Legislation – The Release of Prisoners (Coronavirus) (Scotland) Regulations 2020

These Regulations are made under powers contained in paragraph 19(1) of schedule 4 of the Coronavirus (Scotland) Act 2020 (“the 2020 Act”) and specify a class of persons who are to be released early from prison. The early release of persons from prison is subject to the prison governor’s power to prevent release under paragraph 19(3)(b) of schedule 4 of that Act.

Regulation 2 specifies a class of persons who are to be released early from prison. Regulation 2(3) provides that a person is to be released only if they are serving a sentence of imprisonment or detention for a period of 18 months or less and are to be released unconditionally under section 1(1), or conditionally under section 7(1)(a), of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“the 1993 Act”) within the 90 days following the coming into force of the Regulations. Regulation 1(4) clarifies that any reference to release under section 1(1) of the 1993 Act includes the release of a young offender under that section as applied by section 6(1)(a) of the 1993 Act.

Regulation 2(4) provides that a person is excluded from early release under these Regulations if they are serving, or have served, a sentence of imprisonment or detention for domestic abuse under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 or the Domestic Abuse (Scotland) Act 2018. Also excluded from early release under these Regulations are those prisoners serving a sentence of imprisonment or detention for an offence under regulation 8 of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 and those who are subject to a non-harassment order imposed under section 234A of the Criminal Procedure (Scotland) Act 1995 or section 8 or 8A of the Protection from Harassment Act 1997.

Regulation 3 makes provision for the calculation of the date of release in accordance with paragraph 19(6) of schedule 4 of the 2020 Act. Those who are to be released under section 1(1) or 7(1)(a) of the 1993 Act within the 30 days following the day on which the Regulations come into force are to be released during the period running from the commencement of the Regulations up to and including 18 May 2020. Those who are to be released under section 1(1) or 7(1)(a) of the 1993 Act between 31 and 60 days following the day on which the Regulations come into force are to be released between 19 and 25 May 2020. Those who are to be released under section 1(1) or 7(1)(a) of the 1993 Act between 61 and 90 days following the day on which the Regulations come into force are to be released between 26 May and 1 June 2020. These Regulations will not delay the release of a prisoner under section 1(1) or 7(1)(a) of the 1993 Act.

Regulation 3 also makes separate provision for calculating the release date of a person who, on the date they would otherwise have been released under these Regulations, and in the opinion of a health care professional, has or is likely to have coronavirus. If the health care professional has informed the governor of this fact, the person is not to be released under paragraphs (2), (3) or (4) of regulation 3 and must instead be released in accordance with paragraph (6) of regulation 3. Paragraph (6) provides that a prisoner in these circumstances must be released on the earlier of: the date on which the prisoner would otherwise be released automatically under the 1993 Act; and the date on which a health care professional informs the prison governor that the person no longer has, or is no longer likely to have, coronavirus.