Act of Adjournal (Criminal Procedure Rules Amendment No.2) (Miscellaneous) 2003 No. 468

Scottish Statutory Instruments

2003 No. 468

HIGH COURT OF JUSTICIARY

SHERIFF COURT

DISTRICT COURTS

Act of Adjournal (Criminal Procedure Rules Amendment No.2) (Miscellaneous) 2003

Made

26th September 2003

Coming into force

27th October 2003

The Lord Justice General, the Lord Justice Clerk and the Lords Commissioners of Justiciary, under and by virtue of the powers conferred on them by section 305 of the Criminal Procedure (Scotland) Act 1995(1), and of all other powers enabling them in that behalf, do hereby enact and declare:

Citation and commencement

1.—(1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules Amendment No.2) (Miscellaneous) 2003 and shall come into force on 27th October 2003.

(2) This Act of Adjournal shall be inserted in the Books of Adjournal.

Amendment of the Act of Adjournal (Criminal Procedure Rules) 1996

2.—(1) The Act of Adjournal (Criminal Procedure Rules) 1996(4) shall be amended in accordance with the following paragraphs.

(2) In rule 2.2(1) (citation in solemn proceedings) for “section 66” there shall be substituted “section 66(4)(a)”.

(3) Rule 2.3(2) (manner of citation of probationer) shall be omitted.

(4) In rule 2.6 (forms of execution of service)–

(a) after paragraph (1) there shall be inserted the following:–

“(1A) The execution of a citation of a person accused on indictment referred to in rule 8.2(1A) (citation of accused by affixing a notice) shall be in Form 2.6-AA.”;

(b) after paragraph (2) there shall be inserted the following:–

“(2A) The execution of a citation of an accused referred to in rule 16.1(2A) (citation of accused by affixing a notice) shall be in Form 2.6-BA.”; and

(c) for paragraph (5) there shall be substituted the following:–

“(5) The execution of a citation referred to in–

(a) rule 20.3(2) or (3) (supervised release orders: form of citation of offender) shall be in Form 2.6-EA;

(b) rule 20.10(2) or (3) (probation orders: forms of citation of probationer) shall be in Form 2.6-EB;

(c) rule 20.11(3) or (4) (supervised attendance orders: forms of citation of offender) shall be in Form 2.6-EC;

(d) rule 20.12(2) (community service orders: forms of citation of offender) shall be in Form 2.6-ED;

(e) rule 20.12A(3) or (4) (restriction of liberty orders: forms of citation of offender) shall be in Form 2.6-EE; and

(f) rule 20.12B(2) or (3) (drug treatment and testing orders: forms of citation of offender) shall be in Form 2.6-EF.”

(5) In rule 3.1 (books of adjournal)–

(a) for paragraphs (1)(a)(ii) and (1)(b)(ii) there shall be substituted the following:–

“(ii) the minute of proceedings prepared by the Clerk of Justiciary”; and

(b) in paragraph (3), for the word “summary” there shall be substituted the word “minute”.

(6) In rule 8.2 (citation of accused and witnesses), after paragraph (1) there shall be inserted the following:–

“(1A) The notice to be affixed to the door of the dwelling-house or place of business of a person accused on indictment for the purposes of section 66(4)(b) of the Act of 1995 (citation of accused by affixing a notice) shall be in Form 8.2-AA.”.

(7) For rule 9.2 (intimation of minute) there shall be substituted the following:–

“9.2.   A minute mentioned in rule 9.1 shall be–

(a) lodged with the clerk of court; and

(b) served on every other party,

by the minuter.”.

(8) In rule 16.1 (form of complaints and related notices and forms), after paragraph (2) there shall be inserted the following:–

“(2A) The notice to be affixed to the door of the dwelling-house or place of business of an accused for the purposes of section 141(2A) of the Act of 1995 (citation of accused by affixing a notice) shall be in Form 16.1-BB.”.

(9) Rule 19.18 (presentation of summary sentence appeal in writing) shall be numbered “19.19”.

