Annex B: Prison Sentences
The following information is provided to explain how prison sentences work and to provide background information on the different types of prison sentence available in Scotland.
How prison sentences work
A custodial sentence means more than just time in prison. In most cases, people will serve part of their sentence in the community. If they commit an offence while serving their sentence in the community, the court can order their return to prison. If they spent any time in custody while their case went through the court process, the judge must take this into account. The judge can backdate their sentence to start from the time they first went into custody or any time after that.
Determinate and indeterminate sentences
Sentences that are set for a certain length of time are called determinate sentences. Sentences that do not have an end point, such as a life sentence, are called indeterminate sentences.
Determinate prison sentences are split into two kinds:
- Short term - less than four years
- Long term – four years or more.
- Short term sentences
People given a short term sentence will normally be automatically released from prison into the community after serving half the time in prison. For example, offenders sentenced to two years' imprisonment will be released to serve the rest of their sentence in the community after one year. The person isn't normally supervised by a social worker unless they are a sex offender convicted on indictment (more serious crime), or is placed on a supervised release order.
- Long term sentences
A person given a long term sentence can serve all but the final 6 months of the sentence in prison, unless the Parole Board for Scotland recommends that they should be released earlier into the community. The Parole Board will only start to consider whether or not to release the person into the community as they approach the halfway point of their sentence - the earliest point at which they can normally be released. If an offender is not released, the Board will re-consider parole within 16 months.
When people serving a long term sentence (and people sentenced for sexual offences to a period of six months or more) are released into the community, they will be 'on licence' until their sentence finishes. They can be recalled to prison if they commit an offence or otherwise breach the terms of this licence.
These are sentences that do not have a set end point, such as a life sentence. However, the judge will set a punishment part for such sentences which is the minimum time an offender must spend in prison. After that time, they can be considered for release on licence by the Parole Board for Scotland. Each time release from prison is not recommended, it will be reconsidered within two years.
- Life sentences
Life sentences must be given for murder under the law, but they can also be given for other extremely serious offences such as repeated rape. If a person is sentenced to life imprisonment, the judge must, by law, set a punishment part of the sentence. This is the minimum time the person must spend in prison before they can be considered for release into the community by the Parole Board for Scotland. Depending on the circumstances of the case, the punishment part can be lengthy. To date, the longest punishment part given in Scotland is 37 years. If a person sentenced to life imprisonment is released into the community, they will be on licence for the rest of their life and can be recalled to prison if they breach the terms of their licence.
- Order for Lifelong Restriction (OLR)
An OLR is a lifelong sentence put in place to protect the public. It is a sentence of imprisonment which can be imposed on people convicted of serious violent or sexual offences, other than murder, at the High Court. The judge must set a 'punishment part' of the OLR which is the minimum time the offender must spend in prison before being considered by the Parole Board for Scotland for release into the community. If offenders are considered to be safe to serve the rest of their sentence in the community, they will remain under the intensive supervision of a criminal justice social worker. If the person commits another crime, they can be sent back to prison.
Supervised Release Order (SRO)
A judge can impose a SRO on people convicted of an offence on indictment (more serious crime) to come into force once they have been released from prison. It is put in place in order to protect the public and can last up to 12 months. It orders the offender to be under the supervision of a criminal justice social worker and follow any conditions that have been set, such as a requirement to attend drug counselling. Offenders who breach a SRO can be returned to prison. A judge can only use the Order if an offender is sentenced to a short term sentence (less than four years in custody) and the offence is not a sexual one.
An extended sentence combines a period in prison with a further set time of supervision in the community (the extension part). It is used to protect the public and can be given to offenders who have been convicted, on indictment (more serious crime), of a sexual or violent crime, or abduction. For a violent crime or abduction, the custodial term of the sentence must be four years or more. The person serves the full prison part of the sentence unless the Parole Board for Scotland recommends early release. When released they are on licence until the end of the extension part of the sentence and can be recalled to prison if they breach the terms of their licence. The extension period of the sentence in the community can be up to 5 years for sheriff court cases and up to 10 years for High Court cases.
Email: Sandra Wallace