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Criminal Procedure (Scotland) Act 1975

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Part IIE+W+S+N.I. Summary Procedure

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Modifications etc. (not altering text)

C1Pt. II (ss. 282–457) extended with modifications by Road Traffic Offenders Act 1988 (c. 53, SIF 107:1), s. 60(5)

JurisdictionS

283 Application of Part II of this Act.S

[F1(1)This Part of this Act applies to summary proceedings in respect of any offence which might prior to the passing of this Act, or which may under the provisions of this or any Act, whether passed before or after this Act, be tried summarily.

(1A)Without prejudice to subsection (1) above, this Part of this Act also applies to procedure in all courts of summary jurisdiction in so far as they have jurisdiction in respect of—

(a)any offence or the recovery of a penalty under any enactment or rule of law which does not exclude summary procedure as well as, in accordance with section 196 of this Act, to the enforcement of a fine imposed in solemn proceedings; and

(b)any order ad factum praestandum, or other order of court or warrant competent to a court of summary jurisdiction.]

(2)Where any statute provides for summary proceedings or appeal therefrom being taken under any public general or local enactment, such proceedings or appeal shall be taken under this Part of this Act.

(3)Nothing in this Part of this Act shall extend to any information or complaint or other proceeding under or by virtue of any statutory provision for the recovery of any rate, tax, or impost whatsoever, or shall affect any right to sue for a penalty, or to apply for an order of court or other warrantad factum praestandumin the Court of Session or sheriff court, but it shall not be competent to sue for penalties in the small debt court.

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Amendments (Textual)

F1S. 283(1)(1A) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for s. 283(1) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 102; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F2283A Offences which are to become triable only summarily.S
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Amendments (Textual)

(1)[F3Subject to section 8 of the M1Criminal Justice (Scotland) Act 1980, but otherwise] The provisions of this or any other enactment notwithstanding, the offences mentioned (and broadly described) in column 1 of Schedule 7A to this Act shall be triable only summarily.

(2)Subsection (1) above is without prejudice to any other provision by virtue of which any offence is triable only summarily.]

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Amendments (Textual)

Marginal Citations

284 Jurisdiction of inferior courts. S
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Modifications etc. (not altering text)

The jurisdiction and powers of all courts of summary jurisdiction, except in so far as the same may be altered or modified by any future Act shall remain as at the commencement of this Act and the district court shall, without prejudice to any other or wider powers conferred by statute, be entitled to exercise power on convicting of a common law offence—

(a)to award imprisonment for any period not exceeding 60 days;

(b)to impose a fine not exceeding [F4level 4 on the standard scale];

(c)to ordain the accused (in lieu of or an addition to such imprisonment or fine) to find caution for good behaviour for any period not exceeding six months and to an amount not exceeding [F4level 4 on the standard scale];

(d)failing payment of such fine or on failure to find such caution, to award imprisonment in accordance with section 407 of this Act:

Provided that in no case shall the total imprisonment exceed 60 days.

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Amendments (Textual)

Modifications etc. (not altering text)

285 Certain crimes not to be tried in inferior courts.S

A court of summary jurisdiction other than the sheriff court shall not have jurisdiction to try or to pronounce sentence in, but shall, to the extent and in the manner mentioned in the next following section, be entitled to take cognizance of the case of any person—

(a)found within the jurisdiction of such court, and brought before it accused or suspected of having committed at any place beyond the jurisdiction of such court any offence, or

(b)brought before such court accused or suspected of having committed within the jurisdiction thereof any of the following offences:—

(i)murder, culpable homicide, robbery, rape, wilful fire-raising, or attempt at wilful fire-raising:

(ii)stouthrief, theft by housebreaking, or housebreaking with intent to steal:

(iii)theft or reset of theft, falsehood fraud or wilful imposition, breach of trust or embezzlement, all to an amount exceeding [F5level 4 on the standard scale].

(iv) . . . F6

(v)assault whereby any limb has been fractured, or assault with intent to ravish, or assault to the danger of life, or assault by stabbing:

(vi)uttering forged documents or uttering forged bank or banker’s notes, or offences under the Acts relating to coinage:

. . . F7

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Amendments (Textual)

286 Remit to higher court or other jurisdiction. S
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Modifications etc. (not altering text)

If either in the preliminary investigation or in the course of the trial of any offence it shall appear that the offence is one which cannot competently be tried in the court before which an accused is brought, or is one which, in the opinion of the court in view of the circumstances of the case, should be dealt with by a higher court, it shall be lawful for the court to commit the accused to prison for examination for any period not exceeding four days, and the prosecutor shall forthwith give notice of such committal to the procurator fiscal of the district within which such offence was committed, or to such other official as may be entitled to take cognizance thereof, in order that the accused may be dealt with according to law.

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Modifications etc. (not altering text)

287 Boundaries of jurisdiction.S

(1)Where an offence is committed in any harbour, river, arm of the sea or other water (tidal or otherwise) which runs between or forms the boundary of the jurisdiction of two or more courts, such offence may be tried by any one of such courts.

(2)Where an offence is committed on the boundary of the jurisdiction of two or more courts, or within the distance of 500 yards of any such boundary, or partly within the jurisdiction of one court and partly within the jurisdiction of another court or courts, such offence may be tried by any one of such courts.

(3)Where an offence is committed on any person or in respect of any property in or upon any carriage, cart or vehicle employed in a journey by road or railway, or on board any vessel employed in a river, lake, canal or inland navigation, such offence may be tried by any court through whose jurisdiction such carriage, cart, vehicle or vessel passed in the course of the journey or voyage during which the offence was committed, and, where the side, bank, centre or other part of the road, railway, river, lake, canal or inland navigation along which the carriage, cart, vehicle or vessel passed in the course of such journey or voyage is the boundary of the jurisdiction of two or more courts, such offence may be tried by any one of such courts.

(4)Where several offences, which if committed in one sheriff court district could be tried under one complaint, are alleged to have been committed by any person in different sheriff court districts, the accused may be tried for all or any of those offences under one complaint before the sheriff of any one of such sheriff court districts.

(5)Where an offence is authorised by this section to be tried by any court, it may be dealt with, heard, tried, determined, adjudged and punished as if the offence had been committed wholly within the jurisdiction of such court.

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Modifications etc. (not altering text)

C4S. 287(4) modified (3.2.1995) by 1984 c. 39, s. 16C(1) (as inserted (3.2.1995) by 1994 c. 33, s. 91(3); S.I. 1995/127, art. 2(1), Sch. 1)

288 Jurisdiction of sheriff.S

(1)Subject to the provisions of this section, the jurisdiction of the sheriffs within their respective sheriffdoms shall extend to and include all navigable rivers, ports, harbours, creeks, shores and anchoring grounds in or adjoining such sheriffdoms and shall include all criminal maritime causes and proceedings (including such as may apply to persons furth of Scotland) provided the accused shall upon any legal ground of jurisdiction be subject to the jurisdiction of the sheriff before whom such cause or proceeding may be raised.

(2)It shall not be competent to the sheriff to try any crime committed on the seas which it would not be competent for him to try if the crime had been committed on land.

(3)Where sheriffdoms are separated by a river, firth, or estuary, the sheriffs on either side shall have concurrent jurisdiction over the intervening space occupied by water.

(4)The sheriff shall have a concurrent jurisdiction with every other court within his sheriffdom in relation to all offences competent for trial in such courts.

[F8(5)Where an offence is alleged to have been committed in one district in a sheriffdom, it shall be competent to try that offence in a sheriff court in any other district in that sheriffdom.]

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Amendments (Textual)

289 Summary powers of sheriff.S

The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence—

(a)to impose a fine not exceeding [F9the prescribed sum (within the meaning of section 289B below];

(b)to ordain the accused to find caution for good behaviour for any period not exceeding 12 months and to an amount not exceeding [F10the prescribed sum (within the meaning of section 289B below)], such caution being either in lieu of or in addition to a fine or in addition to imprisonment as hereafter in this section mentioned;

(c)failing payment of such fine, or on failure to find such caution, to award imprisonment in accordance with section 407 of this Act;

(d)to award imprisonment, for any period not exceeding three months.

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Amendments (Textual)

[F11289A Amendments relating to penalties (and mode of trial) for offences made triable only summarily.S
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Amendments (Textual)

(1)The enactments specified in column 2 of Schedule 7A to this Act (which relate to the modes of trial of, and the maximum penalties for, the offences which are by section 283A of this Act made triable only summarily) shall so far as they relate to Scotland have effect subject to the amendments specified in column 3 of that Schedule.

(2)The said amendments have the effect of altering the maximum penalties available on summary conviction of those offences as well as making alterations consequential on their becoming triable only summarily; and in that Schedule column 4 shows the present maximum penalties by way of fine or imprisonment on summary conviction and on conviction on indictment, and column 5 shows the new maximum penalties resulting from the amendments.]

[F12289B Penalties on summary conviction for offences triable either summarily or on indictment.S
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Amendments (Textual)

(1)Where an offence created by a relevant enactment may be tried either on indictment or summarily, the penalty or maximum penalty on summary conviction shall, to the extent that it included, immediately before the commencement of section 55 of the Criminal Justice Act 1982, a penalty or maximum penalty mentioned in column 1 of the Table below, be amended so as to substitute as a maximum penalty the corresponding penalty set forth in column 2 thereof (unless provision is expressly made by any enactment for a larger penalty or maximum penalty on summary conviction)—

Column 1Column 2
Penalty or maximum penalty at commencement of section 55 of Criminal Justice Act 1982New maximum penalty
1. Fine (other than a fine specified in paragraph 3 below, or a fine in respect of each period of a specified length during which a continuing offence is committed).1. Fine not exceeding the prescribed sum.
2. Imprisonment for a period exceeding 3 months.2. Imprisonment for a period not exceeding 3 months.
3. Fine in respect of a specified quantity or number of things.3. Fine not exceeding the prescribed sum in respect of each such quantity or number.
4. Fine exceeding £100 in respect of each period of a specified length during which a continuing offence is committed.4. Fine not exceeding £100 in respect of each such period.

(2)Where, by virtue of a relevant enactment, a person summarily convicted of any offence to which subsection (1) above relates would, apart from this section, be liable to a fine or a maximum fine of one amount in the case of a first conviction and of a different amount in the case of a second or subsequent conviction, subsection (1) above shall apply irrespective of whether the conviction is a first, second or subsequent one.

(3)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F13

(5)Subsection (1) above is without prejudice to section 290 of this Act (6 months’ imprisonment competent for certain offences).

(6)In this section—

  • the prescribed sum” means [F14£5,000] or such sum as is for the time being substituted in this definition by an order in force under section 289D(1) of this Act;

  • relevant enactment” means an enactment contained in the M2Criminal Law Act 1977 or in any Act (including this Act) passed before, or in the same session as, that Act.

(7)[F15Section 289GA(1) of this Act] shall not affect so much of any enactment as (in whatever words) provides for a person to be made liable, on summary conviction, to a fine or a maximum fine for each period of a specified length during which a continuing offence is committed.

(8)Where an enactment to which [F16section 289GA(1) of this Act] applies provides for a person to be made liable to a penalty or maximum penalty on summary conviction of an offence triable either on indictment or summarily which includes a fine or a maximum fine in respect of a specified quantity or a specified number of things, that subsection shall apply to that fine or maximum fine.

(9)Schedule 7B to this Act shall have effect for the purpose of altering the penalties or maximum penalties available on summary conviction of the offences therein mentioned; and subsection (1) above shall not apply on summary conviction of any of the offences mentioned in paragraph 1(2) of the said Schedule 7B.]

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Amendments (Textual)

F14Word in s. 289B(6) substituted (1.10.1992) by virtue of Criminal Justice Act 1991 (c. 53), ss. 17(2), 101(1), Sch. 12, para. 6 (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2 (subject to the restriction of S.I. 1992/333, art. 4A as inserted (1.9.1992) by S.I. 1992/2118, arts. 3, 4).

Marginal Citations

289C Increase of fines for certain summary offences.S

(1)The enactments specified in column 2 of Schedule 7C to this Act, which relate to the maximum fines for the offences mentioned (and broadly described) in column 1 of that Schedule, shall have effect as if the maximum fine that may be imposed on summary conviction of any offence so mentioned were a fine not exceeding the amount specified in column 4 of that Schedule instead of a fine not exceeding the amount specified in column 3 of that Schedule, so however that the preceding provision shall not alter the maximum daily fine, if any, provided for by any of those enactments.

(2)This subsection applies to the following enactments (by virtue of which certain byelaws may make persons contravening the byelaws liable on summary conviction to a fine not exceeding £20), namely—

(a)section 203 of the M3Local Government (Scotland) Act 1973 (offences against byelaws) but (the provisions of section 462(11) of this Act notwithstanding) not that section as applied to byelaws made under any provision contained in a local or private Act other than by a local authority; and

(b) . . . F17

(3)In the enactments to which subsection (2) above applies for any reference to £20 there shall be substituted a reference to £50; and any provision in force at the coming into force of this subsection which—

(a)is contained in any byelaw made by virtue of any enactment to which subsection (2) above applies; and

(b)specifies £20 as the maximum fine which may be imposed on summary conviction in respect of a contravention of, or offence under, any byelaw mentioned in that provision.

shall have effect as if it specified £50 instead (but with no change by virtue of this subsection in the maximum daily fine, if any, for which it provides).

[F18(4)This subsection applies to any pre-1949 enactment (however framed or worded) which—

(a)as regards any summary offence makes a person liable on conviction thereof to a fine of, or not exceeding, a specified amount less than £50 which has not been altered since the end of 1948 (and is not altered by this Act); or

(b)confers power by subordinate instrument to make a person as regards any summary offence (whether or not created by the instrument), liable on conviction thereof to a fine of, or a maximum fine of, less than £50 which has not been altered since the end of 1948 (and is not altered by this Act):

Provided that this subsection does not apply to any offence to which section 457A(1)(b) of this Act applies (offences triable only summarily other than by virtue of express provision).]

(5)Every enactment to which subsection (4) above applies shall have effect as if for the specified amount less than £50 there mentioned there were substituted:—

(a)£25 if the specified amount is less than £20; or

(b)£50 if the specified amount is not less than £20.

(6)Where, by virtue of any enactment to which subsection (4) above applies by virtue of paragraph (a) of that subsection, a person convicted of a summary offence would, apart from this section, be liable to a fine, or maximum fine, of one amount in the case of a first conviction and of a different amount in the case of a second or subsequent conviction, subsection (5) above shall apply separately in relation to each specified amount less than £50, even if this produces the same instead of different amounts for different convictions.

[F19(7)Subsection (4) above does not apply to so much of any enactment as (in whatever words) makes a person liable or provides for a person to be made liable, on summary conviction, to a fine or a maximum fine for each period of a specified length during which a continuing offence is committed.

(7A)Where an enactment to which subsection (4) above applies provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things, “the specified amount” for the purposes of subsection (5) above is the fine or maximum fine so provided or for which provision may be made.]

(8)In subsection (4) above “pre-1949 enactment” means an enactment passed before 1st January 1949 or an enactment passed on or after that date which (whether directly or, through successive re-enactments, indirectly) re-enacts with or without modification an enactment passed before that date.

(9)In this section “enactment” does not include an enactment contained in an order, regulation or other instrument made under an Act.

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Amendments (Textual)

Marginal Citations

289D Power to alter sums specified in certain provisions.S

[F20(1)If it appears to the Secretary of State that there has been a change in the value of money since the relevant date, he may by order substitute for the sum or sums for the time being specified in the provisions mentioned in subsection (1A) below such other sum or sums as appear to him justified by the change.

(1A)The provisions referred to in subsection (1) above are—

(a)section 289B(6) of this Act;

(b)section 289G(2) of this Act;

(c)section 407(1A) of this Act;

F21(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F22(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F23(ee)column 5 or 6 of Schedule 4 to the Misuse of Drugs Act 1971 so far as the column in question relates to the offences under provisions of that Act specified in column 1 of that Schedule in respect of which the maximum fines were increased by Part II of Schedule 8 to the Criminal Justice and Public Order Act 1994.]

(f)(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F24

(1B)In subsection (1) above “the relevant date” means—

(a)in relation to the M4first order made under that subsection, 29th July 1977 (the date of the passing of the Criminal Law Act 1977); and

(b)in relation to each subsequent order, the date of the previous order.]

(2)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F24

(3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F25

(4)An order under subsection (1) . . . F26 above—

(a)shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and may be revoked by a subsequent order thereunder; and

(b)without prejudice to Schedule 14 to the M5Criminal Law Act 1977, shall not affect the punishment for an offence committed before that order comes into force.

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Amendments (Textual)

F21S. 289D(1A)(d) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 103, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F23Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s.7(c) (substituting “(5) or (5A)” for “or (5)” is repealed by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(2), Sch. 2 and for “or (5A)” there is substituted “(5A), (5B) or (5C)” by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(4)

Marginal Citations

M41977 c. 45(39:1).

M51977 c. 45(39:1).

[F27289E Penalties for first and subsequent convictions of summary offences to be the same. S
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Amendments (Textual)

(1)Subject to subsections (2) to (4) and (6) below, this section applies where any Act—

(a)makes a person liable on conviction of an offence triable only summarily to a penalty or a maximum penalty; or

(b)confers a power by subordinate instrument to make a person liable on conviction of an offence triable only summarily (whether or not created by the instrument) to a penalty or a maximum penalty

which is different in the case of a second or subsequent conviction from the penalty or maximum penalty provided or for which provision may be made in the case of a first conviction.

(2)Where the penalty or maximum penalty for an offence to which section 457A(1)(b) of this Act applies has not been altered by any enactment passed or made after 29th July 1977 (the date of the passing of the Criminal Law Act 1977), this section applies as if the amount referred to in subsection (5)(a) below were the greatest amount to which a person would have been liable on any conviction immediately before that date.

(3)Where any Act—

(a)provides or confers a power to provide for a penalty or a maximum penalty which would, but for the operation of section 289C(5) of this Act, be different in the case of a second or subsequent conviction from the penalty or maximum penalty provided for or for which provision may be made in the case of a first conviction; and

(b)otherwise fulfils the conditions of subsection (1) above;

this section applies to that penalty or maximum penalty as if the amount referred to in subsection (5)(a) below were the greatest amount to which a person would have been liable or could have been made liable on any conviction immediately before the commencement of the said section 289C.

(4)This section does not apply to—

(a)section 290 of this Act (imprisonment for certain offences);

(b)section 78 of the M6Criminal Justice (Scotland) Act 1980 (vandalism); or

(c)an enactment mentioned in Schedule 7D to this Act.

(5)Where this section applies the maximum penalty to which a person is or may be made liable by or under the Act in the case of any conviction shall be either or both of—

(a)a fine not exceeding the greatest amount;

(b)imprisonment for a term not exceeding the longest term (if any)

to which an offender would have been liable or could have been made liable on any conviction (whether the first or a second or subsequent conviction) by or under the Act immediately before the commencement of this section.

(6)This section does not affect the penalty which may be imposed in respect of an offence committed before it comes into force.]

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Modifications etc. (not altering text)

Marginal Citations

289F Increase of fines for certain summary offences.S

(1)Subject to subsections (2) to (7) and (9) below, this section applies where any Act passed on or before 29th July 1977 (the date of the passing of the M7Criminal Law Act 1977)—

(a)makes a person liable on conviction of an offence triable only summarily to a fine or a maximum fine which is less than £1,000; or

(b)confers a power by subordinate instrument to make a person liable on conviction of an offence triable only summarily (whether or not created by the instrument) to a fine or a maximum fine which is less than £1,000, or a fine or a maximum fine which shall not exceed an amount of less than £1,000,

and the fine or maximum fine which may be imposed or, as the case may be, for which the subordinate instrument may provide has not been altered by—

(i)section 289A of this Act;

(ii)section 289C of this Act (except where section 289E(3) of this Act applies);

(iii)section 30(3) of the Criminal Law Act 1977;

(iv)an enactment passed or made after 29th July 1977 and before the commencement of this section.

