Criminal Justice (Scotland) Act 2016

SCHEDULE 2 MODIFICATIONS IN CONNECTION WITH PART 1

(introduced by section 56)

PART 1 PROVISIONS AS TO ARREST

Criminal Procedure (Scotland) Act 1995

1 The 1995 Act is amended as follows.

2 These provisions are repealed—

(a) in section 13, subsection (7),

(b) section 21.

3 (1) In section 234A, subsections (4A) and (4B) are repealed.

(2) In subsection (11) of section 234AA, for the words from the beginning to “those sections apply” there is substituted “Section 9 (breach of orders) of the Antisocial Behaviour etc. (Scotland) Act 2004 applies in relation to antisocial behaviour orders made under this section as that section applies”.

Miscellaneous enactments

4 In section 4 of the Trespass (Scotland) Act 1865, for the words from the beginning to “every” in the last place where it occurs there is substituted “A”.

5 In subsection (3) of section 1 of the Public Meeting Act 1908, the words from “, and if he refuses” to the end are repealed.

6 In the Firearms Act 1968, section 50 is repealed.

7 In the Civic Government (Scotland) Act 1982—

(a) in section 59, subsections (1), (2) and (5) are repealed,

(b) in subsection (3), for the words “he can be delivered into the custody” there is substituted “the arrival”,

(c) in section 65, subsections (4) and (5) are repealed,

(d) in subsection (1) of section 80, for the words from “and taken” to the end there is substituted “by a constable”.

8 In the Child Abduction Act 1984, section 7 is repealed.

9 In section 11 of the Protection of Badgers Act 1992, paragraph (c) of subsection (1) is repealed.

10 In the Criminal Justice and Public Order Act 1994, section 60B is repealed.

11 In section 8B of the Olympic Symbol etc. (Protection) Act 1995, subsections (2) and (3) are repealed.

12 In the Criminal Law (Consolidation) (Scotland) Act 1995—

(a) in section 7, subsection (4) is repealed,

(b) in section 47, subsection (3) is repealed,

(c) in section 48, subsection (3) is repealed,

(d) in section 50, subsections (3) and (5) are repealed.

13 In the Deer (Scotland) Act 1996, section 28 is repealed.

14 In section 61 of the Crime and Punishment (Scotland) Act 1997, subsection (5) is repealed.

15 In section 7 of the Protection of Wild Mammals (Scotland) Act 2002, paragraph (a) of subsection (1) is repealed.

16 In the Fireworks Act 2003—

(a) in section 11A, subsection (6) is repealed,

(b) section 11B is repealed.

17 In section 307 of the Criminal Justice Act 2003, subsection (4) is repealed.

18 In the Antisocial Behaviour etc. (Scotland) Act 2004—

(a) section 11 is repealed,

(b) in section 22, subsections (3) and (4) are repealed,

(c) section 38 is repealed.

19 In section 130 of the Serious Organised Crime and Police Act 2005, subsection (3) is repealed.

20 In the Animal Health and Welfare (Scotland) Act 2006, in schedule 1—

(a) paragraph 16 is repealed,

(b) in paragraph 18(b)(i), the words “except paragraph 16” are repealed.

21 In the Prostitution (Public Places) (Scotland) Act 2007, section 2 is repealed.

22 In section 32 of the Glasgow Commonwealth Games Act 2008, subsections (3) and (4) are repealed.

23 In section 7 of the Tobacco and Primary Medical Services (Scotland) Act 2010, subsection (4) is repealed.

24 In each of sections 169(2) and 170(2) of the Children’s Hearings (Scotland) Act 2011, the words “arrested without warrant and” are repealed.

25 In section 9 of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011, subsections (2) and (3) are repealed.

PART 2 FURTHER MODIFICATIONS

The 1995 Act

26 The 1995 Act is amended as follows.

27 These provisions are repealed—

(a) sections 14 to 17A,

(b) sections 22 to 22ZB (together with the italic heading immediately preceding section 22),

(c) section 43,

(d) in section 135, subsection (3).

28 (1) In section 18—

(a) in subsection (1), the words “or is detained under section 14(1) of this Act” are repealed,

(b) in subsection (2), the words “or detained” are repealed.

(2) In subsection (2)(a) of section 18B, for the words “under arrest or being detained” there is substituted “in custody”.

(3) In section 18D—

(a) in subsection (2)(a), the words “or detained” are repealed,

(b) in subsection (2)(b), for the words “under arrest or being detained” there is substituted “in custody”.

(4) In subsection (8)(b) of section 19AA, the words “or detention under section 14(1) of this Act” are repealed.

29 In section 28—

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

“(1ZA) Where—

(a) a constable who is not in uniform arrests a person under subsection (1), and

(b) the person asks to see the constable’s identification,

the constable must show identification to the person as soon as reasonably practicable.”,

(b) after subsection (3) there is inserted—

“(3A) If—

(a) a person is in custody only by virtue of subsection (1) or (1A), and

(b) in the opinion of a constable there are no reasonable grounds for suspecting that the person has broken, or is likely to break, a condition imposed on the person’s bail,

the person must be released from custody immediately.

(3B) An accused is deemed to be brought before a court under subsection (2) or (3) if the accused appears before it by means of a live television link (by virtue of a determination by the court that the person is to do so by such means).”.

30 After section 28 there is inserted—

“28A Application of the Criminal Justice (Scotland) Act 2016 to persons arrested and detained under section 28

(1) Section 7(2) of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) does not apply to an accused who has been arrested under section 28(1) of this Act.

