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U.K.

Criminal Procedure (Scotland) Act 1995

1995 CHAPTER 46

An Act to consolidate certain enactments relating to criminal procedure in Scotland.

[8th November 1995]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Extent Information

E1Act extends to Scotland; for sections extending to England and Wales, Northern Ireland and the Isle of Man, see s. 309(3)-(6).

Modifications etc. (not altering text)

C1Act modified (1.4.1997) by S.I. 1996/3255, reg. 5

C2Act amended (temp. from 1.4.1996) by 1995 c. 40, ss. 4, 7(2), Sch. 3 Pt. II para. 5

C3Act extended (S.) (1.4.1996) by 1995 c. 40, ss. 1, 2(2), 7(2)

C4Act excluded (S.) (1.4.1996) by 1995 c. 39, ss. 46(3), 53(2)

C5Act construed (S.) (1.4.1996) with 1995 c. 39, ss. 43(2), 53(2)

C6Act applied (3.7.2001) by S.I. 2001/1701, reg. 17, Sch. 13 para. 14(3);

Act applied (20.11.2002) by Copyright, Designs and Patents Act 1988 (c. 48), ss. 114B(6), 204B(6), 297D(6) (as inserted by Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (c. 25), ss. 3, 4, 5; S.I. 2002/2749, art. 2)

Act applied (7.3.2005) by The Electromagnetic Compatibility Regulations 2005 (S.I. 2005/281), reg. 98(3)

Act applied (S.) (5.10.2005) by The Mental Health (Cross border transfer: patients subject to detention requirement or otherwise in hospital)(Scotland) Regulations 2005 (S.S.I. 2005/467), {reg. 46(1)}

Act modified (S.) (6.10.2006) by Animal Health and Welfare (Scotland) Act 2006 (asp 11), ss. 43(1), 55(1); S.S.I. 2006/482, art. 2 (subject to art. 4)

C8Act modified (S.) (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009, 14.12.2009 and 22.2.2010 for certain purposes, otherwise prosp.) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 62(8), 84; S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

Act: power to apply conferred (S.) (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 64(5), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

Act: power to modify conferred (S.) (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 64(6)(7), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

Commencement Information

I1Act wholly in force on 1.4.1996, see s. 309(2)

Part IS Criminal Courts

Jurisdiction and PowersS

The High CourtS

1 Judges in the High Court.S

(1)The Lord President of the Court of Session shall be the Lord Justice General and shall perform his duties as the presiding judge of the High Court.

(2)Every person who is appointed to the office of one of the Senators of the College of Justice in Scotland shall, by virtue of such appointment, be a Lord Commissioner of Justiciary in Scotland.

(3)If any difference arises as to the rotation of judges in the High Court, it shall be determined by the Lord Justice General, whom failing by the Lord Justice Clerk.

(4)Any Lord Commissioner of Justiciary may preside alone at the trial of an accused before the High Court.

(5)Without prejudice to subsection (4) above, in any trial of difficulty or importance it shall be competent for two or more judges in the High Court to preside for the whole or any part of the trial.

2 Fixing of High Court sittings.S

(1)The High Court shall sit at such times and places as the Lord Justice General, whom failing the Lord Justice Clerk, may, after consultation with the Lord Advocate, determine.

(2)Without prejudice to subsection (1) above, the High Court shall hold such additional sittings as the Lord Advocate may require.

(3)Where an accused has been cited to [F1, or otherwise required to attend, a diet to be held at any] sitting of the High Court, the prosecutor may, at any time before the commencement of [F2the diet or, in the case of a trial diet, the trial] , apply to the Court to transfer the case to [F3a diet to be held at a sitting of the Court in another place] ; and a single judge of the High Court may—

(a)after giving the accused or his counsel an opportunity to be heard; or

(b)on the joint application of all parties,

make an order for the transfer of the case.

[F4(3C)The judge may proceed under subsection (3) above on a joint application of the parties without hearing the parties and, accordingly, he may dispense with any hearing previously appointed for the purpose of considering the application.]

(4)Where no [F5diets have been appointed to be held at] a sitting of the High Court or if it is no longer expedient that a sitting should take place, it shall not be necessary for the sitting to take place.

(5)If [F6in any case a diet remains appointed to be held at] a sitting which does not take place in pursuance of subsection (4) above, subsection (3) above shall apply in relation to the transfer of any other such case to another sitting.

[F7(6)For the purposes of subsection (3) above—

(a)a diet shall be taken to commence when it is called; and

(b)a trial shall be taken to commence when the oath is administered to the jury.]

Solemn courts: generalS

3 Jurisdiction and powers of solemn courts.S

(1)The jurisdiction and powers of all courts of solemn jurisdiction, except so far as altered or modified by any enactment passed after the commencement of this Act, shall remain as at the commencement of this Act.

(2)Any crime or offence which is triable on indictment may be tried by the High Court sitting at any place in Scotland.

(3)The sheriff shall, without prejudice to any other or wider power conferred by statute, not be entitled, on the conviction on indictment of an accused, to pass a sentence of imprisonment for a term exceeding [F8five years].

(4)Subject to subsection (5) below, where under any enactment passed or made before 1st January 1988 (the date of commencement of section 58 of the M1Criminal Justice (Scotland) Act 1987) an offence is punishable on conviction on indictment by imprisonment for a term exceeding two years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding two years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding two but not exceeding [F9five years].

[F10(4A)Subject to subsection (5) below, where under any enactment passed or made after 1st January 1988 but before the commencement of section 13 of the Crime and Punishment (Scotland) Act 1997 (increase in sentencing powers of sheriff courts) an offence is punishable on conviction on indictment for a term exceeding three years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding three years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding three but not exceeding five years.]

(5)Nothing in subsection (4) above shall authorise the imposition by the sheriff of a sentence in excess of the sentence specified by the enactment as the maximum sentence which may be imposed on conviction of the offence.

(6)Subject to any express exclusion contained in any enactment, it shall be lawful to indict in the sheriff court all crimes except murder, treason, rape [F11(whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9)), rape of a young child (under section 18 of that Act)] and breach of duty by magistrates.

Textual Amendments

F8Words in s. 3(3) substituted (1.5.2004) by 1997 c. 48, ss. 13(1)(a), 65(2); S.S.I. 2004/176, art. 2, (with art. 3)

F9Words in s. 3(4) substituted (1.5.2004) by 1997 c. 48, ss. 13(1)(b), 65(2); S.S.I. 2004/176, art. 2, (with art. 3)

F10S. 3(4A) inserted (1.5.2004) by 1997 c. 48, ss. 13(1)(c), 65(2); S.S.I. 2004/176, art. 2, (with art. 3)

Marginal Citations

The sheriffS

4 Territorial 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 includes all criminal maritime causes and proceedings (including those applying to persons furth of Scotland) provided that the accused is, by virtue of any enactment or rule of law, subject to the jurisdiction of the sheriff before whom the case or proceeding is raised.

(2)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.

(3)It shall not be competent for 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.

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

5 The sheriff: summary jurisdiction and powers.S

(1)The sheriff, sitting as a court of summary jurisdiction, shall continue to have all the jurisdiction and powers exercisable by him at the commencement of this Act.

(2)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 the prescribed sum;

(b)to ordain the accused to find caution for good behaviour for any period not exceeding 12 months to an amount not exceeding the prescribed sum either in lieu of or in addition to a fine or in addition to imprisonment;

(c)failing payment of such fine, or on failure to find such caution, to award imprisonment in accordance with section 219 of this Act;

(d)to impose imprisonment, for any period not exceeding [F1212] months.

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

(4)It shall be competent to prosecute summarily in the sheriff court the following offences—

(a)uttering a forged document;

(b)wilful fire-raising;

(c)robbery; and

(d)assault with intent to rob.

[F14JP courts] S

Textual Amendments

F14S. 6 cross-heading substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84(1), Sch. para. 9(5)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

6[F15JP courts: constitution and prosecutor].S

(1)F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The jurisdiction and powers of the [F17JP court] shall be exercisable by a stipendiary magistrate or by one or more justices, and no decision of the court shall be questioned on the ground that it was not constituted as required by this subsection unless objection was taken on that ground by or on behalf of a party to the proceedings not later than the time when the proceedings or the alleged irregularity began.

(3)All prosecutions in a [F18JP court] shall proceed at the instance of the procurator fiscal.

(4)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F20(5)The authority of the procurator fiscal to prosecute in JP courts is without prejudice to the authority of any other person to take proceedings there in pursuance of section 43 (prosecutions and penalties) of the Education (Scotland) Act 1980 (c. 44).]

[F21(6)In this section, “justice” means a justice of the peace.]

Textual Amendments

F15S. 6 title substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(5)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F16S. 6(1) repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F17Words in s. 6(2) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F18Words in s. 6(3) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F19S. 6(4) repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(c); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F20S. 6(5) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(d); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F21S. 6(6) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(e); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

Modifications etc. (not altering text)

7[F22JP courts: jurisdiction and powers].S

(1)F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Except in so far as any enactment (including this Act or an enactment passed after this Act) otherwise provides, it shall be competent for a [F24JP court][F25 to—

(a)try any common law or statutory offence which is triable summarily;

(b)make such orders and grant such warrants as are appropriate to a court of summary jurisdiction;

(c)do anything else (by way of procedure or otherwise) as is appropriate to such a court]

(4)It shall be competent, whether or not the accused has been previously convicted of an offence inferring dishonest appropriation of property, for any of the following offences to be tried in the [F26JP court]

(a)theft or reset of theft;

(b)falsehood, fraud or wilful imposition;

(c)breach of trust or embezzlement,

where (in any such case) the amount concerned does not exceed level 4 on the standard scale.

(5)A [F27JP court] when constituted by a stipendiary magistrate shall, in addition to the jurisdiction and powers [F28the court has otherwise] , have the summary criminal jurisdiction and powers of a sheriff.

(6)The [F29JP court] shall, without prejudice to any other or wider powers conferred by statute, be entitled on convicting of a common law offence—

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

(b)to impose a fine not exceeding level 4 on the standard scale;

(c)to ordain the accused (in lieu of or in 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 level 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 219 of this Act,

but in no case shall the total period of imprisonment imposed in pursuance of this subsection exceed 60 days.

(7)Without prejudice to any other or wider power conferred by any enactment, it shall not be competent for a [F30JP court] , as respects any statutory offence—

(a)to impose a sentence of imprisonment for a period exceeding 60 days;

(b)to impose a fine of an amount exceeding level 4 on the standard scale; or

(c)to ordain an accused person to find caution for any period exceeding six months or to an amount exceeding level 4 on the standard scale.

(8)The [F31JP court] shall not have jurisdiction to try or to pronounce sentence in the case of any person—

(a)F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)brought before it accused or suspected of having committed within its jurisdiction any of the following offences—

(i)murder, culpable homicide, robbery, rape [F33(whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9)), rape of a young child (under section 18 of that Act)], wilful fire-raising, or attempted wilful fire-raising;

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

(iii)theft or reset, falsehood fraud or wilful imposition, breach of trust or embezzlement, where the value of the property is an amount exceeding level 4 on the standard scale;

(iv)assault causing the fracture of a limb, assault with intent to ravish, assault to the danger of life, or assault by stabbing;

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

(9)Without prejudice to subsection (8) above, where either in the preliminary investigation or in the course of the trial of any offence it appears that the offence is one which—

(a)cannot competently be tried in the court before which an accused is brought; or

(b)in the opinion of the court in view of the circumstances of the case, should be dealt with by a higher court,

the court may take cognizance of the offence and commit the accused to prison for examination for any period not exceeding four days.

(10)Where an accused is committed as mentioned in subsection (9) above, the prosecutor in the court which commits the accused shall forthwith give notice of the committal to the procurator fiscal of the [F34area] within which the offence was committed or to such other official as is entitled to take cognizance of the offence in order that the accused may be dealt with according to law.

Textual Amendments

F22S. 7 title substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(5)(c); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F23S. 7(1)(2) repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(2)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F24Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F25Words in s. 7(3) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(2)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F26Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F27Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F28Words in s. 7(5) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(2)(c); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F29Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F30Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F31Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F32S. 7(8)(a) and word repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(2)(d); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F34Word in s. 7(10) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(2)(e); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

[F35Sittings of sheriff and JP courts]S

Textual Amendments

F35S. 8 cross-heading substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(5)(d); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

8[F36Sittings of sheriff and JP courts].S

(1)Notwithstanding any enactment or rule of law, a sheriff court or a [F37JP court]

(a)shall not be required to sit on any Saturday or Sunday or on a day which by virtue of subsection (2) or (3) below is a court holiday; but

(b)may sit on any day for the disposal of criminal business.

(2)A sheriff principal may in an order made under section 17(1)(b) of the M2Sheriff Courts (Scotland) Act 1971 prescribe in respect of criminal business not more than [F3811] days, other than Saturdays and Sundays, in a calendar year as court holidays in the sheriff courts within his jurisdiction; and may in the like manner prescribe as an additional court holiday any day which has been proclaimed, under section 1(3) of the M3Banking and Financial Dealings Act 1971, to be a bank holiday either throughout the United Kingdom or in a place or locality in the United Kingdom within his jurisdiction.

(3)[F39A sheriff principal may] prescribe not more than [F3811] days, other than Saturdays and Sundays, in a calendar year as court holidays in the [F40JP courts] within his jurisdiction; and he may F41. . . prescribe as an additional holiday any day which has been proclaimed, under section 1(3) of the said Banking and Financial Dealings Act 1971, to be a bank holiday either throughout the United Kingdom or in a place or locality in the United Kingdom within his jurisdiction.

(4)A sheriff principal may in pursuance of subsection (2) or (3) above prescribe different days as court holidays in relation to different sheriff or [F42JP courts] .

Textual Amendments

F36S. 8 title substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(5)(e); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F37Words in s. 8(1) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F39Words in s. 8(3) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(3)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F40Words in s. 8(3)(4) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F41Words in s. 8(3) repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(3)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F42Words in s. 8(3)(4) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

Marginal Citations

Territorial jurisdiction: generalS

9 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, the 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 metres of any such boundary, or partly within the jurisdiction of one court and partly within the jurisdiction of another court or courts, the offence may be tried by any one of such courts.

(3)Where an offence is committed against any person or in respect of any property in or on any carriage, cart or vehicle employed in a journey by road or railway, or on board any vessel employed in a river, loch, canal or inland navigation, the offence may be tried by any court through whose jurisdiction the carriage, cart, vehicle or vessel passed in the course of the journey or voyage during which the offence was committed.

(4)Where several offences, which if committed in one sheriff court district could be tried [F43together] , 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 [F44 offences—

(a)under one indictment or complaint before the sheriff of any one of the districts; or

(b)under one complaint in the JP court for any one of the 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.

Textual Amendments

F43Word in s. 9(4) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(6)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F44Words in s. 9(4) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(6)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

[F459ACompetence of justice's actings outwith jurisdictionS

[F46It is competent for a justice, even if not present within his jurisdiction, to sign any warrant, judgment, interlocutor or other document relating to proceedings within that jurisdiction provided that when he does so he is present within Scotland.]]

Textual Amendments

F46S. 9A repealed (10.12.2007, 8.12.2008, 23.2.2009, 14.12.2009 and 22.2.2010 for certain purposes, otherwise prosp.) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(7); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527); S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

10 Crimes committed in different districts.S

(1)Where a person is alleged to have committed in more than one sheriff court district a crime or crimes to which subsection (2) below applies, he may be [F47prosecuted in] the sheriff court [F48or JP court] of such one of those districts as the Lord Advocate determines.

