PART 3
ENFORCEMENT OF SENTENCES AND ORDERS
23 Detention in Scotland of certain prisoners
(1) This section applies where the Scottish Ministers have agreed, in pursuance of section 42(2)(b) of the 2001 Act (duty to issue warrant where the Scottish Ministers agree that a person should be detained in Scotland), that a person on whom a sentence of imprisonment has been imposed (a “prisoner”) should be detained in Scotland.
(2) The warrant issued by the Scottish Ministers under that section of the 2001 Act shall include provision authorising—
(a) the detention of the prisoner in Scotland in accordance with the sentence imposed; and
(b) the taking of the prisoner to a specified place where the prisoner is to be detained,
(any such warrant being referred to in this section as a “Scottish warrant”).
(3) The provisions of a Scottish warrant—
(a) may be varied by the Scottish Ministers; and
(b) shall be so varied to give effect to any variation of the sentence.
(4) Subject to section 24 of this Act, a prisoner subject to a Scottish warrant shall be treated for all purposes as if the prisoner were subject to a sentence of imprisonment imposed in exercise of its criminal jurisdiction by a court in Scotland.
24 Limited disapplication of certain provisions relating to sentences
The following provisions shall not apply in relation to a person detained in Scotland in pursuance of section 42(2)(b) of the 2001 Act—
(a) any provision of rules made under section 39 of the Prisons (Scotland) Act 1989 (c.45) (prison rules) providing for temporary release;
(b) section 40(2) of that Act of 1989 (deduction of periods unlawfully at large); and
(c) sections 1, 1AA, 1A, 2, 3, 3AA, 9, 10 and 27(7) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9) (transfer and release of prisoners).
25 Amendment of Mental Health (Scotland) Act 1984
Repealed.
PART 4 ENFORCEMENT OF SENTENCES AND ORDERS
Sentences of imprisonment
42 Detention in the United Kingdom in pursuance of ICC sentence
(1) This section applies where—
(a) the United Kingdom is designated by the ICC as the state in which a person (“the prisoner”) is to serve a sentence of imprisonment imposed by the ICC, and
(b) the Secretary of State informs the ICC that the designation is accepted.
(2) Where the Secretary of State is minded that the prisoner should be detained in Scotland—
(a) he shall consult the Scottish Ministers, and
(b) if the Scottish Ministers agree that the prisoner should be detained in Scotland, they shall issue a warrant authorising the bringing of the prisoner to Scotland.
(3) Where subsection (2) does not apply or the Scottish Ministers do not agree, the Secretary of State shall issue a warrant authorising—
(a) the bringing of the prisoner to England and Wales or Northern Ireland,
(b) the detention of the prisoner there in accordance with the sentence of the ICC, and
(c) the taking of the prisoner to a specified place where he is to be detained.
The provisions of the warrant may be varied by the Secretary of State, and shall be so varied to give effect to any variation of the ICC’s sentence.
(4) A prisoner subject to a warrant authorising his detention in England and Wales or Northern Ireland shall be treated for all purposes, subject to subsection (5) and Schedule 7, as if he were subject to a sentence of imprisonment imposed in exercise of its criminal jurisdiction by a court in the part of the United Kingdom in which he is to be detained.
(5) The following enactments do not apply to a person detained in pursuance of a sentence of the ICC—
(a) the Repatriation of Prisoners Act 1984 (c. 47),
(b) Schedule 1 to the Crime (Sentences) Act 1997 (c. 43) (transfer of prisoners within the British Islands).
As to transfer of such a person within the United Kingdom, see sections 44 and 45 below.
(6) Schedule 7 excludes the operation of certain statutory provisions in relation to a person detained in England and Wales or Northern Ireland in pursuance of a sentence of the ICC.
43 Temporary return or transfer of custody to another state
(1) This section applies where the Secretary of State receives a request from the ICC—
(a) for the temporary return of the prisoner to the custody of the ICC for the purposes of any proceedings, or
(b) for the transfer of the prisoner to the custody of another state in pursuance of a change in designation of state of enforcement.
(2) If the prisoner is detained in Scotland, the Secretary of State shall transmit the request to the Scottish Ministers.
(3) The relevant Minister shall—
(a) issue a warrant authorising the prisoner’s temporary return or transfer in accordance with the request,
(b) make the necessary arrangements with the ICC or, as the case may be, the other state, and
(c) give such directions as to the custody, surrender and (where appropriate) return of the prisoner as appear to him appropriate to give effect to the arrangements.
(4) Where the prisoner is temporarily returned to the custody of the ICC, the warrant authorising his detention in any part of the United Kingdom shall continue to have effect so as to apply to him again on his return.
(5) In this section “the relevant Minister” means—
(a) in relation to a person detained in England and Wales or Northern Ireland, the Secretary of State, and
(b) in relation to a person detained in Scotland, the Scottish Ministers.