(2) The following provisions of the 2016 Act apply in relation to a person who is to be brought before a court under section 28(2) or (3) of this Act as they apply in relation to a person who is to be brought before a court in accordance with section 21(2) of the 2016 Act—

(a) section 22,

(b) section 23,

(c) section 24.

(3) In relation to a person who is to be brought before a court under section 28(2) or (3) of this Act, the 2016 Act applies as though—

(a) in section 23(2)—

(i) for paragraph (c) there were substituted—

“(c) that the person is to be brought before the court under section 28 of the 1995 Act in order for the person’s bail to be considered.”, and

(ii) paragraph (d) were omitted,

(b) in section 24—

(i) in subsection (3)(c), for the words “after being officially accused” there were substituted “after being informed that the person is to be brought before a court under section 28(2) or (3) of the 1995 Act”, and

(ii) in subsection (4), for paragraph (c) there were substituted—

“(c) that the person is to be brought before the court under section 28 of the 1995 Act in order for the person’s bail to be considered.”,

(c) in section 43(1), for paragraph (d) there were substituted—

“(d) the court before which the person is to be brought under section 28(2) or (3) of the 1995 Act and the date on which the person is to be brought before that court.”.”.

31 In section 42—

(a) subsection (3) is repealed,

(b) subsection (7) is repealed,

(c) in subsection (8), for the words “subsection (7) above” there is substituted “section 24 of the Criminal Justice (Scotland) Act 2016”,

(d) in subsection (9), the words “detained in a police station, or” are repealed,

(e) subsection (10) is repealed.

32 In section 74, after paragraph (a) of subsection (2) there is inserted—

“(aza) may not be taken against a decision taken by virtue of section 35 of the Criminal Justice (Scotland) Act 2016;”.

33 In section 79—

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

“(ii) a preliminary objection under any of the provisions listed in subsection (3A);”,

(b) after subsection (3) there is inserted—

“(3A) For the purpose of subsection (2)(b)(ii), the provisions are—

(a) section 27(4A)(a) or (4B), 90C(2A), 255 or 255A of this Act,

(b) section 9(6) of the Antisocial Behaviour etc. (Scotland) Act 2004 or that section as applied by section 234AA(11) of this Act,

(c) paragraph 6(5)(b) of schedule 1 to the Criminal Justice (Scotland) Act 2016.”.

34 Before section 261A there is inserted—

“Statements made after charge

261ZB Exception to rule on inadmissiblity

Evidence of a statement made by a person in response to questioning carried out in accordance with authorisation granted under section 35 of the Criminal Justice (Scotland) Act 2016 is not inadmissible on account of the statement’s being made after the person has been charged with an offence.”.

Other enactments

35 In subsection (2)(a) of section 8A of the Legal Aid (Scotland) Act 1986, for the words “section 15A of the Criminal Procedure (Scotland) Act 1995 (right of suspects to have access to a solicitor)” there is substituted “section 32 (right to have solicitor present) of the Criminal Justice (Scotland) Act 2016”.

36 In section 6D of the Road Traffic Act 1988, for subsection (2A) there is substituted—

“(2A) Instead of, or before, arresting a person under this section, a constable may detain the person at or near the place where the preliminary test was, or would have been, administered with a view to imposing on the person there a requirement under section 7.”.

37 In Schedule 8 to the Terrorism Act 2000—

(a) in paragraph 18—

(i) in sub-paragraph (2), for the words from “and” at the end of paragraph (a) to the end of the sub-paragraph there is substituted—

“(ab) intimation is to be made under paragraph 16(1) whether the person detained requests that it be made or not, and

(ac) section 40 (right of under 18s to have access to other person) of the Criminal Justice (Scotland) Act 2016 applies as if the detained person were a person in police custody for the purposes of that section.”,

(ii) after sub-paragraph (3) there is inserted—

“(4) For the purposes of sub-paragraph (2)—

• “child” means a person under 16 years of age,

• “parent” includes guardian and any person who has the care of the child mentioned in sub-paragraph (2).”,

(b) in paragraph 20(1), the words “or a person detained under section 14 of that Act” are repealed,

(c) in paragraph 27—

(i) in sub-paragraph (4), paragraph (a) is repealed,

(ii) sub-paragraph (5) is repealed.

38 In the schedule to the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, paragraph 2 is repealed.

39 In the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, sections 1, 3 and 4 are repealed.

40 In the Children’s Hearings (Scotland) Act 2011—

(a) in section 65—

(i) for subsection (1) there is substituted—

“(1) Subsection (2) applies where the Principal Reporter is informed under subsection (2) of section 53 of the Criminal Justice (Scotland) Act 2016 that a child is being kept in a place of safety under subsection (3) of that section.”,

(ii) in subsection (2), for the words “in the” there is substituted “in a”,

(b) in section 66(1), for sub-paragraph (vii) there is substituted—

“(vii) information under section 53 of the Criminal Justice (Scotland) Act 2016, or”,

(c) in section 68(4)(e)(vi), for the words “section 43(5) of the Criminal Procedure (Scotland) Act 1995 (c.46)” there is substituted “section 53 of the Criminal Justice (Scotland) Act 2016”,

(d) in section 69, for subsection (3) there is substituted—

“(3) If—

(a) the determination under section 66(2) is made following the Principal Reporter receiving information under section 53 of the Criminal Justice (Scotland) Act 2016, and

(b) at the time the determination is made the child is being kept in a place of safety,

the children’s hearing must be arranged to take place no later than the third day after the Principal Reporter receives the information mentioned in paragraph (a).”,

(e) in section 72(2)(b), for the words “in the” there is substituted “in a”.

41 In section 20 of the Police and Fire Reform (Scotland) Act 2012, subsections (2) and (3) are repealed.