(10) After Chapter 19 (appeals from summary proceedings) there shall be inserted the following:–

“CHAPTER 19A ADJOURNMENT BEFORE SENTENCE UNDER SECTION 201 OR DEFERRED SENTENCE UNDER SECTION 202 OF THE ACT OF 1995

Power of clerk of Justiciary to alter place where case to be heard

19A.1.— (1) Where the High Court has–

(a) adjourned a case under section 201 of the Act of 1995; or

(b) deferred sentence in a case under section 202 of the Act of 1995,

the Clerk of Justiciary may make an order altering the place where the case is to be heard, not later than two days before the case is to be called.

(2) The Clerk of Justiciary shall intimate an order made under paragraph (1) to–

(a) the parties to the proceedings; and

(b) the governor of any institution in which the accused is detained,

not later than two days before the case is to be called.

CHAPTER 19B CASES REFERRED BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 194B OF THE ACT OF 1995

References in solemn proceedings

19B.1.— (1) This rule applies to a referral by the Scottish Criminal Cases Review Commission to the High Court in solemn proceedings under section 194B of the Act of 1995.

(2) Within eight weeks of the date of referral, the person who has been convicted shall lodge a note of appeal in Form 15.2-B with the Clerk of Justiciary and subsections (2) to (4) and (6) of section 110 of the Act of 1995 shall apply to the note.

(3) A note of appeal lodged under the preceding paragraph shall be treated as if leave to appeal in terms of section 107(1)(a) of the Act of 1995 has been granted.

References in summary proceedings

19B.2.— (1) This rule applies to a referral by the Scottish Criminal Cases Review Commission to the High Court in summary proceedings under section 194B of the Act of 1995.

(2) Where the Clerk of Justiciary receives a reference in summary proceedings, he shall–

(a) assign the referral to a procedural hearing; and

(b) as soon as possible thereafter, intimate the diet to every party and to the governor of any institution in which any accused is detained.

(3) At the procedural hearing the High Court may make directions as to the procedure to be followed in the determination of the referral.”.

(11) For rule 20.3 (form of supervised release orders) there shall be substituted the following:–

“Supervised release orders

20.3.— (1) An order under section 209 of the Act of 1995 (supervised release orders) shall be in Form 20.3-A.

(2) The citation of an offender to appear before a court under section 15(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (variation of supervised release order etc.) shall be in Form 20.3-B.

(3) The citation of an offender to appear before a court under section 18(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (breach of supervised release order) shall be in Form 20.3-C.”.

(12) In rule 20.10 (probation orders), at the end there shall be inserted the following:–

“(3) The citation of a probationer under paragraph 5(1) of Schedule 6 to the Act of 1995 (amendment of probation order) shall be in Form 20.10-C.”.

(13) For rule 20.11 (form of supervised attendance orders) there shall be substituted the following:–

“Supervised attendance orders

20.11.— (1) A supervised attendance order made under section 235(1) of the Act of 1995 shall be in Form 20.11-A.

(2) A supervised attendance order made under section 236 of the Act of 1995 (supervised attendance orders in place of fines for 16 and 17 year olds) shall be in Form 20.11-B.

(3) The citation of an offender to appear before a court under paragraph 5(3) of Schedule 7 to the Act of 1995 (extension, variation and revocation etc. of supervised attendance orders) shall be in Form 20.11-C.

(4) The citation of an offender to appear before a court under paragraph 4(1) of Schedule 7 to the Act of 1995 (breach of requirement of or other provision relating to supervised attendance order) shall be in Form 20.11-D.”.

(14) For rule 20.12B (form and notification of drug treatment and testing orders) there shall be substituted the following:–

“Drug treatment and testing orders

20.12B.— (1) A drug treatment and testing order made under section 234B of the Act of 1995 shall be in Form 20.12B-A.

(2) The citation of an offender to appear before a court under section 234E(2) of the Act of 1995 (variation or revocation of drug treatment and testing order) shall be in Form 20.12B-B.

