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Criminal Justice (Scotland) Act 2003

Status:

This is the original version (as it was originally enacted).

Part 8Evidential, jurisdictional and procedural matters

Evidential matters

54Certificates relating to physical data: sufficiency of evidence

In section 284(2) of the 1995 Act (no entitlement to challenge sufficiency of evidence in certificate relating to certain physical data), for the words “such other party shall not be entitled to challenge the sufficiency of the evidence contained within the certificate” there is substituted “, if that other party serves on the first party, not more than seven days after the date of service of the copy on him, a notice that he does not accept the evidence contained in the certificate, subsection (1) above shall not apply in relation to that evidence.”.

55Taking samples by swabbing

(1)The 1995 Act is amended as follows.

(2)In section 18 (prints, samples etc. in criminal investigations)—

(a)in subsection (6), paragraph (d) is repealed; and

(b)after that subsection there is inserted—

(6A)A constable, or at a constable’s direction a police custody and security officer, may take from the inside of the person’s mouth, by means of swabbing, a sample of saliva or other material..

(3)In each of sections 19(2) (prints, samples etc. in criminal investigations: supplementary provisions) and 19A(2) (samples etc. from persons convicted of sexual and violent offences)—

(a)the word “and” which immediately follows paragraph (a) is repealed;

(b)in paragraph (b), for the word “(d)” there is substituted “(c)”; and

(c)after that paragraph there is added the word “and” and the following paragraph—

(c)take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection..

(4)In section 19B (power of constable in obtaining relevant physical data etc.), the existing provisions become subsection (1); and after that subsection there is added—

(2)A constable may, with the authority of an officer of a rank no lower than inspector, use reasonable force in (himself) exercising any power conferred by section 18(6A), 19(2)(c) or 19A(2)(c) of this Act..

56Retaining sample or relevant physical data where given voluntarily

(1)This section applies only to a person other than is mentioned in subsection (1) of section 18 of the 1995 Act (application of that section) and does not apply where a sample is, or relevant physical data are, taken from a person—

(a)by virtue of any power of search;

(b)by virtue of any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or

(c)under the authority of a warrant.

(2)In the circumstances mentioned in subsection (3), a sample or relevant physical data taken from and with the consent of the person (or provided by and with the consent of the person) in connection with the investigation of an offence may be held and used in connection with the investigation and prosecution of that or any other offence as may any information derived from that sample or those data.

(3)The circumstances are that the person consents in writing to the sample, data or information being so held and used; but in giving such consent the person may elect to confine it to consent to holding and using in connection with the investigation and prosecution of the offence in connection with which the sample was, or data were, taken or provided.

(4)The person may at any time withdraw such written consent by—

(a)giving notice in writing of such withdrawal to the chief constable of the police force on whose behalf the sample was, or data were, taken or provided; or

(b)attending at any police station within the area of that force and giving such notice to—

(i)any constable of the force; or

(ii)any person authorised to receive it by the officer in charge of the station,

and the chief constable, constable or as the case may be person so authorised shall, on receipt of that notice, provide the person withdrawing consent with a written acknowledgment of receipt.

(5)The withdrawal takes effect when notice given under subsection (4) is received by the person to whom it falls to provide an acknowledgment under that subsection; and subject to subsection (6)—

(a)the sample, with all information derived from it, is;

(b)the data, with all information derived from them, are,

to be destroyed as soon as possible after such receipt.

(6)Subsections (4) and (5) are without prejudice to—

(a)the use of the sample, data or information derived from it or them in evidence—

(i)unless an election was made under subsection (3), in any prosecution; and

(ii)if such an election was so made, in the prosecution of the offence in connection with which the sample was, or data were, taken or provided,

where and in so far as that evidence relates to, or to circumstances connected with or arising out of, a check such as is mentioned in subsection (7);

(b)the admissibility of any evidence as to—

(i)the taking or provision of the sample or data; or

(ii)the giving or withdrawal of consent.

(7)The check is one which—

(a)was against any other sample or relevant physical data, or against any information derived from any other sample or relevant physical data; and

(b)took place before the withdrawal took effect.