(2)In the case of an offence to which section 457A(1)(b) of this Act applies, paragraphs (i) to (iii) of subsection (1) above do not apply and the fine or the maximum fine referred to in subsection (8) below is the fine or the maximum fine for the offence immediately before 29th July 1977 as amended, where applicable, by section 289E of this Act.

(3)This section also applies where any enactment—

(a)is contained in a consolidation Act passed after 29th July 1977 and before the commencement of this section; and

(b)otherwise fulfils the conditions of subsection (1) above as amended by subsection (2) above where it applies; and

(c)is a re-enactment (with or without modification) of an enactment passed on or before that date.

(4)Subject to subsection (9) below, where an Act provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things, that fine or maximum fine is the fine or, as the case may be, the maximum fine for the purposes of this section.

(5)Where an Act to which this section applies provides or confers a power to provide different fines or maximum fines in relation to different circumstances or persons of different descriptions, such fines or maximum fines are to be treated separately for the purposes of this section.

(6)This section also applies where the penalties or maximum penalties provided or for which provision may be made by or under any Act on first and on second or subsequent conviction of an offence have been made the same by operation of section 289E of this Act; and in that case the fine or the maximum fine referred to in subsection (8) below is the maximum fine to which a person is or may be made liable by virtue of that section.

(7)This section does not apply in the case of—

(a)so much of any Act as (in whatever words) makes a person liable or provides for a person to be made liable to a fine or a maximum fine for each period of a specified length during which a continuing offence is committed;

(b)section 67(3) of the M8Transport Act 1962;

(c)sections 40(5) and 44(1) of the M9Road Traffic Act 1972;

(d)an enactment mentioned in Schedule 1 to the M10British Railways Act 1977 to the extent that the enactment was amended by section 13(1) of that Act;

(e)an enactment mentioned in Schedule 7D to this Act or in Schedule 2 to the M11Criminal Justice Act 1982.

(8)Where this section applies, the fine or, as the case may be, the maximum fine to which a person is or may be made liable by or under the Act shall be increased to the amount shown in column 2 of the Table below opposite the band in column 1 within which the fine or the maximum fine referred to in subsection (1) above falls.

Column 1Column 2
Fine or maximum fineIncreased amount
Under £25£25
Under £50 but not less than £25£50
Under £200 but not less than £50£200
Under £400 but not less than £200£500
Under £1,000 but not less than £400£1,000

(9)Where an Act to which this section applies provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things but also provides or confers a power to provide for an alternative fine or maximum fine as regards the offence, subsection (8) above shall have effect to increase—

(a)the alternative fine; and

(b)any amount that the Act provides or confers a power to provide for as the maximum which a fine as regards the offence may not exceed,

as well as the fine or maximum fine which it has effect to increase by virtue of subsection (4) above.

(10)This section does not affect the penalty which may be imposed in respect of an offence committed before it comes into force.

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Marginal Citations

M71977 c. 45(39:1).

M91972 c. 20(107:1).

289G The standard scale: amendment of enactments.S

(1)There shall be a standard scale of fines for offences triable only summarily, which shall be known as “the standard scale”.

[F28(2)The standard scale is shown below—

Level on the scaleAmount of fine
1£200
2£500
3£1,000
4£2,500
5£5,000]

(3)Any reference in any enactment (whether passed or made before or after the passing of the Criminal Justice Act 1982) to a specified level on the standard scale shall be construed as referring to the amount which corresponds to that level on the standard scale referred to in subsection (2) above.

(4)Subject to subsection (8) below, where—

(a)an enactment to which subsection (5) below applies either—

(i)makes a person liable on conviction of an offence triable only summarily (whether created by that enactment or otherwise) to a fine or a maximum fine; or

(ii)confers a power by subordinate instrument to make a person liable on conviction of an offence triable only summarily (whether or not created by the instrument) to a fine or a maximum fine;

and

(b)the amount of the fine or the maximum fine is, whether by virtue of that enactment or otherwise, an amount shown in the second column of the standard scale,

for the reference in the enactment to the amount of the fine or maximum fine there shall be substituted a reference to the level on the standard scale shown in the first column thereof as corresponding to the amount in the second column thereof referred to in paragraph (b) above.

(5)This subsection applies to an enactment in any Act (including this Act) passed before the commencement of this section.

(6)Subject to subsection (7) below, where an Act provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things, that fine or maximum fine is the fine or, as the case may be, the maximum fine for the purposes of this section.

(7)Where an Act provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things but also provides or confers a power to provide for an alternative fine or maximum fine as regards the offence, the fine or the maximum fine for the purposes of this section is—

(a)the alternative fine; and

(b)any amount that the Act provides or confers a power to provide for as the maximum which a fine as regards the offence may not exceed,

as well as the fine or maximum fine referred to in subsection (6) above.

(8)Subsection (4) above does not apply to—

(a)an enactment mentioned in Schedule 2 to the M12Companies Act 1980;

(b)the M13Companies Act 1981; or

(c)so much of any Act as (in whatever words) makes a person liable or provides for a person to be made liable to a fine or a maximum fine for each period of a specified length during which a continuing offence is committed.

(9)Where an enactment to which subsection (5) above applies confers a power such as is mentioned in subsection (4)(a)(ii) above, the power shall be construed as a power to make a person liable to a fine or, as the case may be, a maximum fine of the amount corresponding to the level on the standard scale to which the enactment refers by virtue of subsection (4) above or of a lesser amount.

[F29(10)Subject to subsection (12) below, where under a relevant subordinate instrument the fine or maximum fine on conviction of a summary offence specified in the instrument is an amount shown in the second column of the standard scale, the reference in the instrument to the amount of the fine or maximum fine shall be construed as a reference to the level in the first column of the standard scale corresponding to that amount.

(11)In subsection (10) above, “relevant subordinate instrument” means any instrument made by virtue of an enactment after 30th April 1984 and before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.

(12)Subsection (10) above shall not affect so much of any instrument as (in whatever words) makes a person liable on summary conviction to a fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued after conviction or the occurrence of any other specified event.

(13)Where there is,

[F30(a)]under any enactment (however framed or worded) contained in an Act passed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987;

[F31(b)under any instrument (however framed or worded) made by virtue of such an enactment,

a power to provide by subordinate instrument that a person, as regards any summary offence (whether or not created by the instrument) shall be liable on conviction to a fine, a person may be so made liable to a fine not exceeding a specified level on the standard scale.]

(14)Subsection (13) above has effect in relation to exercises of powers before as well as after the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.]

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Amendments (Textual)

F28S. 289G(2) substituted (1.10.1992) by Criminal Justice Act 1991 (c. 53), ss. 17(1), 101(1), Sch. 12 para. 6 (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2 (subject to the restriction of S.I. 1992/333, art. 4A as inserted (1.9.1992) by S.I. 1992/2118, arts. 3, 4).

Marginal Citations

[F32289GA Statutory maximum as penalty in respect of summary conviction for offences in subordinate instruments.S
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Amendments (Textual)

(1)Where there is, under any enactment (however framed or worded) contained in an Act passed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987, a power by subordinate instrument to create a criminal offence triable either on indictment or summarily, the maximum fine which may, in the exercise of the power, be authorised on summary conviction shall, by virtue of this section, be the statutory maximum (unless some larger maximum fine can be authorised on summary conviction of such an offence by virtue of an enactment other than this subsection).

(2)Where there is, under any enactment (however framed or worded) contained in an Act passed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987, a power to create offences triable either on indictment or summarily by subordinate instrument, the maximum fine on summary conviction for such an offence may be expressed as a fine not exceeding the statutory maximum.

(3)Subsections (1) and (2) above shall have effect in relation to any exercise of such power before as well as after the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.

(4)Where an offence created by a subordinate instrument made before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987 may be tried either on indictment or summarily, the maximum fine which may be imposed on summary conviction shall by virtue of this subsection be the statutory maximum (unless the offence is one for which by virtue of the instrument a larger maximum fine may be imposed on summary conviction).

(5)Where a person summarily convicted of any offence to which subsection (4) above relates would, apart from this section, be liable to a fine or to a maximum fine of an amount in the case of a first conviction and of a different amount in the case of a second or subsequent conviction, subsection (4) above shall apply irrespective of whether the conviction is a first, second or subsequent one.

(6)Subsection (4) above shall not affect so much of any instrument as (in whatever words) make a person liable on summary conviction to a fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued after conviction or the occurrence of any other specified event.

(7)Nothing in this section shall affect the punishment for an offence committed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.]

[F33289GB Exceptionally high maximum fines.S
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Amendments (Textual)

(1)The Secretary of State may by order amend an enactment or subordinate instrument specifying a sum to which this subsection applies so as to substitute for that sum such other sum as appears to him—

(a)to be justified by a change in the value of money appearing to him to have taken place since the last occasion on which the sum in question was fixed; or

(b)to be appropriate to take account of an order altering the standard scale which has been made or is proposed to be made.

(2)Subsection (1) above applies to any sum which—

(a)is higher than level 5 on the standard scale; and

(b)is specified as the fine or the maximum fine which may be imposed on conviction of an offence which is triable only summarily.

(3)The Secretary of State may by order amend an enactment or subordinate instrument specifying a sum to which this subsection applies so as to substitute for that sum such other sum as appears to him—

(a)to be justified by a change in the value of money appearing to him to have taken place since the last occasion on which the sum in question was fixed; or

(b)to be appropriate to take account of an order made or proposed to be made altering the statutory maximum.

(4)Subsection (3) above applies to any sum which—

(a)is higher than the statutory maximum; and

(b)is specified as the maximum fine which may be imposed on summary conviction of an offence triable either on indictment or summarily.

(5)An order under this section—

(a)shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; and

(b)shall not affect the punishment for an offence committed before that order comes into force.

(6)In this section—

  • enactment” includes an enactment contained in an Act passed after the Criminal Justice (Scotland) Act 1987; and

  • subordinate instrument” includes an instrument made after the passing of that Act.]

[F34289GC Fines under secondary subordinate instruments–Scotland.S
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Amendments (Textual)

(1)This section applies to any instrument (however framed or worded) which—

(a)was made before 11th April 1983 (the date of commencement of Part IV of the Criminal Justice Act 1982);

(b)confers on any authority other than a harbour authority a power by subordinate instrument to make a person, as regards any summary offence (whether or not created by the latter instrument), liable on conviction to a maximum fine of a specified amount not exceeding £1,000,

but does not affect so much of any such instrument as (in whatever words) confers a power by subordinate instrument to make a person liable on conviction to a fine for each period of a specified length during which a continuing offence is continued.

(2)The maximum fine to which a subordinate instrument made by virtue of an instrument to which this section applies may provide that a person shall be liable on conviction of a summary offence is—

(a)if the specified amount is less than £25, level 1 on the standard scale;

(b)if it is £25 or more but less than £50, level 2;

(c)if it is £50 or more but less than £200, level 3;

(d)if it is £200 or more but less than £400, level 4; and

(e)if it is £400 or more, level 5.

(3)Subject to subsection (5) below, where an instrument to which this section applies confers a power by subordinate instrument to make a person, as regards a summary offence, liable on conviction to a fine in respect of a specified quantity or a specified number of things, that fine shall be treated for the purposes of this section as being the maximum fine to which a person may be made liable by virtue of the instrument.

(4)Where an instrument to which this section applies confers a power to provide for different maximum fines in relation to different circumstances or persons of different descriptions, the amount specified as those maximum fines are to be treated separately for the purposes of this section.

(5)Where an instrument to which this section applies confers a power by subordinate instrument to make a person, as regards a summary offence, liable on conviction to a fine in respect of a specified quantity or a specified number of things but also confers a power by subordinate instrument to make a person, as regards such an offence, liable on conviction to an alternative fine, this section shall have effect in relation—

(a)to the alternative fine; and

(b)to any amount that the instrument specifies as the maximum fine for which a subordinate instrument made in the exercise of the power conferred by it may provide,

as well as in relation to the fine mentioned in subsection (3) above,]

[F35289GD Fines on summary conviction for offences under subordinate instruments– conversion to references to levels on scale.S
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Amendments (Textual)

(1)Where an instrument which was made under an enactment on or after 11th April 1983 but before the commencement of section 54 of the Criminal Justice Act 1988 confers on any authority other than a harbour authority a power by subordinate instrument to make a person liable on summary conviction to a fine of an amount shown in the second column of the standard scale, as that scale had effect when the instrument was made, a reference to the level in the first column of the standard scale which then corresponded to that amount shall be substituted for the reference in the instrument conferring the power to the amount of the fine.

(2)This section shall not affect so much of any instrument as (in whatever words) makes a person liable on summary conviction to a maximum fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued.]

289H Schedule 7D.S

(1)The enactments specified in column 1 of Schedule 7D to this Act, which relate to the penalties or the maximum penalties for the offences mentioned in those enactments, shall be amended in accordance with the amendments specified in column 2 of that Schedule, which have the effect of altering the penalties on summary conviction of the said offences and placing the fines on a level on the standard scale; and in that Schedule column 3 shows the penalties or, as the case may be, maximum penalties in force immediately before the commencement of this section and column 4 shows the penalties or, as the case may be, maximum penalties resulting from the amendments.

(2)Subsection (1) above does not affect the penalty which may be imposed in respect of an offence committed before it comes into force.

290 When six months’ imprisonment competent.S

Where a person is convicted by the sheriff of—

(a)a second or subsequent offence inferring dishonest appropriation of property, or attempt thereat, or

(b)a second or subsequent offence inferring personal violence,

he may, without prejudice to any wider powers conferred by statute, be sentenced to imprisonment for any period not exceeding six months.

291 Trial of certain offences.S

(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F36

(2)It is hereby declared that it is competent to prosecute summarily in the sheriff court the crime of uttering a forged document.

(3)It is hereby declared that it is competent to prosecute summarily in the sheriff court crimes of [F37wilful fire-raising,] robbery and assault with intent to rob.

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Amendments (Textual)

292 Theft outside Scotland.S

(1)Any person who has in his possession in Scotland property which he has stolen in any other part of the United Kingdom may be dealt with, charged, tried and punished in Scotland in like manner as if he had stolen it in Scotland.

(2)Any person who in Scotland receives property stolen in any other part of the United Kingdom may be dealt with, charged, tried and punished in Scotland in like manner as if it had been stolen in Scotland.

293 Instructions by Lord Advocate as to reporting offences.S

The Lord Advocate may from time to time issue instructions to a chief constable with regard to the reporting, for consideration of the question of prosecution, of offences alleged to have been committed within the area of such chief constable, and it shall be the duty of a chief constable to whom any such instruction is issued to secure compliance therewith.

Procedure prior to trialS

294 Power of constable to take offenders into custody.S

(1)Without prejudice to any other powers of arrest, any constable may take into custody, without warrant—

(a)any person who within his view commits any of the offences mentioned in Schedule 1 to this Act, if the constable does not know and cannot ascertain his name and address;

(b)any person who has committed, or whom he has reason to believe to have committed, any of the offences mentioned in Schedule 1 to this Act, if the constable does not know and cannot ascertain his name and address or has reasonable ground for believing that he will abscond.

[F38(2)Where a person has been arrested under this section, the officer in charge of a police station may—

(a)liberate him upon a written undertaking, signed by him and certified by the said officer, in terms of which that person undertakes to appear at a specified court at a specified time; or

(b)liberate him without any such undertaking; or

(c)refuse to liberate him; and such refusal and the detention of that person until his case is tried in the usual form shall not subject the officer to any claim whatsoever.

(3)A person in breach of an undertaking given by him under subsection (2)(a) above without reasonable excuse shall be guilty of an offence and liable to the following penalties—

(a)a fine not exceeding [F39level 3 on the standard scale], and

(b)imprisonment for a period—

(i)where conviction is in the district court, not exceeding 60 days; or

(ii)where conviction is in the sheriff court, not exceeding 3 months.

(4)The penalties provided for in subsection (3) above may be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

(5)In any proceedings relating to an offence under this section, a writing, purporting to be such an undertaking as is mentioned in subsection (2)(a) above and bearing to be signed and certified, shall be sufficient evidence of the terms of the undertaking given by the arrested person.]

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Amendments (Textual)

[F40295 Interim liberation by officer in charge of police station.S
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Amendments (Textual)

(1)Where a person has been arrested and charged with an offence which may be tried summarily, the officer in charge of a police station may—

(a)liberate him upon a written undertaking, signed by him and certified by the said officer, in terms of which that person undertakes to appear at a specified court at a specified time; or

(b)liberate him without any such undertaking; or

(c)refuse to liberate him, and such refusal and the detention of that person until his case is tried in the usual form shall not subject the officer to any claim whatsoever.

(2)A person in breach of an undertaking given by him under subsection (1) above without reasonable excuse shall be guilty of an offence and liable on summary conviction to the following penalties—

(a)a fine not exceeding [F41level 3 on the standard scale]; and

(b)imprisonment for a period—

(i)where conviction is in the district court, not exceeding 60 days; or

(ii)where conviction is in the sheriff court, not exceeding 3 months.

(3)Subsections (4) and (5) of section 294 of this Act shall, subject to any necessary modifications, apply for the purposes of this section as they apply for the purposes of that section.]

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Amendments (Textual)

Modifications etc. (not altering text)

296 Police liberation or detention of children arrested.S

(1)Where a person who is apparently a child is apprehended, with or without warrant, and cannot be brought forthwith before a sheriff F42. . ., a superintendent or inspector of police, or other officer of police of equal or superior rank, or the officer in charge of the police station to which he is brought, shall inquire into the case, and may liberate him on an [F43undertaking] that he will attend at the hearing of the charge being entered into by him or his parent or guardian [F44; and such undertaking shall be in writing, signed by the child or the parent or guardian as the case may be, and certified by the said officer; and the said officer shall so liberate the child unless—]

(a)the charge is one of homicide or other grave crime; or

(b)it is necessary in his interest to remove him from association with any reputed criminal or prostitute; or

(c)the officer has reason to believe that his liberation would defeat the ends of justice.

(2)Where a person who is apparently a child having been apprehended is not so liberated as aforesaid, the officer of police shall cause him to be detained in a place of safety other than a police station until he can be brought before a sheriff F42. . . unless the officer certifies—

(a)that it is impracticable to do so; or

(b)that he is of so unruly a character that he cannot safely be so detained; or

(c)that by reason of his state of health or of his mental or bodily condition it is inadvisable so to detain him;

and the certificate shall be produced to the court before which he is brought.

(3)Where a person who is apparently a child has been detained under this section and is not so liberated as aforesaid and it is decided not to proceed with the charge against him a constable shall so inform the reporter of the local authority for the area in which the child is detained, and the child may continue to be detained in a place of safety until the reporter has decided on the course that should be taken with regard to the child under the provisions of Part III of the M14Social Work (Scotland) Act 1968.

(4)A child shall not continue to be detained under this section—

(a)where the reporter considers the child does not require compulsory measures of care.

(b)after the day on which a children’s hearing first sit to consider his case in pursuance of section 37(4) of the Social Work (Scotland) Act 1968, or

(c)for a period exceeding seven days.

[F45(5)Any person, who without reasonable excuse is in breach of an undertaking entered into by him under subsection (1) above after having been given due notice of the time and place of the diet . . . F46, shall be guilty of an offence, and liable on summary conviction in addition to any other penalty which it is competent for the court to impose on him, to a fine not exceeding [F47level 3 on the standard scale].

(6)In any proceedings relating to an offence under this section, a writing, purporting to be such an undertaking as is mentioned in subsection (1) above and bearing to be signed and certified, shall be sufficient evidence of the undertaking given by the accused.]