44 Transfer to another part of the United Kingdom: transfer of ICC sentence
(1) The relevant Minister may make an order for the transfer of the prisoner to another part of the United Kingdom to serve the whole or part of the remainder of the ICC sentence there.
(2) No such order shall be made—
(a) for the transfer of the prisoner to Scotland without the agreement of the Scottish Ministers, or
(b) for the transfer of the prisoner from Scotland without the agreement of the Secretary of State.
(3) An order under this section shall be subject to such conditions (if any) as the relevant Minister may impose from time to time.
(4) If an order is made under this section the warrant authorising the prisoner’s detention in the part of the United Kingdom from which he is transferred—
(a) shall continue to have effect, and
(b) shall have effect as if it were a warrant authorising his detention in the part of the United Kingdom to which he is transferred.
(5) A prisoner transferred under this section to England and Wales or Northern Ireland shall be treated for all purposes, subject as mentioned in section 42(4), as if he were serving a sentence of imprisonment imposed in exercise of its criminal jurisdiction by a court in the part of the United Kingdom to which he is transferred.
(6) In this section “the relevant Minister” means—
(a) in relation to a person detained in England and Wales or Northern Ireland, the Secretary of State, and
(b) in relation to a person detained in Scotland, the Scottish Ministers.
45 Transfer to another part of the United Kingdom: transfer for temporary purposes
(1) This section applies where it appears to the relevant Minister—
(a) that the prisoner should be transferred to another part of the United Kingdom for the purpose of attending criminal proceedings against him there, or
(b) that the attendance of the prisoner at a place in another part of the United Kingdom is desirable in the interests of justice, or for the purposes of any public inquiry.
(2) The relevant Minister may make an order for the transfer of the prisoner to that part of the United Kingdom.
(3) No such order shall be made—
(a) for the transfer of the prisoner to Scotland without the agreement of the Scottish Ministers, or
(b) for the transfer of the prisoner from Scotland without the agreement of the Secretary of State.
(4) An order under this section shall be subject to such conditions (if any) as the relevant Minister thinks fit to impose.
Any such conditions may be varied or removed at any time.
(5) Where an order is made under this section—
(a) the warrant authorising the prisoner’s detention in the part of the United Kingdom from which he is transferred shall continue to have effect, and
(b) he shall be returned to that part of the United Kingdom when the purposes for which the order is made are fulfilled.
(6) In this section “the relevant Minister” means—
(a) in relation to a person detained in England and Wales or Northern Ireland, the Secretary of State, and
(b) in relation to a person detained in Scotland, the Scottish Ministers.
46 Domestic sentence current at end of term of ICC sentence
(1) Where a person who completes a term of imprisonment imposed by the ICC—
(a) is still subject to a domestic sentence of imprisonment, whether imposed before or during his imprisonment in pursuance of the sentence of the ICC, and
(b) has been transferred to another part of the United Kingdom under section 44 or 45,
he shall be treated as if he had been transferred from the part of the United Kingdom in which the domestic sentence was imposed, by order under Schedule 1 to the Crime (Sentences) Act 1997 (c. 43), on a restricted transfer subject to such conditions as the relevant Minister may consider appropriate.
(2) In subsection (1)—
(a) a “domestic sentence” means a sentence imposed by a court in the United Kingdom, and
(b) “the relevant Minister” means—
(i) where the domestic sentence was imposed in England and Wales or Northern Ireland, the Secretary of State, and
(ii) where the domestic sentence was imposed in Scotland, the Scottish Ministers.
47 Custody of prisoner in transit, &c
(1) The following provisions of this section apply in relation to times when the prisoner is subject to a warrant under any provision of this Part, or any corresponding provision of an Act of the Scottish Parliament, but is not in legal custody under the Prison Act 1952 (c. 52), the Prisons (Scotland) Act 1989 (c. 45) or the Prison Act (Northern Ireland) 1953 (c. 18(N.I.)).
(2) The prisoner shall be deemed to be in the legal custody of the relevant Minister at any time when, being—
(a) in the United Kingdom, or
(b) on board a British ship, a British aircraft or a British hovercraft,
he is being taken to or from any place or is being kept in custody.
(3) The relevant Minister may, from time to time, designate a person as a person who is for the time being authorised to take the prisoner to or from any place or to keep the prisoner in custody.
(4) A person so authorised has all the powers, authority, protection and privileges—
(a) of a constable in the part of the United Kingdom in which that person is for the time being, or
(b) if he is outside the United Kingdom, of a constable in the part of the United Kingdom to or from which the prisoner is to be taken.
(5) If the prisoner escapes or is unlawfully at large, he may be arrested without warrant by a constable and taken to any place to which he may be taken under the warrant referred to in subsection (1).
