Criminal Justice (Scotland) Act 2016

SCHEDULE 1 BREACH OF LIBERATION CONDITION

(introduced by sections 16(4) and 26(6))

Offence of breaching condition

1 (1) A person commits an offence if, without reasonable excuse, the person breaches a liberation condition by reason of—

(a) failing to comply with an investigative liberation condition,

(b) failing to appear at court as required by the terms of an undertaking, or

(c) failing to comply with the terms of an undertaking, other than the requirement to appear at court.

(2) Sub-paragraph (1) does not apply where (and to the extent that) a person breaches a liberation condition by reason of committing an offence (in which case see paragraph 3).

(3) It is competent to amend a complaint to include an additional charge of an offence under sub-paragraph (1) at any time before the trial of a person in summary proceedings for—

(a) the original offence, or

(b) an offence arising from the same circumstances as the original offence.

(4) In sub-paragraph (3), “the original offence” is the offence in connection with which—

(a) an investigative liberation condition was imposed, or

(b) an undertaking was given.

Sentencing for the offence

2 (1) A person who commits an offence under paragraph 1(1) is liable on summary conviction to—

(a) a fine not exceeding level 3 on the standard scale, or

(b) imprisonment for a period—

(i) where conviction is in the justice of the peace court, not exceeding 60 days,

(ii) where conviction is in the sheriff court, not exceeding 12 months.

(2) A penalty under sub-paragraph (1) may be imposed in addition to any other penalty which it is competent for the court to impose, even if the total of penalties imposed exceeds the maximum penalty which it is competent to impose in respect of the original offence.

(3) The reference in sub-paragraph (2) to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention—

(a) where the sentences are imposed at the same time (whether or not in relation to the same complaint), framing the sentences so that they have effect consecutively,

(b) where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.

(4) Sub-paragraph (3)(b) is subject to section 204A (restriction on consecutive sentences for released prisoners) of the 1995 Act.

(5) Where a person is to be sentenced in respect of an offence under paragraph 1(1), the court may remit the person for sentence in respect of it to any court which is considering the original offence.

(6) In sub-paragraphs (2) and (5), “the original offence” is the offence in connection with which—

(a) the investigative liberation condition was imposed, or

(b) the undertaking was given.

Breach by committing offence

3 (1) This paragraph applies—

(a) where (and to the extent that) a person breaches a liberation condition by reason of committing an offence (“offence O”), but

(b) only if the fact that offence O was committed while the person was subject to the liberation condition is specified in the complaint or indictment.

(2) In determining the penalty for offence O, the court must have regard—

(a) to the fact that offence O was committed in breach of a liberation condition,

(b) if the breach is by reason of the person’s failure to comply with the terms of an investigative liberation condition, to the matters mentioned in paragraph 4(1),

(c) if the breach is by reason of the person’s failure to comply with the terms of an undertaking other than the requirement to appear at court, to the matters mentioned in paragraph 5(1).

(3) Where the maximum penalty in respect of offence O is specified by (or by virtue of) an enactment, the maximum penalty is increased—

(a) where it is a fine, by the amount equivalent to level 3 on the standard scale,

(b) where it is a period of imprisonment—

(i) as respects conviction in the justice of the peace court, by 60 days,

(ii) as respects conviction in the sheriff court or the High Court, by 6 months.

(4) The maximum penalty is increased by sub-paragraph (3) even if the penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.

(5) In imposing a penalty in respect of offence O, the court must state—

(a) where the penalty is different from that which the court would have imposed had sub-paragraph (2) not applied, the extent of and the reasons for that difference,

(b) otherwise, the reasons for there being no such difference.

Matters for paragraph 3(2)(b)

4 (1) For the purpose of paragraph 3(2)(b), the matters are—

(a) the number of offences in connection with which the person was subject to investigative liberation conditions when offence O was committed,

(b) any previous conviction the person has for an offence under paragraph 1(1)(a),

(c) the extent to which the sentence or disposal in respect of any previous conviction differed, by virtue of paragraph 3(2), from that which the court would have imposed but for that paragraph.