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Amendments (Textual)

F42Words in s. 296(1)(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 104, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Marginal Citations

297 Committal of children to custody in place of safety.S

(1)Any court, on remanding or committing for trial a child who is not liberated on bail shall, instead of committing him to prison, commit him to the local authority in whose area the court is situated to be detained in a place of safety chosen by the local authority for the period for which he is remanded or until he is liberated in due course of law.

Provided that in the case of a child over 14 years of age it shall not be obligatory on the court so to commit him if the court certifies that he is of so unruly a character that he cannot safely be so committed or that he is of so depraved a character that he is not a fit person to be so detained [F48; but the court shall not so certify a child unless such conditions as the Secretary of State may by order made by statutory instrument prescribe are satisfied in relation to the child.]

(2)A commitment under this section may be varied, or, in the case of a child over 14 years of age, who proves to be of so unruly a character that he cannot safely be detained in such custody, or to be of so depraved a character that he is not a fit person to be so detained, revoked, by the court which made the order, or if application cannot conveniently be made to that court, by a sheriff sitting summarily having jurisdiction in the place where the court which made the order sat, and if it is revoked the child may be committed to prison [F49; but a commitment shall not be so revoked unless such conditions as the Secretary of State may by order made by statutory instrument prescribe are satisfied in relation to the child.]

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Amendments (Textual)

298 All offences to be bailable.S

(1)All offences shall be bailable, and any judge having jurisdiction to try the offence may, at his discretion, on the application of any person who has been charged with any offence, and after opportunity shall have been given to the prosecutor to be heard thereon, admit or refuse to admit such person to bail.

(2)Such application shall be disposed of within 24 hours after its presentation to the judge, failing which the accused shall be forthwith liberated.

[F50(3)For the avoidance of doubt, the foregoing provisions of this section apply whether or not the person is in custody at such time as he appears for the disposal of his application.]

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Amendments (Textual)

299 Application for review of court’s decision on bail and caution.S

(1)The following provisions of this section shall apply where a court has refused to admit a person to bail or, where a court has so admitted a person, the bail fixed in his case has not been found.

(2)A court shall, on the application of any such person as aforesaid, have power to review its decision to admit to bail or its decision as to the bail fixed and may, on cause shown, admit the person to bail or, as the case may be, fix bail [F51on different conditions].

(3)An application under this section, where it relates to the original decision of the court, shall not be made before the fifth day after that decision and, where it relates to a subsequent decision, before the fifteenth day thereafter.

(4)Nothing in the provisions of this section shall affect any right of a person to appeal against the decision of a court in relation to admitting to bail or to the bail fixed.

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F52

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Amendments (Textual)

[F53299A Application by prosecutor for review of court’s decision to grant bail.S
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Amendments (Textual)

F53S. 299A inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 4; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)On an application by the prosecutor at any time after a court has granted bail to a person the court may, where the prosecutor puts before the court material information which was not available to it when it granted bail to that person, review its decision.

(2)On receipt of an application under subsection (1) above the court shall—

(a)intimate the application to the person granted bail;

(b)fix a diet for hearing the application and cite that person to attend the diet; and

(c)where it considers that the interests of justice so require, grant warrant to arrest that person.

(3)On hearing an application under subsection (1) above the court may—

(a)withdraw the grant of bail and remand the person in question in custody; or

(b)grant bail, or continue the grant of bail, either on the same or on different conditions.

(4)Nothing in the foregoing provisions of this section shall affect any right of appeal against the decision of a court in relation to bail.]

300 Appeal in respect of bail.S

(1)Where an application for bail by a person charged with an offence under this Part of this Act is refused or where the applicant is dissatisfied with the amount of bail fixed, he may appeal to the High Court and that court may in its discretion order intimation to the prosecutor and, where an application for bail by any such person is granted [F54or where the person is ordained to appear], the prosecutor, if dissatisfied with the granting of bail or with the amount fixed [F54or that such person has been ordained to appear] may appeal in like manner and, subject as hereinafter provided, the applicant shall in such case not be liberated before such appeal is disposed of.

(2)Notice in writing shall be immediately given by the party appealing under this section to the other party.

(3)An appeal under this section shall be disposed of by the High Court or any Lord Commissioner of Justiciary in court or in chambers after such inquiry and hearing of the parties as shall seem just.

[F55(3A)Where an applicant in an appeal under this section is under 21 years of age, section 329 of this Act shall apply to the High Court or, as the case may be, the Lord Commissioner of Justiciary when disposing of the appeal as it applies to a court when remanding or committing a person of the applicant’s age for trial or sentence.]

(4)When an appeal is taken by the prosecutor under this section either against the grant of bail or against the amount fixed, the applicant to whom bail has been granted shall, if the bail fixed shall have been found by him, be liberated after 72 hours F56. . ., from the granting of the application, whether the appeal be disposed of or not, unless the High Court shall grant order for his further detention in custody. In computing the aforesaid [F57period], Sundays and public holidays, whether general or court holidays, shall be excluded.

[F58(4A)When an appeal is taken by the prosecutor under this section against the fact that the person has been ordained to appear, subsection (4) above shall apply as it applies in the case of an appeal against the granting of bail or against the amount fixed.]

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F59

(6)Where an appeal under this section by the prosecutor is refused, the High Court may award expenses against him, but no court or other fees shall be exigible from, and no expenses shall be awarded against, an applicant in respect of his application or of any appeal therein.

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Amendments (Textual)

F55S. 300(3A) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 105(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F56Words in s. 300(4) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 105(b)(i), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F57Word in s. 300(4) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 105(b)(ii); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

301, 302.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F60S
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Amendments (Textual)

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Amendments (Textual)

303 Caution and bail.S

(1)With regard to the finding, forfeiture, and recovery of caution in any proceedings under this Part of this Act the following provisions shall apply:—

(a)caution may be found by consignation of the amount with the clerk of court, or by bond of caution, which bond may be signed by the mark of the cautioner;

(b)where caution becomes liable to forfeiture, forfeiture may be granted by the court on the motion of the prosecutor, and, where necessary, warrant granted for the recovery thereof;

(c)in the event of any cautioner failing to pay the amount due under his bond within six days after he has received a charge to that effect, the court may order him to be imprisoned for the maximum period applicable in pursuance of section 407 of this Act to that amount or until payment is made; or the court, if it shall adjudge it expedient, may on the application of the cautioner grant time for payment or may instead of imprisonment order recovery by civil diligence in accordance with section 411 of this Act.

(2)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F61

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Amendments (Textual)

304 Power to order parents to give security for child’s good behaviour.S

(1)Where a child has been charged with any offence the court may order his parent or guardian to give security for his co-operation in securing the child’s good behaviour.

(2)An order under this section may be made against a parent or guardian who, having been required to attend, has failed to do so, but, save as aforesaid, no such order shall be made without giving the parent or guardian an opportunity of being heard.

(3)Any sums ordered on forfeiture of any such security as aforesaid to be paid by a parent or guardian may be recovered from him by civil diligence or imprisonment in like manner as if the order had been made on the conviction of the parent or guardian of the offence with which the child was charged.

[F62305 Right of accused to have access to solicitor.S
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Amendments (Textual)

F62S. 305 substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 106; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest—

(a)to have intimation sent to a solicitor that his professional assistance is required by such a person and informing him—

(i)of the place where the person is being detained;

(ii)whether the person is to be liberated; and

(iii)if the person is not to be liberated, the date on which he is to be taken to court and the court to which he is to be taken;

(b)to be told what rights there are under paragraph (a) above and subsections (2) and (3) below.

(2)Such solicitor shall be entitled to have a private interview with the person accused before he is examined on declaration, and to be present at such examination.

(3)It shall be in the power of the sheriff or justice to delay such examination for a period not exceeding 48 hours from and after the time of such person’s arrest, in order to allow time for the attendance of such solicitor.]

306 Separation of children from adults at courts, etc.S

Arrangements shall be made for preventing a child while detained in a police station, or while being conveyed to or from any criminal court, or while waiting before or after attendance in any criminal court, from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child is jointly charged, and for ensuring that a female child shall, while so detained, being conveyed, or waiting, be under the care of a woman.

307 Attendance at court of parent of child charged with an offence, etc.S

(1)Where a child is charged with any offence, his parent or guardian may in any case, and shall, if he can be found and resides within a reasonable distance, be required to attend at the court before which the case is heard or determined during all the stages of the proceedings, unless the court is satisfied that it would be unreasonable to require his attendance.

(2)Where the child is arrested, the constable by whom he is arrested or the officer of police in charge of the police station to which he is brought shall cause the parent or guardian of the child, if he can be found, to be warned to attend at the court before which the child will appear.

(3)For the purpose of enforcing the attendance of a parent or guardian and enabling him to take part in the proceedings and enabling orders to be made against him, rules may be made under section 457 of this Act, for applying, with the necessary adaptations and modifications, such of the provisions of this Part of this Act as appear appropriate for the purpose.

(4)The parent or guardian whose attendance shall be required under this section shall be the parent or guardian having the actual possession and control of the child:

Provided that, if that person is not the father, the attendance of the father may also be required.

(5)The attendance of the parent of a child shall not be required under this section in any case where the child was before the institution of the proceedings removed from the custody or charge of his parent by an order of a court.

308 Notice to local authority of charge against a child.S

(1)Where a child is to be brought before a court, notification of the day and hour when, and the nature of the charge on which, the child is to be so brought shall be sent by the chief constable of the area in which the offence is alleged to have been committed to the local authority for the area in which the court will sit.

(2)Where a local authority have received a notification under the foregoing subsection they shall make such investigations and render to the court a report which shall contain such information as to the home surroundings of the child as appear to them will assist the court in the disposal of his case, and the report shall contain information, which the appropriate education authority shall have a duty to supply, as to the school record, health and character of the child.

309 Forms of procedure.S

(1)The forms of procedure under this Part of this Act shall be in the forms set out in F63. . . an Act of Adjournal under this Act or as nearly as may be in such forms.

(2)Warrants of apprehension and search shall be signed by the judge granting the same, but all other warrants, orders of court, and sentences may be signed either by the judge or by the clerk of court, and execution upon any warrant, order of court, or sentence may proceed either upon such warrant, order of court, or sentence itself or upon an extract thereof issued and signed by the clerk of court.

(3)Where, as preliminary to any procedure, a sworn information is required, such information may be sworn to before any judge, whether the subsequent procedure be in his court or another court.

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Amendments (Textual)

F63Words in s. 309(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 107, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

310 Incidental applications. S
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Modifications etc. (not altering text)

Where prior to [F64or after] the presentation of a complaint it is necessary to apply to a court for any warrant or order of court as incidental to . . . F65 proceedings by complaint, or where a court has power to grant any warrant or order of court, although no subsequent proceedings by complaint may follow thereon, such application may be by petition at the instance of a prosecutor in the form set out in F66. . . an Act of Adjournal under this Act or as nearly as may be in such form and, where necessary for the execution of any such warrant or order of court, warrant to break open [F67shut and] lockfast places shall be implied.

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Amendments (Textual)

F66Words in s. 310 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 108(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F67Words in s. 310 inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 108(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C11S. 310 applied (31.10.1994) by 1994 c. 26, s. 98(2)(a); S.I. 1994/2550, art. 2

[F68310A Abolition of private summary prosecutions.S
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Amendments (Textual)

F68S. 310A inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 63; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Except where any enactment otherwise expressly provides, all prosecutions under this Part of this Act shall be brought at the instance of the procurator fiscal.]

311 Complaint.S

(1)All proceedings under this Part of this Act for the trial of offences or recovery of penalties shall be instituted by complaint F69. . ..

(2)Such complaint shall be signed by the prosecutor or by any solicitor on behalf of a prosecutor other than the public prosecutor of a court.

(3)A solicitor may appear for and conduct any prosecution on behalf of a prosecutor other than the public prosecutor of a court.

F70(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F70(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F69Words in s. 311(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 109(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F70S. 311(4)(5) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 109(b), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

312 Form of the charge in complaint.S

The charge in a complaint under this Part of this Act shall be stated in the form, as nearly as may be, of the appropriate form contained in Part II of Schedule 2 to the M15Summary Jurisdiction (Scotland) Act 1954 or in an Act of Adjournal under this Act. No further specification shall be required than a specification similar to that given in that form and—

(a)a person accused may be named and designed according to the existing practice, or he may be named by the name given by him and designed as of the place given by him as his residence when he is examined on declaration, and it shall not be necessary to set forth any other name or names by which he may be known, or any other address or designation;

(b)it shall not be necessary to specify by anynomen juristhe offence which is charged, but it shall be sufficient that the complaint sets forth facts relevant and sufficient to constitute an offence punishable on complaint;

(c)when two or more persons are charged together with committing an offence punishable on complaint, it shall not be necessary to allege that “both and each or one or other,” or that “all and each or one or more” of them committed the offence, or did or failed to do any particular act, but such alternatives shall be implied;

(d)it shall not be necessary to state that a person accused is “guilty, actor or art and part”, but such charge shall be implied;

(e)it shall not be necessary to allege that any act of commission or omission therein charged was done or omitted to be done “wilfully” or “maliciously”, or “wickedly and feloniously”, or “falsely and fraudulently”, or “knowingly”, or “culpably and recklessly”, or “negligently”, or in “breach of duty”, or to use such words as “knowing the same to be forged”, or “having good reason to know”, or “well knowing the same to have been stolen”, or to use any similar words or expressions qualifying any act charged, but such qualifying allegation shall be implied;

(f)the latitude in use to be taken in stating time shall be implied in all statements of time where an exact time is not of the essence of the charge, and the latitude in use to be taken in stating any place by adding to the word “at”, or to the word “in”, the words “or near”, or the words “or in the near neighbourhood thereof”, or similar words, shall be implied in all statements of place where the actual place is not of the essence of the charge, and where the circumstances of the offence charged make it necessary to take an exceptional latitude in regard to time or place it shall not be necessary to set forth such circumstances, or to set forth that the particular time or the particular place is to the prosecutor unknown; provided that where exceptional latitude is taken, the court shall, if satisfied that such exceptional latitude was not reasonable in the circumstances of the case, give such remedy to the accused by adjournment of the trial or otherwise as shall seem just [F71provided also that nothing in the foregoing provisions of this paragraph or in any rule of law shall prohibit the amendment of a complaint to include a time outwith the exceptional latitude if it appears to the court that the amendment would not prejudice the accused;];

(g)the latitude in use to be taken in describing quantities by the words “or thereby”, or the words “or part thereof”, or the words “or some other quantity to the prosecutor unknown” or similar words, shall be implied in all statements of quantities, and the latitude in use to be taken in stating details connected with the perpetration of any act regarding persons, things or modes by inserting general alternative statements followed by the words “to the prosecutor unknown”, or similar words, shall be implied;

(h)where in a complaint, whether raised under statute or at common law, buildings, goods, money, or property of any other description are mentioned, it shall not be necessary to allege the property or possession thereof to be in any person, official, corporation or company, or that the same were not the property of the accused, and the allegation that the same were not the property of the accused shall be implied where it is essential to the criminality of the charge;

(i)where in a complaint or any list or inventory relative thereto any person is referred to, it shall be sufficient to describe him by his name and ordinary address, and it shall not be necessary to describe him as “now or lately” residing at such address, but such words shall be implied, and where goods, articles or things require to be described, it shall be sufficient to describe them in general terms without specifying the materials of which they are made, or any particulars which distinguish them from other goods, articles or things of a similar kind except in cases in which such particulars are essential to the constitution of the offence charged;

(j)the word “money” shall include [F72cheques, banknotes, postal orders, money orders and foreign currency;];

(k)where any document requires to be referred to, it shall not be necessary to set forth the document or any part of it, but it shall be sufficient to refer to such document by a general description;

(l)criminal resetting of property shall not be limited to the receiving of property taken by theft or robbery, but shall extend to the receiving of property appropriated by breach of trust and embezzlement, and by falsehood fraud and wilful imposition, and under any complaint charging the resetting of property dishonestly appropriated by any of these means, it shall not be necessary to set forth any details of the offence by which the dishonest appropriation was accomplished, but it shall be sufficient to set forth that the accused received such property, it having been dishonestly appropriated by theft or robbery, or by breach of trust and embezzlement, or by falsehood fraud and wilful imposition, as the case may be;

(m)under a complaint for robbery, or for theft, or for breach of trust and embezzlement, or for falsehood fraud and wilful imposition, a person accused may be convicted of reset; under a complaint for robbery, or for breach of trust and embezzlement, or for falsehood fraud and wilful imposition, a person accused may be convicted of theft; under a complaint for theft, a person accused may be convicted of breach of trust and embezzlement, or of falsehood fraud and wilful imposition, or may be convicted of theft, although the circumstances proved may in law amount to robbery.

The power conferred by the last foregoing paragraph to convict a person of an offence other than the offence charged in a complaint shall be exercisable by the sheriff court before which such person is tried notwithstanding that that other offence was committed outside the jurisdiction of that sheriff court;

(n)where two or more offences or acts constituting offences are charged cumulatively, it shall be lawful to convict of any one or more of them, and any part of what is charged in a complaint, constituting in itself an offence punishable on complaint, shall be deemed separable to the effect of making it lawful to convict of such offence, and where any offence is charged as having been committed with a particular intent or with particular circumstances of aggravation, it shall be lawful to convict of the offence without such intent or aggravation;

(o)attempt to commit any offence punishable on complaint shall itself be an offence punishable on complaint, and under a complaint which charges a completed offence the accused may be lawfully convicted of an attempt to commit such offence; and under a complaint charging an attempt, the accused may be convicted of such attempt although the evidence be sufficient to prove the completion of the offence said to have been attempted; and under a complaint charging an offence which imports personal injury inflicted by the accused, resulting in death or serious injury to the person, the accused may be lawfully convicted of the assault or other injurious act, and may also be lawfully convicted of the aggravation that such assault or other injurious act was committed with intent to commit such offence;

(p)the description of any offence in the words of the statute or order contravened, or in similar words, shall be sufficient;

(q)the statement that an act was done contrary to a statute or order shall imply a statement that the statute or order applied to the circumstances existing at the time and place of the offence, that the accused was a person bound to observe the same, that any necessary preliminary procedure had been duly gone through, and that all the circumstances necessary to a contravention existed; in the case of the contravention of an order, such statement shall imply a statement that the order was duly made, confirmed, published and generally made effectual according to the law applicable, and was in force at the time and place in question;

(r)where the offence is created by more than one section of one or more statutes or orders, it shall be necessary to specify only the leading section or one of the leading sections;

(s)it shall not be necessary for an offence punishable under any Act of Parliament to quote the Act of Parliament or any part of it, but it shall be sufficient to allege that the offence was committed contrary to such Act of Parliament, and to refer to the Act and any section of the Act founded on without setting forth the enactment at length;

(t)where any act set forth in a complaint as contrary to any Act of Parliament is also criminal at common law, or where the facts proved under such a complaint do not amount to a contravention of the statute, but do amount to an offence at common law, it shall be lawful to convict of the common law offence;

(u)when in a trial the evidence shall be sufficient to prove the identity of any person, corporation or company, or of any place, or of any thing, it shall not be a valid objection to the sufficiency of such evidence that any particulars set forth in regard thereto in the complaint have not been proved;

(v)any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the statute or order creating the offence, may be proved by the accused, but need not be specified or negatived in the complaint, and no proof in relation to such exception, exemption, proviso, excuse or qualification shall be required on behalf of the prosecution;

(w)it shall be competent to include in one complaint both common law and statutory charges;

(x)where an offence is alleged to be committed in any special capacity, as by the holder of a licence, master of a vessel, occupier of a house or the like, the fact that the accused possesses the qualification necessary to the commission of the offence shall, unless challenged by preliminary objection before his plea is recorded, be held as admitted;

(y)in any proceedings under the Merchant Shipping Acts it shall not be necessary to produce the official register of the ship referred to in the proceedings in order to prove the nationality of the ship, but the nationality of the ship as stated in the complaint shall, in the absence of evidence to the contrary, be presumed;

(z)in offences inferring dishonest appropriation of property brought before a court whose power to deal with such offences is limited to cases in which the value of such property does not exceed [F73level 4 on the standard scale] it shall be assumed, and it shall not be necessary to state in the charge, that the value of the property does not exceed that sum.

