Prisoners and Criminal Proceedings (Scotland) Act 1993

1 (1) The Criminal Procedure (Scotland) Act 1975 shall be amended as follows.

(2) In section 20B (record of proceedings at judicial examination)—

(a) in subsection (1), for the words “a shorthand writer” there shall be substituted the words “means of shorthand notes or by mechanical means”;

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

“(1A) A shorthand writer shall—

(a) sign the shorthand notes taken by him of the questions, answers and declarations mentioned in subsection (1) above and certify the notes as being complete and correct; and

(b) retain the notes.

(1B) A person recording the questions, answers and declarations mentioned in subsection (1) above by mechanical means shall—

(a) certify that the record is true and complete;

(b) specify in the certificate the proceedings to which the record relates; and

(c) retain the record.

(1C) The prosecutor shall require the person who made the record mentioned in subsection (1) above, or such other competent person as he may specify, to make a transcript of the record in legible form; and that person shall—

(a) comply with the requirement;

(b) certify the transcript as being a complete and correct transcript of the record purporting to have been made and certified, and in the case of shorthand notes signed, by the person who made the record; and

(c) send the transcript to the prosecutor.”; and

(c) for subsection (2) there shall be substituted the following subsection—

“(2) A transcript certified under subsection (1C)(b) above shall, subject to subsection (4) below, be deemed for all purposes to be a complete and correct record of the questions, answers and declarations mentioned in subsection (1) above.”.

(3) In section 76(1)(b) (notice of intention to submit plea in bar of trial or to make certain preliminary applications), after the word “trials” there shall be inserted the words “or to raise a preliminary objection under section 67 of this Act”.

(4) In section 108(2) (certain preliminary objections competent only where notice given)—

(a) the word “and” at the end of paragraph (b) shall cease to have effect; and

(b) after paragraph (c) there shall be inserted the following— “; and

(d) no preliminary objection under section 67 of this Act shall be raised,”.

(5) After section 137 there shall be inserted the following section—

“137A Verdict by judge alone.

(1) Where, at any time after the jury has been sworn to serve in any trial, the prosecutor intimates to the court that he does not intend to proceed in respect of an offence charged in the indictment, the judge shall acquit the accused of that offence and the trial shall proceed only in respect of any other offence charged in the indictment.

(2) Where, at any time after the jury has been sworn to serve in any trial, the accused intimates to the court that he is prepared to tender a plea of guilty as libelled, or such other plea as the Crown is prepared to accept, in respect of any offence charged in the indictment, the judge shall accept the plea tendered and shall convict the accused accordingly.

(3) Where an accused is convicted under subsection (2) above of an offence—

(a) the trial shall proceed only in respect of any other offence charged in the indictment; and

(b) without prejudice to any other power of the court to adjourn the case or to defer sentence, the judge shall not sentence him or make any other order competent following a conviction until a verdict has been returned in respect of every offence mentioned in paragraph (a) above.”.

(6) In each of sections 179(1) (power of court in solemn proceedings to adjourn case before sentence) and 380(1) (corresponding power in summary proceedings), in the proviso, for the words “three weeks” there shall be substituted the following paragraphs—

“(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”.

(7) In each of sections 186 (breach of probation order imposed in solemn proceedings) and 387 (corresponding provision as regards summary proceedings), after subsection (2) there shall be inserted the following subsection—

“(2A) for the purposes of subsection (2) above, evidence of one witness shall be sufficient evidence.”.

(8) In section 205A(1) (recommendation as to minimum period of detention for person convicted of murder), for the words “26 of the Prisons (Scotland) Act 1989” there shall be substituted the words “1(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993”.

(9) In section 233(1) (note of appeal), the existing words from “within six weeks” to the end shall be paragraph (a) and after that paragraph there shall be added the word “; or” and the following paragraph—

“(b) as the case may be, within four weeks of the passing of the sentence in open court, the Lord Advocate may lodge such a note with the Clerk of Justiciary, who shall send a copy to the said judge and to the convicted person or that person’s solicitor.”.

(10) In section 234(1) (presentation of appeal in writing), after the word “appellant” there shall be inserted the words “other than the Lord Advocate”.

