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Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (Miscellaneous) 2016

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Scottish Statutory Instruments

2016 No. 103

High Court Of Justiciary

Sheriff Court

Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (Miscellaneous) 2016

Made

15th February 2016

Laid before the Scottish Parliament

16th February 2016

Coming into force

1st March 2016

The High Court of Justiciary makes this Act of Adjournal under the powers conferred by section 305 of the Criminal Procedure (Scotland) Act 1995(1) and all other powers enabling it to do so.

Citation and commencement, etc.

1.—(1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (Miscellaneous) 2016.

(2) It comes into force on 1st March 2016.

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

Amendment of Chapter 34 of the Criminal Procedure Rules 1996

2.—(1) Chapter 34 (extradition) of the Criminal Procedure Rules 1996(2) is amended in accordance with this paragraph.

(2) For rules 34.3 (appeals) and 34.4 (hearing of appeals)(3) substitute—

Application for leave to appeal

34.3.(1) An application for leave to appeal under—

(a)section 26 of the Act of 2003 (appeal against extradition order) is made in Form 34.3–A;

(b)section 28 of the Act of 2003 (appeal against discharge at extradition hearing) is made in Form 34.3–B;

(c)section 103 (appeal where case sent to Scottish Ministers) or 108 (appeal against extradition order) of the Act of 2003 is made in Form 34.3–C;

(d)section 105 (appeal against discharge at extradition hearing) or section 110 (appeal against discharge by Scottish Ministers) of the Act of 2003 is made in Form 34.3–D.

(2) Notice of an application for leave to appeal mentioned in paragraph (1) must be given by serving a copy of the application—

(a)in the case of an appeal under section 26, 103 or 108 of the Act of 2003, on the Crown Agent; and

(b)in the case of an appeal under section 28, 105 or 110 of the Act of 2003, on the arrested person.

(3) An application for leave to appeal under paragraph (1)—

(a)must be accompanied by an execution of service; and

(b)is made when it is lodged with the Clerk of Justiciary.

Hearing of appeals

34.3A.(1) When an application for leave to appeal is made under—

(a)section 26 (appeal against extradition order);

(b)section 28 (appeal against discharge at extradition hearing);

(c)section 103 (appeal where case sent to Scottish Ministers); or

(d)section 105 (appeal against discharge at extradition hearing),

of the Act of 2003, the Clerk of Justiciary must intimate the application to the sheriff clerk.

(2) On intimation, the sheriff clerk must request a report from the presiding sheriff.

(3) The sheriff is to comply with that request within 14 days of receiving it.

(4) On receipt of the report from the sheriff the sheriff clerk must transmit that report together with two certified copies of the minutes of proceedings and any other relevant documents to the Clerk of Justiciary.

(5) When an application for leave to appeal is made under—

(a)section 108 (appeal against extradition order); or

(b)section 110 (appeal against discharge by Scottish Ministers),

of the Act of 2003, the Clerk of Justiciary must request a report from the Scottish Ministers.

(6) The Scottish Ministers are to comply with that request within 14 days of receiving it.

(7) Upon receipt of the report from the sheriff or the Scottish Ministers, the Clerk of Justiciary must—

(a)send a copy to the arrested person and the Crown Agent; and

(b)fix a diet for the hearing of the application for leave to appeal.

(8) At that diet the court may—

(a)refuse leave to appeal;

(b)grant leave to appeal and determine the appeal; or

(c)grant leave to appeal and order that a further diet be fixed for hearing the appeal.

(9) When leave to appeal is granted under paragraph (8)(c) the Clerk of Justiciary must fix a further diet for hearing the appeal.

Time limits

34.4.(1) The High Court is to begin to hear an appeal under section 26 or 28 of the Act of 2003 within 40 days after the date on which the arrested person was arrested.

(2) The High Court is to begin to hear an appeal under section 103, 105, 108 or 110 of the Act of 2003 within 76 days after the date on which the note of appeal is lodged..

Amendment of Chapter 37AA of the Criminal Procedure Rules 1996

3.—(1) Chapter 37AA (proceedings under the Proceeds of Crime Act 2002) of the Criminal Procedure Rules 1996(4) is amended in accordance with this paragraph.

(2) For rule 37AA.1 (interpretation of this Chapter)(5), substitute—

Interpretation of this Chapter

37AA.1.  In this Chapter—

“the Act of 2002” means the Proceeds of Crime Act 2002(6);

“the 2014 Regulations” means the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014(7);

“compliance order” has the meaning given by section 97B(2) of the Act of 2002(8)..

