Sentencing criminals who reoffend when released early from prison

Council member Sheriff Iain Fleming writes:

A new approach to sentencing

On 1 October 1993, Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993 came into force, introducing significant changes to prisoner release provisions in Scotland. The legislation and subsequent amendments now mean that short-term prisoners – those serving sentences of under four years’ imprisonment – are released after serving half of their sentence. Long-term prisoners – those serving determinate sentences of four years or more – are released on licence at least six months prior to the end of their sentence (unless the Parole Board for Scotland recommends that they be released earlier after serving at least half).[1]

For both short and long-term prisoners, this release into the community allows the opportunity for rehabilitation. The release is subject to them not reoffending during the period they would otherwise have been in prison. If they commit an offence punishable by imprisonment during that time, the court can re-impose all or part of the ‘unexpired portion’ of the original prison sentence.

Prior to the 1993 Act, such matters had generally been dealt with by the Parole Board for Scotland. However, section 16 of the Act introduced a new approach: for the first time there could be judicial involvement in considering an offender’s return to prison.

What this means

What is the practical effect of this provision? That is perhaps best illustrated by an example.

An offender (A) is convicted of assault and sentenced to 2 years’ imprisonment on 1 February 2021. He is released on 31 January 2022, having served half of the 2 year sentence. The expiry date of the sentence is 31 January 2023, notwithstanding the date of A’s release on licence.  If A commits another offence on, for example, 31 July 2022, he will be sentenced not only in relation to the new offence, but consideration will also be given to returning him to prison in respect of the original offence. In this case it is open to the court to order that he be returned to prison for all or part of the period between the date of the new offence (31 July 2022) and the date on which his sentence for the original offence expires (31 January 2023) – a period of six months.

If A pleads guilty to the new charge, the court will decide whether to return him to prison in respect of this period, and if so for how long. Thereafter, the court needs to consider the sentence for the new offence.  If a prison sentence is to be imposed, the court can order that sentence to run at the same time as, or in addition to, his return to prison for the original offence.

When reaching its decision, the court will consider the offender’s personal circumstances (including any offending history), the length of time between the release and the new offence, and the nature and gravity of the new offence. The commission of the new offence is regarded as a violation of the trust placed on a prisoner who has been granted early release.  If the new offence is similar to the original offence, a stricter view may be taken.

Calculating the sentences

The sentence imposed by the judge or sheriff under section 16 cannot be backdated to the date when the offender first came into custody, but must instead start from the day it is imposed.

So, to return to our example: if A is arrested on 31 July 2022, appears in court on 1 August 2022, and, is remanded in custody until 31 December 2022, and then pleads guilty to, or is found guilty of, the new offence on that date, the judge or sheriff will first require to consider whether to return him to prison to serve the unexpired portion of his original sentence.

If the court imposes a period of imprisonment which equates to the full portion of the unexpired sentence, a 6 month sentence will be imposed effective from 31 December 2022, the date on which the finding of guilt was entered.

This means, that in relation to the new offence, the offender has spent five months in prison being held on remand from 1 August 2022 until 31 December 2023. In dealing with that the court recognises that the period spent on remand is the equivalent of a 10 month sentence of imprisonment. This is because of section 16, under which a prisoner is eligible for release after serving half of the sentence.

If, therefore, the court was proposing to impose a sentence of 18 months’ imprisonment that would be reduced to eight months to take account of the period spent on remand.

It might, at first, appear that eight months’ imprisonment is perhaps a very lenient sentence.  However, the actual sentence effectively imposed upon the offender is 18 months. The sentence is served in two distinct parts, being interrupted by the return to custody for the original offence. This is a complex area of sentencing and without close scrutiny, a misleading impression of the actual sentence imposed could potentially be formed.

[1] In 2024 - as part of a series of wider measures to respond to a rising prison population - the Scottish Government consulted the public about whether long-term prisoners should be released from prison earlier in their sentence. The Government stated that part of the intention was to provide a more managed return of these prisoners to the community by giving them access to support and rehabilitation services for a longer period of time.