(2)This subsection applies to—

(a)a crime committed partly in one sheriff court district and partly in another;

(b)crimes connected with each other but committed in different sheriff court districts;

(c)crimes committed in different sheriff court districts in succession which, if they had been committed in one such district, could have been tried [F49together] .

(3)Where, in pursuance of subsection (1) above, a case is tried in the sheriff court [F50or JP court] of any sheriff court district, the procurator fiscal of that district shall have power to prosecute in that case even if the crime was in whole or in part committed in a different district, and the procurator fiscal shall have the like powers in relation to such case, whether before, during or after the trial, as he has in relation to a case arising out of a crime or crimes committed wholly within his own district.

[F5110AJurisdiction for transferred casesS

(1)A sheriff has jurisdiction for any cases which come before the sheriff by virtue of—

(a)section 34A or 83 of this Act; or

(b)section 137A, 137B, 137C or 137D of this Act.

[F52(1A)The jurisdiction of a JP court includes jurisdiction for any cases which come before it by virtue of section 137CA, 137CB or 137CC of this Act.]

(2)A procurator fiscal for a sheriff court district shall have—

(a) power to prosecute in any cases which come before a sheriff of that district by virtue of a provision mentioned in subsection (1) above; F53 ...

[F54(aa)power to prosecute in any cases which come before a JP court of that district by virtue of a provision mentioned in subsection (1A) above;]

(b)the like powers in relation to such cases as he has for the purposes of [F55the other cases which come before that sheriff when exercising criminal jurisdiction or (as the case may be) before that JP court].

[F56(3)This section is without prejudice to sections 4 to 10 of this Act.]]

11 Certain offences committed outside Scotland.S

(1)Any British citizen or British subject who in a country outside the United Kingdom does any act or makes any omission which if done or made in Scotland would constitute the crime of murder or of culpable homicide shall be guilty of the same crime and subject to the same punishment as if the act or omission had been done or made in Scotland.

(2)Any British citizen or British subject employed in the service of the Crown who, in a foreign country, when acting or purporting to act in the course of his employment, does any act or makes any omission which if done or made in Scotland would constitute an offence punishable on indictment shall be guilty of the same offence and subject to the same punishment, as if the act or omission had been done or made in Scotland.

(3)A person may be [F57prosecuted], tried and punished for an offence to which this section applies—

(a)in any sheriff court district in Scotland in which he is apprehended or is in custody; or

(b)in such sheriff court district as the Lord Advocate may determine,

as if the offence had been committed in that district, and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that district.

(4)Any person who—

(a)has in his possession in Scotland property which he has stolen in any other part of the United Kingdom; or

(b)in Scotland receives property stolen in any other part of the United Kingdom,

may be [F58prosecuted], tried and punished in Scotland in like manner as if he had stolen it in Scotland.

[F59(5)Where a person in any part of the United Kingdom outside Scotland—

(a)steals or attempts to steal any mail-bag or postal packet in the course of its transmission by post, or any of the contents of such a mail-bag or postal packet; or

(b)in stealing or with intent to steal any such mail-bag or postal packet or any of its contents commits any robbery, attempted robbery or assault with intent to rob,

he is guilty of the offence mentioned in paragraph (a) or (b) as if he had committed it in Scotland and shall be liable to be prosecuted, tried and punished there without proof that the offence was committed there.

(6)Any expression used in subsection (5) and in the Postal Services Act 2000 has the same meaning in that subsection as it has in that Act.]

Textual Amendments

F59S. 11(5)(6) inserted (26.3.2001) by 2000 c. 26, s. 127(4), Sch. 8 para. 24; S.I. 2001/1148, art. 2, Sch. (subject to arts. 3-42)

Modifications etc. (not altering text)

C10S. 11(3) applied (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {69(2)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

[F6011A [F61Conspiracy to commit offences outwith Scotland]S

(1)This section applies to any act done by a person in Scotland which would amount to conspiracy to commit an offence but for the fact that the criminal purpose is intended to occur [F62outwith Scotland].

(2)Where a person does an act to which this section applies, the criminal purpose shall be treated as the offence mentioned in subsection (1) above and he shall, accordingly, be guilty of conspiracy to commit the offence.

(3)A person is guilty of an offence by virtue of this section only if the criminal purpose would involve at some stage—

(a)an act by him or another party to the conspiracy; or

(b)the happening of some other event,

constituting an offence under [F63the relevant law]; and conduct punishable under [F64that law] is an offence under that law for the purposes of this section however it is described in that law.

[F65(3A)In subsection (3) above, “the relevant law” is—

(a)if the act or event was intended to take place in another part of the United Kingdom, the law in force in that part,

(b)if the act or event was intended to take place in a country or territory outwith the United Kingdom, the law in force in that country or territory.]

(4)Subject to subsection (6) below, a condition specified in subsection (3) above shall be taken to be satisfied unless, not later than such time as High Court may, by Act of Adjournal, prescribe, the accused serves on the prosecutor a notice—

(a)stating that, on the facts as alleged with respect to the relevant conduct, the condition is not in his opinion satisfied;

(b)setting out the grounds for his opinion; and

(c)requiring the prosecutor to prove that the condition is satisfied.

(5) In subsection (4) above “ the relevant conduct ” means the agreement to effect the criminal purpose.

(6)The court may permit the accused to require the prosecutor to prove that the condition mentioned in subsection (4) above is satisfied without the prior service of a notice under that subsection.

(7)In proceedings on indictment, the question whether a condition is satisfied shall be determined by the judge alone.

(8)Nothing in this section—

(a)applies to an act done before the day on which the Criminal Justice (Terrorism and Conspiracy) Act 1998 was passed, or

(b)imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.]

PART IIS Police Functions

Lord Advocate’s instructionsS

12 Instructions by Lord Advocate as to reporting of 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.

Detention and questioningS

13 Powers relating to suspects and potential witnesses.S

(1)Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence at any place, he may require—

(a)that person, if the constable finds him at that place or at any place where the constable is entitled to be, to give [F66the information mentioned in subsection (1A) below] and may ask him for an explanation of the circumstances which have given rise to the constable’s suspicion;

(b)any other person whom the constable finds at that place or at any place where the constable is entitled to be and who the constable believes has information relating to the offence, to give [F67the information mentioned in subsection (1A) below] .

[F68(1A)That information is—

(a)the person's name;

(b)the person's address;

(c)the person's date of birth;

(d)the person's place of birth (in such detail as the constable considers necessary or expedient for the purpose of establishing the person's identity); and

(e)the person's nationality.]

(2)The constable may require the person mentioned in paragraph (a) of subsection (1) above to remain with him while he (either or both)—

(a)subject to subsection (3) below, verifies any [F69information mentioned in subsection (1A) above] given by the person;

(b)notes any explanation proffered by the person.

(3)The constable shall exercise his power under paragraph (a) of subsection (2) above only where it appears to him that such verification can be obtained quickly.

(4)A constable may use reasonable force to ensure that the person mentioned in paragraph (a) of subsection (1) above remains with him.

(5)A constable shall inform a person, when making a requirement of that person under—

(a)paragraph (a) of subsection (1) above, of his suspicion and of the general nature of the offence which he suspects that the person has committed or is committing;

(b)paragraph (b) of subsection (1) above, of his suspicion, of the general nature of the offence which he suspects has been or is being committed and that the reason for the requirement is that he believes the person has information relating to the offence;

(c)subsection (2) above, why the person is being required to remain with him;

(d)either of the said subsections, that failure to comply with the requirement may constitute an offence.

(6)A person mentioned in—

(a)paragraph (a) of subsection (1) above who having been required—

(i)under that subsection to give [F70the information mentioned in subsection (1A) above] ; or

(ii)under subsection (2) above to remain with a constable,

fails, without reasonable excuse, to do so, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale;

(b)paragraph (b) of the said subsection (1) who having been required under that subsection to give [F71the information mentioned in subsection (1A) above] fails, without reasonable excuse, to do so shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(7)A constable may arrest without warrant any person who he has reasonable grounds for suspecting has committed an offence under subsection (6) above.

14 Detention and questioning at police station.S

(1)Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations—

(a)into the offence; and

(b)as to whether criminal proceedings should be instigated against the person,

detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place.

(2)[F72Subject to section 14A, detention] under subsection (1) above shall be terminated not more than [F7312] hours after it begins or (if earlier)—

(a)when the person is arrested;

(b)when he is detained in pursuance of any other enactment; or

(c)where there are no longer such grounds as are mentioned in the said subsection (1),

and when a person has been detained under subsection (1) above, he shall be informed immediately upon the termination of his detention in accordance with this subsection that his detention has been terminated.

(3)Where a person has been released at the termination of a period of detention under subsection (1) above he shall not thereafter be detained, under that subsection, on the same grounds or on any grounds arising out of the same circumstances.

(4)Subject to subsection (5) below, where a person has previously been detained in pursuance of any other enactment, and is detained under subsection (1) above on the same grounds or on grounds arising from the same circumstances as those which led to his earlier detention, the period of [F7312] hours mentioned in subsection (2) above shall be reduced by the length of that earlier detention.

(5)Subsection (4) above shall not apply in relation to detention under section 41(3) of the M4Prisons (Scotland) Act 1989 (detention in relation to introduction etc. into prison of prohibited article), but where a person was detained under section 41(3) immediately prior to his detention under subsection (1) above the period of [F7312] hours mentioned in subsection (2) above shall be reduced by the length of that earlier detention.

(6)At the time when a constable detains a person under subsection (1) above, he shall inform the person of his suspicion, of the general nature of the offence which he suspects has been or is being committed and of the reason for the detention; and there shall be recorded—

(a)the place where detention begins and the police station or other premises to which the person is taken;

(b)any other place to which the person is, during the detention, thereafter taken;

(c)the general nature of the suspected offence;

(d)the time when detention under subsection (1) above begins and the time of the person’s arrival at the police station or other premises;

(e)the time when the person is informed of his rights in terms of subsection (9) below and of [F74sections 15(1)(b) and 15A(2) and (3)] of this Act and the identity of the constable so informing him;

(f)where the person requests such intimation to be sent as is specified in section 15(1)(b) [F75or 15A(2)] of this Act, the time when such request is—

(i)made;

(ii)complied with; and

(g)the time of the person’s release from detention or, where instead of being released he is arrested in respect of the alleged offence, the time of such arrest.

(7)Where a person is detained under subsection (1) above, a constable may—

(a)without prejudice to any relevant rule of law as regards the admissibility in evidence of any answer given, put questions to him in relation to the suspected offence;

(b)exercise the same powers of search as are available following an arrest.

(8)A constable may use reasonable force in exercising any power conferred by subsection (1), or by paragraph (b) of subsection (7), above.

(9)A person detained under subsection (1) above shall be under no obligation to answer any question other than to give [F76the information mentioned in subsection (10) below] , and a constable shall so inform him both on so detaining him and on arrival at the police station or other premises.

[F77(10)That information is—

(a)the person's name;

(b)the person's address;

(c)the person's date of birth;

(d)the person's place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person's identity); and

(e)the person's nationality.]

[F7814AExtension of period of detention under section 14S

(1)This section applies in relation to a person who is being detained under section 14 of this Act (“the detained person”).

(2)Before the expiry of the period of 12 hours mentioned in section 14(2), a custody review officer may, subject to subsection (4), authorise that period to be extended in relation to the detained person by a further period of 12 hours.

(3)The further period of 12 hours starts from the time when the period of detention would have expired but for the authorisation.

(4)A custody review officer may authorise the extension under subsection (2) in relation to the detained person only if the officer is satisfied that—

(a)the continued detention of the detained person is necessary to secure, obtain or preserve evidence (whether by questioning the person or otherwise) relating to an offence in connection with which the person is being detained,

(b)an offence in connection with which the detained person is being detained is one that is an indictable offence, and

(c)the investigation is being conducted diligently and expeditiously.

(5)Where subsection (4) or (5) of section 14 applies in relation to the detained person, the references in subsection (2) of this section to the period of 12 hours mentioned in section 14(2) are to be read as references to that period as reduced in accordance with subsection (4) or, as the case may be, (5) of section 14.

(6)Where a custody review officer authorises the extension under subsection (2), section 14 has effect in relation to the detained person as if the references in it to the period of 12 hours were references to that period as extended by virtue of the authorisation.

(7)In this section and section 14B, “custody review officer” means a constable—

(a)of the rank of inspector or above, and

(b)who has not been involved in the investigation in connection with which the person is detained.

14BExtension under section 14A: procedureS

(1)This section applies where a custody review officer is considering whether to authorise the extension under section 14A(2) of this Act in relation to a person who is being detained under section 14 of this Act (“the detained person”).

(2)Before deciding whether to authorise the extension, the custody review officer must give either of the following persons an opportunity to make representations—

(a)the detained person, or

(b)any solicitor representing the detained person who is available at the time the officer is considering whether to authorise the extension.

(3)Representations may be oral or written.

(4)The custody review officer may refuse to hear oral representations from the detained person if the officer considers that the detained person is unfit to make representations because of the person's condition or behaviour.

(5)Where the custody review officer decides to authorise the extension, the officer must ensure that the following persons are informed of the decision and of the grounds on which the extension is authorised—

(a)the detained person, and

(b)any solicitor representing the detained person who is available at the time the decision is made.

(6)Subsection (7) applies where—

(a)the custody review officer decides to authorise the extension, and

(b)at the time of the decision, the detained person has not exercised rights under section 15 or 15A.

(7)The custody review officer must—

(a)ensure that the detained person is informed of the person's rights under section 15 or 15A which the person has not yet exercised, and

(b)decide whether there are any grounds, under section 15(1) or section 15A(7)(b) or (8) (as the case may be), for delaying the exercise of any of the rights.

(8)The custody review officer must make a written record of—

(a)the officer's decision on whether to authorise the extension, and

(b)any of the following which apply—

(i)the grounds on which the extension is authorised,

(ii)the fact that the detained person and a solicitor have been informed as required under subsection (5),

(iii)the fact that the detained person has been informed as required under subsection (7)(a),

(iv)the officer's decision on the matter referred to in subsection (7)(b) and, if the decision is to delay the exercise of a right, the grounds for the decision.]

15[F79Right of persons arrested or detained to have intimation sent to another person]S

(1)Without prejudice to [F80sections 15A and 17] of this Act, a person who, not being a person in respect of whose custody or detention subsection (4) below applies—

(a)has been arrested and is in custody in a police station or other premises, shall be entitled to have intimation of his custody and of the place where he is being held sent to a person reasonably named by him;

(b)is being detained under section 14 of this Act and has been taken to a police station or other premises or place, shall be entitled to have intimation of his detention and of the police station or other premises or place sent to a F81. . . person reasonably named by him,

without delay or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is so necessary.

(2)A person shall be informed of his entitlement under subsection (1) above—

(a)on arrival at the police station or other premises; or

(b)where he is not arrested, or as the case may be detained, until after such arrival, on such arrest or detention.

(3)Where the person mentioned in paragraph (a) of subsection (1) above requests such intimation to be sent as is specified in that paragraph there shall be recorded the time when such request is—

(a)made;

(b)complied with.

