may be, committal, by note of appeal presented to the High Court, and the High Court, either in court or in chambers, may after hearing parties—
(a) review the order and grant bail on such conditions as it thinks fit; or
(b) confirm the order; or
(c) in the case of an appeal against an order of committal to hospital, revoke the order and remand the person in custody.
(10) The court may, on cause shown, vary an order for committal to hospital under subsection (2)(b) above by substituting another hospital for the hospital specified in the order.
(11) Subsection (2)(b) above shall apply to the variation of an order under subsection (10) above as it applies to the making of an order for committal to hospital.
(1) Where an accused has been convicted or the court has found that he committed the offence and before he has been sentenced or otherwise dealt with, subject to subsection (3) below, the court may adjourn the case for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with his case.
(2) Where the court adjourns a case solely for the purpose mentioned in subsection (1) above, it shall remand the accused in custody or on bail or ordain him to appear at the adjourned diet.
(3) A court shall not adjourn the hearing of a case as mentioned in subsection (1) above for any single period exceeding—
(a) where the accused is remanded in custody, three weeks; and
(b) where he is remanded on bail or ordained to appear, four weeks or, on cause shown, eight weeks.
(4) An accused who is remanded under this section may appeal against the refusal of bail or against the conditions imposed within 24 hours of his remand, by note of appeal presented to the High Court, and the High Court, either in court or in chambers, may, after hearing parties—
(a) review the order appealed against and either grant bail on such conditions as it thinks fit or ordain the accused to appear at the adjourned diet; or
(b) confirm the order.
(1) It shall be competent for a court to defer sentence after conviction for a period and on such conditions as the court may determine.
(2) If it appears to the court which deferred sentence on an accused under subsection (1) above that he has been convicted during the period of deferment, by a court in any part of Great Britain of an offence committed during that period and has been dealt with for that offence, the court which deferred sentence may—
(a) issue a warrant for the arrest of the accused; or
(b) instead of issuing such a warrant in the first instance, issue a citation requiring him to appear before it at such time as may be specified in the citation,
and on his appearance or on his being brought before the court it may deal with him in any manner in which it would be competent for it to deal with him on the expiry of the period of deferment.
(3) Where a court which has deferred sentence on an accused under subsection (1) above convicts him of another offence during the period of deferment, it may deal with him for the original offence in any manner in which it would be competent for it to deal with him on the expiry of the period of deferment, as well as for the offence committed during the said period.
(1) Where a person specified in section 27(1)(b)(i) to (vi) of the [1968 c. 49.] Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to—
(a) the circumstances of the offence; and
(b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.
(2) In subsection (1) above, “the court” does not include a district court.
(3) Where, in any case, a report by an officer of a local authority is made to the court with a view to assisting the court in determining the most suitable method of dealing with any person in respect of an offence, a copy of the report shall be given by the clerk of the court to the offender or his solicitor.
(1) A court shall not pass a sentence of imprisonment or of detention in respect of any offence, nor impose imprisonment, or detention, under section 214(2) of this Act in respect of failure to pay a fine, on an accused who is not legally represented in that court and has not been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom, unless the accused either—
(a) applied for legal aid and the application was refused on the ground that he was not financially eligible; or
(b) having been informed of his right to apply for legal aid, and having had the opportunity, failed to do so.
(2) A court shall not pass a sentence of imprisonment on a person of or over twenty-one years of age who has not been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom unless the court considers that no other method of dealing with him is appropriate; and for the purpose of determining whether any other method of dealing with such a person is appropriate the court shall obtain (from an officer of a local authority or otherwise) such information as it can about the offender’s circumstances; and it shall also take into account any information before it concerning the offender’s character and physical and mental condition.
(3) Where a court of summary jurisdiction passes a sentence of imprisonment on any such person as is mentioned in subsection (2) above, the court shall state the reason for its opinion that no other method of dealing with him is appropriate, and shall have that reason entered in the record of the proceedings.