(8)In this section—

  • “sample”means a sample such as is mentioned in section 18(6) or (6A) of the 1995 Act, being one taken as so mentioned; and

  • “relevant physical data”has the same meaning as it has for the purposes of section 18 of that Act.

57Convictions in other member States of the European Union

(1)The 1995 Act is amended as follows.

(2)In section 101(8) (manner of proving previous conviction in solemn proceedings)—

(a)after the words “section 285” there is inserted “, or as the case may be 286A,”; and

(b)for the words “said section” there is substituted “section in question”.

(3)In section 286 (proof of previous conviction in support of substantive charge), at the end there is added—

(3)The reference in subsection (1)(a) above to “the clerk of court having custody of the record containing the conviction” includes, in relation to a previous conviction by a court in another member State of the European Union, a reference to any officer of that court or of that State having such custody..

(4)After section 286 there is inserted—

286AProof of previous conviction by court in other member State

(1)A previous conviction by a court in another member State of the European Union may be proved against any person in any criminal proceedings by the production of evidence of the conviction and by showing that his fingerprints and those of the person convicted are the fingerprints of the same person.

(2)A certificate—

(a)bearing—

(i)to have been sealed with the official seal of a Minister of the State in question; and

(ii)to contain particulars relating to a conviction extracted from the criminal records of that State; and

(b)including copies of fingerprints and certifying that those copies—

(i)are of fingerprints appearing from those records to have been taken from the person convicted on the occasion of the conviction, or on the occasion of his last conviction; and

(ii)would be admissible in evidence in criminal proceedings in that State as a record of the skin of that person’s fingers,

shall be sufficient evidence of the conviction or, as the case may be, of the person’s last conviction and of all preceding convictions and that the copies of the fingerprints included in the certificate are copies of the fingerprints of the person convicted.

(3)A conviction bearing to have been—

(a)extracted from the criminal records of the State in question; and

(b)issued by an officer of that State whose duties include the issuing of such extracts,

shall be received in evidence without being sworn to by witnesses.

(4)Subsection (9) of section 285 of this Act applies in relation to this section as it does in relation to that section..

(5)In section 307 (interpretation)—

(a)in subsection (1), in the definition of “extract conviction” and “extract of previous conviction”, at the end there is added “and also include a conviction extracted and issued as mentioned in section 286A(3)(a) and (b) of this Act”; and

(b)in subsection (5), at the end there is added except—

(a)where the context otherwise requires; and

(b)in sections 69(2) and 166, where such a reference includes a reference to a previous conviction, by a court in another member State of the European Union, of an act punishable under the law in force in that State (an act so punishable being taken to constitute an offence under that law however described in that law).

Jurisdictional matters

58Transfer of sheriff court proceedings

(1)In section 83 of the 1995 Act (transfer of sheriff court solemn proceedings)—

(a)in subsection (1), for the words “, at any time before the commencement of his trial, apply to the sheriff to adjourn the trial and transfer it to a sitting of a sheriff court, appointed as mentioned in section 66(1) of this Act, in any other district in that sheriffdom” there is substituted “apply to the sheriff for an order for the transfer of the proceedings to a sheriff court in another district in that sheriffdom (that court being taken to be, by virtue of any such order, appointed as mentioned in section 66(1) of this Act) and for adjournment to a sitting of that court”;

(b)after subsection (1) there is inserted—

(1A)Where—

(a)an accused person has been cited to attend a sitting of the sheriff court; or

(b)paragraph (a) above does not apply but it is competent so to cite an accused person,

and the prosecutor is informed by the sheriff clerk that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for that court (in subsection (2A)(b)(i) below referred to as the “relevant court”) or any other sheriff court in that sheriffdom to proceed with the case, the prosecutor—

(i)may, where paragraph (b) above applies, so cite the accused; and

(ii)shall, where paragraph (a) above applies or the accused is so cited by virtue of paragraph (i) above, as soon as practicable apply to the sheriff principal for an order for the transfer of the proceedings to a sheriff court in another sheriffdom (that court being taken to be, by virtue of any such order, appointed as mentioned in section 66(1) of this Act) and for adjournment to a sitting of that court.;