(4)Without prejudice to the said [F82sections 15A and 17], a constable shall, where a person who has been arrested and is in such custody as is mentioned in paragraph (a) of subsection (1) above or who is being detained as is mentioned in paragraph (b) of that subsection appears to him to be a child, send without delay such intimation as is mentioned in the said paragraph (a), or as the case may be paragraph (b), to that person’s parent if known; and the parent—

(a)in a case where there is reasonable cause to suspect that he has been involved in the alleged offence in resect of which the person has been arrested or detained, may; and

(b)in any other case shall,

be permitted access to the person.

(5)The nature and extent of any access permitted under subsection (4) above shall be subject to any restriction essential for the furtherance of the investigation or the well-being of the person.

(6)In subsection (4) above —

(a)child” means a person under 16 years of age; and

(b)parent” includes guardian and any person who has the [F83care] of a child.

Textual Amendments

F83Word in s. 15(6)(b) substituted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(2); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

Modifications etc. (not altering text)

C11S. 15(1)(-(3) applied (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 116(4), 263; S.S.I. 2005/604, art. 2 (subject to arts. 3, 4)

[F8415ARight of suspects to have access to a solicitorS

(1)This section applies to a person (“the suspect”) who—

(a)is detained under section 14 of this Act,

(b)attends voluntarily at a police station or other premises or place for the purpose of being questioned by a constable on suspicion of having committed an offence, or

(c)is—

(i)arrested (but not charged) in connection with an offence, and

(ii)being detained at a police station or other premises or place for the purpose of being questioned by a constable in connection with the offence.

(2)The suspect has the right to have intimation sent to a solicitor of any or all of the following—

(a)the fact of the suspect's—

(i)detention,

(ii)attendance at the police station or other premises or place, or

(iii)arrest,

(as the case may be),

(b)the police station or other premises or place where the suspect is being detained or is attending, and

(c)that the solicitor's professional assistance is required by the suspect.

(3)The suspect also has the right to have a private consultation with a solicitor—

(a)before any questioning of the suspect by a constable begins, and

(b)at any other time during such questioning.

(4)Subsection (3) is subject to subsections (8) and (9).

(5)In subsection (3), “consultation” means consultation by such means as may be appropriate in the circumstances, and includes, for example, consultation by means of telephone.

(6)The suspect must be informed of the rights under subsections (2) and (3)—

(a)on arrival at the police station or other premises or place, and

(b)in the case where the suspect is detained as mentioned in subsection (1)(a), or arrested as mentioned in subsection (1)(c), after such arrival, on detention or arrest (whether or not, in either case, the suspect has previously been informed of the rights by virtue of this subsection).

(7)Where the suspect wishes to exercise a right to have intimation sent under subsection (2), the intimation must be sent by a constable—

(a)without delay, or

(b)if some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary.

(8)In exceptional circumstances, a constable may delay the suspect's exercise of the right under subsection (3) so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor.

(9)Subsection (3) does not apply in relation to the questioning of the suspect by a constable for the purpose of obtaining the information mentioned in section 14(10) of this Act.]

16 Drunken persons: power to take to designated place.S

(1)Where a constable has power to arrest a person without a warrant for any offence and the constable has reasonable grounds for suspecting that that person is drunk, the constable may, if he thinks fit, take him to any place designated by the Secretary of State for the purposes of this section as a place suitable for the care of drunken persons.

(2)A person shall not by virtue of this section be liable to be detained in any such place as is mentioned in subsection (1) above, but the exercise in his case of the power conferred by this section shall not preclude his being charged with any offence.

Arrest: access to solicitorS

17 Right of accused to have access to solicitor.S

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

(a)to have intimation sent to a solicitor that his professional assistance is required by the accused, and informing the solicitor—

(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 court to which he is to be taken and the date when he is to be so taken; and

(b)to be told what rights there are under—

(i)paragraph (a) above;

(ii)subsection (2) below; and

(iii)section 35(1) and (2) of this Act.

(2)The accused and the solicitor shall be entitled to have a private interview before the examination or, as the case may be, first appearance.

[F8517A Right of person accused of sexual offence to be told about restriction on conduct of defence: arrestS

(1)An accused arrested on a charge of committing a sexual offence to which section 288C of this Act applies by virtue of subsection (2) of that section shall be entitled to be told, immediately upon his arrest—

[F86(a)that his case at, or for the purposes of, any relevant hearing (within the meaning of section 288C(1A)) in the course of the proceedings may be conducted only by a lawyer,]

(b)that it is, therefore, in his interests to get the professional assistance of a solicitor; and

(c)that if he does not engage a solicitor for the purposes of [F87the conduct of his case at or for the purposes of the] [F88hearing], the court will do so.

(2)A failure to comply with subsection (1) above does not affect the validity or lawfulness of the arrest of the accused or any other element of any consequent proceedings against him.]

Prints and samplesS

18 Prints, samples etc. in criminal investigations.S

(1)This section applies where a person has been arrested and is in custody or is detained under section 14(1) of this Act.

(2)A constable may take from the person [F89, or require the person to provide him with, such relevant physical data] as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take [F90from him or require him to provide, and the person so required shall comply with that requirement].

[F91( 3 )Subject to subsection (4) below [F92and [F93sections 18A to 18F] of this Act] , all record of any relevant physical data taken from or provided by a person under subsection (2) above, all samples taken under subsection (6) [F94or (6A)] below and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under section 246(3) of this Act.]

(4)The duty under subsection (3) above to destroy samples taken under subsection (6) [F95or (6A)] below and information derived from such samples shall not apply—

(a)where the destruction of the sample or the information could have the effect of destroying any sample, or any information derived therefrom, lawfully held in relation to a person other than the person from whom the sample was taken; or

(b)where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held by or on behalf of any police force in relation to the person.

(5)No sample, or information derived from a sample, retained by virtue of subsection (4) above shall be used—

(a)in evidence against the person from whom the sample was taken; or

(b)for the purposes of the investigation of any offence.

(6)A constable may, with the authority of an officer of a rank no lower than inspector, take from the person—

(a)from the hair of an external part of the body other than pubic hair, by means of cutting, combing or plucking, a sample of hair or other material;

(b)from a fingernail or toenail or from under any such nail, a sample of nail or other material;

(c)from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material;

(d)F96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F97(6A)A constable, or at a constable’s direction a police custody and security officer, may take from the inside of the person’s mouth, by means of swabbing, a sample of saliva or other material.]

F98(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F99(7A) For the purposes of this section and sections 19 to 20 of this Act “ relevant physical data ” means any—

(a)fingerprint;

(b)palm print;

(c)print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body;

(d)record of a person’s skin on an external part of the body created by a device approved by the Secretary of State.

(7B)The Secretary of State by order made by statutory instrument may approve a device for the purpose of creating such records as are mentioned in paragraph (d) of subsection (7A) above.]

(8)Nothing in this section shall prejudice—

(a)any power of search;

(b)any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or

(c)any power to take [F100relevant physical data] or samples under the authority of a warrant.

Textual Amendments

F89Words in s. 18(2) substituted (1.8.1997) by 1997 c. 48, s. 47(1)(a)(i); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F90Words in s. 18(2) inserted (1.8.1997) by 1997 c. 48, s. 47(1)(a)(ii); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F91S. 18(3) substituted (retrospective to 1.8.1997) by 1998 c. 37, ss. 119, 121(2), Sch. 8 para. 117(2)

F96S. 18(6)(d) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(2)(a)}, 89; S.S.I. 2003/288, art. 2, Sch.

F97S. 18(6A) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(2)(b)}, 89; S.S.I. 2003/288, art. 2, Sch.

F98S. 18(7) repealed (17.11.1997) by 1997 c. 48, ss. 47(1)(c), 62(2), Sch. 3; S.I. 1997/2694, art. 2(2)(a)(d)

F99S. 18(7A)(7B) inserted (1.8.1997) by 1997 c. 48, s. 47(1)(d); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

Modifications etc. (not altering text)

C13S. 18 applied (with modifications) (19.2.2001) by 2000 c. 11, ss. 41, 53, Sch. 7 para. 6, Sch. 8 para. 20(1); S.I. 2001/421, art. 2

C14S. 18(3)-(5) applied (17.12.2001) by 2001 asp 13, s. 17, Sch. 4 para. 7 (with s. 29); S.S.I. 2001/456, art. 2

[F10118A Retention of samples etc. : prosecutions for sexual and violent offences S

[F102(1)This section applies to—

(a)relevant physical data taken or provided under section 18(2), and

(b)any sample, or any information derived from a sample, taken under section 18(6) or (6A),

where the condition in subsection (2) is satisfied.]

(2)That condition is that criminal proceedings in respect of a relevant sexual offence or a relevant violent offence were instituted against the person from whom [F103the relevant physical data was taken or by whom it was provided or, as the case may be, from whom] the sample was taken but those proceedings concluded otherwise than with a conviction or an order under section 246(3) of this Act.

(3)Subject to subsections (9) and (10) below, the [F104relevant physical data, sample or information derived from a sample] shall be destroyed no later than the destruction date.

(4)The destruction date is—

(a)the date of expiry of the period of 3 years following the conclusion of the proceedings; or

(b)such later date as an order under subsection (5) below may specify.

(5)On a summary application made by the relevant chief constable within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.

(6)An application under subsection (5) above may be made to any sheriff—

(a)in whose sheriffdom the person referred to in subsection (2) above resides;

(b)in whose sheriffdom that person is believed by the applicant to be; or

(c)to whose sheriffdom the person is believed by the applicant to be intending to come.

(7)An order under subsection (5) above shall not specify a destruction date more than 2 years later than the previous destruction date.

(8)The decision of the sheriff on an application under subsection (5) above may be appealed to the sheriff principal within 21 days of the decision; and the sheriff principal's decision on any such appeal is final.

[F105(8A)If the sheriff principal allows an appeal against the refusal of an application under subsection (5), the sheriff principal may make an order amending, or further amending, the destruction date.

(8B)An order under subsection (8A) must not specify a destruction date more than 2 years later than the previous destruction date.]

(9)Subsection (3) above does not apply where—

(a)an application under subsection (5) above has been made but has not been determined;

(b)the period within which an appeal may be brought under subsection (8) above against a decision to refuse an application has not elapsed; or

(c)such an appeal has been brought but has not been withdrawn or finally determined.

(10)Where—

(a)the period within which an appeal referred to in subsection (9)(b) above may be brought has elapsed without such an appeal being brought;

(b)such an appeal is brought and is withdrawn or finally determined against the appellant; or

(c)an appeal brought under subsection (8) above against a decision to grant an application is determined in favour of the appellant,

the [F106relevant physical data, sample or information derived from a sample] shall be destroyed as soon as possible thereafter.

(11)In this section—

  • the relevant chief constable ” means—

    (a)

    the chief constable of the police force of which the constable who [F107took the relevant physical data or to whom it was provided or who] took or directed the taking of the sample was a member;

    (b)

    the chief constable of the police force in the area of which the person referred to in subsection (2) above resides; or

    (c)

    a chief constable who believes that that person is or is intending to come to the area of the chief constable's police force; and

  • relevant sexual offence ” and “ relevant violent offence ” have[F108, subject to the modification in subsection (12),] the same meanings as in section 19A(6) of this Act and include any attempt, conspiracy or incitement to commit such an offence. ]

[F109(12)The modification is that the definition of “relevant sexual offence” in section 19A(6) is to be read as if for paragraph (g) there were substituted—

(g)public indecency if it is apparent from the offence as charged in the indictment or complaint that there was a sexual aspect to the behaviour of the person charged;]

Textual Amendments

[F11018BRetention of samples etc. where offer under sections 302 to 303ZA acceptedS

(1)This section applies to—

(a)relevant physical data taken from or provided by a person under section 18(2), and

(b)any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A),

where the conditions in subsection (2) are satisfied.

(2)The conditions are—

(a)the relevant physical data or sample was taken from or provided by the person while the person was under arrest or being detained in connection with the offence or offences in relation to which a relevant offer is issued to the person, and

(b)the person—

(i)accepts a relevant offer, or

(ii)in the case of a relevant offer other than one of the type mentioned in paragraph (d) of subsection (3), is deemed to accept a relevant offer.

(3)In this section “relevant offer” means—

(a)a conditional offer under section 302,

(b)a compensation offer under section 302A,

(c)a combined offer under section 302B, or

(d)a work offer under section 303ZA.

(4)Subject to subsections (6) and (7) and section 18C(9) and (10), the relevant physical data, sample or information derived from a sample must be destroyed no later than the destruction date.

(5)In subsection (4), “destruction date” means—

(a)in relation to a relevant offer that relates only to—

(i)a relevant sexual offence,

(ii)a relevant violent offence, or

(iii)both a relevant sexual offence and a relevant violent offence, the date of expiry of the period of 3 years beginning with the date on which the relevant offer is issued or such later date as an order under section 18C(2) or (6) may specify,

(b)in relation to a relevant offer that relates to—

(i)an offence or offences falling within paragraph (a), and

(ii)any other offence,

the date of expiry of the period of 3 years beginning with the date on which the relevant offer is issued or such later date as an order under section 18C(2) or (6) may specify,

(c)in relation to a relevant offer that does not relate to an offence falling within paragraph (a), the date of expiry of the period of 2 years beginning with the date on which the relevant offer is issued.

(6)If a relevant offer is recalled by virtue of section 302C(5) or a decision to uphold it is quashed under section 302C(7)(a), all record of the relevant physical data, sample and information derived from a sample must be destroyed as soon as possible after—

(a)the prosecutor decides not to issue a further relevant offer to the person,

(b)the prosecutor decides not to institute criminal proceedings against the person, or

(c)the prosecutor institutes criminal proceedings against the person and those proceedings conclude otherwise than with a conviction or an order under section 246(3).

(7)If a relevant offer is set aside by virtue of section 303ZB, all record of the relevant physical data, sample and information derived from a sample must be destroyed as soon as possible after the setting aside.

(8)In this section, “relevant sexual offence” and “relevant violent offence” have, subject to the modification in subsection (9), the same meanings as in section 19A(6) and include any attempt, conspiracy or incitement to commit such an offence.

(9)The modification is that the definition of “relevant sexual offence” in section 19A(6) is to be read as if for paragraph (g) there were substituted—

(g)public indecency if it is apparent from the relevant offer (as defined in section 18B(3)) relating to the offence that there was a sexual aspect to the behaviour of the person to whom the relevant offer is issued;.]

Textual Amendments

[F11018CSection 18B: extension of retention period where relevant offer relates to certain sexual or violent offencesS

(1)This section applies where the destruction date for relevant physical data, a sample or information derived from a sample falls within section 18B(5)(a) or (b).

(2)On a summary application made by the relevant chief constable within the period of 3 months before the destruction date, the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.

(3)An application under subsection (2) may be made to any sheriff—

(a)in whose sheriffdom the appropriate person resides,

(b)in whose sheriffdom that person is believed by the applicant to be, or

(c)to whose sheriffdom the person is believed by the applicant to be intending to come.

(4)An order under subsection (2) must not specify a destruction date more than 2 years later than the previous destruction date.

(5)The decision of the sheriff on an application under subsection (2) may be appealed to the sheriff principal within 21 days of the decision.

(6)If the sheriff principal allows an appeal against the refusal of an application under subsection (2), the sheriff principal may make an order amending, or further amending, the destruction date.

(7)An order under subsection (6) must not specify a destruction date more than 2 years later than the previous destruction date.

(8)The sheriff principal's decision on an appeal under subsection (5) is final.

(9)Section 18B(4) does not apply where—

(a)an application under subsection (2) has been made but has not been determined,

(b)the period within which an appeal may be brought under subsection (5) against a decision to refuse an application has not elapsed, or

(c)such an appeal has been brought but has not been withdrawn or finally determined.