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Amendments (Textual)

F71Words in s. 312(f) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 110(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F72Words in s. 312(j) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 110(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Marginal Citations

F74313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

F74S. 313 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 24, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

314 Orders of court on complaint.S

(1)On any complaint under this Part of this Act being laid before a judge of the court in which the complaint is brought, he shall have power on the motion of the prosecutor—

(a)to pronounce an order of court assigning a diet for the disposal of the case to which the accused may be cited as after-mentioned;

(b)to grant warrant to apprehend the accused where this appears to the judge expedient;

(c)to grant warrant to search the person, dwelling-house and repositories of the accused and any place where he may be found for any documents, articles, or property likely to afford evidence of his guilt of, or guilty participation in, any offence charged in the complaint, and to take possession of such documents, articles or property;

(d)to grant any other order of court or warrant F75. . . of court of warrant which may be competent in the circumstances.

(2)The power under the foregoing subsection [F76of a judge—

(a)to pronounce an order of court assigning a diet for the disposal of the case may be exercised on his behalf by the clerk of court;

to grant a warrant to apprehend the accused shall be exercisable notwithstanding that there is power whether at common law or under any Act to apprehend him without a warrant.

(3)Where a diet has been fixed in a summary prosecution, it shall be competent for the court, on a joint application in writing by the parties or their solicitors, to discharge the diet so fixed and fix in lieu thereof an earlier . . . F77 diet.

[F78(4)Where the prosecutor and the accused make joint application to the court (orally or in writing) for postponement of a diet which has been fixed, the court shall discharge the diet and fix in lieu thereof a later diet unless the court considers that it should not do so because there has been unnecessary delay on the part of one or more of the parties.

[F79(4A)Where all the parties join in an application under subsection (4) above, the court may proceed under that subsection without hearing the parties.]

(5)Where the prosecutor has intimated to the accused that he desires to postpone or accelerate a diet which has been fixed, and the accused refuses, or any of the accused refuse, to make a joint application to the court for that purpose, the prosecutor may make an incidental application for that purpose under section 310 of this Act; and, after giving the parties an opportunity to be heard, the court may discharge the diet and fix in lieu thereof a later diet or, as the case may be, an earlier diet.

(6)Where an accused has intimated to the prosecutor and to all the other accused that he desires such postponement or acceleration and the prosecutor refuses, or any of the other accused refuse, to make a joint application to the court for that purpose, the accused who has so intimated may apply to the court for that purpose; and, after giving the parties an opportunity to be heard, the court may discharge the diet and fix in lieu thereof a later diet or, as the case may be, an earlier diet.]

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Amendments (Textual)

F75Words in s. 314(1)(d) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 111(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F79S. 413(4A) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 111(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

315 Citation. S
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Modifications etc. (not altering text)

(1)This Act shall be a sufficient warrant for the citation of the accused and witnesses in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or any adjournment thereof.

(2)Such citation shall be in the form, as nearly as may be, of the appropriate form contained in F80. . .an Act of Adjournal under this Act and shall in the case of the accused proceed on an induciae of at least 48 hours unless in the special circumstances of the case the court fixes a shorter induciae.

(3)The foregoing provisions of this section as to the citation of witnesses shall apply to the citation of witnesses for precognition by the prosecutor where a judge on the application of such prosecutor shall deem it expedient to grant warrant to cite witnesses for precognition in regard to any offence which may be competently tried in the court of that judge, and whether or not any person has at the time of such application been charged with such offence.

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Amendments (Textual)

F80Words in s. 315(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 112, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

316 Manner of citation.S

(1)The citation of the accused and witnesses in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or to any adjourned sitting or diet of such court shall be effected as provided in this section.

(2)It shall be deemed a legal citation of the accused or a witness to such a sitting or diet or adjourned sitting or diet as is mentioned in the foregoing subsection:—

(a)if the citation be delivered to him personally or left for him at his dwelling-house or place of business with some person resident or employed therein or, where he has no known dwelling-house or place of business, at any other place in which he may at the time be resident,

(b)where the accused or witness is the master of, or a seaman or person employed in a vessel, if the citation is left with a person on board thereof and connected therewith,

(c)where the accused is a company, association or corporation, if the citation is left at their ordinary place of business with a partner, director, secretary or other official, or if the company, association or corporation is cited in the same manner as if the proceedings were in a civil court, or

(d)where the accused is a body of trustees, if the citation is left with any one of them who is resident in Scotland or with their known solicitor in Scotland.

(3)It shall be deemed a legal citation of the accused [F81or a witness]to such a sitting or diet or adjourned sitting or diet as is mentioned in subsection (1) hereof, if the citation be signed by the prosecutor and

[F82(a)in the case of the accused,]

sent by post in a registered envelope or through the recorded delivery service [F83; and

(b)in the case of a witness, sent by ordinary post,]

to the dwelling-house or place of business of such accused, or, if he has no known dwelling-house or place of business, to any other place in which he may at the time be resident:

Provided that, if the accused [F84or witness]shall fail to appear at a diet or sitting or adjourned diet or sitting to which he has been cited in the manner provided by this subsection, paragraphs (b) and (c) of section 338 of this Act shall not apply unless it shall have been proved to the court that he received the citation or that the contents thereof came to his knowledge.

(4)The production in court of any letter or other communication purporting to be written by or on behalf of an accused who has been cited in the manner provided in subsection (3) hereof in such terms as to infer that the contents of such citation came to his knowledge, shall be admissible as evidence of that fact for the purposes of the proviso to that subsection.

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Amendments (Textual)

F81Words in s. 316(3) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 113(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F82S. 316(3)(a) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 113(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F83S. 316(3)(b) and the word “and” immediately preceding inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 113(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F84Words in s. 316(3) proviso inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 113(d); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

317 Citation of probationer.S

The citation of a probationer to appear before a court of summary jurisdiction in terms of section 387(1) or 388(1) of this Act shall be effected in like manner, mutatis mutandis, as the citation of an accused to a sitting or diet of the court.

318 Citation of offender.S

(1)The citation of an offender to appear before a court of summary jurisdiction in terms of section 398(2)(a) of this Act shall be effected in like manner, mutatis mutandis, as the citation of an accused to a sitting or diet of the court:

F85Provided that the citation shall be signed by the clerk of the court before which the offender is required to appear, instead of by the prosecutor, and provided also that the forms contained in Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 and the corresponding forms contained in an Act of Adjournal under this Act shall not apply to such citation.

(2)The citation of such an offender shall be in the appropriate form contained in an Act of Adjournal under this Act, or as nearly as may be in such form.

(3)If the citation of such an offender shall have been effected by an officer of law, the written execution, if any, of that officer of law shall be in the appropriate form contained in an Act of Adjournal under this Act, or as nearly as may be in such form.

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Amendments (Textual)

F85It is provided that the words “Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 and the corresponding forms contained in” in s. 318(1) proviso shall be repealed (31.3.1996) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 114, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

319 Citation by post.S

(1)When the citation of any person F86. . . is effected by post in terms of any of the foregoing provisions of this Act, the induciae shall be reckoned from 24 hours after the time of posting.

(2)It shall be sufficient evidence that a citation has been sent by post in terms of any of the foregoing provisions of this Act, if there is produced in court a written execution, signed by the person who signed such citation and in the appropriate form contained in an Act of Adjournal under this Act, or as nearly as may be in such form, together with the post office receipt for the relative registered or recorded delivery letter.

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Amendments (Textual)

F86Words in s. 319(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 115, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

320 Apprehension of witness. S
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Modifications etc. (not altering text)

Where a witness after being duly cited fails to appear at the diet fixed for his attendance and no just excuse is offered on his behalf, the court may [F87, if it is satisfied that he received the citation or that its contents came to his knowledge,]issue a warrant for his apprehension; or the court, if satisfied by evidence on oath that a witness is not likely to attend to give evidence without being compelled so to do, may issue a warrant for his apprehension in the first instance.

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Amendments (Textual)

F87Words in s. 320 inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 116; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

321 Warrants of apprehension and search.S

(1)A warrant of apprehension or search may be in the form, as nearly as may be, of the appropriate form contained in F88. . .an Act of Adjournal under this Act, and any warrant of apprehension or search shall, where it is necessary for its execution, imply warrant to officers of law to break open shut and lockfast places.

(2)A warrant of apprehension of an accused person in such form as aforesaid shall imply warrant to officers of law to search for and to apprehend the accused, and to bring him before the court issuing the warrant, or before any other court competent to deal with the case, to answer to the charge on which such warrant is granted, and, in the meantime, until he can be so brought to detain him in a police station house, police cell, or other convenient place.

(3)A person apprehended under any such warrant as aforesaid or by virtue of the powers possessed at common law, or conferred by statute, shall wherever practicable be brought before a court competent to deal with the case F89. . . not later than in the course of the first . . . F90 day after such person shall be taken into custody, such day not being a [F91Saturday, a Sunday or a court holiday prescribed for that court under section 10 of the M16Bail etc. (Scotland) Act 1980:]

[F91Provided that nothing in this subsection shall prevent such person being brought before the court on a Saturday, a Sunday or such a court holiday where the court is, in pursuance of the said section 10, sitting on such day for the disposal of criminal business.]

(4)A warrant of apprehension or other warrant shall not be required for the purpose of bringing before the court an accused person who had been apprehended without a written warrant or who attends without apprehension in answer to any charge made against him.

(5)A warrant of apprehension of a witness in the appropriate form shall imply warrant to officers of law to search for and apprehend the witness, and to detain him in a police station house, police cell, or other convenient place, until

[F92(a)the date fixed for the hearing of the case; or

(b)the date when security to the amount fixed under subsection (6) below is found,

whichever is the earlier.]

[F93(6)A witness apprehended under a warrant under section 320 of this Act shall, wherever practicable, be brought immediately by the officer of law who executed that warrant before a justice, who shall fix such sum as he considers appropriate as security for the appearance of the witness at all diets.]

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Amendments (Textual)

F88Words in s. 321(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 117(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F89Words in s. 321(3) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 117(b), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F92S. 321(5)(a)(b) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 117(c); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F93S. 321(6) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 117(d); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

Marginal Citations

322 Warrants for arrest of escaped prisoners and mental patients.S

(1)On an application being made to a sheriff or justice alleging that any person is—

(a)an offender unlawfully at large from a prison or other institution to which the Prison Act applies in which he is required to be detained after being convicted of an offence; or

(b)a convicted mental patient liable to be retaken under [F94section 18, 38(7) or 138 of the M17Mental Health Act 1983], [F95section 28, 44 or 121 of the M18Mental Health (Scotland) Act 1984] or section 30 or 108 of the M19Mental Health Act (Northern Ireland) 1961 (retaking of mental patients who are absent without leave or have escaped from custody);

the sheriff or justice may issue a warrant to arrest him and bring him before any sheriff.

(2)Where a person is brought before a sheriff in pursuance of a warrant for his arrest under this section, the sheriff shall, if satisfied that he is the person named in the warrant and if satisfied as to the facts mentioned in paragraph (a) or (b) of the foregoing subsection, order him to be returned to the prison or other institution where he is required or liable to be detained or, in the case of a convicted mental patient, order him to be kept in custody or detained in a place of safety pending his admission to hospital.

(3)[F96Section 137 of the M20Mental Health Act 1983], [F97section 120 of the M21Mental Health (Scotland) Act 1984] and section 107 of the M22Mental Health Act (Northern Ireland) 1961 (custody, conveyance and detention of certain mental patients) shall apply to a convicted mental patient required by this section to be conveyed to any place or to be kept in custody or detained in a place of safety as they apply to a person required by or by virtue of [F96the said Act of 1983], [F971984] or 1961, as the case may be, to be so conveyed, kept or detained.

(4)In this section—

  • convicted mental patient” means a person liable after being convicted of an offence to be detained under [F98Part III of the M23Mental Health Act 1983, [F99Part VI of the M24Mental Health (Scotland) Act 1984]], Part III of the M25Mental Health Act (Northern Ireland) 1961 or section 330, 376, 378 or 379 of this Act in pursuance of a hospital order or transfer direction together with an order or direction restricting his discharge [F100or a person liable to be detained under][F98section 38 to the said Act of 1983];

  • place of safety” has the same meaning as in [F98Part II of the said Act of 1983], or Part III of the said Act of 1961, or section 462 of this Act as the case may be;

  • Prison Act” means the M26Prison Act 1952, the M27Prisons (Scotland) Act 1952 or the M28Prison Act (Northern Ireland) 1953, as the case may be.

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Amendments (Textual)

Marginal Citations

323 Warrant to search for or remove a child. S
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Modifications etc. (not altering text)

(1)If, on an application to a justice by any person who, in the opinion of the justice, is acting in the interests of a child, it appears to the justice on information on oath that there is reasonable cause to suspect—

(a)that the child has been or is being assaulted, ill-treated, or neglected in any place within the jurisdiction of the justice, in a manner likely to cause him unnecessary suffering or injury to health, or

(b)that any offence mentioned in Schedule 1 to this Act has been or is being committed in respect of the child,

the justice may issue a warrant authorising any constable named therein to search for the child and, if it is found that he has been or is being assaulted, ill-treated or neglected in manner aforesaid, or that any such offence as aforesaid has been or is being committed in respect of him, to take him to and detain him in a place of safety, or authorising any constable to remove him with or without search to a place of safety and detain him there.

(2)A child shall not continue to be detained under the last foregoing subsection—

(a)where the reporter considers the child does not require compulsory measures of care, or

(b)after the day on which a children’s hearing first sit to consider his case in pursuance of section 37(4) of the M29Social Work (Scotland) Act 1968, or

(c)for a period exceeding seven days.

F101(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Any constable authorised by warrant under this section to search for or, with or without search, to remove any child may enter (if need be by force) any house, building, or other place specified in the warrant, and may remove him therefrom.

(5)Every warrant issued under this section shall be addressed to and executed by a constable, who shall be accompanied by the person making the application if that person so desires, unless the justice by whom the warrant is issued otherwise directs, and may also, if the justice by whom the warrant is issued so directs, be accompanied by a duly qualified medical practitioner.

(6)It shall not be necessary in any application, information or warrant under this section to name the child.

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Amendments (Textual)

F101S. 323(3) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 8, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

Marginal Citations

324 Backing of certain warrants from the Isle of Man.S

(1)A warrant issued in the Isle of Man for the arrest of a person charged with an offence may, after it has been endorsed by a justice in Scotland, be executed there by the person bringing that warrant, by any person to whom the warrant was originally directed or by any officer of law of the sheriff court district where the warrant has been endorsed as aforesaid in like manner as any such warrant issued in Scotland.

(2)In this section “endorsed” means endorsed in the like manner as a process to which section 4 of the M30Summary Jurisdiction (Process) Act 1881 applies.

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Marginal Citations

M301881 c. 24(36:3, 82).

325. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F102S
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Amendments (Textual)

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Amendments (Textual)

326 Service of complaints, etc.S

(1)Any complaint, warrant, or other proceeding under this Part of this Act may without endorsation be served or executed at any place within Scotland by any officer of law, and such service or execution may be proved either by the oath in court of such officer or by production of his written execution. The M31Indictable Offences Act 1848 and the M32Indictable Offences Act Amendment Act 1868 shall, for the purpose of this Part of this Act, apply to all offences which may be tried by the court issuing any competent warrant, order of court, or other process.

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F103

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Amendments (Textual)

Marginal Citations

[F104237 Warrants granted by justice may be executed throughout Scotland.S
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Amendments (Textual)

F104S. 237 substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 9; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Any warrant granted by a justice may, without being backed or endorsed by any other justice, be executed throughout Scotland in the same way as it may be executed within the jurisdiction of the justice who granted it.]

327. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F105328 Adjournment for inquiry, etc.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

329 Remand and committal of persons under 21.S

(1)Where a court remands or commits for trial or for sentence a person under 21 years of age who is charged with or convicted of an offence and is not released on bail [F106or ordained to appear], then, except as otherwise expressly provided by this section, the following provisions shall have effect, that is to say—

(a)subject to the following paragraph, if he is under 16 years of age the court shall [F107, instead of committing him to prison, commit him to the local authority in whose area the court is situated to be detained—

(i)where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and

(ii)in any other case, in a suitable place of safety chosen by the authority;]

(b)if he is a person of over 16 years of age, or a child under 16 years of age but over 14 years of age who is certified by the court to be unruly or depraved, and the court has been notified by the Secretary of State that a remand centre is available for the reception from that court of persons of his class or description, he shall be committed to a remand centre instead of being committed to prison.

(2)Where any person is committed to a local authority or to a remand centre under any provision of this Act, that authority or centre shall be specified in the warrant, and he shall be detained by the authority or in the centre for the period for which he is committed or until he is liberated in due course of law.

(3)Where any person has been committed to a local authority under any provision of this Act, the court by which he was committed, if the person so committed is not less than 14 years of age and it appears to the court that he is unruly or depraved, may revoke the commitment and commit the said person—

(a)if the court has been notified that a remand centre is available for the reception from that court of persons of his class or description, to a remand centre; and

(b)if the court has not been so notified, to a prison.

(4)Where, in the case of a person under 16 years of age who has been committed to prison or to a remand centre under this section, the sheriff is satisfied that his detention in prison or a remand centre is no longer necessary, he may revoke the commitment and commit the person to the local authority in whose area the court is situated, [F108to be detained—.

(a)where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and

(b)in any other case, in a suitable place of safety chosen by the authority.]

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Amendments (Textual)

F107S. 329(1)(a)(i)(ii) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 14(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F108S. 329(4)(a)(b) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 14(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Commencement Information

I1S. 329 wholly in force at 6.1.1992 see s. 464(3) and S.I. 1991/2883, art. 2

330 Power of court to commit to hospital a person suffering from mental disorder.S

(1)Where a court remands or commits for trial a person charged with any offence who appears to the court to be suffering from mental disorder, and the court is satisfied that a hospital is available for his admission and suitable for his detention, the court may, instead of remanding him in custody, commit him to that hospital.

(2)Where any person is committed to a hospital as aforesaid, the Hospital shall be specified in the warrant and, if the responsible medical officer is satisfied that he is suffering from mental disorder of a nature or degree which warrants his admission to a hospital under [F109Part V of the M33Mental Health (Scotland) Act 1984], he shall there be detained for the period for which he is remanded or the period of committal, unless before the expiration of that period he is liberated in due course of law.

(3)When the responsible medical officer has examined the person so detained he shall report the result of that examination to the court and, where the report is to the effect that the person is not suffering from mental disorder of such a nature or degree as aforesaid, the court may commit him to any prison or other institution to which he might have been committed had he not been committed to hospital or may otherwise deal with him according to law.

(4)No person shall be committed to a hospital under this section except on the written or oral evidence of a medical practitioner.

[F110(5)Without prejudice to subsection (3) above, the court may review an order under subsection (1) above on the ground that there has been a change of circumstances since the order was made and, on such review—

(a)where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may deal with him in such way mentioned in subsection (3) above as the court thinks appropriate;

(b)in any other case, the court may—

(i)confirm or vary the order; or

(ii)revoke the order and deal with him in such way mentioned in subsection (3) above as the court considers appropriate.