(3) The citation of an offender to appear before a court under section 234G(1) of the Act of 1995 (breach of drug testing and treatment order) shall be in Form 20.12B-C.”.

(15) In rule 37AA.9 (hearings under the Proceeds of Crime Act 2002), for each of “37.2”, “37.3”, “37.6”, “37.7”, “37.8” and “37.10” there shall be substituted “37AA.2”, “37AA.3”, “37AA.6”, “37AA.7”, “37AA.8” and “37AA.10” respectively.

(16) After Chapter 43 there shall be inserted the following:–

“CHAPTER 44 INTERNATIONAL CRIMINAL COURT ACT 2001

Interpretation of this Chapter

44.1.   In this Chapter, “the Act of 2001” means the International Criminal Court Act 2001(2).

Consent to surrender

44.2.   Consent to surrender given under section 7 of the Act of 2001 (consent to surrender) shall be in writing in Form 44.2.

Waiver of right to review

44.3.   Waiver given under section 13 of the Act of 2001 (waiver of the right to review) shall be in writing in Form 44.3.

CHAPTER 45 FUR FARMING (PROHIBITION) (SCOTLAND) ACT 2002

Interpretation of this Chapter

45.1.   In this Chapter, “the Act of 2002” means the Fur Farming (Prohibition) (Scotland) Act 2002(3).

Representations in forfeiture orders

45.2.— (1) This rule applies where the Court is deciding whether to make a forfeiture order in terms of section 2 of the Act of 2002 (forfeiture orders).

(2) A person who wishes to make representations to the court under subsection (7) of section 2 of the Act of 2002 shall do so–

(a) in writing to the Clerk of Court, unless the court otherwise directs; and

(b) by such date as the court directs.”.

(17) In the appendix–

(a) Forms 3.1-A and 3.1-B shall be omitted;

(b) in Form 9.1 paragraph 3 shall be omitted;

(c) in each of Forms 10.1-A and 10.1-B, for the words beginning “Served” to the end, there shall be substituted the following:–

“(Signed)

For Her Majesty’s Advocate

or Procurator Fiscal Depute”;

(d) at the end of each of Forms 15.2-A, 15.2-B, 15.2-D and 15.3-B, there shall be inserted the following:–

“NOTE: THE PARTY LODGING THIS FORM MUST, IMMEDIATELY AFTER IT IS LODGED, INTIMATE IT TO:

THE CROWN AGENT, THE CROWN OFFICE, 25 CHAMBERS STREET, EDINBURGH, EH1 1LA”;

(e) Form 20.3 shall be numbered “20.3-A”;

(f) in Form 20.10-B (form of citation of probationer under section 232(1) or 233(1) of the Criminal Procedure (Scotland) Act 1995, for “Officer of Law [or Clerk of Court]” there shall be substituted “Clerk of Court”;

(g) in Form 20.12A-A (form of restriction of liberty order), after “OFFENDER'S NAME, ADDRESS AND DATE OF BIRTH:” there shall be inserted the following:–

“OFFENDER'S TELEPHONE NUMBER (if available):

(If a phone number is not available, specify how the number is to be provided).”;

(h) in Form 20.12A-B (form of application to vary restriction of liberty order), for “Justices” there shall be substituted “Stipendiary Magistrates”;

(i) in Form 20.12A-C (form of citation of offender under section 245E(3) of the Criminal Procedure (Scotland) Act 1995) and Form 20.12A-D (form of citation of offender under section 245F(1) of the Criminal Procedure (Scotland) Act 1995) for “Advocate Depute [or Procurator Fiscal] On behalf of Her Majesty’s Advocate” there shall be substituted “Clerk of Court”;

(j) for Form 2.6-E (form of execution of service of citation on a probationer under section 232 or 233 of the Criminal Procedure (Scotland) Act 1995) there shall be substituted the forms set out in Schedule 1 to this Act of Adjournal;

(k) for Form 20.12-B (form of citation under section 239(4) or 240(3) of the Criminal Procedure (Scotland) Act 1995) there shall be substituted the form set out in Schedule 2 to this Act of Adjournal;

(l) Form 20.12B shall be numbered “20.12B-A”; and

(m) after Forms 2.6-A, 2.6-B, 8.2-A, 16.1-BA, 20.3-A, 20.3-B, 20.10-B, 20.11-B, 20.11-C, 20.12B-A, 20.12B-B, 42.2 and 44.2 respectively, there shall be inserted the forms set out in Schedule 3 to this Act of Adjournal.

