Act of Adjournal (Criminal Procedure Rules Amendment No.7) (Double Jeopardy (Scotland) Act 2011) 2011

Scottish Statutory Instruments

2011 No. 387      

High Court Of Justiciary

Sheriff Court

Justice Of The Peace Court

Act of Adjournal (Criminal Procedure Rules Amendment No.7) (Double Jeopardy (Scotland) Act 2011) 2011

Made

2nd November 2011

Laid before the Scottish Parliament

4th November 2011

Coming into force

28th November 2011

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), section 165 of the Criminal Justice and Licensing (Scotland) Act 2010(2), and of all other powers enabling them in that behalf do hereby enact and declare:

Citation, commencement etc.

1.—(1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules Amendment No.7) (Double Jeopardy (Scotland) Act 2011) 2011.

(2) It comes into force on 28th November 2011.

(3) A certified copy of this Act of Adjournal is to be inserted in the Books of Adjournal.

(4) The Criminal Procedure Rules 1996(3) are amended in accordance with the following paragraphs.

Disclosure and Double Jeopardy

2.—(1) In Chapter 7A (disclosure)(4)—

(a) in rule 7A.3 (applications for ruling on disclosure) for paragraph (1) substitute—

“(1) An application under section 128(2), section 139(2) or section 140E(2) of the 2010 Act shall be in Form 7A.3.”.

(b) in rule 7A.4 (review of ruling on disclosure) for paragraph (1) substitute—

“(1) an application under section 129(2), section 140(2) or section 140F(2) of the 2010 Act shall be in Form 7A.4.”.

(2) In the appendix, for Forms 7A.3, 7A.4, 7A.6-C and 7A.7-A substitute respectively Forms 7A.3, 7A.4, 7A.6-C and 7A.7-A set out in Part 1 of the Schedule to this Act of Adjournal.

Double Jeopardy

3.—(1) After Chapter 58 (Control of Dogs (Scotland) Act 2010)(5) insert—

“CHAPTER 59 DOUBLE JEOPARDY (SCOTLAND) ACT 2011

Interpretation

59.1.   In this Chapter, “the 2011 Act” means the Double Jeopardy (Scotland) Act 2011(6).

Exceptions to the rule against Double Jeopardy: applications by the Lord Advocate

59.2.— (1) An application by the Lord Advocate to set aside a person’s acquittal and grant authority to bring a new prosecution—

(a) under section 2(2) of the 2011 Act (tainted acquittals);

(b) under section 3(3)(b) of the 2011 Act (admission made or becoming known after acquittal);

(c) under section 4(3)(b) of the 2011 Act (new evidence),

shall be in Form 59.2.

(2) On making an application the Lord Advocate shall send a copy of the application to the acquitted person.

Other subsequent prosecutions: applications by the prosecutor

59.3.— (1) An application by the prosecutor—

(a) under section 11(3) of the 2011 Act (eventual death of injured person) shall be in Form 59.3-A;

(b) under section 12(3) of the 2011 Act (nullity of proceedings on previous indictment or complaint) shall be in Form 59.3-B.

(2) On making an application the prosecutor shall send a copy of the application to the person to whom the application relates.

Hearing and determination of applications

59.4.— (1) This rule applies to the hearing and determination of an application mentioned in this Chapter.

(2) On an application being lodged the Clerk of Justiciary shall—

(a) appoint a hearing on the application;

(b) intimate the date and time of the hearing to the parties;

(c) grant warrant for the citation of witnesses and the lodging of productions by the parties;

(d) specify the last date for lodging witness lists and productions.

(3) At the same time as lodging witness lists and productions, the party lodging them shall intimate copies to the other party.

(4) Where a production cannot reasonably be copied the list of productions shall be intimated.

(5) Parties shall be entitled to see the productions according to the existing law and practice of the High Court.

(6) Section 90A of the Act of 1995 (obstructive witnesses)(7) applies, with the necessary modifications.

(7) A party shall not be permitted to—

(a) examine any witness not listed as a witness;

(b) put in evidence any production not lodged,

in accordance with paragraph 2(d) except by leave of the High Court on cause shown.

(8) Without prejudice to any existing power of the High Court, it may—

(a) order the production of any document or thing concerned with the application;

(b) hear any evidence relevant to the application;

(c) remit to any fit person to enquire and report on any matter affecting the application;

(d) appoint a person with expert knowledge to act as assessor to the High Court where it appears to the court that such expert knowledge is required.

(9) Where the High Court hears any evidence it shall do so in accordance with the existing law and practice as to the taking of evidence in criminal trials in Scotland.

Appeal to the High Court

59.5.— (1) An appeal to the High Court under section 11(6) of the 2011 Act shall be made by lodging a note of appeal in Form 59.5.

(2) The note of appeal shall be lodged with the Clerk of Justiciary not later than 7 days after the making of the decision in question.

(3) At the same time as lodging a note of appeal the appellant shall send a copy of the note of appeal to the other party.

(4) On an appeal being lodged the Clerk of Justiciary shall—

(a) appoint a hearing on the appeal;

(b) intimate the time and date of the hearing to the parties.”.

(2) In the appendix, at the end insert the Forms set out in Part 2 of the Schedule to this Act of Adjournal, namely, Forms 59.2, 59.3-A, 59.3-B and 59.5.

A.C.HAMILTON

Lord Justice General

I.P.D.

Edinburgh

2nd November 2011

SCHEDULE

Paragraph 2(2)

PART 1

Paragraph 3(2)

PART 2

EXPLANATORY NOTE

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

This Act of Adjournal amends the Criminal Procedure Rules 1996 in consequence of the commencement of the Double Jeopardy (Scotland) Act 2011.

Paragraph 2 amends Chapter 7A (disclosure).

Paragraph 3 inserts new Chapter 59 (Double Jeopardy (Scotland) Act 2011).

(1)

1995 c.46.

(2)

2010 asp 13.

(3)

The Criminal Procedure Rules 1996 are contained in Schedule 2 to the Act of Adjournal (Criminal Procedure Rules) 1996 (S.I. 1996/513, last amended by S.S.I. 2011/355).

(4)

Chapter 7A was inserted by S.S.I. 2011/242, last amended by S.S.I. 2011/290.

(5)

Chapter 58 was inserted by S.S.I. 2011/194.

(6)

2011 asp 16.

(7)

Section 90A was inserted by section 11 of the Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5).