In this subsection “constable”, in relation to any part of the United Kingdom, means—
(a) a person who is a constable in that or any other part of the United Kingdom, or
(b) a person who, at the place in question, has under any enactment (including subsection (4)) the powers of a constable in that or any other part of the United Kingdom.
(6) In this section “the relevant Minister” means—
(a) in relation to a person who is, or is to be, detained in England and Wales or Northern Ireland, the Secretary of State, and
(b) in relation to a person who is, or is to be, detained in Scotland, the Scottish Ministers.
48 Interpretation of ss. 42 to 47
(1) Any reference in sections 42 to 47 to a person being detained in a part of the United Kingdom is to his being subject to a warrant authorising his detention there.
(2) References to such a warrant include, unless the context otherwise requires, a warrant issued under an Act of the Scottish Parliament authorising his detention in Scotland.
2. (c) sections 44 and 45 (transfer of prisoner);
MODIFICATIONS OF CERTAIN PROVISIONS OF THE 2001 ACT IN THEIR EXTENSION TO THE ISLE OF MAN
1. In section 44 (Transfer to another part of the United Kingdom: transfer of ICC sentence )—
(a) in subsections (1) and (3), for the words “relevant Minister” substitute “Secretary of State”;
(b) in subsection (1), for the words “to another part of the United Kingdom” substitute “from the Isle of Man to any part of the United Kingdom”;
(c) for subsection (2) substitute —
“(2) No such order shall be made without the agreement of the Department of Home Affairs; and no such order shall be made for the transfer of the prisoner to Scotland without the agreement of the Scottish Ministers.”; and
(d) omit subsections (4), (5) and (6).
2. In section 45 (Transfer to another part of the United Kingdom: transfer for temporary purposes)—
(a) in subsections (1), (2) and (4), for the words “relevant Minister” substitute “Secretary of State”;
(b) in subsection (1)(a) and (b), for the words “another” substitute “any”;
(c) for subsection (3) substitute —
“(3) No such order shall be made without the agreement of the Department of Home Affairs; and no such order shall be made for the transfer of the prisoner to Scotland without the agreement of the Scottish Ministers.”; and
(d) omit subsections (5) and (6).
a) Les peines d'emprisonnement sont accomplies dans un État désigné par la Cour sur la liste des États qui lui ont fait savoir qu'ils étaient disposés à recevoir des condamnés.
b) Lorsqu'il déclare qu'il est disposé à recevoir des condamnés, un État peut assortir son acceptation de conditions qui doivent être agréées par la Cour et être conformes aux dispositions du présent chapitre.
c) L'État désigné dans une affaire donnée fait savoir promptement à la Cour s'il accepte ou non sa désignation.
2.
a) L'État chargé de l'exécution avise la Cour de toute circonstance, y compris la réalisation de toute condition convenue en application du paragraphe 1, qui serait de nature à modifier sensiblement les conditions ou la durée de la détention. La Cour est avisée au moins 45 jours à l'avance de toute circonstance de ce type connue ou prévisible. Pendant ce délai, l'État chargé de l'exécution ne prend aucune mesure qui pourrait être contraire à ses obligations en vertu de l'article 110 ;
b) Si la Cour ne peut accepter les circonstances visées à l'alinéa a), elle en avise l'État chargé de l'exécution et procède conformément à l'article 104, paragraphe 1.
3. Quand elle exerce son pouvoir de désignation conformément au paragraphe 1, la Cour prend en considération :
a) Le principe selon lequel les États Parties doivent partager la responsabilité de l'exécution des peines d'emprisonnement conformément aux principes de répartition équitable énoncés dans le Règlement de procédure et de preuve ;
b) Les règles conventionnelles du droit international généralement acceptées qui régissent le traitement des détenus ;
c) Les vues de la personne condamnée ;
d) La nationalité de la personne condamnée ;
e) Toute autre circonstance relative au crime, à la situation de la personne condamnée ou à l'exécution effective de la peine, susceptible de guider le choix de l'État chargé de l'exécution.
4. Si aucun État n'est désigné comme prévu au paragraphe 1, la peine d'emprisonnement est accomplie dans un établissement pénitentiaire fourni par l'État hôte, dans les conditions définies par l'accord de siège visé à l'article 3, paragraphe 2. Dans ce cas, les dépenses afférentes à l'exécution de la peine sont à la charge de la Cour.
1. Sous réserve des conditions qu'un État a éventuellement formulées comme le prévoit l'article 103, paragraphe 1, alinéa b), la peine d'emprisonnement est exécutoire pour les États Parties, qui ne peuvent en aucun cas la modifier.
2. La Cour a seule le droit de se prononcer sur une demande de révision de sa décision sur la culpabilité ou la peine. L'État chargé de l'exécution n'empêche pas le condamné de présenter une telle demande.