(3) After rule 37AA.2 (confiscation orders)(9), insert—

Confiscation orders: certification

37AA.2A.(1) A request by the prosecutor for a certificate under paragraph 7(1) of Schedule 1 to the 2014 Regulations must—

(a)be made by minute prior to the making of a domestic confiscation order;

(b)set out why the prosecutor considers that the property to which the application relates—

(i)was used or was intended to be used for the purposes of an offence; or

(ii)is the proceeds of an offence;

(c)contain the specified information.

(2) Where the court issues a certificate, it must—

(a)do so in the form annexed to Council Framework Decision 2006/783/JHA of 6th October 2006 on the application of the principle of mutual recognition to confiscation orders(10);

(b)provide in the domestic confiscation order for notice to be given in accordance with paragraph 7(4) of Schedule 1 to the 2014 Regulations.

(3) In this rule, “domestic confiscation order” and “specified information” have the meanings given by paragraph 1 of Schedule 1 to the 2014 Regulations..

(4) After rule 37AA.2A (confiscation orders: certification) as so inserted, insert—

Compliance orders

37AA.2B.(1) An application by the prosecutor for a compliance order is to be made in Form 37AA.2B–A.

(2) When an application is lodged, the court must—

(a)order intimation of the application to the accused;

(b)appoint a hearing on the application.

(3) A compliance order is to be in Form 37AA.2B–B.

Compliance orders: discharge and variation

37AA.2C.(1) An application to discharge or vary a compliance order is to be made in Form 37AA.2C–A.

(2) When an application is lodged, the court must—

(a)order intimation of the application to—

(i)the prosecutor, where the application is made by the accused;

(ii)the accused, where the application is made by the prosecutor;

(b)appoint a hearing on the application.

(3) Where the court discharges or varies a compliance order, it is to do so in Form 37AA.2C–B.

(4) An appeal under section 97D of the Act of 2002 is to be made by lodging a note of appeal in Form 37AA.2C–C.

(5) When an appeal is lodged, the court must—

(a)order intimation of the application to—

(i)the prosecutor, where the accused is the appellant;

(ii)the accused, where the prosecutor is the appellant;

(b)appoint a hearing on the appeal.

Compliance orders: breach

37AA.2D.(1) Where the prosecutor considers that an accused who is subject to a compliance order has failed to comply with it, the prosecutor must notify the court.

(2) That notification is to be given in Form 37AA.2D–A.

(3) A citation under section 97C(2)(b) of the Act of 2002 is to be in Form 37AA.2D–B.

(4) Where the court revokes or varies a compliance order under section 97C(6) or (7), it is to do so in Form 37AA.2D-C..

(5) In rule 37AA.9 (hearings)(11)—

(a)after paragraph (a) insert—

(aa)37AA.2A (confiscation orders: certification);;

(b)after paragraph (aa) as so inserted, insert—

(ab)37AA.2B (compliance orders);

(ac)37AA.2C(1) (compliance orders: discharge and variation applications);

(ad)37AA.2C(4) (compliance orders: discharge and variation appeals);.

Amendment of the Appendix to the Criminal Procedure Rules 1996

4.  In the Appendix—

(a)for Form 34.3–A (note of appeal under section 26(1)), Form 34.3–B (note of appeal under section 28(1)), Form 34.3–C (note of appeal under section 103(1) or 108(1)) and Form 34.3–D (note of appeal under section 105(1) or 110(1)(12) substitute the forms set out in Schedule 1 to this Act of Adjournal;

(b)after Form 37.5 (form of note of appeal under section 27 of the Proceeds of Crime (Scotland) Act 1995)(13) insert Forms 37AA.2B-A, 37AA.2B–B, 37AA.2C–A, 37AA.2C–B, 37AA.2C–C, 37AA.2D–A and 37AA.2D–B set out in Schedule 2 to this Act of Adjournal.

Saving provision

5.—(1) Paragraphs 2 and 4(a) do not apply to extradition appeals where the notice of appeal was given before 15 April 2015.

(2) Paragraphs 3(4), 3(5)(b) and 4(b) do not apply to any confiscation order under section 92 of the Proceeds of Crime Act 2002 made before 1st March 2016.

CJM SUTHERLAND

Lord Justice General

Edinburgh

I.P.D.

15th February 2016

Paragraph 4(a)

SCHEDULE 1

Paragraph 4(b)

SCHEDULE 2

EXPLANATORY NOTE

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

Extradition appeals

This Act of Adjournal amends Chapter 34 (extradition) of the Criminal Procedure Rules 1996 in consequence of amendments made to the Extradition Act 2003 (“the 2003 Act”) by section 160 of the Anti-social Behaviour, Crime and Policing Act 2014 which introduced a requirement to obtain leave to appeal in extradition cases.