(10)Where—

(a)the period within which an appeal referred to in subsection (9)(b) may be brought has elapsed without such an appeal being brought,

(b)such an appeal is brought and is withdrawn or finally determined against the appellant, or

(c)an appeal brought under subsection (5) against a decision to grant an application is determined in favour of the appellant,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the period has elapsed, or, as the case may be, the appeal is withdrawn or determined.

(11)In this section—

  • appropriate person” means the person from whom the relevant physical data was taken or by whom it was provided or from whom the sample was taken,

  • destruction date” has the meaning given by section 18B(5),

  • the relevant chief constable” has the same meaning as in subsection (11) of section 18A, with the modification that references to the person referred to in subsection (2) of that section are references to the appropriate person.]

Textual Amendments

[F11118DRetention of samples etc. taken or provided in connection with certain fixed penalty offencesS

(1)This section applies to—

(a)relevant physical data taken from or provided by a person under section 18(2), and

(b)any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A),

where the conditions in subsection (2) are satisfied.

(2)The conditions are—

(a)the person was arrested or detained in connection with a fixed penalty offence,

(b)the relevant physical data or sample was taken from or provided by the person while the person was under arrest or being detained in connection with that offence,

(c)after the relevant physical data or sample was taken from or provided by the person, a constable gave the person under section 129(1) of the 2004 Act—

(i)a fixed penalty notice in respect of that offence (the “main FPN”), or

(ii)the main FPN and one or more other fixed penalty notices in respect of fixed penalty offences arising out of the same circumstances as the offence to which the main FPN relates, and

(d)the person, in relation to the main FPN and any other fixed penalty notice of the type mentioned in paragraph (c)(ii)—

(i)pays the fixed penalty, or

(ii)pays any sum that the person is liable to pay by virtue of section 131(5) of the 2004 Act.

(3)Subject to subsections (4) and (5), the relevant physical data, sample or information derived from a sample must be destroyed before the end of the period of 2 years beginning with—

(a)where subsection (2)(c)(i) applies, the day on which the main FPN is given to the person,

(b)where subsection (2)(c)(ii) applies and—

(i)the main FPN and any other fixed penalty notice are given to the person on the same day, that day,

(ii)the main FPN and any other fixed penalty notice are given to the person on different days, the later day.

(4)Where—

(a)subsection (2)(c)(i) applies, and

(b)the main FPN is revoked under section 133(1) of the 2004 Act,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the revocation.

(5)Where—

(a)subsection (2)(c)(ii) applies, and

(b)the main FPN and any other fixed penalty notices are revoked under section 133(1) of the 2004 Act,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the revocations.

(6)In this section—

  • the 2004 Act” means the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8),

  • fixed penalty notice” has the meaning given by section 129(2) of the 2004 Act,

  • fixed penalty offence” has the meaning given by section 128(1) of the 2004 Act.]

[F11218ERetention of samples etc.: children referred to children's hearingsS

(1)This section applies to—

(a)relevant physical data taken from or provided by a child under section 18(2); and

(b)any sample, or any information derived from a sample, taken from a child under section 18(6) or (6A),

where the first condition, and the second, third or fourth condition, are satisfied.

(2) The first condition is that the child's case has been referred to a children's hearing under section 65(1) of the Children (Scotland) Act 1995 (c.36) (the “ Children Act ”).

(3)The second condition is that—

(a)a ground of the referral is that the child has committed an offence mentioned in subsection (6) (a “relevant offence”);

(b)both the child and the relevant person in relation to the child accept, under section 65(5) or (6) of the Children Act, the ground of referral; and

(c)no application to the sheriff under section 65(7) or (9) of that Act is made in relation to that ground.

(4)The third condition is that—

(a)a ground of the referral is that the child has committed a relevant offence;

(b)the sheriff, on an application under section 65(7) or (9) of the Children Act—

(i)deems, under section 68(8) of the Children Act; or

(ii)finds, under section 68(10) of that Act,

the ground of referral to be established; and

(c)no application to the sheriff under section 85(1) of that Act is made in relation to that ground.

(5)The fourth condition is that the sheriff, on an application under section 85(1) of the Children Act—

(a)is satisfied, under section 85(6)(b) of that Act, that a ground of referral which constitutes a relevant offence is established; or

(b)finds, under section 85(7)(b) of that Act, that—

(i)a ground of referral, which was not stated in the original application under section 65(7) or (9) of that Act, is established; and

(ii)that ground constitutes a relevant offence.

(6)A relevant offence is such relevant sexual offence or relevant violent offence as the Scottish Ministers may by order made by statutory instrument prescribe.

(7)An order under subsection (6) may prescribe a relevant violent offence by reference to a particular degree of seriousness.

(8)Subject to section 18F(8) and (9), the relevant physical data, sample or information derived from a sample must be destroyed no later than the destruction date.

(9)The destruction date is—

(a)the date of expiry of the period of 3 years following—

(i)where the second condition is satisfied, the date on which the ground of referral was accepted as mentioned in that condition;

(ii)where the third condition is satisfied, the date on which the ground of referral was established as mentioned in that condition;

(iii)where the ground of referral is established as mentioned in paragraph (a) of the fourth condition, the date on which that ground was established under section 68(8) or, as the case may be, (10) of the Children Act; or

(iv)where the ground of referral is established as mentioned in paragraph (b) of the fourth condition, the date on which that ground was established as mentioned in that paragraph; or

(b)such later date as an order under section 18F(1) may specify.

(10)No statutory instrument containing an order under subsection (6) may be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

(11)In this section—

  • relevant person ” has the same meaning as in section 93(2) of the Children Act;

  • “relevant sexual offence” and “relevant violent offence” have, subject to the modification in subsection (12), the same meanings as in section 19A(6) and include any attempt, conspiracy or incitement to commit such an offence.

(12)The modification is that the definition of “relevant sexual offence” in section 19A(6) is to be read as if for paragraph (g) there were substituted—

“(g)public indecency if it is apparent from the ground of referral relating to the offence that there was a sexual aspect to the behaviour of the child;”.

Textual Amendments

F112Ss. 18E, 18F inserted (13.12.2010 for the insertion of s. 18E(6)(7)(10), 15.4.2011 in so far as not already in force) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 80, 206(1); S.S.I. 2010/413, art. 2, sch.; S.S.I. 2011/178, art. 2, sch. (with art. 7)

18FRetention of samples etc. relating to children: appealsS

(1)On a summary application made by the relevant chief constable within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.

(2)An application under subsection (1) may be made to any sheriff—

(a)in whose sheriffdom the child mentioned in section 18E(1) resides;

(b)in whose sheriffdom that child is believed by the applicant to be; or

(c)to whose sheriffdom that child is believed by the applicant to be intending to come.

(3)An order under subsection (1) must not specify a destruction date more than 2 years later than the previous destruction date.

(4)The decision of the sheriff on an application under subsection (1) may be appealed to the sheriff principal within 21 days of the decision.

(5)If the sheriff principal allows an appeal against the refusal of an application under subsection (1), the sheriff principal may make an order amending, or further amending, the destruction date.

(6)An order under subsection (5) must not specify a destruction date more than 2 years later than the previous destruction date.

(7)The sheriff principal's decision on an appeal under subsection (4) is final.

(8)Section 18E(8) does not apply where—

(a)an application under subsection (1) has been made but has not been determined;

(b)the period within which an appeal may be brought under subsection (4) against a decision to refuse an application has not elapsed; or

(c)such an appeal has been brought but has not been withdrawn or finally determined.

(9)Where—

(a)the period within which an appeal referred to in subsection (8)(b) may be brought has elapsed without such an appeal being brought;

(b)such an appeal is brought and is withdrawn or finally determined against the appellant; or

(c)an appeal brought under subsection (4) against a decision to grant an application is determined in favour of the appellant,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the period has elapsed or, as the case may be, the appeal is withdrawn or determined.

(10)In this section—

  • destruction date” has the meaning given by section 18E(9); and

  • relevant chief constable” has the same meaning as in subsection (11) of section 18A, with the modification that references to the person referred to in subsection (2) of that section are references to the child referred to in section 18E(1).]

Textual Amendments

F112Ss. 18E, 18F inserted (13.12.2010 for the insertion of s. 18E(6)(7)(10), 15.4.2011 in so far as not already in force) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 80, 206(1); S.S.I. 2010/413, art. 2, sch.; S.S.I. 2011/178, art. 2, sch. (with art. 7)

19 Prints, samples etc. in criminal investigations: supplementary provisions.S

(1)[F113Without prejudice to any power exercisable under section 19A of this Act, this] section applies where a person convicted of an offence—

(a)has not, since the conviction, had [F114taken from him, or been required to provide, any relevant physical data or had any impression or sample] taken from him; or

(b)has [F115at any time had—

(i)taken from him or been required (whether under paragraph (a) above or under section 18 [F116, 19A or 19AA] of this Act or otherwise) to provide any relevant physical data; or

(ii)any F117... sample taken from him,

which was not suitable for the means of analysis for which the data were taken or required or the F117... sample was taken] or, though suitable, was insufficient (either in quantity or in quality) to enable information to be obtained by that means of analysis.

(2)Where this section applies, a constable may, within the permitted period—

[F118(a)take from or require the convicted person to provide him with such relevant physical data as he reasonably considers it appropriate to take or, as the case may be, require the provision of]; F119. . .

(b)with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to [F120(c)] of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample[F121 and]

[F122(c)take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.]

(3)A constable—

(a)may require the convicted person to attend a police station for the purposes of subsection (2) above;

(b)may, where the convicted person is in legal custody by virtue of section 295 of this Act, exercise the powers conferred by subsection (2) above in relation to the person in the place where he is for the time being.

(4)In subsection (2) above, “the permitted period” means—

(a)in a case to which paragraph (a) of subsection (1) above applies, the period of one month beginning with the date of the conviction;

(b)in a case to which paragraph (b) of that subsection applies, the period of one month beginning with the date on which a constable of the police force which instructed the analysis receives written intimation that [F123the relevant physical data were or]the sample, F124. . .was unsuitable or, as the case may be, insufficient as mentioned in that paragraph.

(5)A requirement under subsection (3)(a) above—

(a)shall give the person at least seven days’ notice of the date on which he is required to attend;

(b)may direct him to attend at a specified time of day or between specified times of day.

(6)Any constable may arrest without warrant a person who fails to comply with a requirement under subsection (3)(a) above.

Textual Amendments

F113Words in s. 19(1) substituted (17.11.1997) by 1997 c. 48, s. 48(1); S.I. 1997/2694, art. 2(2)(b)

F114Words in s. 19(1)(a) substituted (1.8.1997) by 1997 c. 48, s. 47(2)(a)(i); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F115Words and s. 19(1)(b)(i)(ii) substituted (1.8.1997) for words in s. 19(1)(b) by 1997 c. 48, s. 47(2)(a)(ii); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F118S. 19(2)(a) substituted (1.8.1997) by 1997 c. 48, s. 47(2)(b); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F119Word in s. 19(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(a)}, 89; S.S.I. 2003/288, art. 2, Sch.

F120Word in s. 19(2)(b) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(b)}, 89; S.S.I. 2003/288, art. 2, Sch.

F121S. 19(2)(c) and word added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F122S. 19(2)(c) and word added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F123Words in s. 19(4)(b) inserted (1.8.1997) by 1997 c. 48, s. 47(2)(c)(i); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F124Words in s. 19(4)(b) repealed (1.8.1997) by 1997 c. 48, ss. 47(2)(c)(ii), 62(2), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

[F12519A Samples etc. from persons convicted of sexual and violent offences. S

(1)This section applies where a person—

(a)is convicted on or after the relevant date of a relevant offence and is sentenced to imprisonment;

(b)was convicted before the relevant date of a relevant offence, was sentenced to imprisonment and is serving that sentence on or after the relevant date;

(c)was convicted before the relevant date of a specified relevant offence, was sentenced to imprisonment, is not serving that sentence on that date or at any time after that date but was serving it at any time during the period of five years ending with the day before that date.

(2)Subject to subsections (3) and (4) below, where this section applies a constable may—

(a) take from the person or require the person to provide him with such relevant physical data as the constable reasonably considers appropriate; F126 . . .

(b)with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to [F127(c)] of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample [F128 and]

[F129(c)take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.]

(3)The power conferred by subsection (2) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under [F130subsection (2) of section 19 of this Act in a case where the power conferred by that subsection was exercised by virtue of subsection (1)(a) of that section][F131, under this section or under section 19AA(3) of this Act] unless the data so taken or required have been or, as the case may be, the sample so taken or required has been lost or destroyed.

(4)Where this section applies by virtue of—

(a)paragraph (a) or (b) of subsection (1) above, the powers conferred by subsection (2) above may be exercised at any time when the person is serving his sentence; and

(b)paragraph (c) of the said subsection (1), those powers may only be exercised within a period of three months beginning on the relevant date.

(5)Where a person in respect of whom the power conferred by subsection (2) above may be exercised—

(a)is no longer serving his sentence of imprisonment, subsections (3)(a), (5) and (6);

(b)is serving his sentence of imprisonment, subsection (3)(b),

of section 19 of this Act shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.

(6)In this section—

  • conviction ” includes—

    (a)

    an acquittal , by virtue of section 54(6) or 55(3) of this Act, on the ground of the person’s insanity at the time at which he committed the act constituting the relevant offence;

    (b)

    a finding under section 55(2) of this Act,

    and “ convicted ” shall be construed accordingly;

  • relevant date ” means the date on which section 48 of the M5 Crime and Punishment (Scotland) Act 1997 is commenced;

  • relevant offence ” means any relevant sexual offence or any relevant violent offence;

  • relevant sexual offence ” means any of the following offences—

    (a)

    rape [F132at common law];

    (b)

    clandestine injury to women;

    (c)

    abduction of a woman with intent to rape;

    (ca)

    [F133abduction with intent to commit the statutory offence of rape;]

    (d)

    assault with intent to rape or ravish;

    (da)

    [F134assault with intent to commit the statutory offence of rape;]

    (e)

    indecent assault;

    (f)

    lewd, indecent or libidinous behaviour or practices;

    (g)

    [F135public indecency if the court, in imposing sentence or otherwise disposing of the case, determined for the purposes of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003 (c.42) that there was a significant sexual aspect to the offender's behaviour in committing the offence;]

    (h)

    sodomy; F136 . . .