(c)in subsection (2), for the words “adjourn the trial and make an order for the transfer of the trial as mentioned in subsection (1) above” there is substituted “make such order as is mentioned in that subsection”;

(d)after subsection (2) there is inserted—

(2A)On an application under subsection (1A) above the sheriff principal may make the order sought—

(a)provided that the sheriff principal of the other sheriffdom consents; but

(b)in a case where the trial (or part of the trial) would be transferred, shall do so only—

(i)if the sheriff of the relevant court, after giving the accused or his counsel an opportunity to be heard, consents to the transfer; or

(ii)on the joint application of the parties.

(2B)On the application of the prosecutor, a sheriff principal who has made an order under subsection (2A) above may, if the sheriff principal of the other sheriffdom mentioned in that subsection consents—

(a)revoke; or

(ii)vary so as to restrict the effect of,

that order.; and

(e)in subsection (3), for the words from “the trial has been adjourned” to the end there is substituted “there has then been an order under subsection (2) or (2A) above, the warrant shall, subject to subsection (2B) above, have effect subject to the adjournment provided for in the order and as if the sitting is a sitting of the court to which the proceedings have been transferred”.

(2)After section 137 of that Act there is inserted—

137ATransfer of sheriff court summary proceedings within sheriffdom

(1)Where an accused person has been cited to attend a diet of the sheriff court the prosecutor may apply to the sheriff for an order for the transfer of the proceedings to a sheriff court in any other district in that sheriffdom and for adjournment to a diet of that court.

(2)On an application under subsection (1) above the sheriff may make such order as is mentioned in that subsection.

137BTransfer of sheriff court summary proceedings outwith sheriffdom

(1)Where—

(a)an accused person has been cited to attend a diet of the sheriff court; or

(b)paragraph (a) does not apply but it is competent so to cite an accused person,

and the prosecutor is informed by the sheriff clerk that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for that court or any other sheriff court in that sheriffdom to proceed with the case, the prosecutor—

(i)may, where paragraph (b) above applies, so cite the accused; and

(ii)shall, where paragraph (a) above applies or the accused is so cited by virtue of paragraph (i) above, as soon as practicable apply to the sheriff principal for an order for the transfer of the proceedings to a sheriff court in another sheriffdom and for adjournment to a diet of that court.

(2)On an application under subsection (1) above the sheriff principal may make the order sought, provided that the sheriff principal of the other sheriffdom consents.

(3)On the application of the prosecutor, a sheriff principal who has made an order under subsection (2) above may, if the sheriff principal of the other sheriffdom mentioned in that subsection consents—

(a)revoke; or

(b)vary so as to restrict the effect of,

that order..

59Competence of justice’s actings outwith jurisdiction

After section 9 of the 1995 Act there is inserted—

9ACompetence of justice’s actings outwith jurisdiction

It is competent for a justice, even if not present within his jurisdiction, to sign any warrant, judgment, interlocutor or other document relating to proceedings within that jurisdiction provided that when he does so he is present within Scotland..

Procedural matters

60Unified citation provisions

(1)In the 1995 Act, in—

(a)section 232 (probation orders: failure to comply with requirement), for subsection (7) there is substituted;

(b)section 233 (probation orders: commission of further offence), after subsection (1) there is inserted;

(c)section 234E (amendment of drug treatment and testing order), after subsection (2) there is inserted;

(d)section 234G (breach of drug treatment testing order), after subsection (1) there is inserted;

(e)section 239 (community service orders: requirements), after subsection (4) there is inserted;

(f)section 240 (community service orders: amendment and revocation etc.), at the end there is added;

(g)section 245E (variation of restriction of liberty order), after subsection (3) there is inserted; and

(h)section 245F (breach of restriction of liberty order), after subsection (1) there is inserted,

in each case as a subsection appropriately numbered, the following—

( )The unified citation provisions apply in relation to a citation under this section as they apply in relation to a citation under section 216(3)(a) of this Act..

(2)In section 307(1) of that Act (interpretation), at the appropriate place there is inserted—

“the unified citation provisions”means section 216(5) and (6)(a) and (b) of this Act;.