(11) In section 236B(2) (extension of certain periods), for the words “233(1)” there shall be substituted the words “233(1)(a)”.

(12) In section 236C (signing of documents), after the words “to appeal” there shall be inserted the words “or (except where the appellant is the Lord Advocate) any”.

(13) In section 238 (admission of appellant to bail), for subsections (1) and (2) there shall be substituted the following subsections—

“(1) The High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of—

(a) his appeal; or

(b) any appeal by the Lord Advocate against the sentence passed on conviction.

(2) A person who is admitted to bail under subsection (1) above shall, unless the High Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal or of any application for leave to appeal; and in the event of his failing to do so the court may—

(a) if he is the appellant—

(i) decline to consider the appeal or application; and

(ii) dismiss it summarily; or

(b) whether or not he is the appellant—

(i) consider and determine the appeal or application; or

(ii) without prejudice to section 3 of the [1980 c. 4.] Bail etc. (Scotland) Act 1980 (breach of conditions), make such other order as the court thinks fit.”.

(14) In section 239(1) (notice of date of hearing), for—

(a) the words “appellant or applicant”, in both places where they occur, there shall be substituted the words “convicted person”; and

(b) the word “latter”, there shall be substituted the words “appellant or applicant”.

(15) In section 240 (presence of appellant at hearing), for the word “An”, where it first occurs, there shall be substituted the words “A convicted”.

(16) After section 242 there shall be inserted the following section—

“242A Special provision where appellant is Lord Advocate.

Where the Lord Advocate is the appellant, sections 241 and 242 of this Act shall apply in respect of the convicted person, if in custody, as they apply to an appellant or applicant in custody.”.

(17) In section 243 (provision as to warders attending court), for the words “the last foregoing section” there shall be substituted the words “section 242 of this Act”.

(18) In section 252 (powers of High Court), after the words “228(1)” there shall be inserted the words “or 228A”.

(19) In section 258 (sentence in absence), after the word “appellant” there shall be inserted the words “(or, where the Lord Advocate is the appellant, the convicted person)”.

(20) In section 261 (notice of determination of appeal), after the word “applicant” there shall be inserted the words “(or, where the Lord Advocate is the appellant, to the convicted person)”.

(21) In section 264 (disqualification, forfeiture, etc), in each of subsections (1) and (2)—

(a) for the word “two” there shall be substituted the word “four”; and

(b) after the words “228(1)(b)” there shall be inserted the words “or 228A”.

(22) In section 265 (fines and caution), after subsection (4) there shall be inserted the following subsection—

“(4A) A convicted person who has been sentenced to the payment of a fine and has duly paid it shall, if an appeal against sentence by the Lord Advocate results in the sentence being quashed and no fine, or a lesser fine than that paid, being imposed, be entitled, subject to any order of the High Court, to the return of the sum paid or as the case may be to the return of the amount by which that sum exceeds the amount of the lesser fine.”.

(23) In section 268 (reckoning of time spent in custody pending appeal)—

(a) in subsection (1)—

(i) for the words “an appellant” there shall be substituted the words “a convicted person”;

(ii) after the word “appeal” there shall be inserted the words “, or as the case may be of any appeal by the Lord Advocate against the sentence passed on conviction,”; and

(iii) for the word “this”, where it occurs qualifying the word “sentence”, there shall be substituted the word “that”;

(b) for subsection (2) there shall be substituted the following subsection—

“(2) The time (including any period consequent on the recall of bail) during which a convicted person is in custody pending the determination of his appeal, or as the case may be of any appeal by the Lord Advocate against the sentence passed on conviction, shall subject to any direction which the High Court may give to the contrary be reckoned as part of any term of imprisonment under that sentence.”; and

(c) in subsection (3), after the word “appellant” there shall be inserted the words “(or, where the appellant is the Lord Advocate, of a convicted person)”.

(24) In section 269 (extract convictions)—

(a) for the word “two” there shall be substituted the word “four”; and

(b) after the words “228(1)(b)” there shall be inserted the words “or 228A”.