    (i)

    any offence which consists of a contravention of any of the following statutory provisions—

    (i)

    section 52 of the M6 Civic Government (Scotland) Act 1982 (taking and distribution of indecent images of children);

    (ii)

    section 52A of that Act (possession of indecent images of children);

    (iii)

    [F137section 311 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (non consensual sexual acts);]

    (iv)

    [F138section 313 of that Act (persons providing care services: sexual offences);]

    (v)

    section 1 of the M7 Criminal Law (Consolidation)(Scotland) Act 1995 (incest);

    (vi)

    section 2 of that Act (intercourse with step-child);

    (vii)

    section 3 of that Act (intercourse with child under 16 years by person in position of trust);

    (viii)

    section 5(1) or (2) of that Act (unlawful intercourse with girl under 13 years);

    (ix)

    section 5(3) of that Act (unlawful intercourse with girl aged between 13 and 16 years);

    (x)

    section 6 of that Act (indecent behaviour towards girl between 12 and 16 years);

    (xi)

    section 7 of that Act (procuring);

    (xii)

    section 8 of that Act (abduction and unlawful detention of women and girls);

    (xiii)

    section 9 of that Act (permitting use of premises for unlawful sexual intercourse);

    (xiv)

    section 10 of that Act (liability of parents etc in respect of offences against girls under 16 years);

    (xv)

    section 11(1)(b) of that Act (soliciting for immoral purpose);

    (xvi)

    section 13(5)(b) and (c) of that Act (homosexual offences); [F139 and

    (j)

    any offence which consists of a contravention of any of the following provisions of the Sexual Offences (Scotland) Act 2009 (asp 9)—

    (i)

    section 1 (rape),

    (ii)

    section 2 (sexual assault by penetration),

    (iii)

    section 3 (sexual assault),

    (iv)

    section 4 (sexual coercion),

    (v)

    section 5 (coercing a person into being present during a sexual activity),

    (vi)

    section 6 (coercing a person into looking at a sexual image),

    (vii)

    section 7(1) (communicating indecently),

    (viii)

    section 7(2) (causing a person to see or hear an indecent communication),

    (ix)

    section 8 (sexual exposure),

    (x)

    section 9 (voyeurism),

    (xi)

    section 18 (rape of a young child),

    (xii)

    section 19 (sexual assault on a young child by penetration),

    (xiii)

    section 20 (sexual assault on a young child),

    (xiv)

    section 21 (causing a young child to participate in a sexual activity),

    (xv)

    section 22 (causing a young child to be present during a sexual activity),

    (xvi)

    section 23 (causing a young child to look at a sexual image),

    (xvii)

    section 24(1) (communicating indecently with a young child),

    (xviii)

    section 24(2) (causing a young child to see or hear an indecent communication),

    (xix)

    section 25 (sexual exposure to a young child),

    (xx)

    section 26 (voyeurism towards a young child),

    (xxi)

    section 28 (having intercourse with an older child),

    (xxii)

    section 29 (engaging in penetrative sexual activity with or towards an older child),

    (xxiii)

    section 30 (engaging in sexual activity with or towards an older child),

    (xxiv)

    section 31 (causing an older child to participate in a sexual activity),

    (xxv)

    section 32 (causing an older child to be present during a sexual activity),

    (xxvi)

    section 33 (causing an older child to look at a sexual image),

    (xxvii)

    section 34(1) (communicating indecently with an older child),

    (xxviii)

    section 34(2) (causing an older child to see or hear an indecent communication),

    (xxix)

    section 35 (sexual exposure to an older child),

    (xxx)

    section 36 (voyeurism towards an older child),

    (xxxi)

    section 37(1) (engaging while an older child in sexual conduct with or towards another older child),

    (xxxii)

    section 37(4) (engaging while an older child in consensual sexual conduct with another older child),

    (xxxiii)

    section 42 (sexual abuse of trust) but only if the condition set out in section 43(6) of that Act is fulfilled,

    (xxxiv)

    section 46 (sexual abuse of trust of a mentally disordered person);]

  • relevant violent offence ” means any of the following offences—

    (a)

    murder or culpable homicide;

    (b)

    uttering a threat to the life of another person;

    (c)

    perverting the course of justice in connection with an offence of murder;

    (d)

    fire raising;

    (e)

    assault;

    (f)

    reckless conduct causing actual injury;

    (g)

    abduction; and

    (h)

    any offence which consists of a contravention of any of the following statutory provisions—

    (i)

    sections 2 (causing explosion likely to endanger life) or 3 (attempting to cause such an explosion) of the M8 Explosive Substances Act 1883;

    (ii)

    section 12 of the M9 Children and Young Persons (Scotland) Act 1937 (cruelty to children);

    (iii)

    sections 16 (possession of firearm with intent to endanger life or cause serious injury), 17 (use of firearm to resist arrest) or 18 (having a firearm for purpose of committing an offence listed in Schedule 2) of the M10 Firearms Act 1968;

    (iv)

    section 6 of the M11 Child Abduction Act 1984 (taking or sending child out of the United Kingdom); and

    (v)

    [F140section 47(1) (possession of offensive weapon in public place), 49(1) (possession of article with blade or point in public place), 49A(1) or (2) (possession of article with blade or point or offensive weapon on school premises) or 49C(1) (possession of offensive weapon or article with blade or point in prison) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39);]

  • sentence of imprisonment ” means the sentence imposed in respect of the relevant offence and includes—

    (a)

    a [F141compulsion] order, a restriction order, a hospital direction and any order under section 57(2)(a) or (b) of this Act; and

    (b)

    a sentence of detention imposed under section 207 or 208 of this Act,

    and “ sentenced to imprisonment ” shall be construed accordingly; and any reference to a person serving his sentence shall be construed as a reference to the person being detained in a prison, hospital or other place in pursuance of a sentence of imprisonment; and

  • specified relevant offence ” means—

    (a)

    any relevant sexual offence mentioned in paragraphs (a), (b), (f) and (i)(viii) of the definition of that expression and any such offence as is mentioned in paragraph (h) of that definition where the person against whom the offence was committed did not consent; and

    (b)

    any relevant violent offence mentioned in paragraph (a) or (g) of the definition of that expression and any such offence as is mentioned in paragraph (e) of that definition where the assault is to the victim’s severe injury,

    but, notwithstanding subsection (7) below, does not include—

    (i)

    conspiracy or incitement to commit; and

    (ii)

    aiding and abetting, counselling or procuring the commission of,

    any of those offences.

[F142(6A)In subsection (6)—

(a)the references to “rape” in paragraphs (c) and (d) of the definition of “relevant sexual offence” are to the offence of rape at common law; and

(b)the references in paragraphs (ca) and (da) of that subsection to “the statutory offence of rape” are (as the case may be) to?

(i)the offence of rape under section 1 of the Sexual Offences (Scotland) Act 2009, or

(ii)the offence of rape of a young child under section 18 of that Act.]

(7)In this section—

(a)any reference to a relevant offence includes a reference to any attempt, conspiracy or incitement to commit such an offence; and

(b)any reference to—

(i)a relevant sexual offence mentioned in paragraph (i) [F143or (j)]; or

(ii)a relevant violent offence mentioned in paragraph (h),

of the definition of those expressions in subsection (6) above includes a reference to aiding and abetting, counselling or procuring the commission of such an offence.]

Textual Amendments

F125S. 19A inserted (17.11.1997) by 1997 c. 48, s. 48(2); S.I. 1997/2694, art. 2(2)(b)

F126Word in s. 19A(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(a)}, 89; S.S.I. 2003/288, art. 2, Sch.

F127Word in s. 19A(2) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{55(3)(b)}, 89; S.S.I. 2003/288, art. 2, Sch.

F128S. 19A(2)(c) and word added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{55(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F129S. 19A(2)(c) and word added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F139S. 19A(6)(j) and word inserted (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61, 62(2), {Sch. 5 para. 2 (4)(a)(iii)}; S.S.I. 2010/413, art. 2, Sch.

F141S. 19A(6)(i): word in the definition of "sentence of imprisonment" substituted and the word "hospital" omitted (27.9.2005) by virtue of The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), art. 2, Sch. 1 para. 27(2)(b)

Marginal Citations

[F14419AASamples etc. from sex offendersS

(1)This section applies where a person is subject to—

(a)the notification requirements of Part 2 of the 2003 Act;

(b)an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9)(a risk of sexual harm order); or

(c)an order under section 123 of the 2003 Act (which makes provision for England and Wales and Northern Ireland corresponding to section 2 of that Act of 2005).

(2)This section applies regardless of whether the person became subject to those requirements or that order before or after the commencement of this section.

(3)Subject to subsections (4) to (8) below, where this section applies a constable may—

(a)take from the person or require the person to provide him with such relevant physical data as the constable considers reasonably appropriate;

(b)with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to (c) of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample;

(c)take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.

(4)Where this section applies by virtue of subsection (1)(c) above, the power conferred by subsection (3) shall not be exercised unless the constable reasonably believes that the person's sole or main residence is in Scotland.

(5)The power conferred by subsection (3) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under section 19(2) or 19A(2) of this Act unless the data so taken or required have been or, as the case may be, the sample so taken has been, lost or destroyed.

(6)The power conferred by subsection (3) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under that subsection unless the data so taken or required or, as the case may be, the sample so taken—

(a)have or has been lost or destroyed; or

(b)were or was not suitable for the particular means of analysis or, though suitable, were or was insufficient (either in quantity or quality) to enable information to be obtained by that means of analysis.

(7)The power conferred by subsection (3) above may be exercised only—

(a)in a police station; or

(b)where the person is in legal custody by virtue of section 295 of this Act, in the place where the person is for the time being.

(8)The power conferred by subsection (3) above may be exercised in a police station only—

(a)where the person is present in the police station in pursuance of a requirement made by a constable to attend for the purpose of the exercise of the power; or

(b)while the person is in custody in the police station following his arrest or detention under section 14(1) of this Act in connection with any offence.

(9)A requirement under subsection (8)(a) above—

(a)shall give the person at least seven days' notice of the date on which he is required to attend;

(b)may direct him to attend at a specified time of day or between specified times of day; and

(c)where this section applies by virtue of subsection (1)(b) or (c) above, shall warn the person that failure, without reasonable excuse, to comply with the requirement or, as the case may be, to allow the taking of or to provide any relevant physical data, or to provide any sample, under the power, constitutes an offence.

(10)A requirement under subsection (8)(a) above in a case where the person has previously had taken from him or been required to provide relevant physical data or any sample under subsection (3) above shall contain intimation that the relevant physical data were or the sample was unsuitable or, as the case may be, insufficient, as mentioned in subsection (6)(b) above.

(11)Before exercising the power conferred by subsection (3) above in a case to which subsection (8)(b) above applies, a constable shall inform the person of that fact.

(12)Any constable may arrest without warrant a person who fails to comply with a requirement under subsection (8)(a) above.

(13)This section does not prejudice the generality of section 18 of this Act.

(14) In this section, “ the 2003 Act ” means the Sexual Offences Act 2003 (c. 42).”.

19ABSection 19AA: supplementary provision in risk of sexual harm order casesS

(1)This section applies where section 19AA of this Act applies by virtue of subsection (1)(b) or (c) of that section.

(2)A person who fails without reasonable excuse—

(a)to comply with a requirement made of him under section 19AA(8)(a) of this Act; or

(b)to allow relevant physical data to be taken from him, to provide relevant physical data, or to allow a sample to be taken from him, under section 19AA(3) of this Act,

shall be guilty of an offence.

(3)A person guilty of an offence under subsection (2) above shall be liable on summary conviction to the following penalties—

(a)a fine not exceeding level 4 on the standard scale;

(b)imprisonment for a period—

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

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

(c)both such fine and such imprisonment.

(4)Subject to subsection (6) below, all record of any relevant physical data taken from or provided by a person under section 19AA(3) of this Act, all samples taken from a person under that subsection and all information derived from such samples shall be destroyed as soon as possible following the person ceasing to be a person subject to any risk of sexual harm orders.

(5)For the purpose of subsection (4) above, a person does not cease to be subject to a risk of sexual harm order where the person would be subject to such an order but for an order under section 6(2) of the 2005 Act or any corresponding power of a court in England and Wales or in Northern Ireland.

(6)Subsection (4) above does not apply if before the duty to destroy imposed by that subsection would apply, the person—

(a)is convicted of an offence; or

(b)becomes subject to the notification requirements of Part 2 of the 2003 Act.

(7)In this section—

  • risk of sexual harm order ” means an order under—

    (a)

    section 2 of the 2005 Act; or

    (b)

    section 123 of the 2003 Act;

  • the 2005 Act ” means the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9);

  • the 2003 Act ” has the meaning given by section 19AA(14) of this Act; and

  • convicted ” shall be construed in accordance with section 19A(6) of this Act. ]

[F14519B Power of constable in obtaining relevant physical data etc.S

[F146(1)]A constable may use reasonable force in—

(a)taking any relevant physical data from a person or securing a person’s compliance with a requirement made under section 18(2), 19(2)(a) or 19A(2)(a) of this Act [F147, or under subsection (3)(a) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section] ;

(b)exercising any power conferred by section 18(6), 19(2)(b) or 19A(2)(b) of this Act [F148, or under subsection (3)(b) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section] .

[F149(2)A constable may, with the authority of an officer of a rank no lower than inspector, use reasonable force in (himself) exercising any power conferred by section 18(6A), 19(2)(c) or 19A(2)(c) of this Act [F150, or under subsection (3)(c) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section] .]]

Valid from 01/08/2011

[F15119CSections 18 and 19 to 19AA: use of samples etc.S

(1)Subsection (2) applies to—

(a)relevant physical data taken or provided under section 18(2), 19(2)(a), 19A(2)(a) or 19AA(3)(a),

(b)a sample, or any information derived from a sample, taken under section 18(6) or (6A), 19(2)(b) or (c), 19A(2)(b) or (c) or 19AA(3)(b) or (c),

(c)relevant physical data or a sample taken from a person—

(i)by virtue of any power of search,

(ii)by virtue of any power to take possession of evidence where there is immediate danger of its being lost or destroyed, or

(iii)under the authority of a warrant,

(d)information derived from a sample falling within paragraph (c), and

(e)relevant physical data, a sample or information derived from a sample taken from, or provided by, a person outwith Scotland which is given by any person to—

(i)a police force,

(ii)the Scottish Police Services Authority, or

(iii)a person acting on behalf of a police force.

(2)The relevant physical data, sample or information derived from a sample may be used—

(a)for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or

(b)for the identification of a deceased person or a person from whom the relevant physical data or sample came.

(3)Subsections (4) and (5) apply to relevant physical data, a sample or information derived from a sample falling within any of paragraphs (a) to (d) of subsection (1) (“relevant material”).

(4)If the relevant material is held by a police force, the Scottish Police Services Authority or a person acting on behalf of a police force, the police force or, as the case may be, the Authority or person may give the relevant material to another person for use by that person in accordance with subsection (2).

(5)A police force, the Scottish Police Services Authority or a person acting on behalf of a police force may, in using the relevant material in accordance with subsection (2), check it against other relevant physical data, samples and information derived from samples received from another person.

(6)In subsection (2)—

(a)the reference to crime includes a reference to—

(i)conduct which constitutes a criminal offence or two or more criminal offences (whether under the law of a part of the United Kingdom or a country or territory outside the United Kingdom), or

(ii)conduct which is, or corresponds to, conduct which, if it all took place in any one part of the United Kingdom would constitute a criminal offence or two or more criminal offences,

(b)the reference to an investigation includes a reference to an investigation outside Scotland of a crime or suspected crime, and

(c)the reference to a prosecution includes a reference to a prosecution brought in respect of a crime in a country or territory outside Scotland.

(7)This section is without prejudice to any other power relating to the use of relevant physical data, samples or information derived from a sample.]

20 Use of prints, samples etc.S

Without prejudice to any power to do so apart from this section, [F152relevant physical data], impressions and samples lawfully held by or on behalf of any police force or in connection with or as a result of an investigation of an offence and information derived therefrom may be checked against other such [F152data], impressions, samples and information.