(3)In Schedule 6 to that Act (discharge of and amendment to probation orders), in paragraph 5, at the end there is added—

(3)The unified citation provisions apply in relation to a citation under sub-paragraph (1) above as they apply in relation to a citation under section 216(3)(a) of this Act..

(4)In Schedule 7 to that Act (supervised attendance orders: further provisions), after paragraph 5, there is inserted—

5AThe unified citation provisions apply in relation to a citation under paragraph 4(1) or 5(3) of this Schedule as they apply in relation to a citation under section 216(3)(a) of this Act..

(5)In section 15 of the 1993 Act (variation of supervised release order etc.), after subsection (5) there is inserted—

(5A)The unified citation provisions (as defined by section 307(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46)) apply in relation to a citation under subsection (5) above as they apply in relation to a citation under section 216(3)(a) of that Act..

(6)In section 18 of that Act (breach of supervised release order), after subsection (1) there is inserted—

(1A)The unified citation provisions (as defined by section 307(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46)) apply in relation to a citation under subsection (1)(b) above as they apply in relation to a citation under section 216(3)(a) of that Act..

61Citation other than by service of indictment or complaint

(1)In section 66 of the 1995 Act (service and lodging of indictment etc.)—

(a)for subsection (4) there is substituted—

(4)The accused may be cited either—

(a)by being served with a copy of the indictment and of the list of the names and addresses of the witnesses to be adduced by the prosecution; or

(b)by a constable affixing to the door of the accused’s dwelling-house or place of business a notice in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form—

(i)specifying the date on which it was so affixed;

(ii)informing the accused that he may collect a copy of the indictment and of such list as is mentioned in paragraph (a) above from a police station specified in the notice; and

(iii)calling upon him to appear and answer to the indictment at such diet as shall be so specified.

(4A)Where a date is specified by virtue of sub-paragraph (i) of subsection (4)(b) above, that date shall be deemed the date on which the indictment is served; and the copy of the indictment referred to in sub-paragraph (ii) of that subsection shall, for the purposes of subsections (12) and (13) below be deemed the service copy.

(4B)Paragraphs (a) and (b) of subsection (6) below shall apply for the purpose of specifying a diet by virtue of subsection (4)(b)(iii) above as they apply for the purpose of specifying a diet in any notice under subsection (6).;

(b)in subsection (6)—

(i)for the words “Except where the indictment is served” there is substituted “If the accused is cited by being served with a copy of the indictment, then except where such service is”; and

(ii)in paragraph (b), the words “and notice” are repealed;

(c)in subsection (7), at the beginning there is inserted “Subject to subsection (4)(b) above,”;

(d)in subsection (8), after the word “indictment” there is inserted “, to citation under subsection (4)(b) above”;

(e)in subsection (11), after the word—

(i)“indictment” there is inserted “, or who executed a citation under subsection (4)(b) above,”; and

(ii)“service” there is inserted “or execution”;

(f)in subsection (13), the words “required to be” are repealed; and

(g)in subsection (14)—

(i)for the word “of”, in the second place where it occurs, there is substituted “or”; and

(ii)for the words “requiring to be” there is substituted “so”.

(2)In section 140(2) of that Act (form of citation in summary proceedings), at the beginning there is inserted “Without prejudice to section 141(2A) of this Act,”.

(3)In section 141 of that Act (manner of citation in such proceedings)—

(a)after subsection (2) there is inserted—

(2A)Notwithstanding subsection (1) above and section 140(2) of this Act, citation of the accused may also be effected by an officer of law affixing to the door of the accused’s dwelling-house or place of business a notice in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form—

(a)specifying the date on which it was so affixed;

(b)informing the accused that he may collect a copy of the complaint from a police station specified in the notice; and

(c)calling upon him to appear and answer the complaint at such diet as shall be so specified.