(4) The court shall, for the purpose of determining whether a person has been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom—
(a) disregard a previous sentence of imprisonment which, having been suspended, has not taken effect under section 23 of the [1973 c. 62.] Powers of Criminal Courts Act 1973 or under section 19 of the [1968 c. 29. (N.I.)] Treatment of Offenders Act (Northern Ireland) 1968;
(b) construe detention as meaning —
(i) in relation to Scotland, detention in a young offenders institution or detention centre;
(ii) in relation to England and Wales a sentence of youth custody, borstal training or detention in a young offender institution or detention centre; and
(iii) in relation to Northern Ireland, detention in a young offenders centre.
(5) This section does not affect the power of a court to pass sentence on any person for an offence the sentence for which is fixed by law.
(6) In this section—
“legal aid” means legal aid for the purposes of any part of the proceedings before the court;
“legally represented” means represented by counsel or a solicitor at some stage after the accused is found guilty and before he is dealt with as referred to in subsection (1) above.
(1) Subject to subsections (2) and (3) below, a person convicted of murder shall be sentenced to imprisonment for life.
(2) Where a person convicted of murder is under the age of 18 years he shall not be sentenced to imprisonment for life but to be detained without limit of time and shall be liable to be detained in such place, and under such conditions, as the Secretary of State may direct.
(3) Where a person convicted of murder has attained the age of 18 years but is under the age of 21 years he shall not be sentenced to imprisonment for life but to be detained in a young offenders institution and shall be liable to be detained for life.
(4) On sentencing any person convicted of murder a judge may make a recommendation as to the minimum period which should elapse before, under section 1(4) of the [1993 c. 9.] Prisoners and Criminal Proceedings (Scotland) Act 1993, the Secretary of State releases that person on licence.
(5) When making a recommendation under subsection (4) above, the judge shall state his reasons for so recommending.
(6) Notwithstanding subsection (2) of section 106 of this Act it shall be competent to appeal under paragraph (b) or (f) of subsection (1) of that section against a recommendation made under subsection (4) above; and for the purposes of such appeal (including the High Court’s power of disposal under section 118(4)(b) of this Act) the recommendation shall be deemed part of the sentence passed on conviction.
(1) No person shall be sentenced to imprisonment by a court of summary jurisdiction for a period of less than five days.
(2) Where a court of summary jurisdiction has power to impose imprisonment on an offender, it may, if any suitable place provided and certified as mentioned in subsection (4) below is available for the purpose, sentence the offender to be detained therein, for such period not exceeding four days as the court thinks fit, and an extract of the finding and sentence shall be delivered with the offender to the person in charge of the place where the offender is to be detained and shall be a sufficient authority for his detention in that place in accordance with the sentence.
(3) The expenses of the maintenance of offenders detained under this section shall be defrayed in like manner as the expenses of the maintenance of prisoners under the [1989 c. 45.] Prisons (Scotland) Act 1989.
(4) The Secretary of State may, on the application of any police authority, certify any police cells or other similar places provided by the authority to be suitable places for the detention of persons sentenced to detention under this section, and may by statutory instrument make regulations for the inspection of places so provided, the treatment of persons detained therein and generally for carrying this section into effect.
(5) No place certified under this section shall be used for the detention of females unless provision is made for their supervision by female officers.
(6) In this section the expression “police authority” has the same meaning as in the [1967 c. 77.] Police (Scotland) Act 1967.
(1) It shall not be competent to impose imprisonment on a person under 21 years of age.
(2) Subject to section 205(2) and (3) of this Act and to subsections (3) and (4) below, a court may impose detention (whether by way of sentence or otherwise) on a person, who is not less than 16 but under 21 years of age, where but for subsection (1) above the court would have power to impose a period of imprisonment; and a period of detention imposed under this section on any person shall not exceed the maximum period of imprisonment which might otherwise have been imposed.
(3) The court shall not under subsection (2) above impose detention on an offender unless it is of the opinion that no other method of dealing with him is appropriate; and the court shall state its reasons for that opinion, and, except in the case of the High Court, those reasons shall be entered in the record of proceedings.
(4) To enable the court to form an opinion under subsection (3) above, it shall obtain from an officer of a local authority or otherwise such information as it can about the offender’s circumstances; and it shall also take into account any information before it concerning the offender’s character and physical and mental condition.
(5) A sentence of detention imposed under this section shall be a sentence of detention in a young offenders institution.