Paragraph 2 of this instrument substitutes rules 34.3 and 34.4 of Chapter 34 and inserts a new rule 34.3A to take account of the requirement to obtain leave. Rule 34.3 specifies the forms for notes of appeal and these now contain an application for leave to appeal. The forms are substituted for the existing forms by paragraph 4(a).

Paragraph 5(1) provides that the amendments relating to extradition appeals do not apply to extradition appeals where the notice of appeal was given before 15 April 2015, which is the date on which section 160 of the Anti-social Behaviour, Crime and Policing Act 2014 came into force.

Proceedings under the Proceeds of Crime Act 2002

This Act of Adjournal also amends Chapter 37AA (proceedings under the Proceeds of Crime Act 2002) of the Criminal Procedure Rules 1996 in consequence of (a) paragraph 7 of Schedule 1 to the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (“the 2014 Regulations”) and (b) the amendments made to the Proceeds of Crime Act 2002 (“the 2002 Act”) by the Serious Crime Act 2015.

The 2014 Regulations make provision for the prosecutor, when seeking a confiscation order under section 92 of the 2002 Act, to apply to the court for a certificate under the Council Framework Decision 2006/783/JHA of 6th October 2006 on the application of the principle of mutual recognition to confiscation orders (“the 2006 Framework Decision”) in respect of property situated in another member State.

The Serious Crime Act 2015 introduces compliance orders, which may be made at the same time as a confiscation order, or later on the application of the prosecutor.

Paragraph 3(2) substitutes rule 37AA.1 in order to insert new interpretation provisions relating to the 2014 Regulations and compliance orders.

Paragraph 3(3) inserts a new rule 37AA.2A which specifies how an application for a certificate is to be made. The new rule also specifies certain matters that must be included in an application and prescribes the form of the certificate as being the form annexed to the 2006 Framework Decision. Where the court issues a certificate it must also provide for notice to be given in accordance with paragraph 7(4) of Schedule 1 to the 2014 Regulations.

Paragraph 3(4) inserts new rules 37AA.2B to 37AA.2D into the Criminal Procedure Rules 1996. Rule 37AA.2B specifies the form in which the prosecutor may apply for a compliance order under section 97B of the 2002 Act. It also specifies the form that a compliance order is to take. Rule 37AA.2C specifies the form of an application to discharge or vary a compliance order, and makes provision about the form of an appeal against a decision about discharging or varying a compliance order. Rule 37AA.2D makes provision about failure to comply with a compliance order. It requires the prosecutor to notify the court about alleged failures and specifies the form of citation requiring an accused to appear before the court in respect of such an alleged failure.

Paragraph 3(5) modifies rule 37AA.9, which provides for applications under certain rules to be determined at a hearing, so that it includes applications under new rules 37AA.2A to 37AA.2D.

Paragraph 4(b) inserts new Forms into the Appendix to the Criminal Procedure Rules 1996 as a consequence of new rules 37AA.2B to 37AA.2D.

Paragraph 5(2) provides that the amendments relating to compliance orders do not apply in relation to any confiscation order made under section 92 of the 2002 Act before 1st March 2016.

(1)

1995 c. 46. Section 305 was amended by S.S.I. 2015/338, article 2.

(2)

The Criminal Procedure Rules 1996 are in Schedule 2 to the Act of Adjournal (Criminal Procedure Rules) 1996 (S.I. 1996/513, last amended by S.S.I. 2015/443). Chapter 34 was substituted by S.S.I. 2004/346 and last amended by S.S.I. 2012/125.

(3)

Rules 34.3 and 34.4 were substituted by S.S.I. 2004/346.

(4)

Chapter 37AA was inserted by S.S.I. 2003/120 and last amended by S.S.I. 2009/244.

(5)

Rule 37AA.1 was inserted by S.S.I. 2003/120.

(6)

2002 c. 29. The Act was relevantly amended by the Serious Crime Act 2015 (c. 9), Schedule 4, paragraph 35.

(8)

2002 c. 29. Section 97B(2) was inserted by the Serious Crime Act 2015 (c.9), section 16.

(9)

Rule 37AA.2 was inserted by S.S.I. 2003/120 and amended by S.S.I. 2009/244.

(10)

OJ No. L 328, 24.11.2006, p. 59.

(11)

Rule 33AA.9 was inserted by S.S.I. 2003/120 and amended by S.S.I. 2003/468.

(12)

Forms 34.3A to 34.3-D were substituted by S.S.I. 2004/346.

(13)

Form 37.5 was inserted by S.I. 1997/2653 and amended by S.S.I. 2015/245.

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