(6)Subsections (1) to (4) above shall apply to the review of an order under subsection (5) above as they apply to the making of an order under subsection (1) above.]

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Amendments (Textual)

F110S. 330(5)(6) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 53; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Marginal Citations

331 Statutory offences time-limit. S
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Modifications etc. (not altering text)

(1)Proceedings under this Part of this Act in respect of [F111any offence triable only summarily and consisting of]the contravention of any statute or order shall, unless the statute or order under which the proceedings are brought fixes any other period, be commenced within six months after the contravention occurred and, in the case of a continuous contravention, within six months after the last date of such contravention, and it shall be competent in such case in any prosecution to include the entire period during which the contravention has occurred.

F112(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)For the purposes of this section proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay.

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Amendments (Textual)

F111Words in s. 331(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 62(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F112S. 331(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 62(3), 117(2), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C18S. 331 excluded by S.I. 1990/1786, art. 8(7) (as replaced by S.I. 1990/2144, art. 3)

C20S. 331 excluded (15.4.1992) by S.I. 1992/973, art. 4(3)(a).

S. 331 excluded (15.4.1992) by S.I. 1992/975, art. 16(8).

C21S. 331 excluded (5.6.1992) by S.I. 1992/1302, art. 17(8).

S. 331 excluded (5.6.1992) by S.I. 1992/1304, art. 5(3)(a).

S. 331 excluded (28.10.1992) by S.I. 1992/2372, reg. 90.

C22S. 331 excluded (1.5.1993) by S.I. 1993/1188, art. 16(7)

C23S. 331 excluded (24.5.1993) by S.I. 1993/1244, art. 22(9)

C24S. 331 excluded (22.7.1993) by S.I. 1993/1784, art. 13(8)

C25S. 331 excluded (22.7.1993) by S.I. 1993/1787, art. 10(8)

C26S. 331 excluded (1.10.1993) by S.I. 1993/2355, art. 12(8)

C27S. 331 excluded (1.12.1993) by S.I. 1993/2807, art. 19(8)

C28S. 331 excluded (23.5.1994) by S.I. 1994/1323, art. 17(8)

S. 331 excluded (1.9.1994) by 1994 c. 22, ss. 48(4), 66(1) (with s. 57(4)

S. 331 excluded (20.9.1995) by 1995 c. 32, s. 9; S.I. 1995/2472, art. 2

S. 331 excluded (19.10.1994) by S.I. 1994/2673, art. 13(8)

S. 331 excluded (31.10.1994) by 1994 c. 26, s. 96(1); S.I. 1994/2550, art. 2

C31S. 331(1) applied (1.2.1993) by Friendly Societies Act 1992 (c. 40), s. 107(5)(with ss. 7(5), 93(4)); S.I. 1993/16, art. 2, Sch. 3

C37S. 331(3) applied (10.6.1993) by S.I. 1993/1317, reg. 8(9)

C38S. 331(3) applied (30.6.1993) by S.I. 1993/1441, reg. 11(5)

C39S. 331(3) applied (30.8.1993) by 1992 c. 52, s. 45A(6)(b) (as inserted by 1993 c. 19, s. 11(2); S.I. 1993/1908, art. 2(1), Sch. 1

C40S. 331(3) applied (1.8.1993) by S.I. 1993/1734, reg. 17(5)

C41S. 331(3) applied (27.9.1993) by 1993 c. 37, ss. 52(5), 65(2)

C42S. 331(3) applied (15.11.1993) by S.I. 1993/2631, reg. 14(5)

C43S. 331(3) applied (24.12.1993) by 1993 c. 43, s. 148(5); S.I. 1993/3237, art. 2(1)

C44S. 331(3) applied (18.4.1994) by S.I. 1994/947, reg. 16(8)

S. 331(3) applied (12.9.1994) by S.I. 1994/2155, reg. 11(7)

S. 331(3) applied (3.10.1994) by S.I. 1994/2328, reg. 16(3)

S. 331(3) extended (15.11.1994) by S.I. 1994/2740, reg. 15(5)

S. 331(3) applied (20.2.1995) by S.I. 1995/184, reg. 5(7)

S. 331(3) applied (10.5.1995) by S.I. 1995/1054, reg. 15(3)(d)

S. 331(3) applied (22.6.1995) by S.I. 1995/1576, reg. 15(6)

S. 331(3) applied (31.7.1995) by S.I. 1995/1738, reg. 17(8)

[F113331A Prevention of delay in trials.S
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Amendments (Textual)

(1)Subject to subsections (2) and (3) below, a person charged with a summary offence shall not be detained in that respect for a total of more than forty days after the bringing of the complaint in court unless his trial is commenced within that period, failing which he shall be liberated forthwith and thereafter he shall be for ever free from all question or process for that offence.

(2)The sheriff may, on application made to him for the purpose, extend the period mentioned in subsection (1) above and order the accused to be detained awaiting trial for such period as he thinks fit where he is satisfied that delay in the commencement of the trial is due to—

(a)the illness of the accused or of a judge;

(b)the absence or illness of any necessary witness; or

(c)any other sufficient cause which is not attributable to any fault on the part of the prosecutor.

(3)The grant or refusal of any application to extend the period mentioned in subsection (1) above may be appealed against by note of appeal presented to the High Court; and that Court may affirm, reverse or amend the determination made on such application.

(4)For the purposes of this section, a trial shall be taken to commence when the first witness is sworn.]

[F114331B Death, illness or absence of judge.S
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Amendments (Textual)

F114S. 331B inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 30(4); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)Where the court is unable to proceed owing to the death, illness or absence of the presiding judge, it shall be lawful for the clerk of court—

(a)where the diet has not been called, to convene the court and adjourn the diet;

(b)where the diet has been called but no evidence has been led, to adjourn the diet; and

(c)where the diet has been called and evidence has been led—

(i)with the agreement of the parties, to desert the diet pro loco et tempore; or

(ii)to adjourn the diet.

(2)Where, under subsection (1)(c)(i) above, a diet has been deserted pro loco et tempore, any new prosecution charging the accused with the same or any similar offence arising out of the same facts shall be brought within two months of the date on which the diet was deserted notwithstanding that any other time limit for the commencement of such prosecution has elapsed.

(3)For the purposes of subsection (2) above, a new prosecution shall be deemed to commence on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay.]

332 Power to recover penalties.S

(1)All penalties, for the recovery of which no special provision has been made by statute or order, may be recovered by the public prosecutor in any court having jurisdiction.

(2)Where a court has power to take cognisance of an offence the penalty attached to which is not defined, the punishment therefore shall be regulated by that applicable to common law offences in that court.

333 Offences by companies, etc.S

With regard to the summary prosecution of offences committed by a company, association, incorporation or body of trustees, the following provisions shall, without prejudice to any other or wider powers conferred by statute, apply:—

(a)proceedings may be taken against the company, association, incorporation or body of trustees in their corporate capacity, and in that event any penalty imposed shall be recovered by civil diligence in manner hereinafter provided; or

(b)proceedings may be taken against an individual representative of such company, association or incorporation as follows:—

(i)in the case of an ordinary company or firm, any one of the partners thereof, or the manager or the person in charge or locally in charge of the affairs thereof, may be dealt with as if he was the person offending;

(ii)in the case of an association, incorporation or incorporated company, the managing director or the secretary or other person in charge, or locally in charge, of the affairs thereof, may be dealt with as if he was the person offending;

(iii)the offence shall be deemed to be the offence of such company, association or incorporation.

[333AF115Adjournment for inquiry at first calling.S

Without prejudice to section 338(1) of this Act, at the first calling of the case in a summary prosecution the court may, in order to allow time for inquiry into the case or for any other cause which it considers reasonable, adjourn the case under this section, for such period as it considers appropriate, without calling on the accused to plead to any charge against him but remanding him in custody or on bail or ordaining him to appear at the diet thus fixed; and the court may from time to time so adjourn the case, so however that—

(a)where the accused is remanded in custody, the total period for which he is so remanded under this subsection shall not exceed twenty-one days and no one period of adjournment shall, except on special cause shown, exceed seven days; and

(b)where he is remanded on bail or ordained to appear, no one period of adjournment shall exceed twenty eight days.]

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Amendments (Textual)

[F116333B Agreement of evidence.S
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Amendments (Textual)

F116S. 333B inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 12(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)Subject to subsection (2) below, the prosecutor and the accused (or each accused if more than one) shall each identify any facts which are facts—

(a)which he would, apart from this section, be seeking to prove;

(b)which he considers unlikely to be disputed by the other party (or by any of the other parties); and

(c)in proof of which he does not wish to lead oral evidence,

and shall (without prejudice to section 16 of the Criminal Justice (Scotland) Act 1995 (procedure for proving uncontroversial evidence)) take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement.

(2)Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented.

(3)The duty under subsection (1) above applies from the date on which the accused pleads not guilty until the swearing of the first witness or, where the accused tenders a plea of guilty at any time before the first witness is sworn, the date when he does so.]

Trial ProcedureS

334 Procedure at first diet, etc.S

(1)Where the accused is present at the first calling of the case in a summary prosecution [F117(whether or not a diet fixed by virtue of section 333A of this Act)], and—

(a)the complaint has been served on him, or

(b)the complaint or the substance thereof has been read to him, or

(c)he has legal assistance in his defence,

he shall [F118, unless the court adjourns (or further adjourns) the case under the said section 333A,] be asked to plead in common form, and he may, prior to pleading, state [F119an objection to the competency or relevancy of the complaint or the proceedings or issue a denial that he is the person charged by the police with the offence; and no such objection or denial shall be allowed to be stated or issued] at any future diet in the case except with the leave of the court, which may be granted only on cause shown.

[F120(2)In the absence of the accused, an objection to the competency or relevancy of a summary complaint or the proceedings thereon may be stated, or a denial that the accused is the person charged by the police with the offence may be issued, by counsel or by a solicitor on his behalf; and where such an objection is stated or denial is issued, the provisions of this Part of this Act shall apply in like manner as if the accused had appeared and stated the objection or issued the denial.]

[F121(2A)Without prejudice to any right of appeal under section 442 or 453A of this Act, a party may, with the leave of the court (granted either on the motion of that party or ex proprio motu) and in accordance with such procedure as may be prescribed by Act of Adjournal under this Act, appeal to the High Court against a decision of the court of first instance (other than a decision not to grant leave under this subsection) which relates to such objection or denial as is mentioned in subsection (1) above; but such appeal must be taken not later than two days after such decision.

(2B)Where an appeal is taken under subsection (2A) above, the High Court may postpone the trial diet (if one has been fixed) for such period as appears to them to be appropriate and may, if they think fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.

(2C)If leave to appeal under subsection (2A) above is granted by the court it shall not proceed to trial at once under paragraph (a) of section 337 of this Act; and paragraph (b) of that section shall be construed as requiring sufficient time to be allowed for the appeal to be taken.

(2D)In disposing of an appeal under subsection (2A) above the High Court may affirm the decision of the court of first instance or may remit the case to it with such directions in the matter as they think fit; and where the court of first instance had dismissed the complaint, or any part of it, may reverse that decision and direct that the court of first instance fix a trial diet (if it has not already fixed one as regards so much of the complaint as it has not dismissed.)]

(3)Where the accused is not present at a calling of the case in a summary prosecution and either—

(a)the prosecutor produces to the court written intimation that the accused pleads not guilty or pleads guilty and the court is satisfied that such written intimation has been made or authorised by the accused, or

(b)a solicitor, or a person not being a solicitor who satisfies the court that he is authorised by the accused, appears on behalf of the accused and tenders a plea of not guilty or a plea of guilty,

then—

(i)in the case of a plea of not guilty, the provisions of this Part of this Act except paragraph (a) of section 337 shall apply in like manner as if the accused had appeared and tendered the plea, and

(ii)in the case of a plea of guilty, the court may, if the prosecutor accepts the plea, proceed to hear and dispose of the case in the absence of the accused in like manner as if he had appeared and pled guilty, or may, if it thinks fit, continue the case to another diet and require the attendance of the accused with a view to pronouncing sentence in his presence.

(4)Where in pursuance of paragraph (ii) of the last foregoing subsection the court proceeds to hear and dispose of a case in the absence of the accused, it shall not pronounce a sentence of imprisonment or of Borstal training or of detention in a detention centre, young offenders institution, remand centre, or other establishment.

(5)In this section a reference to a plea of guilty shall include a reference to a plea of guilty to a part only of the charge:

Provided that where such a plea is not accepted by the prosecutor it shall be deemed to be a plea of not guilty.

(6)It shall not be competent for any person appearing to answer a complaint, or for a solicitor appearing for the accused in his absence, to plead want of due citation or informality therein or in the execution thereof.

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Amendments (Textual)

335 Amendment of complaint.S

(1)It shall be competent at any time prior to the determination of a summary prosecution, unless the court sees just cause to the contrary, to amend the complaint or any notice of F122. . . previous conviction relative thereto by deletion, alteration or addition so as to cure any error or defect therein, or to meet any objection thereto, or to cure any discrepancy or variance between the complaint or notice and the evidence.

(2)Nothing in this section shall authorise an amendment which changes the character of the offence charged, and if the court shall be of opinion that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as it shall think just.

(3)An amendment made under this section shall be sufficiently authenticated by the initials of the clerk of court.

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Amendments (Textual)

F122Words in s. 335(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 118, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F123336. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

F123S. 336 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 119, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

337 Plea of not guilty.S

Where the accused in a summary prosecution pleads not guilty to the charge or guilty to part only thereof, and the prosecutor does not accept such partial plea, the following provisions shall apply:—

(a)the court may proceed to trial at once unless either party moves for an adjournment and the court shall adjudge it expedient to grant it; . . . F124

(b)the court may adjourn the case for trial to as early a diet as is consistent with the just interest of both parties, in which case the prosecutor shall, if requested by the accused, furnish him with a copy of the complaint if he does not already have one;

(c)where the accused is brought before the court by apprehension he shall be entitled to an adjournment of the case for not less than 48 hours, if the request for such adjournment is made before the prosecutor has commenced his proof, and the court shall inform the accused of his right to such adjournment:

Provided that the case may proceed to trial at once or on a shorter adjournment than 48 hours if the court considers that necessary to secure the examination of witnesses who otherwise would not be available;

(d)where the accused is in custody, he may be committed to prison or to legalised police cells or to any other place to which he may lawfully be committed pending trial

[F125(i)if he is neither granted bail nor ordained to appear, or

(ii)if he is granted bail on a condition imposed under section 1(3) of the Bail etc. (Scotland) Act 1980 that a sum of money is deposited in court, until the accused or a cautioner on his behalf has so deposited that sum.]

(e) . . . F126

(f)the court may from time to time, and at any stage of the case, on the motion of either party or ex proprio motu grant such adjournment as may be necessary for the proper conduct of the case, and where from any cause a diet has to be continued from day to day it shall not be necessary to intimate such continuation to the accused;

(g)it shall not be necessary for the prosecutor to establish a charge or part of a charge to which the accused pleads guilty;

(h)the court may, in any case where it considers such a course expedient, permit any witness for the defence to be examined prior to evidence for the prosecution having been led or concluded, but in any such case the accused shall be entitled to lead additional evidence after the case for the prosecution is closed.

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Amendments (Textual)

[F127337A Intermediate diet.S
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Amendments (Textual)

[F128(1)The court may, when adjourning a case for trial in terms of section 337(b) of this Act, and may also, at any time thereafter, whether before, on or after any date assigned as a trial diet, fix a diet (to be known as an intermediate diet) for the purpose of ascertaining—

(a)the state of preparation of the prosecutor and of the accused with respect to their cases; and

(b)whether the accused intends to adhere to the plea of not guilty.]

[F129(1A)Where at an intermediate diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court—

(a)shall, unless having regard to previous proceedings in the case it considers it inappropriate to do so, postpone the trial diet; and

(b)may fix a further intermediate diet.

(1B)Subject to subsection (1A) above, the court may, if it considers it appropriate to do so, adjourn an intermediate diet.]

(2)At an intermediate diet, the court may ask the prosecutor and the accused any question for the purposes mentioned in subsection (1) above.

(3)The accused shall attend an intermediate diet of which he has received intimation or to which he has been cited [F130unless—

(a)he is legally represented; and

(b)the court considers that there are exceptional circumstances justifying him not attending.

(4)The foregoing provisions of this section shall have effect as respects any court prescribed by the Secretary of State by order, in relation to proceedings commenced after such date as may be so prescribed, with the following modifications—

(a)in subsection (1), for the word “may” there shall be substituted “shall, subject to subsection (1C) below,”; and

(b)after subsection (1B) there shall be inserted the following subsections—

(1C)If, on a joint application by the prosecutor and the accused made at any time before the commencement of the intermediate diet, the court considers it inappropriate to have such a diet, the duty under subsection (1) above shall not apply and the court shall discharge any such diet already fixed.

(1D)The court may consider an application under subsection (1C) above without hearing the parties.

(5)An order under subsection (5) above shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]]

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Amendments (Textual)

F128S. 337A(1) substituted (retrospectively) by virtue of 1998 c. 10, s. 1(3)

F129Words added (prosp.) by Children Act 1975 (c. 72, SIF 42:9, 10), ss. 70(b), 108(2) which addition falls by reason of the repeal on 14.10.1991 of the said 1975 Act by the Children Act 1989 (c. 41, SIF 20), s. 108(7) Sch. 15; S.I. 1991/828, art. 3(2)

F130S. 337A(4)(5) and words at the end of subsection (3) inserted (5.3.1996 for specifed purposes and 31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 14(4); S.I. 1996/517, arts. 3, 4-6, Sch. 2

[F131337B Removal of accused from court.S
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Amendments (Textual)

F131S. 337B inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 31; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)Without prejudice to section 338 of this Act, and subject to subsection (2) below, no part of a trial shall take place outwith the presence of the accused.

(2)If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order—

(a)that he is removed from the court for so long as his conduct makes it necessary; and

(b)that the trial proceeds in his absence,

but if he is not legally represented the court shall appoint counsel or a solicitor to represent his interests during such absence.]

338 Failure of accused to appear.S

[F132(1)]Where the accused in a summary prosecution fails to appear at any diet of which he has received intimation, or to which he has been cited [F133(other than a diet which, by virtue of section 337A(3) of this Act, he is not required to attend)], the following provisions shall apply:—

(a)the court may adjourn the trial to another diet, and order the accused to attend at such diet, and appoint intimation thereof to be made to him, which intimation shall be sufficiently given by an officer of law, or by letter signed by the prosecutor and sent to the accused at his last known address by registered post or by the recorded delivery service, and the production in court of the written execution of such officer or of an acknowledgment or certificate of the delivery of the letter issued by the Post Office shall be sufficient evidence of such intimation having been duly given;

(b)where the accused is charged with any statutory offence for which a sentence of imprisonment cannot be imposed in the first instance, or where the statute founded on or conferring jurisdiction authorises procedure in the absence of the accused, the court may, on the motion of the prosecutor and upon proof that the accused has been duly cited, or has received due intimation of the diet where such intimation has been ordered, proceed to hear and dispose of the case in the absence of the accused. Unless the statute founded on authorises conviction in default of appearance, proof of the complaint must be led to the satisfaction of the court. The court in any case to which this paragraph applies may, if it shall judge it expedient, allow any solicitor who satisfies the court that he has authority from the accused so to do, to appear and plead for and defend him;

(c)the court may grant warrant to apprehend the accused;

(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F134

[F135(2)An accused who without reasonable excuse fails to attend any diet of which he has been given due notice, shall be guilty of an offence and liable on summary conviction—

(a)to a fine not exceeding [F136level 3 on the standard scale]; and

(b)to a period of imprisonment not exceeding—

(i)in the district court, 60 days; or

(ii)in the sheriff court, 3 months.

