Scottish Government

A two part sentence: a custodial part and a community part.

The same combined structure approach of a custody part and a community part. This approach will not affect current sentencing powers.

The community part (with licence and optional supervision) should normally bear a fixed proportionate relationship (set by law) to the custodial part. But the court should be able to order at the time of sentence a longer community part (subject to a maximum which should be set by statute) for high-risk cases. It should also have the power to order that there should be no community part or that it should be shorter than the statutory fixed proportion of the custodial part (for those offenders who do not pose a risk).

There will be a minimum custody part (with licence and optional supervision) set by law of 50% of the sentence. This will be the minimum term required for the purposes of punishment and deterrence. But the court could increase the minimum custody part beyond 50% if it considers this appropriate in any particular case.

The court should be required to impose as the custodial part the minimum term that it considers the offender requires to serve in custody for the purposes of punishment, deterrence and public protection. Also there should be a statutory requirement that when a sentencer is considering what sentence to impose he should, in essence, have regard to what the impact of the 1993 Act would have been - ie release at some point between one-half and two-thirds of sentence. There will be a limit to the maximum custody period that a sheriff would be able to impose following conviction on indictment under the new combined sentence regime to 3½ years (around what the maximum effect of a 5 year sentence is at the moment).

For those sentenced for an offence for which there is a statutory maximum, the aggregate term of the custody and community parts should be no more than the statutory limit.

For those sentenced to 12 months or less they should serve full term in custody but should be eligible to be considered for conditional release, on HDC, after serving not less than one-half of the term. Release decision taken by Scottish Ministers. If HDC cannot be considered and authorised, then sentences of 12 months or less should be served in full.

With the exception of those sentenced to 14 days or less, a combined structure comprising a period in custody and a period of licence in the community. The minimum custody period will be set by law at 50% of the sentence. Offenders sentenced to 14 days or less will serve the full period in custody.

For some offenders sentenced to 12 months or less for whom more robust supervision is required, court to recommend a period of supervision - in additional to the custody term - of not less than 12 months and not more than 2 years.

Swept up in combined structure model.

The offender will serve the whole of the custodial part in custody. On completion of custody Scottish Ministers to decide whether the offender should be detained for all or part of community element based on risk and response in custody. Right of appeal to the Parole Board if Scottish Ministers decide not to release at end of custody period. Parole Board to have power to direct release based on assessment of risk. Continued detention subject to periodic review.

The offender will serve the whole of the custodial part minimum set down at time of sentence in custody. Scottish Ministers will be able to refer high risk cases to the Parole Board with a recommendation that the offender should be detained beyond the minimum custody part imposed by the court at the time of sentence. This will be on grounds of risk. Continued detention will be subject to periodic review (depending on length of sentence). There will always be a period spent on licence.

Only Scottish Ministers to be able to recall for breach of licence. Parole Board to retain power to review decision and direct re-release if appropriate.

Only Scottish Ministers to be able to recall for serious breach of licence. Parole Board to retain power to review decision and direct re-release if appropriate.

No equivalent of Section 16 of the 1993 Act which provides that where an offender commits an imprisonable offence before the expiry of a custodial sentence previously imposed, the court may order the offender to serve the balance of the original sentence before beginning to serve any sentence for the new offence.

No equivalent of Section 16 of the 1993 Act. This is because the offenders will serve the community part on licence. A serious breach of licence, e.g. re-offending would result in a return to custody.

Single-terming sentences to be abolished to prevent subsequent sentences imposed during a period of imprisonment to be entirely absorbed in the first sentence which may not have been the court's intention.

Single-terming sentences to be abolished. Instead concurrent and part-concurrent sentences should stand alone. Such sentences should run in parallel with each other and have their own sentence end dates. This would not, of course, prevent the courts from ordering that a sentence should commence at the end of an existing sentence.