Textual Amendments

F152Words in s. 20 substituted (1.8.1997) by 1997 c. 48, s. 47(3)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

Words in s. 20 substituted (1.8.1997) by 1997 c. 48, s. 47(3)(b); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

Modifications etc. (not altering text)

C15S. 20 applied (with modifications) (prosp.) by the Terrorism Act 2002 (c. 11), Sch. 8 para. 21 (as inserted by Counter-Terrorism Act 2008 (c. 28), ss. 17(3), 91, 100) (with s. 101(2))

[F153Testing for Class A drugsS

Textual Amendments

F153Ss. 20A, 20B and preceding cross-heading inserted (1.1.2007 for certain purposes, 25.2.2007 in regard to the inserted s. 20B(3), and otherwise in force at 12.6.2007) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 84, 104; S.S.I. 2006/607, art. 3, Sch.; S.S.I. 2007/84, {art. 3(1)(a)(4))(a)}

20AArrested persons: testing for certain Class A drugsS

(1)Subject to subsection (2) below, where subsection (3) below applies an appropriate officer may—

(a)require a person who has been arrested and is in custody in a police station to provide him with a sample of urine; or

(b)take from the inside of the mouth of such a person, by means of swabbing, a sample of saliva or other material,

which the officer may subject to analysis intended to reveal whether there is any relevant Class A drug in the person's body.

(2)The power conferred by subsection (1) above shall not be exercised where the person has previously been required to provide or had taken from him a sample under that subsection in the same period in custody.

(3)This subsection applies where—

(a)the person is of 16 years of age or more;

(b)the period in custody in the police station has not exceeded 6 hours;

(c)the police station is situated in an area prescribed by order made by statutory instrument by the Scottish Ministers; and

(d)either—

(i)the person's arrest was on suspicion of committing or having committed a relevant offence; or

(ii)a senior police officer who has appropriate grounds has authorised the making of the requirement to provide or the taking of the sample.

(4)Before exercising the power conferred by subsection (1) above, an appropriate officer shall—

(a)warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence; and

(b)in a case within subsection (3)(d)(ii) above, inform the person of the giving of the authorisation and the grounds for the suspicion.

(5)Where—

(a)a person has been required to provide or has had taken a sample under subsection (1) above;

(b)any of the following is the case—

(i)the sample was not suitable for the means of analysis to be used to reveal whether there was any relevant Class A drug in the person's body;

(ii)though suitable, the sample was insufficient (either in quantity or quality) to enable information to be obtained by that means of analysis; or

(iii)the sample was destroyed during analysis and the means of analysis failed to produce reliable information; and

(c)the person remains in custody in the police station (whether or not the period of custody has exceeded 6 hours),

an appropriate officer may require the person to provide or as the case may be take another sample of the same kind by the same method.

(6)Before exercising the power conferred by subsection (5) above, an appropriate officer shall warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence.

(7)A person who fails without reasonable excuse—

(a)to comply with a requirement made of him under subsection (1)(a) or (5) above; or

(b)to allow a sample to be taken from him under subsection (1)(b) or (5) above,

shall be guilty of an offence.

(8)In this section—

  • appropriate grounds” means reasonable grounds for suspecting that the misuse by the person of any relevant Class A drug caused or contributed to the offence on suspicion of which the person was arrested;

  • appropriate officer” means—

    (a)

    a constable; or

    (b)

    a police custody and security officer acting on the direction of a constable;

  • misuse” has the same meaning as in the Misuse of Drugs Act 1971 (c. 38);

  • relevant Class A drug” means any of the following substances, preparations and products—

    (a)

    cocaine or its salts;

    (b)

    any preparation or other product containing cocaine or its salts;

    (c)

    diamorphine or its salts;

    (d)

    any preparation or other product containing diamorphine or its salts;

  • relevant offence” means any of the following offences—

    (a)

    theft;

    (b)

    assault;

    (c)

    robbery;

    (d)

    fraud;

    (e)

    reset;

    (f)

    uttering a forged document;

    (g)

    embezzlement;

    (h)

    an attempt, conspiracy or incitement to commit an offence mentioned in paragraphs (a) to (g);

    (i)

    an offence under section 4 of the Misuse of Drugs Act 1971 (c. 38) (restriction on production and supply of controlled drugs) committed in respect of a relevant Class A drug;

    (j)

    an offence under section 5(2) of that Act of 1971 (possession of controlled drug) committed in respect of a relevant Class A drug;

    (k)

    an offence under section 5(3) of that Act of 1971 (possession of controlled drug with intent to supply) committed in respect of a relevant Class A drug;

  • senior police officer” means a police officer of a rank no lower than inspector.

20BSection 20A: supplementaryS

(1)Section 20A of this Act does not prejudice the generality of section 18 of this Act.

(2)Each person carrying out a function under section 20A of this Act must have regard to any guidance issued by the Scottish Ministers—

(a)about the carrying out of the function; or

(b)about matters connected to the carrying out of the function.

(3)An order under section 20A(3)(c) shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(4)An authorisation for the purposes of section 20A of this Act may be given orally or in writing but, if given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

(5)If a sample is provided or taken under section 20A of this Act by virtue of an authorisation, the authorisation and the grounds for the suspicion are to be recorded in writing as soon as is reasonably practicable after the sample is provided or taken.

(6)A person guilty of an offence under section 20A of this Act shall be liable on summary conviction to the following penalties—

(a)a fine not exceeding level 4 on the standard scale;

(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; or

(c)both such fine and imprisonment.

(7)Subject to subsection (8) below, a sample provided or taken under section 20A of this Act shall be destroyed as soon as possible following its analysis for the purpose for which it was taken.

(8)Where an analysis of the sample reveals that a relevant Class A drug is present in the person's body, the sample may be retained so that it can be used, and supplied to others, for the purpose of any proceedings against the person for an offence under section 88 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10); but—

(a)the sample may not be used, or supplied, for any other purpose; and

(b)the sample shall be destroyed as soon as possible once it is no longer capable of being used for that purpose.

(9)Information derived from a sample provided by or taken from a person under section 20A of this Act may be used and disclosed only for the following purposes—

(a)for the purpose of proceedings against the person for an offence under section 88 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10);

(b)for the purpose of informing any decision about granting bail in any criminal proceedings to the person;

(c)for the purpose of informing any decision of a children's hearing arranged to consider the person's case;

(d)where the person is convicted of an offence, for the purpose of informing any decision about the appropriate sentence to be passed by a court and any decision about the person's supervision or release;

(e)for the purpose of ensuring that appropriate advice and treatment is made available to the person.

(10)Subject to subsection (11) below, the Scottish Ministers may by order made by statutory instrument modify section 20A(8) of this Act for either of the following purposes—

(a)for the purpose of adding an offence to or removing an offence from those for the time being listed in the definition of “relevant offence”;

(b)for the purpose of adding a substance, preparation or product to or removing a substance, preparation or product from those for the time being listed in the definition of “relevant Class A drug”.

(11)An order under subsection (10)(b) may add a substance, preparation or product only if it is a Class A drug (that expression having the same meaning as in the Misuse of Drugs Act 1971 (c. 38)).

(12)An order under subsection (10) above shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by resolution of the Scottish Parliament.]

Schedule 1 offencesS

21 Schedule 1 offences: power of constable to take offender into custody.S

(1)Without prejudice to any other powers of arrest, a 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 had reason to believe to have committed, any of the offences mentioned in that Schedule, if the constable does not know and cannot ascertain his name and address or has reasonable ground for believing that he will abscond.

(2)F154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)F154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)F154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)F154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Police liberationS

22 Liberation by police.S

(1)Where a person has been F155. . . charged with an offence which may be tried summarily, [F156the officer who charged the person or (if different)] the officer in charge of a police station may—

(a)liberate him upon a written undertaking, signed by him and certified by the officer, in [F157the terms mentioned in subsection (1C) below] ; or

(b)liberate him without any such undertaking; or

(c)refuse to liberate him.

[F158(1A)Where a person has been arrested under section 21 of this Act, the arresting officer or (if different) the officer in charge of a police station may—

(a)liberate the person upon a written undertaking, signed by him and certified by the officer, in the terms mentioned in subsection (1C) below;

(b)liberate him without any such undertaking; or

(c)refuse to liberate him.

(1B)Where a person has been apprehended under a summary warrant as mentioned in section 135(3) of this Act, the apprehending officer or (if different) the officer in charge of a police station may—

(a)liberate the person upon a written undertaking, signed by him and certified by the officer, in the terms mentioned in subsection (1C) below; or

(b)refuse to liberate him.

(1C)For the purposes of subsections (1) to (1B) above, the terms are that the person undertakes (subject to any modification made to those terms under subsection (1F)(b) below)—

(a)to appear at a specified court on a specified day at a specified time; and

(b)in addition, to comply with any conditions imposed under subsection (1D) below.

(1D)The conditions which may be imposed under this subsection are—

(a)conditions in the same terms as the standard conditions mentioned in section 24(5)(b), (c) and (ca) of this Act (but as if any reference there to bail were reference to the undertaking);

(b)such further conditions as the officer who is certifying the undertaking considers are necessary to secure that the conditions referred to in paragraph (a) above are observed.

(1E)For the imposition of conditions under subsection (1D)(b) above, the authority of an officer of a rank no lower than inspector is required.

(1F)The procurator fiscal may by notice effected in the same manner as citation under section 141 of this Act—

(a)rescind an undertaking given under subsection (1) or (1A) above (whether or not the person is to be prosecuted in connection with the matters to which the undertaking relates);

(b)in relation to an undertaking given under this section—

(i)revise the court, day or time specified under subsection (1C)(a) above;

(ii)revoke or relax any conditions imposed under subsection (1D) above.

(1G)An undertaking given under this section—

(a)if rescinded under subsection (1F)(a) above, expires at the end of the day on which the notice is sent;

(b)otherwise—

(i)subject to sub-paragraph (ii) below, expires at the end of the day on which the person who gave the undertaking is required to appear at court in accordance with the undertaking;

(ii)if that person breaches the undertaking by reason of failing to appear at court, and a warrant is granted in relation to the breach, expires, so far as relating to conditions, at the end of the day on which the person is brought before the court in pursuance of the warrant.

F159( 1H ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F160(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The refusal of [F161an officer] to liberate a person under [F162this section] and the detention of that person until his case is [F163heard] in the usual form shall not subject the officer to any claim whatsoever.

F164(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F165 [F166( 4A ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F167(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F158S. 22(1A)-(1H) inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 7(2)(b), 84 (as amended by The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (Supplemental Provisions) Order (S.S.I 2008/109, {art. 3}); S.S.I. 2008/42, art. 3, Sch. (subject to art. 4)

Modifications etc. (not altering text)

C16S. 22(1) excluded (19.2.2001) by 2000 c. 11, ss. 41, 53, Sch. 7 para. 6, Sch. 8 para. 27(5); S.I. 2001/421, art. 2

[F16822ZAOffences where undertaking breachedS

(1)A person who without reasonable excuse breaches an undertaking given by the person under section 22—

(a)by reason of failing to appear at court as required under subsection (1C)(a) of section 22, or

(b)by reason of failing to comply with a condition imposed under subsection (1D) of that section,

is guilty of an offence.

(2)A person who is guilty of an offence under subsection (1) is liable on summary conviction to—

(a)a fine not exceeding level 3 on the standard scale, and

(b)imprisonment for a period—

(i)where conviction is in the JP court, not exceeding 60 days,

(ii)where conviction is in the sheriff court, not exceeding 12 months.

(3)Despite subsection (1)(b), where (and to the extent that) the person breaches the undertaking by reason of committing an offence while subject to the undertaking—

(a)the person is not guilty of an offence under that subsection, and

(b)subsection (4) applies instead.

(4)The court, in determining the sentence for the subsequent offence, must have regard to—

(a)the fact that the subsequent offence was committed in breach of the undertaking,

(b)the number of undertakings to which the person was subject when that offence was committed,

(c)any previous conviction of the person of an offence under subsection (1)(b),

(d)the extent to which the sentence or disposal in respect of any previous conviction differed, by virtue of this subsection, from that which the court would have imposed but for this subsection.

(5)The reference in subsection (4)(c) to any previous conviction of an offence under subsection (1)(b) includes any previous conviction by a court in England and Wales, Northern Ireland or a member State of the European Union other than the United Kingdom of an offence that is equivalent to an offence under subsection (1)(b).

(6)The references in subsection (4)(d) to subsection (4) are to be read, in relation to a previous conviction by a court referred to in subsection (5), as references to any provision that is equivalent to subsection (4).

(7)Any issue of equivalence arising in pursuance of subsection (5) or (6) is for the court to determine.

(8)Subsections (3)(b) and (4) apply only if the fact that the subsequent offence was committed while the person was subject to an undertaking is specified in the complaint or indictment.

(9)In this section and section 22ZB, “the subsequent offence” is the offence committed by a person while the person is subject to an undertaking.

Textual Amendments

22ZBEvidential and procedural provisionS

(1)In any proceedings in relation to an offence under section 22ZA(1), the fact that a person—

(a)breached an undertaking given by the person under section 22 by reason of failing to appear at court as required under subsection (1C)(a) of that section, or

(b)was subject to any particular condition imposed under subsection (1D) of that section,

is, unless challenged by preliminary objection before the person's plea is recorded, to be held as admitted.

(2)In any proceedings in relation to an offence under section 22ZA(1) or (as the case may be) the subsequent offence—

(a)something in writing, purporting to be an undertaking given by a person under section 22 (and bearing to be signed and certified), is sufficient evidence of the terms of the undertaking so given,

(b)a document purporting to be a notice (or copy of a notice) effected under subsection (1F) of that section is sufficient evidence of the terms of the notice,

(c)an undertaking whose terms are modified under paragraph (b) of that subsection is to be regarded as if given in the terms as so modified.

(3)The fact that the subsequent offence was committed while the person was subject to an undertaking is to be held as admitted, unless challenged—

(a)in summary proceedings, by preliminary objection before the person's plea is recorded, or

(b)in the case of proceedings on indictment, by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act.

(4)Where the maximum penalty in respect of the subsequent offence is specified by (or by virtue of) any enactment, that maximum penalty is, for the purposes of the court's determination of the appropriate sentence or disposal in respect of that offence, increased—

(a)where it is a fine, by the amount equivalent to level 3 on the standard scale, and

(b)where it is a period of imprisonment—

(i)as respects conviction in the JP court, by 60 days,

(ii)as respects conviction in the sheriff court or the High Court, by 6 months,

even if the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.

(5)A penalty under section 22ZA(2) may be imposed in addition to any other penalty which it is competent for the court to impose even if the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

(6)The reference in subsection (5) to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention—

(a)where the sentences are imposed at the same time (whether or not in relation to the same complaint), framing the sentences so that they have effect consecutively,

(b)where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.

(7)Subsection (6)(b) is subject to section 204A of this Act.

(8)The court must state—

(a)where the sentence or disposal in respect of the subsequent offence is different from that which the court would have imposed but for section 22ZA(4), the extent of and the reasons for that difference, or

(b)otherwise, the reasons for there being no such difference.

(9)A court which finds a person guilty of an offence under section 22ZA(1) may remit that person for sentence in respect of that offence to any court which is considering the original offence.

(10)At any time before the trial of an accused in summary proceedings for the original offence, it is competent to amend the complaint to include an additional charge of an offence under section 22ZA(1).

(11)In this section, “the original offence” is the offence in relation to which an undertaking is given.]

Textual Amendments

PART IIIS Bail

[F16922A Consideration of bail on first appearanceS

(1)On the first occasion on which—

(a)a person accused on petition is brought before the sheriff prior to committal until liberated in due course of law; or

(b)a person charged on complaint with an offence is brought before a judge having jurisdiction to try the offence,

the sheriff or, as the case may be, the judge shall, after giving that person and the prosecutor an opportunity to be heard F170. . . , either admit or refuse to admit that person to bail.