(2B)Where the citation of the accused is effected by notice under subsection (2A) above, the induciae shall be reckoned from the date specified by virtue of paragraph (a) of that subsection.;

(b)in subsection (3), after the word “below” there is inserted “and without prejudice to the effect of any other manner of citation”;

(c)in subsection (5), after the word “subsection”, in the first place where it occurs, there is inserted “(2A) or”; and

(d)in subsection (7)—

(i)the existing words from “a citation” to the end shall be paragraph (a); and

(ii)after that paragraph there shall be added the word “; or” and the following paragraph—

(b)citation has been effected by notice under subsection (2A) above, if there is produced in court a written execution, in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form, signed by the officer of law who affixed the notice..

62Leave to appeal: extension of time limit for application under section 107(4) of 1995 Act

In section 107 of the 1995 Act (leave to appeal)—

(a)in subsection (3)—

(i)after the words “subsection (4) below” there is inserted “(and if that period is extended under subsection (4A) below before the period being extended expires, until the expiry of the period as so extended)”; and

(ii)for the words “that subsection” there is substituted “subsection (4)”; and

(b)after subsection (4) there is inserted—

(4A)The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 62 of the Criminal Justice (Scotland) Act 2003 (asp 7) came into force)..

63Adjournment at first diet in summary proceedings

(1)The 1995 Act is amended as follows.

(2)In section 144 (procedure at first diet), in subsection (9) after “145” there is inserted “or 145A”.

(3)In section 145 (adjournment for inquiry at first calling), in subsection (1) for the words from the beginning to “Act,” there is substituted “Where the accused is present”.

(4)After section 145 there is inserted—

145AAdjournment at first calling to allow accused to appear etc.

(1)Without prejudice to section 150(1) to (7) of this Act, where the accused is not present at the first calling of the case in a summary prosecution, the court may (whether or not the prosecutor is able to provide evidence that the accused has been duly cited) adjourn the case under this section for such period as it considers appropriate; and subject to subsections (2) and (3) below, the court may from time to time so adjourn the case.

(2)An adjournment under this section shall be—

(a)for the purposes of allowing—

(i)the accused to appear in answer to the complaint; or

(ii)time for inquiry into the case; or

(b)for any other cause the court considers reasonable.

(3)No one period of adjournment under this section shall exceed 28 days..

64Review hearing of drug treatment and testing order

In section 234F of the 1995 Act (periodic review of drug treatment and testing order), after subsection (1) there is inserted—

(1A)A review hearing may be held whether or not the prosecutor elects to appear..

65Transcript of record

In section 94 of the 1995 Act (transcripts of record and documentary productions)—

(a)in subsection (2)—

(i)at the end of paragraph (a) there is added “or, subject to subsection (2B) below, the prosecutor”; and

(ii)in paragraph (b), after the word “person” there is inserted “, not being a person convicted at the trial,”; and

(b)after that subsection there is inserted—

(2A)If—

(a)on the written application of a person convicted at the trial and granted leave to appeal; and

(b)on cause shown,

a judge of the High Court so orders, the Clerk of Justiciary shall direct, on payment of such charges as are mentioned in paragraph (b) of subsection (2) above, that such a transcript be made and sent to that person.

(2B)Where, as respects any person convicted at the trial, the Crown Agent has received intimation under section 107(10) of this Act, the prosecutor shall not be entitled to make a request under subsection (2)(a) above; but if, on the written application of the prosecutor and on cause shown, a judge of the High Court so orders, the Clerk of Justiciary shall direct that such a transcript be made and sent to the prosecutor.

(2C)Any application under subsection (2A) above shall—

(a)be made within 14 days after the date on which leave to appeal was granted or within such longer period after that date as a judge of the High Court may, on written application and on cause shown, allow; and

(b)be intimated forthwith by the applicant to the prosecutor.

(2D)The prosecutor may, within 7 days after receiving intimation under subsection (2C)(b) above, make written representations to the court as respects the application under subsection (2A) above (the application being determined without a hearing).

(2E)Any application under subsection (2B) above shall—

(a)be made within 14 days after the receipt of intimation mentioned in that subsection or within such longer period after that receipt as a judge of the High Court may, on written application and on cause shown, allow; and

(b)be intimated forthwith by the prosecutor to the person granted leave to appeal.

