Sentencing: Offending While on “Licence”

The busy criminal practitioner will require to deal with offenders who have 6711234961_acc07b9688_mcommitted offences having been released early from their sentence. The violation of trust caused by such offending brings a further mechanism for punishing the offender. Unfortunately the current legislation is, for many, greatly confusing and as clear as the proverbial mud.

Section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act) provides the sentencing court with the power, in addition to punishing him for the new offence, to punish an offender who has committed an offence following his early release from a sentence imposed by a court in Scotland. There are a number of issues to bear in mind: –

This power applies to all offenders who have committed an offence prior to the expiry date of the original sentence.

The terms “recall” or “licence” are misleading. The prisoner does not necessarily have to be on licence to be returned under Section 16. The power applies to both short-term prisoners (who are released automatically after one-half of the sentence) and long-term prisoners (serving 4 years or more who can be released at half-sentence on Parole licence or failing which are released after two-thirds.)

The sentencing court has discretion as to whether to impose an additional punishment under Section 16.

This means that there may be cases where the court can be persuaded not to impose a Section 16 Order. This may be so if the new offence is not particularly serious and non-analagous to the original offence.

A Section 16 Order is a punishment.

If the court decides to impose a Section 16 Order it does not do so for the purpose of protecting the public. Instead it is a punishment for the breach of trust committed by the prisoner offending whilst on early release. The gravity and nature of the new offence, the relationship with the old offence and the length of time released are all relevant to the sentencing court’s disposal. (See Stuart v HM Advocate [2010] HCJAC 34)

If the sentencing court elects to impose a Section 16 Order, it has a discretion as to the length of that order.

If it elects to do so, the court may impose an order returning the offender to prison for a period which is the equivalent to the period from the date of the offence to the expiry date of the sentence.  It may impose all or part of that period.

If an Order is to be made under Section 16, it will commence on the date that it is made.

5997920696_ecb224068e_mThis has an effect on prisoners who are remanded pending trial or sentence. The sentencing court requires to indicate whether the Order is to run alongside any sentence for the new offence or whether the it should be served before and followed by the sentence for the new offence. That is to say the court will require to determine whether the new sentence is to run consecutively to the Section 16 Order. An offender who has been remanded pending trial can normally expect the commencement of his sentence to be backdated. However, as the Section 16 Order runs from the date it is imposed, there can be no backdating of the new sentence (unless the court orders it to run concurrently, something which I have yet to see!) The solution is for the new sentence to be reduced to take into account the time spent on remand – normally doubled up to allow for the early release provisions.

If the original sentence was imposed in the High Court, the Sheriff cannot impose a Section 16 Order.

The Sheriff can, however, remit the matter to the High Court for consideration of the imposition of an Order. The Sheriff is not obliged to remit the prisoner to the High Court and if he does so, the High Court can elect not to impose an Order. Likewise, if the High Court elects to make an Order it can impose all or part of the unexpired period before returning the matter to the Sheriff for sentencing on the new offence.

The sentence for the new offence and the Section 16 Order are separate and distinct.

This is perhaps obvious when two different courts impose the Section 16 Order and new sentence. However, where a single court deals with both aspects, it must do so separately. It seems probable that the sentencing court is not permitted to balance the length of a Section 16 Order against the length of the new sentence. (See McKimm v Carnegie 2000 SCCR 466 at paragraph [8]) It is plain, that the Section 16 Order must be considered before the new sentence. A section 16 Order cannot be consecutive to the new sentence although the new sentence can follow on from the Section 16 Order.

A Section 16 Order is a sentence not a recall.

For the purposes of Appeal and early release a Section 16 Order is a sentence.  Appeal against sentence is by way of Note of Appeal. Early release is calculated in the normal way. For example a Section 16 Order of 6 months to be followed be a sentence for the new offence of 18 months would result in a cumulo period of 2 years. The prisoner would be automatically released after one half of that sentence. Although it is a sentence for these purposes, a Section 16 Order is not subject to discount in terms of Section 196 of the 1995 Act. (Ottaway v HM Advocate [2012] HCJAC 36)

Sections 16 and 17 of the 1993 Act are separate and distinct.

Section 17 empowers an administrative recall of a prisoner who has been released on licence. It is a measure which is concerned with the protection of the public. It is not, unlike Section 16, a punishment. An prisoner who is alleged to have committed an offence can be recalled under Section 17. If convicted of that offence he can, in addition to being sentenced for that new offence, be ordered to return to prison under Section 16 as punishment for the breach of trust. This creates some issues: –

  1. Under Section 204A of the 1995 Act, no sentence can run consecutively to a sentence from which the offender has already been released. This means that a Section 17 recall will run concurrently with an new sentence and any Section 16 Order.
  2. A Section 17 recall prisoner will probably not have been remanded pending trial. Instead he will have been serving the remainder of his sentence under Section 17. This means that the court can be invited to take into account the Section 17 period elapsed when considering a Section 16 Order.