(3)The penalties provided for in subsection (2) above may be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

(4)An accused may be dealt with for an offence under subsection (2) above either at his diet of trial for the original offence or at a separate diet.]

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Amendments (Textual)

F133Words in s. 338(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 120; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C45S. 338(1) amended (restrospective to 1.2.1981) by 2002 asp 4, s. 1(3)(4)

[F137338A Desertion of trial diet.S
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Amendments (Textual)

(1)It shall be competent at the diet of trial, at any time before the first witness is sworn, for the court, on the application of the prosecutor, to desert the dietpro loco et tempore.

(2)If, at a diet of trial, the court refuses an application by the prosecutor to adjourn the trial or to desert the diet pro loco et tempore,and the prosecutor is unable or unwilling to proceed with the trial, the court shall desert the dietsimpliciter.

(3)Where the court has deserted a dietsimpliciterunder subsection (2) above (and the court’s decision in that regard has not been reversed on appeal), it shall not be competent for the prosecutor to raise a fresh libel.]

339 Alibi.S

It shall not be competent for the accused in a summary prosecution to found on a plea of alibi unless he gives, [F138at any time before the first witness is sworn], notice to the prosecutor of the plea with particulars as to time and place and of the witnesses by whom it is proposed to prove it. The prosecutor, on such notice being given, shall be entitled, if he so desires, to an adjournment of the case.

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Amendments (Textual)

F138Words in s. 339 substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 121; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

340 Examination of witness.S

[F139(1)] In any trial, it shall be competent for the party against whom a witness is produced and sworn in causa to examine such witness, not in cross only, but also in causa.

[F140(2)The judge may, on the motion of either party, on cause shown order that the examination of a witness for that party (“the first witness”) shall be interrupted to permit the examination of another witness for that party.

(3)Where the judge makes an order under subsection (2) above he shall, after the examination of the other witness, permit the recall of the first witness.]

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Amendments (Textual)

F139S. 340 renumbered as s. 340(1) (31.3.1996 with transitonal provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 54(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F140S. 340(2)(3) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 54(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

341 Witnesses not to be excluded by reason of conviction, interest, etc.S

(1)No person adduced as a witness shall be excluded from giving evidence by reason of having been convicted of or having suffered punishment for crime, or by reason of interest, or by reason of agency or of partial counsel, or by reason of having appeared without citation or without having been duly cited to attend, or by reason of having been precognosced subsequently to the date of citation.

(2)Every person so adduced, who is not otherwise by law disqualified from giving evidence, shall be admissible as a witness, notwithstanding any objection offered on any of the above-mentioned grounds.

(3)Nothing in this section shall prevent such witness from being examined on any point tending to affect his credibility.

(4)Where any person who is or has been an agent of the accused shall be adduced and examined as a witness for the accused, it shall not be competent to the accused to object, on the ground of confidentiality, to any question proposed to be put to such witness on matter pertinent to the issue of the guilt of the accused.

342 Witnesses admissible notwithstanding relationship to parties.S

It shall be no objection to the admissibility of any witness that he or she is the father, mother, son, daughter, brother or sister, by consanguinity or affinity, or uncle, aunt, nephew or niece, by consanguinity, of any party adducing such witness in any trial; nor shall it be competent to any witness to decline to be examined and give evidence on the ground of any such relationship.

[F141342A Power to permit witness to be in court during trial.S
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Amendments (Textual)

The court may, on an application by any party to the proceedings, permit a witness to be in court during the proceedings or any part of the proceedings before he has given evidence if it appears to the court that the presence of the witness would not be contrary to the interests of justice.]

343 Presence in court not to disqualify witnesses in certain cases.S

In any trial, the court need not reject any witness against whom it is objected that he has, without the permission of the court, and without the consent of the party objecting, been present in court during the proceedings; but the court may, in its discretion, admit the witness, where it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent, and that the witness has not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination.

344 Punishment of witness for contempt.S

(1)If a witness in a summary prosecution shall wilfully fail to attend after being duly cited, or unlawfully refuse to be sworn, or after the oath has been administered to him refuse to answer any question which the court may allow, F142. . .or shall prevaricate in his evidence, he shall be deemed guilty of contempt of court and be liable to be summarily punished forthwith for such contempt by a fine not exceeding [F143level 3 on the standard scale] or by imprisonment for any period not exceeding [F14421 days].

(2)Where such punishment as aforesaid is summarily imposed, the clerk of court shall enter in the record of the proceedings the acts constituting the contempt or the statements forming the prevarication.

(3)The foregoing provisions of this section shall be without prejudice to the prosecutor proceeding by way of formal complaint for any such contempt where such summary punishment, as above mentioned, is not imposed.

(4)Any witness who, after being duly cited in accordance with section 315 of this Act—

(a)fails without reasonable excuse, after receiving at least [F14548] hours’ notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him, or

(b)refuses when so cited to give information within his knowledge regarding any matter relative to the commission of the offence in relation to which such precognition is taken,

shall be liable to the like punishment as is provided in the foregoing provisions of this section.

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Amendments (Textual)

F142Words in s. 344(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 122, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F146345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

F146S. 345 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 123, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F147345A No case to answer.S
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Amendments (Textual)

(1)Immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both—

(a)on an offence charged in the complaint; and

(b)on any other offence of which he could be convicted under the complaint were the offence charged the only offence so charged.

(2)If, after hearing both parties, the court is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, it shall acquit him of the offence charged in respect of which the submission has been made, and the trial shall proceed only in respect of any other offence charged in the complaint.

(3)If, after hearing both parties, the court is not satisfied as is mentioned in subsection (2) above, it shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.]

346 Accused and spouse competent witnesses for defence.S

[F148(1)]The accused . . . F149 shall be [F150a competent witness] for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused:

Provided that—

(a)the accused shall not be called as a witness in pursuance of this section except upon his own application [F151or in accordance with subsection (2) or (3) below];

F152(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c), (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F153

(e)the accused who gives evidence on his own behalf in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged;

(f)the accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless—

(i)the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or

(ii)the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establish the accused’s good character [F154or impugning the character of the complainer], or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution [F155or of the complainer]; or

(iii)the accused has given evidence against any other person charged [F156in the same proceedings];

(g)every person called as a witness in pursuance of this section . . . F149 shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.

[F157(1A)In a case to which sub-paragraph (ii) of paragraph (f) of the proviso to subsection (1) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that paragraph only if the court, on the application of the prosecutor, permits him to do so.

(1B)In subsection (1) above, references to the complainer include references to a victim who is deceased.]

[F158(2)The accused may—

(a)with the consent of a co-accused, call that other accused as a witness on the accused’s behalf; or

(b)ask a co-accused any question in cross-examination if that co-accused gives evidence,

but he may not do both in relation to the same co-accused.

(3)The prosecutor or the accused may call as a witness a co-accused who has pleaded guilty to [F159or been acquitted of] all charges against him which remain before the court (whether or not [F160in a case where the co-accused has pleaded guilty to any charge,] he has been sentenced) [F161or in respect of whom the diet has been deserted]; and the party calling such co-accused as a witness shall not require to give notice thereof, but the court may grant any other party such adjournment or postponement of the trial as may seem just.]

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Amendments (Textual)

F152S. 346(1)(b) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 32, 117(2), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F154S. 346(1): words in paragraph (f)(ii) of the proviso inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 24(4)(a)(i); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F155S. 346(1): words in paragraph (f)(ii) of the proviso inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 24(4)(a)(ii); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F156Words substituted with saving by Criminal Evidence Act 1979 (c. 16, SIF 47), s. 1

F157S. 346(1A)(1B) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 24(4)(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F162346A Evidence in relation to sexual offences.S
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Amendments (Textual)

(1)In any trial of a person on any charge to which this section applies, subject to section 346B, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer—

(a)is not of good character in relation to sexual matters;

(b)is a prostitute or an associate of prostitutes; or

(c)has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.

(2)This section applies to a charge of committing or, in the case of paragraphs (b) to (g), attempting to commit any of the following offences, that is to say—

(a)attempted rape;

(b)sodomy;

[F163(ba)clandestine injury to women;]

(c)assault with intent to rape;

(d)indecent assault;

(e)indecent behaviour (including any lewd, indecent or libidinous practice or behaviour);

(f)an offence under any of the following provisions of the M34Sexual Offences (Scotland) Act 1976—

(i)section 2 (procuring by threats, etc.);

[F164(ia)section 2A (incest);

(ib)section 2B (unlawful sexual intercourse with stepchild);

(ic)section 2C (unlawful sexual intercourse of person in position of trust with child under 16);]

(ii)section 3(2) (unlawful sexual intercourse with girl under 13);

(iii)section 4 (unlawful sexual intercourse with girl under 16);

(iv)section 5 (indecent behaviour towards girl between 12 and 16);

[F165(iva)section 7 (gross indecency between males)]

(v)section 8 (abduction of girl under 18);

(vi)section 9 (unlawful detention of female); or

(g)an offence under section 80(7) of the M35Criminal Justice (Scotland) Act 1980 (homosexual offences).

(3)In this section, “complainer” means the person against whom the offence referred to in subsection (2) above is alleged to have been committed.

(4)This section does not apply to questioning, or evidence being adduced, by the Crown.]

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Amendments (Textual)

F163S. 346A(2)(ba) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 28(2)(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F164S. 346A(2)(f)(ia)-(ic) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 28(2)(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F165S. 346A(2)(f)(iva) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 28(2)(c); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Marginal Citations

[F166346ZA Evidence of criminal record and character of accused.S
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Amendments (Textual)

F166S. 346ZA inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 24(5); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)This section applies where—

(a)evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused’s good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or

(b)the nature or conduct of the defence is such as to tend to establish the accused’s good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.

(2)Where this section applies the court may, without prejudice to section 350 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character.

(3)In subsection (1) above, references to the complainer include references to a victim who is deceased.]

346B Exceptions to prohibition.S

(1)Notwithstanding the terms of section 346A above, in any trial of a person on any charge to which that section applies, where the court is satisfied on an application by that person—

(a)that the questioning or evidence referred to in section 346A(1) above is designed to explain or rebut evidence adduced, or to be adduced, otherwise than by or on behalf of that person,

(b)that the questioning or evidence referred to in section 346A(1)(c) above—

(i)is questioning or evidence as to sexual behaviour which took place on the same occasion as the sexual behaviour forming the subject matter of the charge, or

(ii)is relevant to the defence of incrimination, or

(c)that it would be contrary to the interests of justice to exclude the questioning or evidence referred to in section 346A(1) above,

the court shall allow such questioning or, as the case may be, admit such evidence.

(2)Where questioning or evidence is or has been allowed or admitted under this section, the court may at any time limit as it thinks fit the extent of that questioning or evidence.

(3)Any application under this section shall be made in the course of the trial but in the absence of the complainer, any person cited as a witness and the public.

[F167347 Evidence of the accused.S
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Amendments (Textual)

F167S. 347 substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 124; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Where, in any trial, the accused is to be called as a witness he shall be so called as the first witness for the defence unless the court, on cause shown, otherwise directs.]

[F168348 Spouse to be competent witness.S
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Amendments (Textual)

(1)The spouse of a person charged with an offence may be called as a witness—

(a)by that person;

(b)by a co-accused or by the prosecutor without the consent of that person.

(2)Nothing in this section shall—

(a)make the spouse of an accused a compellable witness for a co-accused or for the prosecutor in a case where such spouse would not be so compellable at common law;

(b)compel a spouse to disclose any communication made between the spouses during the marriage.

(3)The failure of the spouse of an accused to give evidence shall not be commented on by the defence or the prosecutor.]

349 Witness may be examined etc., as to having previously made a different statement.S

In any trial, any witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in such trial; and in such trial evidence may be led to prove that such witness has made such different statement on the occasion specified.

[F169349A Recall of witnesses.S
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Amendments (Textual)

—In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled.]

[F170350 Additional evidence.S
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Amendments (Textual)

(1)The judge may, on a motion of the prosecutor or defence made [F171at any time] before the prosecutor proceeds to address the judge on the evidence, permit that party to lead additional evidence; but such permission shall only be granted where the judge—

(a)considers that the additional evidence isprima faciematerial; and

(b)accepts that at the [F172commencement of the trial] either—

(i)the additional evidence was not available and could not reasonably have been made available; or

(ii)the materiality of such additional evidence could not reasonably have been foreseen by the party.

(2)The judge may permit the additional evidence to be led notwithstanding that a witness must be recalled.

(3)The judge may, when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.]

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Amendments (Textual)

350A Evidence in replication.S

(1)The judge may, on a motion of the prosecutor made after the close of the defence evidence and before the prosecutor proceeds to address the judge on the evidence, permit the prosecutor to lead additional evidence, for the purpose of—

(a)contradicting evidence, [F173given by any defence witness], which could not reasonably have been anticipated by the prosecutor; or

(b)providing such proof as is mentioned in section 349 of this Act.

(2)The judge may permit the additional evidence to be led notwithstanding that a witness must be recalled.

(3)The judge may, when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.

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Amendments (Textual)

351 Defence to speak last.S

In any trial, the accused or, where he is legally represented, his counsel or solicitor shall have the right to speak last.

[F174352 Record of proceedings at examination to be received in evidence without being sworn to by witnesses.S
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Amendments (Textual)

(1)Subject to subsection (2) below, the record made, under section 20B of this Act (with any rectification, authorised under subsection (4) of that section, incorporated), of proceedings at the examination of an accused shall be received in evidence without being sworn to by witnesses.

(2)Subject to section 20B(2) of this Act and to subsection (4) below, on the application of either an accused or the prosecutor, the court may refuse to admit the record or some part of the record as evidence; and at the hearing of such application it shall be competent for [F175the prosecutor or]the defence to adduce as witnesses the persons who were present during the proceedings mentioned in subsection (1) above and for [F176either party] to examine those witnesses upon any matters regarding the said proceedings.

(3)Record” in subsection (2) above comprises, as regards any trial, each record which it is sought to have received in evidence under subsection (1) above.

(4)Except on cause shown, an application under subsection (2) above shall not be heard unless notice of at least 10 clear days has been given to the court and to the other parties.]

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Amendments (Textual)

F175Words in s. 352(2) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 125(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F176Words in s. 352(2) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 125(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

353 Proof of official documents.S

(1)Any letter, minute or other official document issuing from the office or in the custody of any of the departments of state or government in the United Kingdom the production of which in evidence is required in any summary prosecution, and which according to the rules and regulations applicable to such departments may be competently produced, shall when produced be received as prima facie evidence of the matters contained in it without being produced or sworn to by any witness, and a copy thereof bearing to be certified by any person having authority to certify the same shall be treated as equivalent to the original, and no proof of the signature of the person certifying such copy, or of his authority to certify it, shall be necessary.

(2)Any order by any of the departments of state or government or any local authority or public body made under powers conferred by any statute, or a print or copy of such order, shall when produced in a summary prosecution be received in evidence of the due making, confirmation, and existence of such order without being sworn to by any witness and without any further or other proof, but without prejudice to any right competent to the accused to challenge any such order as being ultra vires of the authority making it or on any other competent ground, and where any such order is referred to in the complaint it shall not be necessary to enter it in the record of the proceedings as a documentary production.

(3)The provisions contained in this section shall be deemed to be in addition to, and not in derogation of, any powers of proving documents conferred by statute, or existing at common law.

354 Admissions by parties.S

(1)It shall not be necessary in any summary prosecution for either party to lead proof of any fact which is admitted by the opposite party, or to prove any documents the terms and application of which are not in dispute, and copies of any documents may, by agreement of the parties, be accepted as equivalent to the originals:

F177. . .

(2)Admissions or agreements under the foregoing subsection may be made by lodging with the clerk of court a minute signed by the person or persons making the same or by his or their counsel or solicitor, and any facts and documents so admitted or agreed shall be accepted as if they had been duly proved.

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Amendments (Textual)

F177Proviso to s. 354(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 126, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

355 Judges equally divided.S

In a summary prosecution in a court consisting of more than one judge, if the judges are equally divided in opinion as to the guilt of the accused, the accused shall be found not guilty of the charge or part thereof on which such division of opinion exists.

356 Previous convictions.S

F178(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Where a person is convicted of an offence, the court may have regard to any previous conviction in respect of that person in deciding on the disposal of the case.

F178(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F178S. 356(1)(3) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 60, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

357 Laying of previous convictions before court.S

(1)Where the accused in a summary prosecution has been previously convicted of any offence and the prosecutor has decided to lay a previous conviction before the court, the following provisions shall have effect:—

(a)a notice in the form, as nearly as may be, of F179. . .or of the appropriate form in an Act of Adjournal under this Act setting forth the previous conviction shall be served on the accused with the complaint where he is cited to a diet, and where he is in custody the complaint and such a notice shall be served on him before he is asked to plead;

(b)the previous conviction shall not be laid before the judge until he is satisfied that the charge is proved;

(c)if a plea of guilty is tendered or if, after a plea of not guilty, the accused is convicted the prosecutor shall lay the notice referred to in paragraph (a) of this subsection before the judge, and

[F180(i)in a case where the plea of guilty is tendered in writing the accused shall be deemed to admit any previous conviction set forth in the notice, unless he expressly denies it in the writing by which that plea is tendered;

(ii)in any other case the judge or the clerk of court shall ask the accused whether he admits the previous conviction,

and if such admission is made or deemed to be made it shall be entered in the record of the proceedings.]

(d)it shall not be necessary for the prosecutor to produce extracts of any previous convictions so admitted;

(e)where the accused does not admit any such previous conviction, the prosecutor unless he withdraws the conviction shall adduce evidence in proof thereof either then or at any other diet;

(f)a copy of any notice served on the accused under this subsection shall be entered in the record of the proceedings.

(2)A conviction, or an extract conviction of any offence committed in any part of the United Kingdom, bearing to be under the hand of the officer in use to give out such extract conviction, shall be received in evidence without being sworn to by witnesses. [F181A prison officer]of any prison in which the accused may have been confined on such conviction shall be a competent and sufficient witness to prove the application thereof to the accused, although such [F182prison officer]may not have been present in court at the trial to which such conviction relates. This provision shall be without prejudice to any other competent mode of proving a conviction and the application thereof to the accused.

(3)Where in any court a book of record is kept of the convictions in the court containing the like particulars as are inserted in an extract conviction, and where at the end of each day’s proceedings the entries in such book are certified as correct by the judge or clerk of court, such entries shall, in any proceeding in that court, be accepted as evidence of such convictions.

F183(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Nothing in this section shall prevent [F184the prosecutor—

(a)asking the accused questions tending to show that the accused has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 346 of this Act; or

(b)leading evidence of previous convictions where it is competent to do so—

(i)as evidence in support of a substantive charge; or

(ii)under section 346ZA of this Act.]

[F185(6)Without prejudice to subsections (1) to (3) above, where proof of a previous conviction is competent in support of a substantive charge, any such conviction or an extract of it shall, if—

(a)it purports to relate to the accused and to be signed by the clerk of court having custody of the record containing the conviction; and

(b)a copy of it has been served on the accused not less than 14 days before the trial diet,

be sufficient evidence of the application of the conviction to the accused unless, within seven days of the date of service of the copy on him, he serves notice on the prosecutor that he denies that it applies to him.

(7)A copy of a conviction or extract conviction served under subsection (6) above shall be served on the accused in such manner as may be prescribed by Act of Adjournal, and a written execution purporting to be signed by the person who served the copy together with, where appropriate, the relevant post office receipt shall be sufficient evidence of service of the copy.]