(2F)The person granted leave to appeal may, within 7 days after receiving intimation under subsection (2E)(b) above, make written representations to the court as respects the application under subsection (2B) above (the application being determined without a hearing)..

66Bail and related matters

(1)The 1995 Act is amended as follows.

(2)In section 103 (appeal sittings)—

(a)after subsection (6) there is inserted—

(6A)Where a judge acting under subsection (5)(c) above grants an application by an appellant to exercise that power in his favour, the prosecutor shall be entitled to have the application determined by the High Court.; and

(b)in subsection (7) for the words “and (6)” there is substituted “, (6) and (6A)”.

(3)In section 105 (appeal against refusal of application), after subsection (4), there is inserted—

(4A)An application by a convicted person for a determination by the High Court of a decision of a judge acting under section 103(5)(c) of this Act to refuse to admit him to bail shall be intimated by him immediately and in writing to the Crown Agent..

(4)After section 105 there is inserted—

105AAppeal against granting of application

(1)Where the prosecutor desires a determination by the High Court as mentioned in subsection (6A) of section 103 of this Act, he shall apply to the judge immediately after the power in subsection (5)(c) of that section is exercised in favour of the appellant.

(2)Where a judge acting under section 103(5)(c) of this Act has exercised that power in favour of the appellant but the prosecutor has made an application under subsection (1) above—

(a)the appellant shall not be liberated until the determination by the High Court; and

(b)that application by the prosecutor shall be heard not more than seven days after the making of the application,

and the Clerk of the Justiciary shall forward to the appellant the prescribed form for completion and return forthwith if he desires to be present at the hearing.

(3)At a hearing and determination as mentioned in subsection (2) above, if the appellant—

(a)is not legally represented, he may be present;

(b)is legally represented, he shall not be entitled to be present without leave of the court.

(4)If the appellant completes and returns the form mentioned in subsection (2) above indicating a desire to be present at the hearing, the form shall be deemed to be an application by the appellant for leave to be so present, and the Clerk of Justiciary, on receiving the form, shall take the necessary steps for placing the application before the court.

(5)If the application to be present is refused by the court, the Clerk of Justiciary shall notify the appellant; and if the application is granted, he shall notify the appellant and the Governor of the prison where the applicant is in custody and the Scottish Ministers.

(6)For the purposes of constituting a Court of Appeal, the judge who exercised the power in section 103(5)(c) of this Act in favour of the appellant may sit as a member of the court, and take part in determining the application of the prosecutor..

(5)In section 112 (admission of appellant to bail)—

(a)in subsection (1) for “subsection (2)” there is inserted “subsections (2), (2A) and (9)”;

(b)for subsection (2) there is substituted—

(2)The High Court shall not admit a convicted person to bail under subsection (1) above unless—

(a)the application for bail—

(i)states reasons why it should be granted; and

(ii)where he is the appellant and has not lodged a note of appeal in accordance with section 110(1)(a) of this Act, sets out the proposed grounds of appeal; and

(b)the prosecutor has had an opportunity to be heard on the application.

(2A)Where—

(a)the convicted person is the appellant and has not lodged a note of appeal in accordance with section 110(1)(a) of this Act; or

(b)the Lord Advocate is the appellant,

the High Court shall not admit the convicted person to bail under subsection (1) above unless it considers there to be exceptional circumstances justifying admitting him to bail.;

(c)in subsection (6) for “subsection (7)” there is inserted “subsections (7) and (9)”;

(d)in subsection (7)—

(i)the words from “the application” to the end become paragraph (a); and

(ii)after that paragraph there is inserted and

(b)where the appeal relates to conviction on indictment, the prosecutor has had an opportunity to be heard on the application.; and

(e)after subsection (8) there is added—

(9)An application for the purposes of subsection (1) or (6) above by a person convicted on indictment shall be—

(a)intimated by him immediately and in writing to the Crown Agent; and

(b)heard not less than seven days after the date of that intimation..

67Adjournment of case before sentence

In section 201 (power of court to adjourn case before sentence) of the 1995 Act, in subsection (3), for the words from “exceeding” to the end there is substituted “exceeding four weeks or, on cause shown, eight weeks.”.

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