[F171(2)Admittance to or refusal of bail shall be determined before the end of the day (not being a Saturday or Sunday, or a court holiday prescribed for the court which is to determine the question of bail, unless that court is sitting on that day for the disposal of criminal business) after the day on which the person accused or charged is brought before the sheriff or judge.]

(3)If, by [F172that time] , the sheriff or judge has not admitted or refused to admit the person accused or charged to bail, then that person shall be forthwith liberated.

(4)This section applies whether or not the person accused or charged is in custody when that person is brought before the sheriff or judge.]

23 Bail applications.S

(1)Any person accused on petition of a crime F173. . . shall be entitled immediately, on any [F174(other than the first)]occasion on which he is brought before the sheriff prior to his committal until liberated in due course of law, to apply to the sheriff for bail, and the prosecutor shall be entitled to be heard against any such application.

(2)The sheriff shall be entitled in his discretion to refuse such application before the person accused is committed until liberated in due course of law.

(3)Where an accused is admitted to bail without being committed until liberated in due course of law, it shall not be necessary so to commit him, and it shall be lawful to serve him with an indictment or complaint without his having been previously so committed.

(4)Where bail is refused before committal until liberation in due course of law on an application under subsection (1) above, the application for bail may be renewed after such committal.

(5)Any sheriff having jurisdiction to try the offence or to commit the accused until liberated in due course of law may, at his discretion, on the application of any person who has been committed until liberation in due course of law for any crime or offence, F175. . ., and having given the prosecutor an opportunity to be heard, admit or refuse to admit the person to bail.

[F176(6)Any person charged on complaint with an offence shall, on any (other than the first) occasion on which he is brought before a judge having jurisdiction to try the offence, be entitled to apply to the judge for bail and the prosecutor shall be entitled to be heard against any such application.]

(7)An application under subsection (5) or (6) above shall be disposed of [F177before the end of the day (not being a Saturday or Sunday, or a court holiday prescribed for the court which is to determine the question of bail, unless that court is sitting on that day for the disposal of criminal business) after the day of] its presentation to the judge, failing which the accused shall be forthwith liberated.

(8)This section applies whether or not the accused is in custody at the time he appears for disposal of his application.

Textual Amendments

F173Words in s. 23(1) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(a)(i)

F174Words in s. 23(1) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(a)(ii)

F175Words in s. 23(5) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(b)

F176S. 23(6) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(c)

[F17823A Bail and liberation where person already in custodyS

(1)A person may be admitted to bail under section 22A , [F17923, 65(8C) or 107A(7)(b)] of this Act although in custody—

(a)having been refused bail in respect of another crime or offence; or

(b)serving a sentence of imprisonment.

(2)A decision to admit a person to bail by virtue of subsection (1) above does not liberate the person from the custody mentioned in that subsection.

(3)The liberation under section [F18022A(3), 23(7) or 107A(7)(b)] of this Act of a person who may be admitted to bail by virtue of subsection (1) above does not liberate that person from the custody mentioned in that subsection.

(4) In subsection (1) above, “ another crime or offence ” means a crime or offence other than that giving rise to the consideration of bail under section 22A , [F18123, 65(8C) or 107A(7)(b)] of this Act. ]

[F18223BEntitlement to bail and the court's functionS

(1)Bail is to be granted to an accused person—

(a)except where—

(i)by reference to section 23C of this Act; and

(ii)having regard to the public interest,

there is good reason for refusing bail;

(b)subject to section 23D of this Act.

(2)In determining a question of bail in accordance with subsection (1) above, the court is to consider the extent to which the public interest could, if bail were granted, be safeguarded by the imposition of bail conditions.

(3)Reference in subsections (1)(a)(ii) and (2) above to the public interest includes (without prejudice to the generality of the public interest) reference to the interests of public safety.

(4)The court must (without prejudice to any other right of the parties to be heard) give the prosecutor and the accused person an opportunity to make submissions in relation to a question of bail.

(5)The attitude of the prosecutor towards a question of bail (including as to bail conditions) does not restrict the court's exercise of its discretion in determining the question in accordance with subsection (1) above.

(6)For the purpose of so determining a question of bail (including as to bail conditions), the court may request the prosecutor or the accused person's solicitor or counsel to provide it with information relevant to the question.

(7)However, whether that party gives the court opinion as to any risk of something occurring (or any likelihood of something not occurring) is a matter for that party to decide.

23CGrounds relevant as to question of bailS

(1)In any proceedings in which a person is accused of an offence, the following are grounds on which it may be determined that there is good reason for refusing bail—

(a)any substantial risk that the person might if granted bail—

(i)abscond; or

(ii)fail to appear at a diet of the court as required;

(b)any substantial risk of the person committing further offences if granted bail;

(c)any substantial risk that the person might if granted bail—

(i)interfere with witnesses; or

(ii)otherwise obstruct the course of justice,

in relation to himself or any other person;

(d)any other substantial factor which appears to the court to justify keeping the person in custody.

(2)In assessing the grounds specified in subsection (1) above, the court must have regard to all material considerations including (in so far as relevant in the circumstances of the case) the following examples—

(a)the—

(i)nature (including level of seriousness) of the offences before the court;

(ii)probable disposal of the case if the person were convicted of the offences;

(b)whether the person was subject to a bail order when the offences are alleged to have been committed;

(c)whether the offences before the court are alleged to have been committed—

(i)while the person was subject to another court order;

(ii)while the person was on release on licence or parole;

(iii)during a period for which sentence of the person was deferred;

(d)the character and antecedents of the person, in particular—

(i)the nature of any previous convictions of the person (including convictions [F183by courts outside the European Union]);

(ii)whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise);

(iii)whether the person has previously breached the terms of any release on licence or parole (by committing an offence or otherwise);

(iv)whether the person is serving or recently has served a sentence of imprisonment in connection with a matter referred to in sub-paragraphs (i) to (iii) above;

(e)the associations and community ties of the person.

Textual Amendments

F183Words in s. 23C(2)(d)(i) substituted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 71(1), 206(1), Sch. 4 para. 2; S.S.I. 2010/413, art. 2, Sch.

23DRestriction on bail in certain solemn casesS

(1)Where subsection (2) or (3) below applies, a person is to be granted bail in solemn proceedings only if there are exceptional circumstances justifying bail.

(2)This subsection applies where the person—

(a)is accused in the proceedings of a violent or sexual offence; and

(b)has a previous conviction on indictment for a violent or sexual offence.

(3)This subsection applies where the person—

(a)is accused in the proceedings of a drug trafficking offence; and

(b)has a previous conviction on indictment for a drug trafficking offence.

(4)For the purposes of this section—

  • drug trafficking offence” has the meaning given by section 49(5) of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

  • sexual offence” has the meaning given by section 210A(10) and (11) of this Act;

  • violent offence” means any offence (other than a sexual offence) inferring personal violence.

(5)Any reference in this section to a conviction on indictment for a violent or sexual offence or a drug trafficking offence includes—

(a)a conviction on indictment in England and Wales or Northern Ireland for an equivalent offence;

(b)a conviction in a member State of the European Union (other than the United Kingdom) which is equivalent to conviction on indictment for an equivalent offence.

(6)Any issue of equivalence arising in pursuance of subsection (5) above is for the court to determine.

(7)This section is without prejudice to section 23C of this Act.]

24 Bail and bail conditions.S

(1)All crimes and offences F184. . . are bailable.

(2)Nothing in this Act shall affect the right of the Lord Advocate or the High Court to admit to bail any person charged with any crime or offence.

[F185(2A)Whenever the court grants or refuses bail, it shall state its reasons.

(2B)Where the court—

(a)grants bail to a person accused of a sexual offence (having the meaning given by section 210A(10) and (11) of this Act); and

(b)does so without imposing on the accused further conditions under subsection (4)(b)(i) below,

the court shall also state why it considers in the circumstances of the case that such conditions are unnecessary.]

(3)It shall not be lawful to grant bail or release for a pledge or deposit of money, and—

(a)release on bail may be granted only on conditions which subject to subsection (6) below, shall not include a pledge or deposit of money;

(b)liberation may be granted by the police under section 21, 22 or 43 of this Act.

(4)In granting bail the court or, as the case may be, the Lord Advocate shall impose on the accused—

(a)the standard conditions; and

(b)such further conditions as the court or, as the case may be, the Lord Advocate considers necessary to secure—

(i)that the standard conditions are observed; F186...

F186(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)The standard conditions referred to in subsection (4) above are conditions that the accused—

(a)appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due notice;[F187 or at which he is required by this Act to appear]

(b)does not commit an offence while on bail;

(c)does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person; F188. . .

[F189(ca)does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses;]

[F190(cb)whenever reasonably instructed by a constable to do so—

(i)participates in an identification parade or other identification procedure; and

(ii)allows any print, impression or sample to be taken from the accused;]

(d)makes himself available for the purpose of enabling enquiries or a report to be made to assist the court in dealing with him for the offence with which he is charged[F191; and

(e)where the (or an) offence in respect of which he is admitted to bail is one to which section 288C of this Act applies, does not seek to obtain, otherwise than by way of a solicitor, any precognition of or statement by the complainer in relation to the subject matter of the offence.]

(6)The court or, as the case may be, the Lord Advocate may impose as one of the conditions of release on bail a requirement that the accused or a cautioner on his behalf deposits a sum of money in court, but only where the court or, as the case may be, the Lord Advocate is satisfied that the imposition of such condition is appropriate to the special circumstances of the case.

[F192(6A)Subsection (6) above does not apply in relation to an accused admitted to bail under section 65(8C) of this Act.]

(7)In any enactment, including this Act and any enactment passed after this Act—

(a)any reference to bail shall be construed as a reference to release on conditions in accordance with this Act or to conditions imposed on bail, as the context requires;

(b)any reference to an amount of bail fixed shall be construed as a reference to conditions, including a sum required to be deposited under subsection (6) above;

(c)any reference to finding bail or finding sufficient bail shall be construed as a reference to acceptance of conditions imposed or the finding of a sum required to be deposited under subsection (6) above.

[F193(7A)In subsection (5)(e) above, “complainer” has the same meaning as in section 274 of this Act.]

(8)In this section and sections 25 and 27 to 29 of this Act, references to an accused and to appearance at a diet shall include references respectively to an appellant and to appearance at the court on the day fixed for the hearing of an appeal.

Textual Amendments

F184Words in s. 24(1) repealed (9.8.2000) by 2000 asp 9, s. 3(1)

F186S. 24(4)(b)(ii) and preceding word repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 58(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F187Words in s. 24(5)(a) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 5(a); S.S.I. 2004/405, art. 2 Sch. 1 (subject to arts. 3-5)

F192S. 24(6A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 5(b); S.S.I. 2004/405, art. 2 Sch. 1 (subject to arts. 3-5)

24ABail conditions: remote monitoring of restrictions on movementsS

F194. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24BRegulations as to power to impose remote monitoring requirements under section 24AS

F195. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24CMonitoring of compliance in pursuance of requirements imposed under section 24AS

F196. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24DRemote monitoringS

F197. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24EDocumentary evidence in proceedings for breach of bail conditions being remotely monitoredS

F198. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F199[F20024F]Bail: extradition proceedingsS

(1)In the application of the provisions of this Part by virtue of section 9(2) or 77(2) of the Extradition Act 2003 (judge’s powers at extradition hearing), those provisions apply with the modifications that—

(a)references to the prosecutor are to be read as references to a person acting on behalf of the territory to which extradition is sought;

(b)the right of the Lord Advocate mentioned in section 24(2) of this Act applies to a person subject to extradition proceedings as it applies to a person charged with any crime or offence;

(c)the following do not apply—

(i)paragraph (b) of section 24(3); and

(ii)subsection (3) of section 30; and

(d)sections 28(1) and 33 apply to a person subject to extradition proceedings as they apply to an accused.

(2)Section 32 of this Act applies in relation to a refusal of bail, the amount of bail or a decision to allow bail or ordain appearance in proceedings under this Part as the Part applies by virtue of the sections of that Act of 2003 mentioned in subsection (1) above.

(3)The Scottish Ministers may, by order, for the purposes of section 9(2) or 77(2) of the Extradition Act 2003 make such amendments to this Part as they consider necessary or expedient.

(4)The order making power in subsection (3) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.]

25 Bail conditions: supplementary.S

[F201(A1)When granting bail, the court shall (if the accused is present) explain to the accused in ordinary language—

(a)the effect of the conditions imposed;

(b)the effect of the requirement under subsection (2B) below; and

(c)the consequences which may follow a breach of any of those conditions or that requirement.

(B1)The accused shall (whether or not the accused is present when bail is granted) be given a written explanation in ordinary language of the matters mentioned in paragraphs (a) to (c) of subsection (A1) above.

(C1)Such a written explanation may be contained in the copy of the bail order given to the accused or in another document.]

(1)The court shall specify in the order granting bail, a copy of which shall be given to the accused—

(a)the conditions imposed; and

[F202(aa)that breach of a condition imposed is an offence and renders the accused liable to arrest, prosecution and punishment under this Act;]

(b)an address, within the United Kingdom (being the accused’s normal place of residence or such other place as the court may, on cause shown, direct) which, subject to subsection (2) below, shall be his proper domicile of citation.

(2)The court may on application in writing by the accused while he is on bail alter the address specified in the order granting bail, and this new address shall, as from such date as the court may direct, become his proper domicile of citation; and the court shall notify the accused of its decision on any application under this subsection.

[F203(2A)Where an application is made under subsection (2) above—

(a)the application shall be intimated by the accused immediately and in writing to the Crown Agent and for that purpose the application shall be taken to be intimated to the Crown Agent if intimation of it is sent to the procurator fiscal for the sheriff court district in which bail was granted ; and

(b)the court shall, before determining the application, give the prosecutor an opportunity to be heard.]

[F204(2B)Where the domicile of citation specified in an order granting bail ceases to be the accused's normal place of residence, the accused must make an application under subsection (2) above within 7 days of that happening.

(2C)A person who without reasonable excuse contravenes subsection (2B) above is guilty of an offence and is liable—

(a)on conviction in the JP court, to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 60 days or to both;

(b)in any other case, to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 12 months or to both.]

(3)In this section “proper domicile of citation” means the address at which the accused may be cited to appear at any diet relating to the offence with which he is charged or an offence charged in the same proceedings as that offence or to which any other intimation or document may be sent; and any citation at or the sending of an intimation or document to the proper domicile of citation shall be presumed to have been duly carried out.

[F205(4)In this section, references to the court (other than in subsection (2A)) shall, in relation to a person who has been admitted to bail by the Lord Advocate, be read as if they were references to the Lord Advocate.]

[F20625AFailure to accept conditions of bail under section 65(8C): continued detention of accusedS

An accused who—

(a)is, by virtue of subsection (4) of section 65 of this Act, entitled to be admitted to bail; but

(b)fails to accept any of the conditions imposed by the court on bail under subsection (8C) of that section,

shall continue to be detained under the committal warrant for so long as he fails to accept any of those conditions.]

Textual Amendments

F20726. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Textual Amendments

F207S. 26 repealed (9.8.2000) by 2000 asp 9, s. 3(2)

27 Breach of bail conditions: offences.S

(1)Subject to subsection (7) below, an accused who having been granted bail fails without reasonable excuse—

(a)to appear at the time and place appointed for any diet of which he has been given due notice [F208or at which he is required by this Act to appear] ; or

(b)to comply with any other condition imposed on bail,

shall, subject to subsection (3) below, be guilty of an offence and liable on conviction to the penalties specified in subsection (2) below.