Subject to section 205 of this Act, where a child is convicted on indictment and the court is of the opinion that no other method of dealing with him is appropriate, it may sentence him to be detained for a period which it shall specify in the sentence; and the child shall during that period be liable to be detained in such place and on such conditions as the Secretary of State may direct.
(1) Where a person is convicted of an offence and is sentenced to imprisonment for a term of not less than twelve months but less than four years, the court on passing sentence may, if it considers that it is necessary to do so to protect the public from serious harm from the offender on his release, make such order as is mentioned in subsection (3) below.
(2) A court shall, before making an order under subsection (1) above, consider a report by a relevant officer of a local authority about the offender and his circumstances and, if the court thinks it necessary, hear that officer.
(3) The order referred to in subsection (1) above (to be known as a “supervised release order”) is that the person, during a relevant period—
(a) be under the supervision either of a relevant officer of a local authority or of a probation officer appointed for or assigned to a petty sessions area (such local authority or the justices for such area to be designated under section 14(4) or 15(1) of the [1993 c. 9.] Prisoners and Criminal Proceedings (Scotland) Act 1993);
(b) comply with;
(i) such requirements as may be imposed by the court in the order; and
(ii) such requirements as that officer may reasonably specify,
for the purpose of securing the good conduct of the person or preventing, or lessening the possibility of, his committing a further offence (whether or not an offence of the kind for which he was sentenced); and
(c) comply with the standard requirements imposed by virtue of subsection (4)(a)(i) below.
(4) A supervised release order—
(a) shall—
(i) without prejudice to subsection (3)(b) above, contain such requirements (in this section referred to as the “standard requirements”); and
(ii) be as nearly as possible in such form,
as may be prescribed by Act of Adjournal;
(b) for the purposes of any appeal or review constitutes part of the sentence of the person in respect of whom the order is made; and
(c) shall have no effect during any period in which the person is subject to a licence under Part I of the said Act of 1993.
(5) Before making a supervised release order as respects a person the court shall explain to him, in as straightforward a way as is practicable, the effect of the order and the possible consequences for him of any breach of it.
(6) The clerk of the court by which a supervised release order is made in respect of a person shall—
(a) forthwith send a copy of the order to the person and to the Secretary of State; and
(b) within seven days after the date on which the order is made, send to the Secretary of State such documents and information relating to the case and to the person as are likely to be of assistance to a supervising officer.
(7) In this section—
“relevant officer” has the same meaning as in Part I of the [1993 c. 9.] Prisoners and Criminal Proceedings (Scotland) Act 1993;
“relevant period” means such period as may be specified in the supervised release order, being a period—
not exceeding twelve months after the date of the person’s release; and
no part of which is later than the date by which the entire term of imprisonment specified in his sentence has elapsed; and
“supervising officer” means, where an authority has or justices have been designated as is mentioned in subsection (3)(a) above for the purposes of the order, any relevant officer or, as the case may be, probation officer who is for the time being supervising for those purposes the person released.
(8) This section applies to a person sentenced under section 207 of this Act as it applies to a person sentenced to a period of imprisonment.
(1) A court, in passing a sentence of imprisonment or detention on a person for an offence, shall—
(a) in determining the period of imprisonment or detention, have regard to any period of time spent in custody by the person on remand awaiting trial or sentence, or spent in custody awaiting extradition to the United Kingdom;
(b) specify the date of commencement of the sentence; and
(c) if the person—
(i) has spent a period of time in custody on remand awaiting trial or sentence; or
(ii) is an extradited prisoner for the purposes of this section,
and the date specified under paragraph (b) above is not earlier than the date on which sentence was passed, state its reasons for not specifying an earlier date.
(2) A prisoner is an extradited prisoner for the purposes of this section if—
(a) he was tried for the offence in respect of which his sentence of imprisonment was imposed—
(i) after having been extradited to the United Kingdom; and
(ii) without having first been restored to the state from which he was extradited or having had an opportunity of leaving the United Kingdom; and
(b) he was for any period in custody while awaiting such extradition.