Cullen of Whitekirk

Lord Justice General I.P.D.

Edinburgh

26th September 2003

SCHEDULE 1

Rule 2.6(5)(a)

FORM 2.6-EA Form of execution of citation of offender under section 15(5) or 18(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993

EXECUTION OF CITATION

Rule 2.6(5)(b)

FORM 2.6-EB Form of execution of citation of probationer under section 232 or 233 of or paragraph 5(1) of Schedule 6 to the Criminal Procedure (Scotland) Act 1995

EXECUTION OF CITATION

Rule 2.6(5)(c)

FORM 2.6-EC Form of execution of citation of offender under paragraph 4(1) or 5(3) of Schedule 7 to the Criminal Procedure (Scotland) Act 1995

EXECUTION OF CITATION

Rule 2.6(5)(d)

FORM 2.6-ED Form of execution of citation of offender under section 239(4) or 240(3) of the Criminal Procedure (Scotland) Act 1995

EXECUTION OF CITATION

Rule 2.6(5)(e)

FORM 2.6-EE Form of execution of citation of offender under section 245E(3) or 245F(1) of the Criminal Procedure (Scotland) Act 1995

EXECUTION OF CITATION

Rule 2.6(5)(f)

FORM 2.6-EF Form of execution of citation of offender under section 234E(2) or 234G(1) of the Criminal Procedure (Scotland) Act 1995

EXECUTION OF CITATION

SCHEDULE 2

Rule 20.12(2)

FORM 20.12-B Form of citation of offender under section 239(4) or 240(3) of the Criminal Procedure (Scotland) Act 1995

SCHEDULE 3

Rule 2.6(1A)

FORM 2.6-AA Form of execution of citation of accused by notice under section 66(4)(b) of the Criminal Procedure (Scotland) Act 1995

EXECUTION OF CITATION OF ACCUSED BY AFFIXING A NOTICE

Rule 2.6(2A)

FORM 2.6-BA Form of execution of citation of accused by notice under section 141(2A) of the Criminal Procedure (Scotland) Act 1995

EXECUTION OF CITATION OF ACCUSED BY AFFIXING A NOTICE

Rule 8.2(1A)

FORM 8.2-AA Form of notice of citation be affixed to the door of the accused’s dwelling-house or place of business under section 66(4)(b) of the Criminal Procedure (Scotland) Act 1995

Rule 16.1(2A)

FORM 16.1-BB Form of notice of citation to be affixed to the door of the accused’s dwelling-house or place of business under section 141(2A) of the Criminal Procedure (Scotland) Act 1995

Rule 20.3(2)

FORM 20.3-B Form of citation of offender under section 15(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993

Rule 20.3(3)

FORM 20.3-C Form of citation of offender under section 18(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993

Rule 20.10(3)

FORM 20.10-C Form of citation of probationer under paragraph 5(1) of Schedule 6 to the Criminal Procedure (Scotland) Act 1995

Rule 20.11(3)

FORM 20.11-C Form of citation under paragraph 5(3) of Schedule 7 to the Criminal Procedure (Scotland) Act 1995

Rule 20.11(4)

FORM 20.11-D Form of citation under paragraph 4(1) of Schedule 7 to the Criminal Procedure (Scotland) Act 1995

Rule 20.12B(2)

FORM 20.12B-B Form of citation of offender under section 234(E)(2) of the Criminal Procedure (Scotland) Act 1995

Rule 20.12B(3)