(2) In sub-paragraph (1)—

(a) in paragraph (b), the reference to any previous conviction includes any previous conviction by a court in England and Wales, Northern Ireland or a member State of the European Union (other than the United Kingdom) for an offence that is equivalent to an offence under paragraph 1(1)(a),

(b) in paragraph (c), the references to paragraph 3(2) are to be read, in relation to a previous conviction by a court referred to in paragraph (a) of this sub-paragraph, as references to any provision that is equivalent to paragraph 3(2).

(3) Any issue of equivalence arising under sub-paragraph (2)(a) or (b) is for the court to determine.

Matters for paragraph 3(2)(c)

5 (1) For the purpose of paragraph 3(2)(c), the matters are—

(a) the number of undertakings to which the person was subject when offence O was committed,

(b) any previous conviction the person has for an offence under paragraph 1(1)(c),

(c) the extent to which the sentence or disposal in respect of any previous conviction differed, by virtue of paragraph 3(2), from that which the court would have imposed but for that paragraph.

(2) In sub-paragraph (1)—

(a) in paragraph (b), the reference to any previous conviction includes any previous conviction by a court in England and Wales, Northern Ireland or a member State of the European Union (other than the United Kingdom) for an offence that is equivalent to an offence under paragraph 1(1)(c),

(b) in paragraph (c), the references to paragraph 3(2) are to be read, in relation to a previous conviction by a court referred to in paragraph (a) of this sub-paragraph, as references to any provision that is equivalent to paragraph 3(2).

(3) Any issue of equivalence arising under sub-paragraph (2)(a) or (b) is for the court to determine.

Evidential presumptions

6 (1) In any proceedings in relation to an offence under paragraph 1(1), the facts mentioned in sub-paragraph (2) are to be held as admitted unless challenged by preliminary objection before the person’s plea is recorded.

(2) The facts are—

(a) that the person breached an undertaking by reason of failing to appear at court as required by the terms of the undertaking,

(b) that the person was subject to a particular—

(i) investigative liberation condition, or

(ii) condition under the terms of an undertaking.

(3) In proceedings to which sub-paragraph (4) applies—

(a) something in writing, purporting to impose investigative liberation conditions and bearing to be signed by a constable, is sufficient evidence of the terms of the investigative liberation conditions imposed under section 16(2),

(b) something in writing, purporting to be an undertaking and bearing to be signed by the person said to have given it, is sufficient evidence of the terms of the undertaking at the time that it was given,

(c) a document purporting to be a notice (or a copy of a notice) under section 18, 27 or 28, is sufficient evidence of the terms of the notice.

(4) This sub-paragraph applies to proceedings—

(a) in relation to an offence under paragraph 1(1), or

(b) in which the fact mentioned in paragraph 3(1)(b) is specified in the complaint or indictment.

(5) In proceedings in which the fact mentioned in paragraph 3(1)(b) is specified in the complaint or indictment, that fact is to be held as admitted unless challenged—

(a) in summary proceedings, by preliminary objection before the person’s plea is recorded, or

(b) in the case of proceedings on indictment, by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of the 1995 Act.

Interpretation

7 In this schedule—

(a) references to an investigative liberation condition are to a condition imposed under section 16(2) or 19(3)(b) subject to any modification by notice under section 18(1) or (5)(a),

(b) references to an undertaking are to an undertaking given under section 25(2)(a),

(c) references to the terms of an undertaking are to the terms of an undertaking subject to any modification by—

(i) notice under section 27(1), or

(ii) the sheriff under section 30(3)(b).

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.

SCHEDULE 3 POLICE NEGOTIATING BOARD FOR SCOTLAND

(introduced by section 113)

“SCHEDULE 2A POLICE NEGOTIATING BOARD FOR SCOTLAND

(introduced by section 55A)

Status of the PNBS

1 (1) The PNBS—

(a) is not a servant or agent of the Crown, and

(b) has no status, immunity or privilege of the Crown.

(2) The property of the PNBS is not property of, or property held on behalf of, the Crown.

