The availability of ABWOR is restricted to cases involving prisoners in the following categories:

  • a designated life prisoner within the meaning of section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“the1993 Act”),
  • a prisoner who is treated as if they were a designated life prisoner under section 10(1) or (3) or (5) of, or paragraph 6 of Schedule 6 to, the 1993 Act or section 16(2) to (4) of the Crime and Punishment (Scotland) Act 1997 (“the 1997 Act”),
  • a prisoner subject to an extended sentence by virtue of section 210A of the 1995 Act, whose case is referred to the Parole Board by the Scottish Ministers under section 2(5)(a) or (6), section 3A(2) or section 17(3) of the 1993 Act and is dealt with by the Parole Board constituted as a tribunal.

“Parole Board case” is defined in regulation 1 as “a case of a prisoner to which Part IV of the Parole Board (Scotland) Rules 2001 applies”.

“Tribunal” is defined as a “tribunal formed under Rule 18 of the Parole Board (Scotland) Rules 2001, and includes a preliminary hearing before the chairman of a tribunal under Rule 19 of those Rules”.

This section is concerned only with the availability of ABWOR in the case of the prisoners described above.  It is not intended as a definitive statement of the status of prisoners and their right to early release or of the powers and duties of either the Parole Board or the Scottish Ministers.  Such matters are beyond the scope of this section.

Designated life prisoners

A designated life prisoner is either –

  • a person sentenced to life imprisonment for an offence for which the sentence is not fixed by law, or
  • a person sentenced for a murder committed while under the age of 18 years,

both of whom, on sentence, were ordered to serve the designated part of their sentence before being eligible to be referred to the Parole Board.

Prisoners subject to an extended sentence

Under section 210A of the 1995 Act, where a person

  • is convicted on indictment of a sexual or violent offence (as defined in that Act), and
  • would be subject to release on licence for a period which the court considers would not be adequate to protect the public from serious harm,

the court may pass an extended sentence on the offender.  An extended sentence consists of the custodial term appropriate to the case and an extension period, for which the offender is subject to a licence of such length as is necessary for the protection of the public.

Prisoners who have served the designated part of their sentence

In the case of a reference to the Parole Board under section 2(5)(a) or (6) of the 1993 Act, the prisoner will have served the designated part of their sentence, and may then require the Scottish Ministers to refer their case to the Parole Board.

If the Board, constituted as a tribunal, is satisfied that it is no longer necessary for the protection of the public that the prisoner should continue to be confined, it will direct the Scottish Ministers to release the prisoner on licence.

Where the tribunal does not order their release, the prisoner may make a further request after two years.

Prisoners who have been released on licence but recalled to prison – reference under section 17(3) of the 1993 Act

In the case of a reference to the Parole Board under section 17(3) of the 1993 Act, the prisoner will previously have been released on licence. However, Scottish Ministers will have revoked that licence and recalled them to prison either on a recommendation by the Parole Board or because Ministers consider it expedient in the public interest immediately to revoke the licence without prior consultation with the Parole Board.

Upon the prisoner’s return to prison, the Ministers must refer the case to the Parole Board where the recall was not based upon a Parole Board recommendation. Where there was such a recommendation, Ministers must refer the case to the Parole Board where the prisoner makes written representations in connection with the reasons given for their recall. Where the Board, constituted as a tribunal, directs the prisoner’s immediate release on licence, the Scottish Ministers must give effect to that direction.

Prisoners subject to an extended sentence released on licence but recalled to prison – reference under section 3A(2) of 1993 Act

In the case of a reference to the Parole Board under section 3A(2) of the 1993 Act, the prisoner will previously have been released on licence but Scottish Ministers have revoked that licence and recalled them to prison to serve the remainder of their extended sentence.

The prisoner may then require the Scottish Ministers to refer their case to the Parole Board.  If the Board, constituted as a tribunal, is satisfied that it is no longer necessary, for the protection of the public from serious harm, that the prisoner should be confined (but not otherwise), it must direct that the prisoner be released.  The Ministers must then release the prisoner on licence.

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