(3) In this section “extradited to the United Kingdom” means returned to the United Kingdom—
(a) in pursuance of extradition arrangements (as defined in section 3 of the [1989 c. 33.] Extradition Act 1989);
(b) under any law which corresponds to that Act and is a law of a designated Commonwealth country (as defined in section 5(1) of that Act);
(c) under that Act as extended to a colony or under any corresponding law of a colony;
(d) in pursuance of arrangements with a foreign state in respect of which an Order in Council under section 2 of the [33 & 34 Vict. c.52.] Extradition Act 1870 is in force; or
(e) in pursuance of a warrant of arrest endorsed in the Republic of Ireland under the law of that country corresponding to the [1965 c. 45.] Backing of Warrants (Republic of Ireland) Act 1965.
(1) Where an accused who is convicted on indictment of any offence (whether triable only on indictment or triable either on indictment or summarily other than by virtue of section 292(6) of this Act) would apart from this subsection be liable to a fine of or not exceeding a specified amount, he shall by virtue of this subsection be liable to a fine of any amount.
(2) Where any Act confers a power by subordinate instrument to make a person liable on conviction on indictment of any offence mentioned in subsection (1) above to a fine or a maximum fine of a specified amount, or which shall not exceed a specified amount, the fine which may be imposed in the exercise of that power shall by virtue of this subsection be a fine of an unlimited amount.
(3) Any sentence or decree for any fine or expenses pronounced by a sheriff court or district court may be enforced against the person or effects of any party against whom the sentence or decree was awarded—
(a) in the district where the sentence or decree was pronounced; or
(b) in any other such district.
(4) A fine imposed by the High Court shall be remitted for enforcement to, and shall be enforceable as if it had been imposed by—
(a) where the person upon whom the fine was imposed resides in Scotland, the sheriff for the district where that person resides; and
(b) where that person resides outwith Scotland, the sheriff before whom he was brought for examination in relation to the offence for which the fine was imposed.
(5) Any fine imposed in the High Court on the accused, and on a juror for non-attendance, and any forfeiture for non-appearance of a party, witness or juror in the High Court shall be payable to and recoverable by the Treasury, except where the High Court orders that the whole or any part of the fine shall be otherwise disposed of.
(6) All fines and expenses imposed in summary proceedings under this Act shall be paid to the clerk of court to be accounted for by him to the person entitled to such fines and expenses, and it shall not be necessary to specify in any sentence the person entitled to payment of such fines or expenses unless it is necessary to provide for the division of the penalty.
(7) A court in determining the amount of any fine to be imposed on an offender shall take into consideration, amongst other things, the means of the offender so far as known to the court.
(1) Where a court of summary jurisdiction imposes a fine on an offender, the court may order him to be searched, and any money found on him on apprehension or when so searched or when taken to prison or to a young offenders institution in default of payment of the fine, may, unless the court otherwise directs and subject to subsection (2) below, be applied towards payment of the fine, and the surplus if any shall be returned to him.
(2) Money shall not be applied as mentioned in subsection (1) above if the court is satisfied that it does not belong to the person on whom it was found or that the loss of the money will be more injurious to his family than his imprisonment or detention.
(3) When a court of summary jurisdiction, which has adjudged that a sum of money shall be paid by an offender, considers that any money found on the offender on apprehension, or after he has been searched by order of the court, should not be applied towards payment of such sum, the court, shall make a direction in writing to that effect which shall be written on the extract of the sentence which imposes the fine before it is issued by the clerk of the court.
(4) An accused may make an application to such a court either orally or in writing, through the governor of the prison in whose custody he may be at that time, that any sum of money which has been found on his person should not be applied in payment of the fine adjudged to be paid by him.
(5) A person who alleges that any money found on the person of an offender is not the property of the offender, but belongs to that person, may apply to such court either orally or in writing for a direction that the money should not be applied in payment of the fine adjudged to be paid, and the court after enquiry may so direct.
(6) A court of summary jurisdiction, which has adjudged that a sum of money shall be paid by an offender, may order the attendance in court of the offender, if he is in prison, for the purpose of ascertaining the ownership of money which has been found on his person.
(7) A notice in the form prescribed by Act of Adjournal, or as nearly as may be in such form, addressed to the governor of the prison in whose custody an offender may be at the time, signed by the judge of a court of summary jurisdiction shall be a sufficient warrant to the governor of such prison for conveying the offender to the court.
Criminal Procedure (Scotland) Act 1995