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Amendments (Textual)

F179Words in s. 357(1)(a) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 127(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F181Words in s. 357(2) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 127(b)(i); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F182Words in s. 357(2) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para 127(b)(ii); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F183S. 357(4) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 127(c), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F184S. 357(5)(a)(b) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 24(6); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F185S. 357(6)(7) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 29(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

358 Proof of previous convictions by fingerprints.S

(1)A previous conviction may be proved against any person in any criminal proceedings by the production of such evidence of the conviction as is mentioned in this section and by showing that his fingerprints and those of the person convicted are the fingerprints of the same person.

(2)A certificate purporting to be signed by or on behalf of the Chief Constable of Strathclyde or the Commissioner of Police of the Metropolis, containing particulars relating to a conviction extracted from the criminal records kept by the person by or on whose behalf the certificate is signed, and certifying that the copies of the fingerprints contained in the certificate are copies of the fingerprints appearing from the said records to have been taken in pursuance of regulations for the time being in force under section 11 of the M36Prisons (Scotland) Act 1952, or under section 16 of the M37Prison Act 1952, from the person convicted on the occasion of the conviction or on the occasion of his last conviction, shall be sufficient evidence of the conviction or, as the case may be, of his last conviction and of all preceding convictions and that the copies of the fingerprints produced on the certificate are copies of the fingerprints of the person convicted.

(3)Where a person has been apprehended and detained in the custody of the police in connection with any criminal proceedings, a certificate purporting to be signed by the chief constable concerned or a person authorised on his behalf, certifying that the fingerprints produced thereon were taken from him while he was so detained, shall be sufficient evidence in those proceedings that the fingerprints produced on the certificate are the fingerprints of that person.

(4)A certificate purporting to be signed by or on behalf of the governor of a prison or of a remand centre in which any person has been detained in connection with any criminal proceedings, certifying that the fingerprints produced thereon were taken from him while he was so detained, shall be sufficient evidence in those proceedings that the fingerprints produced on the certificate are the fingerprints of that person.

(5)A certificate purporting to be signed by or on behalf of the Chief Constable of Strathclyde, and certifying that the fingerprints, copies of which are certified as aforesaid by or on behalf of the Chief Constable or the Commissioner of Police of the Metropolis to be copies of the fingerprints of a person previously convicted and the fingerprints certified by or on behalf of a chief constable or a governor as aforesaid, or otherwise shown, to be the fingerprints of the person against whom the previous conviction is sought to be proved, are the fingerprints of the same person, shall be sufficient evidence of the matter so certified.

(6)The method of proving a previous conviction authorised by this section shall be in addition to any other method of proving the conviction.

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Marginal Citations

359 Record.S

Proceedings in a summary prosecution shall be conducted summarily viva voce and, except where otherwise provided, no record need be kept of the proceedings other than the complaint [F186, or a copy of the complaint certified as true by a procurator fiscal], the plea, a note of any documentary evidence produced, and the conviction and sentence or other finding of the court:

Provided that any objections taken to the competency or relevancy of the complaint or proceedings, or to the competency or admissibility of evidence, shall, if either party desires it, be entered in the record of the proceedings.

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Amendments (Textual)

F186Words in s. 359 inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 128; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F187360. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

F187S. 360 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 129, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F188Interruption of proceedingsS

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Amendments (Textual)

F188S. 360A and cross heading inserted (18.9.1993) by 1993 c. 9, s. 40(2) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch.2

F189360A Interruption of summary proceedings for verdict in earlier trial.S

(1)Where the sheriff is sitting in any summary proceedings during the period in which the jury in any criminal trial in which he has presided are retired to consider their verdict, it shall be lawful, if he considers it appropriate to do so, to interrupt those proceedings—

(a)in order to receive the verdict of the jury and dispose of the cause to which it relates;

(b)to give a direction to the jury on any matter on which they may wish one from him, or to hear a request from them regarding any matter, F190. . .

and the interruption shall not affect the validity of the proceedings nor cause the instance to fall in respect of any person accused in the proceedings.

F191(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

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Amendments (Textual)

F189S. 360A and cross heading inserted (18.9.1993) by 1993 c. 9, s. 40(2) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch. 2

F190Words in s. 360A(1)(b) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 130(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F191S. 360A(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 130(b), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Procedure at trial involving childrenE+W+S+N.I.

361 Child under 14 not to be in court during trial of another person.S

No child under 14 years of age (other than an infant in arms) shall be permitted to be present in court during the trial of any other person charged with an offence, or during any proceedings preliminary thereto, except during such time as his presence is required as a witness or otherwise for the purposes of justice; and any child present in court when under this section he is not to be permitted to be so shall be ordered to be removed:

Provided that this section shall not apply to messengers, clerks, and other persons required to attend at any court for purposes connected with their employment.

362 Power to clear court while child is giving evidence in certain cases.S

(1)Where, in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, a person who, in the opinion of the court, is a child is called as a witness, the court may direct that all or any persons, not being:

[F192(a)members or officers of the court;

(b)parties to the case before the court, their counsel or solicitors or persons otherwise directly concerned in the case;

(c)bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings; or

(d)such other persons as the court may specially authorise to be present,

shall be excluded from the court during the taking of the evidence of that witness.]

Provided that nothing in this section shall authorise the exclusion of bona fide representatives of a newspaper or news agency.

(2)The powers conferred on a court by this section shall be in addition and without prejudice to any other powers of the court to hear proceedings in camera.

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Amendments (Textual)

F192S. 362(1)(a)-(d) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 64; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

363 Power to proceed with case in absence of person under 17.S

Where, in any proceedings relating to any of the offences mentioned in Schedule 1 to this Act, the court is satisfied that the attendance before the court of any person under the age of 17 years in respect of whom the offence is alleged to have been committed is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of that person.

Prospective

364 Power of court, in respect of certain offences against a child, to refer child to [F193Principal Reporter].S
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Amendments (Textual)

F193Words in sidenote to s. 364 substituted (prosp.) by 1994 c. 39, ss. 180(1), 184(2), Sch. 13 para. 97(8)

Any court by or before which a person is convicted of having [F194committed any offence—

(a)under section 21 of the M38Children and Young Persons (Scotland) Act 1937;

(b)mentioned in Schedule 1 to this Act; or

(c)in respect of a [F195female] person aged 17 years or over which constitutes the crime of incest,

may refer—

(i)the child in respect of whom the offence referred to in paragraph (a) or (b) above has been committed; or

(ii)any child who is, or who is likely to become, a member of the same household as the person who has committed the offence mentioned in paragraph (b) or (c) above [F196or the person in respect of whom the offence so mentioned was committed],

to the][F197Principal Reporter] and certify that the said offence shall be a ground established for the purposes of [F198Chapter 3 of Part II of the Children (Scotland) Act 1995].

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Amendments (Textual)

F195Word in s. 364(c) repealed (prosp.) by 1995 c. 36, s. 105(1)(4)(5), Sch. 4 para. 24(14)(a), Sch. 5 (which amendment was repealed (prosp.) by 1995 c. 40, ss. 6, 7(2), Sch. 5)

F196Words in s. 364(ii) inserted (prosp.) by 1995 c. 36, s. 105(1)(4)(5), Sch. 5 para. 24(14)(b) (which amendment was repealed (prosp.) by 1995 c. 40, ss. 6, 7(2), Sch. 5)

F197Words in s. 364 substituted (prosp.) by 1994 c. 39, ss. 180(1), 184(2), Sch. 13 para. 97(2)(a)

F198Words in s. 364 substituted (prosp.) by 1995 c. 36, s. 105(1)(4)(5), Sch. 4 para. 24(14)(c) (which amendment was repealed (prosp.) by 1995 c. 40, ss. 6, 7(2), Sch. 5)

Marginal Citations

365. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F199E+W+S
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Amendments (Textual)

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Amendments (Textual)

366 Procedure when sheriff sits summarily in respect of offence by child.S

(1)Where summary proceedings are brought in respect of an offence alleged to have been committed by a child, the sheriff shall sit either in a different building or room from that in which he usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings: and no person shall be present at any sitting to which this subsection applies except—

(a)members and officers of the court;

(b)parties to the case before the court, their solicitors and counsel, and witnesses and other persons directly concerned in that case;

(c)bona fide representatives of [F200news gathering or reporting organisations present for the purpose of contemporaneous reports of the proceedings];

(d)such other persons as the court may specially authorise to be present.

F201(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F200Words in s. 366(1)(c) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 131(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F201S. 366(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 131(b), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

367 Powers of sheriff sitting summarily.S

(1)A sheriff sitting summarily for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if he thinks fit to do so, proceed with the hearing and determination of the charge or application, notwithstanding that it is discovered that the person in question is not a child.

(2)When a sheriff sitting summarily has remanded a child for information to be obtained with respect to him, any sheriff sitting summarily in the same place—

(a)may in his absence extend the period for which he is remanded so, however that he appears before a sheriff or a justice at least once in every two days;

(b)when the required information has been obtained, may deal with him finally;

and where the sheriff by whom he was originally remanded has recorded a finding that he is guilty of an offence charged against him, it shall not be necessary for any court which subsequently deals with him under this subsection to hear evidence as to the commission of that offence, except in so far as it may consider that such evidence will assist the court in determining the manner in which he should be dealt with.

(3)Any direction in any enactment that a charge shall be brought before a juvenile court shall be construed as a direction that he shall be brought before the sheriff sitting as a court of summary jurisdiction, and no such direction shall be construed as restricting the powers of any justice or justices to entertain an application for bail or for a remand, and to hear such evidence as may be necessary for that purpose.

368 Presumption and determination of age of child.S

(1)Where a person charged with an offence is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due inquiry as to the age of that person, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act or the M39Children and Young Persons (Scotland) Act 1937, be deemed to be the true age of that person, and, where it appears to the court that the person so brought before it has attained the age of 17 years, that person shall for the purposes of this Act or the M40Children and Young Persons (Scotland) Act 1937 be deemed not to be a child.

(2)The court in making any inquiry in pursuance of the foregoing subsection shall have regard to the application of the provisions of section 30(1) of the M41Social Work (Scotland) Act 1968 but an order or judgment of the court shall not be invalidated by any subsequent proof that the court was not informed that at the material time the person was subject to a supervision requirement or that his case had been referred to a children’s hearing under Part V of that Act.

(3)Where in any complaint in respect of any offence under the M42Children and Young Persons (Scotland) Act 1937 or any of the offences mentioned in [F202paragraphs [F203(c)][F204(d) and (e)] of Schedule 1 to this Act or any offence under section [F2052A,] 11(1) to (3) or 14 of the M43Sexual Offences (Scotland) Act 1976], it is alleged that the person by or in respect of whom the offence was committed was a child or was under or had attained any specified age, and he appears to the court to have been at the date of the commission of the alleged offence a child, or to have been under or to have attained the specified age, as the case may be, he shall for the purposes of this Act or the M44Children and Young Persons (Scotland) Act 1937 [F202or the M45Sexual Offences (Scotland) Act 1976 be presumed] at that date to have been a child or to have been under or to have attained that age, as the case may be, unless the contrary is proved.

(4)Where, in any complaint in respect of any offence under the M46Children and Young Persons (Scotland) Act 1937 or any of the offences mentioned in Schedule 1 to this Act, it is alleged that the person in respect of whom the offence was committed was a child or was a young person, it shall not be a defence to prove that the person alleged to have been a child was a young person or the person alleged to have been a young person was a child in any case where the acts constituting the alleged offence would equally have been an offence if committed in respect of a young person or child respectively.

(5)Where a person is charged with an offence under the M47Children and Young Persons (Scotland) Act 1937 in respect of a person apparently under a specified age, it shall be a defence to prove that the person was actually of or over that age.

(6)In subsection (3) of this section, references to a child (other than a child charged with an offence) shall be construed as references to a child under the age of 17 years; but except as aforesaid references in this section to a child shall be construed as references to a child within the meaning of section 462 of this Act.

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Amendments (Textual)

F204Words “(d) and (e)” substituted for words “and (d)” by virtue of the Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 170, Sch. 8 para. 16, Sch. 15 para. 48

Marginal Citations

369 Age of criminal responsibility.S

It shall be conclusively presumed that no child under the age of eight years can be guilty of any offence.

370 Child charged jointly with person who is not a child.E+W+S

When a child has been charged with an offence jointly with a person who is not a child the provisions of sections 366 [F206and 367] of this Act shall not apply to summary proceedings before the sheriff in respect of the charges.

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Amendments (Textual)

371 Welfare of child.S

Every court in dealing with a child who is brought before it as an offender shall have regard to the welfare of the child and shall in a proper case take steps for removing him from undesirable surroundings.

372 Reference and remit of children’s cases by courts to children’s hearings.S

(1)Where a child who is not subject to a supervision requirement is charged with an offence and pleads guilty to, or is found guilty of, that offence the court—

(a)instead of making an order on that plea or finding, may remit the case to the [F207Principal Reporter] to arrange for the disposal of the case by a children’s hearing; or

(b)on that plea or finding may request the [F207Principal Reporter] to arrange a children’s hearing for the purposes of obtaining their advice as to the treatment of the child.

(2)Where a court has acted in pursuance of paragraph (b) of the foregoing subsection, the court, after consideration of the advice received from the children’s hearing may, as it thinks proper, itself dispose of the case or remit the case as aforesaid.

(3)Where a child who is subject to a supervision requirement is charged with an offence and pleads guilty to, or is found guilty of, that offence the court shall request the [F207Principal Reporter] to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child, and on consideration of that advice may, as it thinks proper, itself dispose of the case or remit the case as aforesaid.

(4)Where a court has remitted a case to the [F208Principal Reporter] under this or the next following section, the jurisdiction of the court in respect of the child or person shall cease, and his case shall stand referred to a children’s hearing.

(5)Nothing in the provisions of this or the next following section shall apply to a case in respect of an offence the sentence for which is fixed by law.

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Amendments (Textual)

373 Reference and remit of cases of certain young persons by courts to children’s hearings.S

Where a person who is not subject to a supervision requirement but is a person over the age of 16, and is not within six months of attaining the age of 18, is charged summarily with an offence and pleads guilty to, or has been found guilty of, that offence the court on that plea or finding may request the [F209Principal Reporter] to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the person, and on consideration of that advice, the court may, as it thinks proper, itself dispose of the case or, where the hearing have so advised, remit the case to the [F209Principal Reporter] for the disposal of the case by a children’s hearing.

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Amendments (Textual)

[F210374 Restrictions on report of proceedings involving person under 16.E+W+S+N.I.
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Amendments (Textual)

(1)No newspaper report of any proceedings in a court shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any person under the age of 16 years concerned in the proceedings, either—

(a)as being a person against or in respect of whom the proceedings are taken; or

(b)as being a witness therein;

nor shall any picture which is, or includes, a picture of a person under the age of 16 years so concerned in the proceedings be published in any newspaper in a context relevant to the proceedings:

Provided that, in any case—

(i)

where the person is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the age of 16 years, the foregoing provisions of this subsection shall not apply unless the court so directs;

(ii)

the court may at any stage of the proceedings if satisfied that it is in the public interest so to do, direct that the requirements of this section (including such requirements as applied by a direction under paragraph (i) above) shall be dispensed with to such extent as the court may specify;

(iii)

the Secretary of State may, after completion of the proceedings, if so satisfied by order dispense with the said requirements to such extent as may be specified in the order.

(2)This section shall, with the necessary modifications, apply in relation to sound and television [F211programmes included in a programme service (within the meaning of the Broadcasting Act 1990)] as it applies in relation to newspapers.

(3)A person who publishes matter in contravention of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding [F212level 4 on the standard scale.]

(4)In this section, references to a court shall not include a court in England, Wales or Northern Ireland.]

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Amendments (Textual)

F212Words substituted by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 46, (S.) Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G and (N.I.) 1984/703, (N.I. 13), art. 5

Procedure at Trial of Persons suffering from Mental DisorderS

375 Insanity in bar of trial.S

(1)Subject to the following provisions of this section, any rule of law relating to insanity standing in bar of trial shall apply in the case of a person charged summarily in the sheriff court as it would apply if that person were charged on indictment.

[F213(2)Where the court is satisfied, on the written or oral evidence of two medical practitioners, that a person charged summarily in the sheriff court with the commission of an offence is insane so that his trial cannot proceed or, if it has commenced, cannot continue, the court shall, subject to subsection (2A) below—

(a)make a finding to that effect and state the reasons for that finding;

(b)discharge the trial diet and order that a diet (in this Act referred to as an “examination of facts”) be held in accordance with section 375ZA of this Act; and

(c)remand the person in custody or on bail or, where the court is satisfied—

(i)on the written or oral evidence of two medical practitioners, that he is suffering from mental disorder of a nature or degree which warrants his admission to hospital under Part V of the Mental Health (Scotland) Act 1984; and

(ii)that a hospital is available for his admission and suitable for his detention,

make an order (in this section referred to as a “temporary hospital order”) committing him to that hospital until the conclusion of the examination of facts.

(2A)Subsection (2) above is without prejudice to the power of the court, on an application by the prosecutor, to desert the diet pro loco et tempore.

(2B)The court may, before making a finding under subsection (2) above as to the insanity of a person, adjourn the case in order that investigation of his mental condition may be carried out.

(2C)The court which made a temporary hospital order may, at any time while the order is in force, review the order on the ground that there has been a change of circumstances since the order was made and, on such review—

(a)where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may remand him in custody or on bail;

(b)in any other case, the court may—

(i)confirm or vary the order; or

(ii)revoke the order and make such other order, under subsection (2)(c) above or any other provision of this Part of this Act, as the court considers appropriate.]

(3)It shall not be competent for a person charged as aforesaid to found on a plea of insanity standing in bar of trial unless, before the first witness for the prosecution is [F214sworn], he gives notice to the prosecutor of the plea and of the witnesses by whom he proposes to maintain it; and where notice as aforesaid has been given, the court shall, if the prosecutor so moves, adjourn the case.

[F215(3A)Where, in the case of any person charged summarily in the sheriff court, evidence is brought before the court that the person was insane at the time of doing the act or making the omission constituting the offence with which he is charged and the person is acquitted, the court shall state whether the person was insane at that time and, if so, whether he was acquitted on that ground.]

(4)Where it appears to a court that it is not practicable or appropriate for the accused to be brought before it for the purpose of determining whether he is insane so that his trial cannot proceed, then, if no objection to such a course is taken by or on behalf of the accused, the court may order that the case be proceeded with in his absence.

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Amendments (Textual)

F215Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s.7(c) (substituting “(5) or (5A)” for “or (5)” is repealed by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(2), Sch. 2 and for “or (5A)” there is substituted “(5A), (5B) or (5C)” by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(4)

[F216375ZA Examination of facts.S
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Amendments (Textual)

F216S. 375ZA inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 49(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)At an examination of facts ordered under section 375(2)(b) of this Act the court shall, on the basis of the evidence (if any) already given in the trial and such evidence, or further evidence, as may be led by either party, determine whether it is satisfied—

(a)beyond reasonable doubt, as respects any charge in a complaint in respect of which the accused was being or was to be tried, that he did the act or made the omission constituting the offence; and

(b)on the balance of probabilities, that there are no grounds for acquitting him.

(2)Where the court is satisfied as mentioned in subsection (1) above, it shall make a finding to that effect.

(3)Where the court is not so satisfied it shall, subject to subsection (4) below, acquit the person of the charge.

(4)Where, as respects a person acquitted under subsection (3) above, the court is satisfied as to the matter mentioned in subsection (1)(a) above but it appears to the court that the person was insane at the time of doing the act or making the omission constituting the offence, the court shall state whether the acquittal is on the ground of such insanity.

(5)Where it appears to the court that it is not practicable or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence.

(6)Subject to the provisions of this section, section 375ZB of this Act and any Act of Adjournal, the rules of evidence and procedure and the powers of the court in respect of an examination of facts shall be as nearly as possible those applicable in respect of a trial.