(25) In section 270 (custody of trial documents, etc.)—

(a) in subsection (2)—

(i) for the words from the beginning to “proceedings” there shall be substituted the words “Until any period allowed under or by virtue of this Part of this Act for lodging intimation of intention to appeal (or any longer period allowed by virtue thereof for lodging a note of appeal) has elapsed, all documents and other productions produced at the trial of a convicted person shall be kept”;

(ii) after the words “228(1)(b)” there shall be inserted the words “or 228A”; and

(iii) the words “of two weeks or any extension thereof authorised by the High Court” shall cease to have effect;

(b) in subsection (3)—

(i) after the words “228(1)(b)” there shall be inserted the words “or 228A”; and

(ii) for the words “to his” there shall be substituted the words “, as the case may be, to the convicted person's”; and

(c) in subsection (4)—

(i) after the words “228(1)(b)” there shall be inserted the words “or 228A”; and

(ii) for the words “such period of two weeks or extension thereof as aforesaid” there shall be substituted the words “the period mentioned in subsection (2) above”.

(26) In section 273(1) (register of appeals), after the words “228(1)(b)” there shall be inserted the words “or 228A”.

(27) For sections 274 and 275 (shorthand notes of trial etc.) there shall be substituted the following sections—

“274 Record of trial

(1) The proceedings at the trial of any person who, if convicted, is entitled to appeal under this Part of this Act shall be recorded by means of shorthand notes or by mechanical means.

(2) A shorthand writer shall—

(a) sign the shorthand notes taken by him of such proceedings and certify them as being complete and correct; and

(b) retain the notes.

(3) A person recording such proceedings by mechanical means shall—

(a) certify that the record is true and complete;

(b) specify in the certificate the proceedings (or, as the case may be, the part of the proceedings) to which the record relates; and

(c) retain the record.

(4) The cost of making a record under subsection (1) above shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of money provided by Parliament.

(5) In subsection (1) above “proceedings at the trial” means the whole proceedings including (without prejudice to that generality)—

(a) discussions—

(i) on any objection to the relevancy of the indictment;

(ii) with respect to any challenge of jurors; and

(iii) on all questions arising in the course of the trial;

(b) the decision of the court on any matter referred to in paragraph (a) above;

(c) the evidence led at the trial;

(d) any statement made by or on behalf of the accused whether before or after the verdict;

(e) the summing up by the judge;

(f) the speeches of counsel or agent;

(g) the verdict of the jury; and

(h) the sentence by the judge.

275 Transcripts of record and documentary productions

(1) The Clerk of Justiciary may direct that a transcript of a record made under section 274(1) of this Act, or any part thereof, be made and delivered to him for the use of any judge.

(2) Subject to subsection (3) below, the Clerk of Justiciary shall, if he is requested to do so by—

(a) the Secretary of State; or

(b) any other person on payment of such charges as may be fixed for the time being by the Treasury,

direct that such a transcript be made and sent to the person who requested it.

(3) The Secretary of State may, after consultation with the Lord Justice General, by order made by statutory instrument provide that in any class of proceedings specified in the order the Clerk of Justiciary shall only make a direction under subsection (2)(b) above if satisfied that the person requesting the transcript is of a class of person so specified and, if purposes for which the transcript may be used are so specified, intends to use it only for such a purpose; and different purposes may be so specified for different classes of proceedings or classes of person.

(4) Where subsection (3) above applies as respects a direction, the person to whom the transcript is sent shall, if purposes for which that transcript may be used are specified by virtue of that subsection, use it only for such a purpose.

(5) A statutory instrument containing an order under subsection (3) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) A direction under subsection (1) or (2) above may require that the transcript be made by the person who made the record or by such competent person as may be specified in the direction; and that person shall comply with the direction.

(7) A transcript made in compliance with a direction under subsection (1) or (2) above—

(a) shall be in legible form; and

(b) shall be certified by the person making it as being a correct and complete transcript of the whole or, as the case may be, the part of the record purporting to have been made and certified, and in the case of shorthand notes signed, by the person who made the record.

(8) The cost of making a transcript in compliance with a direction under subsection (1) or (2)(a) above shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of money provided by Parliament.