Chairing and membership

2 (1) The PNBS is to consist of—

(a) a chairperson,

(b) other persons representing the interests of each of—

(i) the Authority,

(ii) the chief constable,

(iii) constables (other than special constables) and police cadets,

(iv) the Scottish Ministers.

(2) It is for the Scottish Ministers to appoint the chairperson.

(3) Other members are to be appointed in accordance with the constitution prepared under paragraph 5.

(4) A member of the PNBS holds and vacates office in accordance with the terms of the member’s appointment.

(5) The chairperson may—

(a) resign from office by giving notice in writing to the Scottish Ministers,

(b) be removed from office if, in the opinion of the Scottish Ministers, the person is unable, unfit or unwilling to perform the functions of the office.

Temporary chairperson

3 (1) The PNBS may have a temporary chairperson if (for the time being)—

(a) there is no chairperson, or

(b) the chairperson is unavailable to act.

(2) A reference in this Chapter to the chairperson is to be read, where appropriate to do so by virtue of sub-paragraph (1), as meaning or including (as the context requires) the temporary chairperson.

Disqualification from chairing

4 A person is disqualified from appointment, and from holding office, as the chairperson of the PNBS if the person is or becomes—

(a) a member of the House of Commons,

(b) a member of the Scottish Parliament,

(c) a member of the European Parliament,

(d) a Minister of the Crown,

(e) a member of the Scottish Government,

(f) a civil servant.

Constitution and procedure etc.

5 (1) It is for the Scottish Ministers to prepare the constitution for the PNBS.

(2) The constitution must regulate the procedure for consensus to be reached among the members of the PNBS on the terms of representations to be made under section 55B(1) or 55C(1).

(3) The constitution—

(a) may require a dispute on representations to be made under section 55B(1) to be submitted to arbitration by agreement among the members to do so, and must not prevent such a dispute from being submitted to arbitration on such agreement (except prevention by way of limitation as allowed below),

(b) may—

(i) authorise the chairperson to submit such a dispute to arbitration without such agreement,

(ii) limit how often within a reporting year such a dispute can be submitted to arbitration (including limitation framed by reference to particular matters or circumstances).

(4) The constitution may contain provision about—

(a) membership (including number of members to represent each of the interests mentioned in paragraph 2(1)(b)),

(b) internal organisation (for example, committees and office-holders),

(c) procedures to be followed (including conduct of meetings),

(d) the content of a report required by section 55E,

(e) such other matters as the Scottish Ministers consider appropriate.

(5) The Scottish Ministers—

(a) must keep the constitution under review,

(b) may revise it from time to time.

(6) Before preparing or revising the constitution, the Scottish Ministers must consult—

(a) the Authority,

(b) the chief constable, and

(c) persons representing the interests of constables (other than special constables) and police cadets.

(7) The constitution, or any revision of it, has effect only when brought into effect by the Scottish Ministers by regulations.

Process of arbitration

6 (1) Sub-paragraph (2) applies where—

(a) a dispute is submitted to arbitration in accordance with the constitution, and

(b) no arbitration agreement relating to the dispute is in place.

(2) A document submitting the dispute to arbitration is deemed to be an arbitration agreement.

(3) For the application of the Arbitration (Scotland) Act 2010, a reference in this paragraph to an arbitration agreement is to such an agreement as defined by section 4 of that Act.

7 (1) Sub-paragraph (2) applies for the purpose of arbitration in accordance with the constitution (whether such arbitration arises by reason of a real or deemed arbitration agreement).

(2) Regulations under paragraph 5(7) may include provisions disapplying or modifying the mandatory rules in schedule 1 to the Arbitration (Scotland) Act 2010.

8 (1) Sub-paragraph (2) applies for the purpose of the operation of section 55D.

(2) Regulations under paragraph 5(7) may include provisions specifying, by reference to particular matters or circumstances, what are qualifying cases.

Remuneration and expenses

9 (1) The Scottish Ministers may pay—

(a) such remuneration to the chairperson of the PNBS as they think fit,

(b) such expenses of the members of the PNBS as they think fit.

(2) The Scottish Ministers must pay such expenses as they consider are reasonably required to be incurred to enable the PNBS to carry out its functions.”.