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Criminal Justice and Licensing (Scotland) Act 2010

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This is the original version (as it was originally enacted).

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159Exemptions from disclosure

Information must not be disclosed by virtue of this Part to the extent that it is material the disclosure of which is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000 (c.23).

160Means of disclosure

(1)This section applies where by virtue of this Part the prosecutor is required to disclose information to an accused.

(2)The prosecutor may disclose the information by any means.

(3)In particular, the prosecutor may disclose the information by enabling the accused to inspect it at a reasonable time and in a reasonable place.

(4)Subsection (5) applies if the information is contained in—

(a)a precognition,

(b)a victim statement,

(c)a statement given by a person whom the prosecutor does not intend to call to give evidence in the proceedings, or

(d)where the proceedings relating to the accused are summary proceedings, a statement given by a person whom the prosecutor intends to call to give evidence in the proceedings.

(5)In complying with the requirement, the prosecutor need not disclose the precognition or, as the case may be, statement.

(6)Subsection (7) applies where the proceedings relating to the accused are solemn proceedings and—

(a)the information is contained in a statement given by a person whom the prosecutor intends to call to give evidence in the proceedings, or

(b)the information is contained in a statement and the prosecutor intends to apply under section 259 of the 1995 Act to have evidence of the statement admitted in the proceedings.

(7)In complying with the requirement, the prosecutor must disclose a copy of the statement (but subsections (2) and (3) continue to apply).

(8)This section is subject to any provision made by an order under section 145(7), 146(11), 155(6) or 156(6).

(9)In this section—

  • “accused” includes appellant or, in any case relating to section 136(2), 137(2) or 138(2), other person to whom the section concerned applies,

  • “appellant” has the meaning given by section 132.

161Redaction of non-disclosable information by prosecutor

(1)Subsection (2) applies where—

(a)by virtue of this Part the prosecutor is required to disclose an item of information (the “disclosable information”), and

(b)the disclosable information forms part of, or contains, other information (the “non-disclosable information”) which the prosecutor is not required to disclose by virtue of this Part.

(2)Before disclosing the disclosable information, the prosecutor may (whether by redaction or otherwise) remove or obscure the non-disclosable information.

162Confidentiality of disclosed information

(1)This section applies where by virtue of this Part the prosecutor discloses information to an accused.

(2)The accused must not use or disclose the information or anything recorded in it other than in accordance with subsection (3).

(3)The accused may use or disclose the information—

(a)for the purposes of the proper preparation and presentation of the accused’s case in the proceedings in relation to which the information was disclosed (“the original proceedings”),

(b)with a view to the taking of an appeal in relation to the matter giving rise to the original proceedings,

(c)for the purposes of the proper preparation and presentation of the accused’s case in any such appeal.

(4)A person to whom information is disclosed by virtue of subsection (3) must not use or disclose the information or anything recorded in it other than for the purpose for which it was disclosed.

(5)If despite subsection (2) the accused discloses the information or anything recorded in it other than in accordance with subsection (3), a person to whom information is disclosed must not use or disclose the information or anything recorded in it.

(6)Subsections (2), (4) and (5) do not apply in relation to the use or disclosure of information which is in the public domain at the time of the use or disclosure.

(7)In subsection (3) “appeal” includes—

(a)the reference of a case to the High Court of Justiciary by the Scottish Criminal Cases Review Commission under section 194B of the 1995 Act,

(b)a petition to the nobile officium,

(c)proceedings in the European Court of Human Rights.

(8)In this section, “accused” includes, where information is disclosed by virtue of section 133(2)(b), 134(2)(b), 135(3)(b), 136(2), 137(2) or 138(2), the appellant or, as the case may be, person to whom the prosecutor is required to disclose the information.

(9)Nothing in this section affects any other restriction or prohibition on the use or disclosure of information, whether the restriction or prohibition arises by virtue of an enactment (whenever passed or made) or otherwise.

163Contravention of section 162

(1)A person who knowingly uses or discloses information in contravention of section 162 commits an offence.

(2)A person guilty of an offence under subsection (1) is liable—

(a)on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both,

(b)on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine or to both.

164Code of practice

(1)The Lord Advocate—

(a)must issue a code of practice providing guidance about this Part, and

(b)may from time to time revise the code for the time being in force.

(2)The persons mentioned in subsection (3) must have regard to the code of practice for the time being in force in carrying out their functions in relation to the investigation and reporting of crime and sudden deaths.

(3)Those persons are—

(a)police forces,

(b)prosecutors,

(c)such other persons who—

(i)engage (to any extent) in the investigation of crime or sudden deaths, and

(ii)submit reports relating to those investigations to the procurator fiscal,

as the Scottish Ministers may prescribe by regulations.

(4)The Lord Advocate must lay before the Scottish Parliament any code or revised code issued under this section.

165Acts of Adjournal

The High Court may by Act of Adjournal make such rules as it considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of this Part.

166Abolition of common law rules about disclosure

(1)The provisions of this Part replace any equivalent common law rules about disclosure of information by the prosecutor in connection with criminal proceedings.

(2)The common law rules about disclosure of information by the prosecutor in connection with criminal proceedings are abolished in so far as they are replaced by or are inconsistent with the provisions of this Part.

(3)Sections 128 and 139 do not affect any right under the common law of an accused or appellant to seek disclosure or recovery of information by or from the prosecutor by means of a procedure other than an application under one or other of those sections.

(4)Subsection (5) applies where, following an application (the “earlier disclosure application”) by the accused or the appellant under section 128 or 139, the court has made a ruling that (as the case may be)—

(a)section 121(3) does not apply to information, or

(b)information does not fall within section 133(3).

(5)The accused or, as the case may be, the appellant, is not entitled to seek the disclosure or recovery of the same information by or from the prosecutor by means of any other procedure at common law on grounds that are substantially the same as any of those on which the earlier disclosure application was made.

(6)Subsection (7) applies where, following an application (the “earlier common law application”) by the accused under a procedure other than an application under section 128 or 139, the court has decided not to make an order for the recovery or disclosure of information by or from the prosecutor.

(7)The accused or, as the case may be, the appellant is not entitled to make an application under section 128 or 139 in relation to the same information on grounds that are substantially the same as any of those on which the earlier common law application was made.

(8)In this section, “appellant” has the meaning given by section 132.

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