(9) The Clerk of Justiciary shall, on payment of such charges as may be fixed for the time being by the Treasury, provide a copy of any documentary production lodged in connection with an appeal under this Part of this Act to such of the following persons as may request it—

(a) the prosecutor;

(b) any person convicted in the proceedings;

(c) any other person named in, or immediately affected by, any order made in the proceedings; and

(d) any person authorised to act on behalf of any of the persons mentioned in paragraphs (a) to (c) above.”.

(28) In section 276 (minute book entry regarding appointment of shorthand writer), for the words from “taken” to the end there shall be substituted the words “recorded by means of (specify means) and appointed (name), (designation), (address), to do so.”.

(29) In section 277(2) (list of provisions non-compliance with which may be waived), in the first column, under the entry relating to section 242, there shall be inserted the entry “242A”.

(30) In section 334(1) (procedure at first diet)—

(a) after the word “prosecution” there shall be inserted the words “(whether or not a diet fixed by virtue of section 333A of this Act)”; and

(b) after the words “he shall” there shall be inserted the words “, unless the court adjourns (or further adjourns) the case under the said section 333A,”.

(31) In section 350(1) (additional evidence)—

(a) for the words “after the close of that party’s evidence and” there shall be substituted the words “at any time”; and

(b) in paragraph (b), for the words “time the party’s evidence was closed” there shall be substituted the words “commencement of the trial”.

(32) In section 413 (detention of children in summary proceedings)—

(a) in subsection (1)—

(i) the words “for such period, not exceeding one year, as the sheriff may determine” shall cease to have effect; and

(ii) at the end there shall be added the words “and shall, when making any such order, specify therein a period not exceeding one year”; and

(b) in subsection (7), after the word “(1)” there shall be inserted the words “(or (6B))”.

(33) In section 442(1)(b)(ii) (prosecutor’s appeal against sentence on point of law), for the words “in such proceedings” there shall be substituted the words “on such conviction”.

(34) In section 442B (method of appeal against sentence alone)—

(a) after the words “Where a” there shall be inserted the word “convicted”;

(b) after the word “Act”, where it first occurs, there shall be inserted the words “, or the prosecutor desires so to appeal by virtue of section 442(1)(c) thereof,”; and

(c) for the proviso there shall be substituted the words “; but nothing in this section shall prejudice any right to proceed by bill of suspension, or as the case may be advocation, against an alleged fundamental irregularity relating to the imposition of the sentence.”.

(35) In section 452A (disposal of stated case appeal)—

(a) in subsection (1), after the word “subject” there shall be inserted the words “to subsection (2) below and”; and

(b) for subsection (2) there shall be substituted the following subsection—

“(2) The High Court shall, in an appeal—

(a) against both conviction and sentence, subject to section 453D(1) of this Act, dispose of the appeal against sentence; or

(b) by the prosecutor, against sentence, dispose of the appeal,

by exercise of the power mentioned in section 453C(1) of this Act.”.

(36) In section 453B (appeals against sentence only)—

(a) in each of subsections (1), (7) and (8), after the words “442(1)(a)(ii)” there shall be inserted the words “, or by virtue of section 442(1)(c),”;

(b) for subsection (2) there shall be substituted the following subsection—

“(2) The note of appeal shall, where the appeal is—

(a) under section 442(1)(a)(ii) be lodged, within one week of the passing of the sentence, with the clerk of the court from which the appeal is to be taken; or

(b) by virtue of section 442(1)(c) be so lodged within four weeks of such passing.”;

(c) in subsection (6), for the word “(2)” there shall be substituted the words “(2)(a)”; and

(d) in subsection (8), at the end, there shall be added the words “except that, for the purposes of such application to any appeal by virtue of section 442(1)(c), references in subsections (1) to (3) of section 446 to the appellant shall be construed as references to the convicted person and subsections (4) and (5) of section 446 shall be disregarded”.

(37) In section 453C(3) (powers of High Court at time of disposal of appeal)—

(a) after the words “442(1)(a)(ii)” there shall be inserted the words “, or by virtue of section 442(1)(c),”; and

(b) for the word “appellant”, in each place where it occurs, there shall be substituted the words “convicted person”.

(38) In section 463(1) (application to England and Wales), in paragraph (a) for the words “and 189” there shall be substituted the words “189 and 212A(2) and (6)”.