(7)For the purposes of the application to an examination of facts of the rules and powers mentioned in subsection (6) above, an examination of facts—

(a)commences when the diet is called; and

(b)concludes when the court—

(i)acquits the person under subsection (3) above;

(ii)makes an order under subsection (2) of section 375ZC of this Act; or

(iii)decides, under paragraph (e) of that subsection, not to make an order.]

F217375ZB Examination of facts: supplementary provisions.S

(1)An examination of facts ordered under section 375(2)(b) of this Act may, where the order is made at the trial diet, be held immediately following the making of the order and, where it is so held, the citation of the accused and any witness to the trial diet shall be a valid citation to the examination of facts.

(2)Where an accused person is not legally represented at an examination of facts the court shall appoint counsel or a solicitor to represent his interests.

(3)The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the complaint in priority to other such charges.

(4)The court may, on the motion of the prosecutor and after hearing the accused, at any time desert the examination of facts pro loco et tempore as respects the whole complaint or any charge in the complaint.

(5)Where, and to the extent that, an examination of facts has, under subsection (4) above, been deserted pro loco et tempore, the prosecutor may, at any time, raise a fresh libel notwithstanding any time limit which would otherwise apply in respect of prosecution of the alleged offence.

(6)If, in a case where a court has made a finding under subsection (2) of section 375ZA of this Act, a person is subsequently charged, whether on indictment or on a complaint, with an offence arising out of the same act or omission as is referred to in subsection (1) of that section, any order made under section 375ZC(2) of this Act shall, with effect from the commencement of the later proceedings, cease to have effect.

(7)For the purposes of subsection (6) above, the later proceedings are commenced when the indictment or, as the case may be, the complaint is served.

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Amendments (Textual)

F217S. 375ZB inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 49(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F218375ZC Disposal of case where accused found to be insane.S
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Amendments (Textual)

F218S. 375ZC inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 50(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)This section applies where—

(a)a person is, by virtue of section 375(3A) or 375ZA(3) of this Act, acquitted on the ground of his insanity at the time of the act or omission; or

(b)following an examination of facts under section 375ZA, a court makes a finding under subsection (2) of that section.

(2)Where this section applies the court may, as it thinks fit—

(a)make an order (which shall have the same effect as a hospital order) that the person be detained in such hospital as the court may specify;

(b)in addition to making an order under paragraph (a) above, make an order (which shall have the same effect as a restriction order) that the person shall, without limit of time, be subject to the special restrictions set out in section 62(1) of the Mental Health (Scotland) Act 1984;

(c)make an order (which shall have the same effect as a guardianship order) placing the person under the guardianship of a local authority or of a person approved by a local authority;

(d)make a supervision and treatment order (within the meaning of paragraph 1(1) of Schedule 5A to this Act); or

(e)make no order.

(3)Sections 376(1) and (6) to (9) and 377 to 379 of this Act shall have effect in relation to the making, terms and effect of an order under paragraph (a), (b) or (c) of subsection (2) above as those provisions have effect in relation to the making, terms and effect of, respectively, a hospital order, a restriction order and a guardianship order as respects a person convicted of an offence, other than an offence the sentence for which is fixed by law, punishable by imprisonment.]

[F219375ZD Appeal by accused in case involving insanity.S
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Amendments (Textual)

F219S. 375ZD inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 51(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)A person may appeal to the High Court against—

(a)a finding made under section 375(2) of this Act that he is insane so that his trial cannot proceed or continue, or the refusal of the court to make such a finding;

(b)a finding under section 375ZA(2) of this Act; or

(c)an order made under section 375ZC(2) of this Act.

(2)An appeal under subsection (1) above shall be—

(a)in writing; and

(b)lodged—

(i)in the case of an appeal under paragraph (a) of that subsection, not later than seven days after the date of the finding or refusal which is the subject of the appeal;

(ii)in the case of an appeal under paragraph (b), or both paragraphs (b) and (c), of that subsection, not later than 28 days after the conclusion of the examination of facts;

(iii)in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by virtue of section 375(3A) or 375ZA(3) of this Act, on the ground of insanity at the time of the act or omission, not later than 14 days after the date of the acquittal;

(iv)in the case of an appeal under that paragraph against an order made on a finding under section 375ZA(2), not later than 14 days after the conclusion of the examination of facts,

or within such longer period as the High Court may, on cause shown, allow.

(3)Where an appeal is taken under subsection (1) above, the period from the date on which the appeal was lodged until it is withdrawn or disposed of shall not count towards any time limit applying in respect of the case.

(4)An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.

(5)In disposing of an appeal under subsection (1) above the High Court may—

(a)affirm the decision of the court of first instance;

(b)make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or

(c)remit the case to that court with such directions in the matter as the High Court thinks fit.

(6)Section 443 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1)(c) above.]

[F220375ZE Appeal by prosecutor in case involving insanity.S
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Amendments (Textual)

F220S. 375ZE inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 52(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)The prosecutor may appeal to the High Court on a point of law against—

(a)a finding under subsection (2) of section 375 of this Act that an accused is insane so that his trial cannot proceed or continue;

(b)an acquittal on the ground of insanity at the time of the act or omission by virtue of subsection (3A) of that section;

(c)an acquittal under section 375ZA(3) of this Act (whether or not on the ground of insanity at the time of the act or omission); or

(d)any order made under section 375ZC(2) of this Act.

(2)An appeal under subsection (1) above shall be—

(a)in writing; and

(b)lodged—

(i)in the case of an appeal under paragraph (a) or (b) of that subsection, not later than seven days after the finding or, as the case may be, the acquittal which is the subject of the appeal;

(ii)in the case of an appeal under paragraph (c) or (d) of that subsection, not later than seven days after the conclusion of the examination of facts,

or within such longer period as the High Court may, on cause shown, allow.

(3)A respondent in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.

(4)In disposing of an appeal under subsection (1) above the High Court may—

(a)affirm the decision of the court of first instance;

(b)make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or

(c)remit the case to that court with such directions in the matter as the High Court thinks fit.]

[F221375A Interim hospital orders.S
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Amendments (Textual)

(1)Where, in the case of any person charged summarily in the sheriff court—

(a)the person is convicted of an offence punishable by that court with imprisonment (other than an offence the sentence for which is fixed by law); or

(b)the sheriff is satisfied that the person did the act or made the admission charged but does not convict him,

and the sheriff is satisfied on the written or oral evidence of two medical practitioners (complying with the provisions of subsection (3) of this section and section 377 of this Act)—

(a)that the offender is suffering from mental disorder within the meaning of [F222section 1(2) of the M48Mental Health (Scotland) Act 1984]; and

(b)that there is reason to suppose—

(i)that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case; and

(ii)that, having regard to the provisions of section 376(7) of this Act, the hospital to be specified in any such hospital order may be a State hospital,

the court may, before making a hospital order or dealing with the offender in some other way, make an order (to be known as “an interim hospital order”) authorising his admission to and detention in a State hospital or such other hospital as for special reasons the court may specify in the order.

(2)Where a person is remitted to the sheriff court from the district court under section 376(4) of this Act, the sheriff court may, if it is satisfied as in subsection (1) of this section, make an interim hospital order in relation to that person.

(3)Of the medical practitioners whose evidence is taken into account under subsection (1) of this section at least one shall be employed at the hospital which is to be specified in the order.

(4)An interim hospital order shall not be made in respect of an offender unless the court is satisfied that the hospital which is to be specified in the order, in the event of such an order being made by the court, is available for his admission thereto within 28 days of the making of such an order.

(5)Where a court makes an interim hospital order it shall not make any other order for detention or impose a fine or pass sentence of imprisonment or make a probation order or a community service order in respect of the offence, but may make any other order which it has power to make apart from this section.

(6)The court by which an interim hospital order is made may include in the order such direction as it thinks fit for the conveyance of the offender to a place of safety and his detention therein pending his admission to the hospital within the period of 28 days referred to in subsection (4) of this section.

(7)An interim hospital order—

(a)shall be in force for such period, not exceeding 12 weeks, as the court may specify when making the order; but

(b)may be renewed for further periods of not more than 28 days at a time if it appears to the court on the written or oral evidence of the responsible medical officer that the continuation of the order is warranted;

but no such order shall continue in force for more than 6 months in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides, after considering the written or oral evidence of the responsible medical officer, to deal with the offender in some other way.

(8)The power of renewing an interim hospital order may be exercised without the offender being brought before the court if he is represented by counsel or a solicitor and his counsel or solicitor is given an opportunity of being heard.

(9)If an offender absconds from a hospital in which he is detained in pursuance of an interim hospital order, or while being conveyed to or from such a hospital, he may be arrested without warrant by a constable and shall, after being arrested, be brought as soon as practicable before the court which made the order; and the court may thereupon terminate the order and deal with him in any way in which it could have dealt with him if no such order had been made.

(10)When an interim hospital order ceases to have effect in relation to an offender the court may deal with him in any way (other than by making a new interim hospital order) in which it could have dealt with him if no such order had been made.

(11)The power conferred on the court by the provisions of this section is without prejudice to the power of the court under section 381(1) of this Act to remand a person in order that an inquiry may be made into his physical or mental condition.]

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Amendments (Textual)

Marginal Citations

376 Power of court to order hospital admission or guardianship. S
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Modifications etc. (not altering text)

(1)Where a person is convicted in the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the following conditions are satisfied, that is to say—

(a)the court is satisfied, on the written or oral evidence of two medical practitioners (complying with the provisions of section 377 of this Act) that [F223the grounds set out in section [F22417(1)] or, as the case may be, the ground set out in section [F22436(a)] of the [F224M49Mental Health (Scotland) Act 1984] apply in relation to the offender]; and

(b)the court is of opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,

the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of such local authority or of such other person approved by a local authority as may be so specified.

F225(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Where in the case of a person charged [F226summarily in the sheriff court with an act or omission constituting an offence] the court would have power, on convicting him, to make an order under subsection (1) of this section, then, if it is satisfied that the person did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.

(4)Where a person is charged before a court of summary jurisdiction, other than a sheriff court, with any act or omission constituting an offence punishable with imprisonment, the court, if it appears to it that that person may be suffering from mental disorder, shall remit him to the sheriff court in the manner provided by section 286 of this Act, and the sheriff court shall, on any such remit being made, have the like power to make an order under subsection (1) of this section in respect of him as if he had been charged before that court with the said act or omission as an offence, or in dealing with him may exercise the like powers as the court making the remit.

(5)Where it appears to the prosecutor in any court before which a person is charged with an offence that the person may be suffering from mental disorder, it shall be the duty of such prosecutor to bring before the court such evidence as may be available of the mental condition of that person.

(6)An order for the admission of a person to a hospital (in this Act referred to as “a hospital order”) shall not be made under this section in respect of an offender or of a person to whom subsection (3) of this section applies unless the court is satisfied that that hospital, in the event of such an order being made by the court, is available for his admission thereto within 28 days of the making of such an order.

(7)A State hospital shall not be specified in a hospital order in respect of the detention of a person unless the court is satisfied, on the evidence of the medical practitioners which is taken into account under paragraph (a) of subsection (1) of this section, that the offender, on account of his dangerous, violent or criminal propensities, requires treatment under conditions of special security, and cannot suitably be cared for in a hospital other than a State hospital.

(8)An order placing a person under the guardianship of a local authority or of any other person (in this Act referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied

[F227(a)after taking into consideration the evidence of a mental health officer, that it is necessary in the interests of the welfare of the person that he should be placed under guardianship; and

that that authority or person is willing to receive that person into guardianship.

(9)A hospital order or guardianship order shall specify the form of mental disorder, being mental illness or mental [F228handicap], or both, from which, upon the evidence taken into account under paragraph (a) of subsection (1) of this section, the offender is found by the court to be suffering; and no such order shall be made unless the offender is described by each of the practitioners, whose evidence is taken into account as aforesaid, as suffering from the same form of mental disorder, whether or not he is also described by either of them as suffering from the other form.

(10)Where an order is made under this section, the court shall not pass sentence of imprisonment or impose a fine or make a probation order [F229or a community service order] in respect of the offence, but may make any other order which the court has power to make apart from this section; and for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention.

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Amendments (Textual)

F225S. 376(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 133(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F226Words in s. 376(3) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 133(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

Marginal Citations

377 Requirements as to medical evidence. S
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Modifications etc. (not altering text)

(1)Of the medical practitioners whose evidence is taken into account under [F230sections [F231375(2),]375A(1) and] 376(1)(a) of this Act, at least one shall be a practitioner approved for the purposes of [F232section 20 or section 39 of the M50Mental Health (Scotland) Act 1984] by a Health Board as having special experience in the diagnosis or treatment of mental disorder.

[F233(1A)Written or oral evidence given for the purposes of the said section 376(1)(a) shall include a statement as to whether the person giving the evidence is related to the accused and of any pecuniary interest which that person may have in the admission of the accused to hospital or his reception into guardianship.]

(2)For the purposes of the said [F234sections 375(2) and] 376(1)(a) a report in writing purporting to be signed by a medical practitioner may, subject to the provisions of this section, be received in evidence without proof of the signature or qualifications of the practitioner; but the court may, in any case, require that the practitioner by whom such a report was signed be called to give oral evidence.

(3)Where any such report as aforesaid is tendered in evidence, otherwise than by or on behalf of the accused, then—

(a)if the accused is represented by counsel or solicitor, a copy of the report shall be given to his counsel or solicitor;

(b)if the accused is not so represented, the substance of the report shall be disclosed to the accused or, where he is a child under 16 years of age, to his parent or guardian if present in court;

(c)in any case, the accused may require that the practitioner by whom the report was signed be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by or on behalf of the accused;

and where the court is of opinion that further time is necessary in the interests of the accused for consideration of that report, or the substance of any such report, it shall adjourn the case.

(4)For the purpose of calling evidence to rebut the evidence contained in any such report as aforesaid, arrangements may be made by or on behalf of an accused person detained in a hospital [F235or, as respects a report for the purposes of section 375(2), remanded in custody]for his examination by any medical practitioner, and any such examination may be made in private.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F230Word and s. 186(2)(d) added by Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s. 8

F235Words in s. 375(4) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 134(c); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

Marginal Citations

378 Supplementary provisions as to hospital orders. S
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

The court by which a hospital order is made may give such directions as it thinks fit for the conveyance of the patient to a place of safety and his detention therein pending his admission to the hospital within the period of 28 days referred to in section 376(6) of this Act; but a direction for the conveyance of a patient to a residential establishment provided by a local authority under Part IV of the M51Social Work (Scotland) Act 1968 shall not be given unless the court is satisfied that that authority is willing to receive the patient therein.

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Modifications etc. (not altering text)

Marginal Citations

379 Power of court to restrict discharge from hospital. S
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

(1)Where a hospital order is made in respect of a person, and it appears to the court, having regard to the nature of the offence with which he is charged, the antecedents of the person and the risk that as a result of his mental disorder he would commit offences if set at large, that it is necessary for the protection of the public [F236from serious harm] so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in [F237section 62(1) of the M52Mental Health (Scotland) Act 1984], F238. . . without limit of time F238. . ..

(2)An order under this section (in this Act referred to as [F239“a restriction order”]) shall not be made in the case of any person unless the medical practitioner approved by the Health Board for the purposes of [F240section 20 or section 39 of the M53Mental Health (Scotland) Act 1984], whose evidence is taken into account by the court under section 376(1)(a) of this Act, has given evidence orally before the court.

(3)Where [F241a restriction order is in force in respect of a patient], a guardianship order shall not be made in respect of him; and where the hospital order relating to him ceases to have effect by virtue of [F242[F243section 60(3)] of the M54Mental Health (Scotland) Act 1984] on the making of another hospital order, that order shall have the same effect in relation to [F244the restriction order] as the previous hospital order, but without prejudice to the power of the court making that other hospital order to make [F245another restriction order] to have effect on the expiration of the previous such order.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F238Words in s. 379(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 54, 117(2), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F239Ss. 282A, 282B inserted (prosp.) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 39:1), ss. 74(1), 75, Sch. 8 para. 27(2)

F240Words substituted by Mental Health (Scotland) Act 1984 :c. 36, SIF 85), s. 127(1), Sch. 3 para. 35(b)

F243Words in s. 379(3) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 135; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

Marginal Citations

E+W+S+N.I. Conviction and Sentence

Adjournment and remandS

380 Power of court to adjourn case before sentence.S

[(1)]It is hereby declared that the power of a court to adjourn the hearing of a case includes power, after a person has been convicted or the court has found that he committed the offence and before he has been sentenced or otherwise dealt with, to adjourn the case for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with his case [F246and where the court [F247adjourns the case solely for that purpose] it shall remand the accused in custody or on bail][F248or ordain him to appear at the adjourned diet].

Provided that a court shall not [F249solely] for the purpose aforesaid adjourn the hearing of a case for any single period exceeding

[F250(a)where the accused is remanded in custody, three weeks; or

(b)where he is remanded on bail or is ordained to appear, eight weeks but only on cause shown and otherwise four weeks]

[F251(2)An accused who is remanded under this section may appeal against the refusal of bail or against the conditions imposed within 24 hours of his remand, by note of appeal presented to the High Court, and the High Court, either in court or in chambers, may, after hearing parties—

[F252(a)review the order appealed against and either grant bail on such conditions as it thinks fit or ordain the accused to appear at the adjourned diet;] or

(b)confirm the order.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F247Words in s. 380(1) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 68(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F249Word in the proviso to s. 380(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 68; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F250S. 380(1)(a)(b) substituted (18.9.1993) for words “three weeks” by 1993 c. 9, s. 47(1), Sch. 5 para. 1(6) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(3), 4(1)(c), Sch.2

[F253380A Offence committed by person under supervision etc.: provision of local authority report.S
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F253S. 380A inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 37(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

(1)Where a person specified in section 27(1)(b)(i) to (vi) of the Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to—

(a)the circumstances of the offence; and

(b)the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.

(2)In subsection (1) above, “the court” does not include a district court.]

381 Remand for inquiry into physical or mental condition.S

(1)Without prejudice to any powers exercisable by a court under the last foregoing section, where a person is charged before a court with an offence punishable with imprisonment, and the court is satisfied that he did the act or made the omission charged but is of opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined, the court [F254shall—

(a)for the purpose of inquiry solely into his physical condition, remand him in custody or on bail;

(b)for the purpose of inquiry into his mental condition (whether or not in addition to his physical condition), remand him in custody or on bail or, where the court is satisfied—

(i)on the written or oral evidence of a medical practitioner, that the person appears to be suffering from a mental disorder; and

(ii)that a hospital is available for his admission and suitable for his detention,

make an order committing him to that hospital,

for]such period or periods, no single period exceeding three weeks, as the court thinks necessary to enable a medical examination and report to be made.

[F255(1A)Where the court is of the opinion that a person ought to continue to be committed to hospital for the purpose of inquiry into his mental condition following the expiry of the period specified in an order for committal to hospital under paragraph (b) of subsection (1) above, the court may—

(a)if the condition in sub-paragraph (i) of that paragraph continues to be satisfied and a suitable hospital is available for his continued detention, renew the order for such further period not exceeding three weeks as the court thinks necessary to enable a medical examination and report to be made; and

(b)in any other case, remand the person in custody or on bail in accordance with subsection (1) above.

(1B)An order under subsection (1A)(a) above may, unless objection is made by or on behalf of the person to whom it relates, be made in his absence.

(1C)Where, before the expiry of the period specified in an order for committal to hospital under subsection (1)(b) above, the court considers, on an application made to it, that committal to hospital is no longer required in relation to the person, the court shall revoke the order and may make such other order, under subsection (1)(a) above or any other provision of this Part of this Act, as the court considers appropriate.]

(2)Where a person is remanded on bail under this section, . . . F256 it shall be a condition of the [F257order granting bail] that he shall—

(a)