FORM 20.12B-C Form of citation of offender under section 234G(1) of the Criminal Procedure (Scotland) Act 1995

Rule 44.2

FORM 44.2 Form of notice of consent to surrender under section 7 of the International Criminal Court Act 2001

Rule 44.3

FORM 44.3 Form of notice of waiver of the right to review under section 13 of the International Criminal Court Act 2001

Explanatory Note

(This note is not part of the Act of Adjournal)

This Act of Adjournal inserts new rules into the Criminal Procedure Rules 1996 (S.I.1996/513) (“the 1996 Rules”) and makes certain other miscellaneous amendments.

Paragraph 2(2) makes a minor amendment to rule 2.2(1) of the 1996 Rules.

Paragraph 2(3) removes rule 2.3(2) of the 1996 Rules. Sections 232 and 233 of the Criminal Procedure (Scotland) Act 1995 (“the Act of 1995”) apply the citation provisions of section 216(5) and (6)(a) and (b) of that Act to the citation of probationers.

Paragraph 2(4) provides two forms of execution in relation to the citation of accused persons in the manner referred to in rule 8.2(1A) and 16.1(2A) of the 1996 Rules. Those rules are inserted by paragraphs 2(6) and 2(8) and relate to the citation of offenders by the affixing of notices. Paragraph 2(4) also introduces new forms of execution in respect of the citation of offenders and probationers to hearings connected with the breach or amendment of various orders.

Paragraph 2(5) makes minor amendments to rule 3.1 of the 1996 Rules which prescribes the form and content of the Books of Adjournal.

Paragraphs 2(6) and (8) provide forms of notice of citation of an accused pursuant to sections 66(4) and 141(2A) respectively of the Act of 1995 which provide for the citation of accused persons by the affixing of notices.

Paragraph 2(7) substitutes rule 9.2 of the 1996 Rules to remove from the Crown the requirement of lodging an execution of service of a minute under rule 9.1 at the same time as the lodging of the minute.

Paragraph 2(9) corrects a minor error in numbering the 1996 Rules.

Paragraph 2(10) inserts new Chapter 19A into the 1996 Rules to make provision for cases where the High Court of Justiciary has adjourned for sentence or has deferred sentence, to allow the Clerk of Justiciary to make an order altering the place where the case is to be called. The Clerk must make the order and intimate it to the parties to the proceedings and to the governor of any institution where the accused is detained no later than two days before the case is called. This paragraph also inserts new Chapter 19B to make provision for regulating the procedure in cases referred to the High Court of Justiciary by the Scottish Cases Review Commission.

Paragraphs 2(11) to (14) introduce new forms of citation of offenders and probationers to hearings connected with the breach or amendment of various orders. They also make various consequential and other minor amendments.

Paragraph 2(15) makes amendments to rule 37AA.9 of Chapter 37 of the 1996 Rules rectifying references to other rules in that Chapter. It applies to the Sheriff Court and High Court of Justiciary.

Paragraph 2(16) inserts new Chapters 44 and 45 into the 1996 Rules. Chapter 44 makes provision for consent to surrender and waiver of the right to review, being given in terms of section 7 of the International Criminal Court Act 2001. Chapter 45 provides for representations to be made in terms of section 2(7) of the Fur Farming (Prohibition) (Scotland) Act 2002.

Paragraph 2(17) inserts new forms into the Appendix to the 1996 Rules as well as making various minor and consequential amendments to existing forms.

Schedule 1 sets out the forms of execution referred to in paragraph 2(3) in relation to the citation of offenders and probationers to hearings connected with the breach or amendment of various orders.

Schedule 2 sets out an amended Form 20.12-B.

Schedule 3 sets out the other forms of execution referred to in paragraph 2(3) and the other forms referred to in paragraphs, 2(6), (8) and (11) to (14).

(1)

1995 c. 46.

(2)

2001 c. 17.

(3)

2002 asp 10.

(4)

S.I. 1996/513, last amended by S.S.I. 2003/387.