(2)The penalties mentioned in subsection (1) above are—

(a)a fine not exceeding level 3 on the standard scale; and

(b)imprisonment for a period—

(i)where conviction is in the [F209JP court] , not exceeding 60 days; or

(ii)in any other case, not exceeding [F21012] months.

(3)Where, and to the extent that, the failure referred to in subsection (1)(b) above consists in the accused having committed an offence while on bail (in this section referred to as “the subsequent offence”), he shall not be guilty of an offence under that subsection but, subject to subsection (4) below, the court which sentences him for the subsequent offence shall, in determining the appropriate sentence or disposal for that offence, have regard to—

(a)the fact that the offence was committed by him while on bail and the number of bail orders to which he was subject when the offence was committed;

(b)any previous conviction of the accused of an offence under subsection (1)(b) above; and

(c)the extent to which the sentence or disposal in respect of any previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection.

[F211(3A)The reference in subsection (3)(b) to any previous conviction of an offence under subsection (1)(b) includes any previous conviction by a court in England and Wales, Northern Ireland or a member State of the European Union other than the United Kingdom of an offence that is equivalent to an offence under subsection (1)(b).

(3B)The references in subsection (3)(c) to subsection (3) are to be read, in relation to a previous conviction by a court referred to in subsection (3A), as references to any provision that is equivalent to subsection (3).

(3C)Any issue of equivalence arising in pursuance of subsection (3A) or (3B) is for the court to determine.]

(4)The court shall not, under subsection (3) above, have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.

[F212(4A)The fact that the subsequent offence was committed while the accused was on bail shall, unless challenged—

(a)in the case of proceedings on indictment, by giving notice of a preliminary objection [F213in accordance with section 71(2) or 72(6)(b)(i)] of this Act; or

(b)in summary proceedings, by preliminary objection before his plea is recorded,

be held as admitted.]

[F214(4B)In any proceedings in relation to an offence under subsection (1) above or subsection 7 below, the fact that (as the case may be) an accused—

(a)was on bail;

(b)was subject to any particular condition of bail;

(c)failed to appear at a diet; or

(d)was given due notice of a diet,

shall, unless challenged in the manner described in paragraph (a) or (b) of subsection (4A) above, be held as admitted.]

(5)Where the maximum penalty in respect of the subsequent offence is specified by or by virtue of any enactment, that maximum penalty shall, for the purposes of the court’s determination, by virtue of subsection (3) above, of the appropriate sentence or disposal in respect of that offence, be increased—

(a)where it is a fine, by the amount for the time being equivalent to level 3 on the standard scale; and

(b)where it is a period of imprisonment—

(i)as respects a conviction in the High Court or the sheriff court, by 6 months; and

(ii)as respects a conviction in the [F209JP court] , by 60 days,

notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.

(6)Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (3) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.

[F215(6A)Where, despite the requirement to have regard to the matters specified in paragraphs (a) to (c) of subsection (3) above, the sentence or disposal in respect of the subsequent offence is not different from that which the court would have imposed but for that subsection, the court shall state (as appropriate, by reference to those matters) the reasons for there being no difference.]

(7)An accused who having been granted bail in relation to solemn proceedings fails without reasonable excuse to appear at the time and place appointed for any diet of which he has been given due notice (where such diet is in respect of solemn proceedings) shall be guilty of an offence and liable on conviction on indictment to the following penalties—

(a)a fine; and

(b)imprisonment for a period not exceeding [F2165] years.

(8)At any time before the trial of an accused under solemn procedure for the original offence, it shall be competent—

(a)to amend the indictment to include an additional charge of an offence under this section;

(b)to include in the list of witnesses or productions relating to the original offence, witnesses or productions relating to the offence under this section.

[F217(8A)At any time before the trial of an accused in summary proceedings for the original offence, it is competent to amend the complaint to include an additional charge of an offence under this section.]

(9)[F218A penalty under subsection (2) or (7) above shall] 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.

[F219(9A)The reference in subsection (9) above to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention—

(a)where the sentences are imposed at the same time (whether or not in relation to the same complaint or indictment), framing the sentences so that they have effect consecutively;

(b)where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.

(9B)Subsection (9A)(b) above is subject to section 204A of this Act.]

(10)A court which finds an accused guilty of an offence under this section may remit the accused for sentence in respect of that offence to any court which is considering the original offence.

(11)In this section “the original offence” means the offence with which the accused was charged when he was granted bail or an offence charged in the same proceedings as that offence.

Textual Amendments

F209Words in s. 27(2)(b)(i)(5)(b)(ii) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(c); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F211S. 27(3A)-(3C) inserted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 71(1), 206(1), Sch. 4 para. 3; S.S.I. 2010/413, art. 2, Sch.

F212S. 27(4A) inserted (4.7.1996) by 1996 c. 25, s. 73(2)

28 Breach of bail conditions: arrest of offender, etc.S

(1)A constable may arrest without warrant an accused who has been released on bail where the constable has reasonable grounds for suspecting that the accused has broken, is breaking, or is likely to break any condition imposed on his bail.

[F220(1A)Where an accused who has been released on bail is arrested by a constable (otherwise than under subsection (1) above), the accused may be detained in custody under this subsection if the constable has reasonable grounds for suspecting that the accused has breached, or is likely to breach, any condition imposed on his bail.

(1B)Subsection (1A) above—

(a)is without prejudice to any other power to detain the accused;

(b)applies even if release of the accused would be required but for that subsection.]

(2)An accused who is arrested under [F221subsection (1) above, or is detained under subsection (1A) above,] shall wherever practicable be brought before the court to which his application for bail was first made not later than in the course of the first day after his arrest, such day not being, subject to subsection (3) below, a Saturday, a Sunday or a court holiday prescribed for that court under section 8 of this Act.

(3)Nothing in subsection (2) above shall prevent an accused being brought before a court on a Saturday, a Sunday or such a court holiday where the court is, in pursuance of the said section 8, sitting on such day for the disposal of criminal business.

(4)Where an accused is brought before a court under subsection (2) or (3) above, the court, after hearing the parties, may—

(a)recall the order granting bail;

(b)release the accused under the original order granting bail; or

(c)vary the order granting bail so as to contain such conditions as the court thinks it necessary to impose to secure that the accused complies with the requirements of paragraphs (a) to (d) of section 24(5) of this Act.

[F222(4A)In the case of an accused released on bail by virtue of section 65(8C) of this Act—

(a)subsection (2) above shall have effect as if the reference to the court to which his application for bail was first made were a reference to the court or judge which admitted him to bail under that section; and

(b)subsection (4) above shall not apply and subsection (4B) below shall apply instead.

(4B)Where an accused referred to in subsection (4A) above is, under subsection (2) or (3) above, brought before the court or judge which admitted him to bail under section 65(8C)—

(a)the court or judge shall give the prosecutor an opportunity to make an application under section 65(5) of this Act; and

(b)if the prosecutor does not make such an application, or if such an application is made but is refused, the court or judge may—

(i)release the accused under the original order granting bail; or

(ii)vary the order granting bail so as to contain such conditions as the court or judge thinks necessary to impose to secure that the accused complies with the requirements of paragraphs (a) to (d) of section 24(5) of this Act.]

(5)The same rights of appeal shall be available against any decision of the court under subsection (4) above as were available against the original order of the court relating to bail.

(6)For the purposes of this section and section 27 of this Act, an extract from the minute of proceedings, containing the order granting bail and bearing to be signed by the clerk of court, shall be sufficient evidence of the making of that order and of its terms and of the acceptance by the accused of the conditions imposed under section 24 of this Act.

29 Bail: monetary conditions.S

(1)Without prejudice to section 27 of this Act, where the accused or a cautioner on his behalf has deposited a sum of money in court under section 24(6) of this Act, then—

(a)if the accused fails to appear at the time and place appointed for any diet of which he has been given due notice, the court may, on the motion of the prosecutor, immediately order forfeiture of the sum deposited;

(b)if the accused fails to comply with any other condition imposed on bail, the court may, on conviction of an offence under section 27(1)(b) of this Act and on the motion of the prosecutor, order forfeiture of the sum deposited.

(2)If the court is satisfied that it is reasonable in all the circumstances to do so, it may recall an order made under subsection (1)(a) above and direct that the money forfeited shall be refunded, and any decision of the court under this subsection shall be final and not subject to review.

(3)A cautioner, who has deposited a sum of money in court under section 24(6) of this Act, shall be entitled, subject to subsection (4) below, to recover the sum deposited at any diet of the court at which the accused appears personally.

(4)Where the accused has been charged with an offence under section 27(1)(b) of this Act, nothing in subsection (3) above shall entitle a cautioner to recover the sum deposited unless and until—

(a)the charge is not proceeded with; or

(b)the accused is acquitted of the charge; or

(c)on the accused’s conviction of the offence, the court has determined not to order forfeiture of the sum deposited.

(5)The references in subsections (1)(b) and (4)(c) above to conviction of an offence shall include references to the making of an order in respect of the offence under section 246(3) of this Act.

30 Bail review.S

(1)This section applies where a court has refused to admit a person to bail or, where a court has so admitted a person, the person has failed to accept the conditions imposed or that a sum required to be deposited under section 24(6) of this Act has not been so deposited.

[F223(1A)This section also applies where a person who has accepted the conditions imposed on his bail wants to have any of them removed or varied.]

(2)A court shall, on the application of any person mentioned in subsection (1) [F224 or (1A) above, have power to review (in favour of the person) its decision as to bail, or its decision as to the conditions imposed, if—

(a)the circumstances of the person have changed materially; or

(b)the person puts before the court material information which was not available to it when its decision was made.]

[F225[F226(2A)On receipt of an application under subsection (2), the court must—

(a)intimate the application to the prosecutor, and

(b)before determining the application, give the prosecutor an opportunity to be heard.

(2AA)Despite subsection (2A)(b), the court may grant the application without having heard the prosecutor if the prosecutor consents.]

(2B)Subsection (2C) below applies where an application is made under subsection (2) above by a person convicted on indictment pending the 5determination of—

(a)his appeal;

(b)any relevant appeal by the Lord Advocate under section 108 or 108A of this Act; or

(c)the sentence to be imposed on, or other method of dealing with, him.

(2C)Where this subsection applies the application shall be—

(a)intimated by the person making it immediately and in writing to the Crown Agent; and

(b)[F227determined] not less than 7 days after the date of that intimation.]

(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 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 conditions imposed.

31 Bail review on prosecutor’s application.S

(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.

[F228(2ZA)Despite subsection (2)(b), the court may grant the application without fixing a hearing if the person granted bail consents.]

[F229(2A)Subsection (2B) below applies to an application under subsection (1) above where the person granted bail—

(a)was convicted on indictment; and

(b)was granted bail pending the determination of—

(i)his appeal;

(ii)any relevant appeal by the Lord Advocate under section 108 or 108A of this Act; or

(iii)the sentence to be imposed on, or other method of dealing with, him.

(2B)Where this subsection applies, the application shall be heard not more than 7 days after the day on which it is made.]

(3)On F230... 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.

[F231(3A)In relation to an accused admitted to bail under section 65(8C) of this Act—

(a)an application may be made under subsection (1) above only in relation to the conditions imposed on bail; and

(b)paragraph (a) of subsection (3) above shall not apply in relation to any such application.]

(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.

32 Bail appeal.S

(1)[F232Where, in any case, bail] is refused or where the [F233accused] is dissatisfied with the amount of bail fixed, he may appeal to the High Court which may, in its discretion order intimation to the Lord Advocate or, as the case may be, the prosecutor.

(2)Where, in any case, F234. . . bail is granted, or, in summary proceedings an accused is ordained to appear, the public prosecutor, if dissatisfied—

(a)with the decision allowing bail;

(b)with the amount of bail fixed; or

(c)in summary proceedings, that the accused has been ordained to appear,

may appeal to the High Court, and the [F233accused] shall not be liberated, subject to subsection (7) below, until the appeal by the prosecutor is disposed of.

[F235(2A)The public prosecutor may, in relation to an accused admitted to bail under section 65(8C) of this Act, appeal under subsection (2) above only in relation to the conditions imposed on bail.]

(3)Written notice of appeal shall be immediately given to the opposite party by a party appealing under this section.

[F236(3A)A notice of appeal under this section is to be lodged with the clerk of the court from which the appeal is to be taken.

(3B)When an appeal is made under this section, that clerk shall without delay—

(a)send a copy of the notice of appeal to the judge whose decision is the subject of the appeal; and

(b)request the judge to provide a report of the reasons for that decision.

(3C)The judge shall, as soon as is reasonably practicable, provide that clerk with the judge's report of those reasons.

(3D)The clerk of court (where not the Clerk of Justiciary) shall send the notice of appeal without delay to the Clerk of Justiciary.

(3E)That clerk (where not the Clerk of Justiciary) shall, before the end of the day after the day of receipt of the notice of appeal, send the judge's report (if provided by then) to the Clerk of Justiciary.

(3F)The Clerk of Justiciary shall, upon receipt of the notice of appeal, without delay fix a diet for the hearing of the appeal.

(3G)The Clerk of Justiciary shall send a copy of the judge's report to—

(a)the accused or his solicitor; and

(b)the Crown Agent.

(3H)Where the judge's report is not sent as mentioned in subsection (3E) above—

(a)the High Court may call for the report to be submitted to it within such period as it may specify; or

(b)if it thinks fit, hear and determine the appeal without the report.

(3I)Subject to subsection (3G) above, the judge's report shall be available only to the High Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of person as may be so prescribed.]

(4)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 parties as shall seem just.

(5)Where an [F233accused] in an appeal under this section is under 21 years of age, section 51 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 [F233accused’s] age for trial or sentence.

(6)In the event of the appeal of the public prosecutor under this section being refused, the court may award expenses against him.

(7)When an appeal is taken by the public prosecutor either against the grant of bail or against the amount fixed, the [F233accused] to whom bail has been granted [F237(other than an accused to whom subsection (7B) below applies)] shall, if the bail fixed has been found by him, be liberated after 72 hours from the granting of [F238bail], whether the appeal has been disposed of or not, unless the High Court grants an order for his further detention in custody.

[F239(7B)Where, in relation to an accused admitted to bail under section 65(8C) of this Act, the public prosecutor appeals against the conditions imposed on bail, the accused—

(a)may continue to be detained under the committal warrant for no more than 72 hours from the granting of bail or for such longer period as High Court may allow; and

(b)on expiry of that period, shall, whether the appeal has been disposed of or not, be released on bail subject to the conditions imposed.]

(8)In computing the period mentioned in subsection (7) above, Sundays and public holidays, whether general or court holidays, shall be excluded.

(9)When an appeal is taken under this section by the prosecutor in summary proceedings against the fact that the accused has been ordained to appear, subsections (7) and (8) above shall apply as they apply in the case of an appeal against the granting of bail or the amount fixed.

(10)Notice to the governor of the prison of the issue of an order such as is mentioned in subsection (7) above within the time mentioned in that subsection bearing to be sent by the Clerk of Justiciary or the Crown Agent shall be sufficient warrant for the detention of the [F233accused]pending arrival of the order in due course of post.

Textual Amendments

F232Words in s. 32(1) substituted (9.8.2000) by 2000 asp 9, s. 4

F233Words in s. 32(1)(2)(5)(7)(10) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(2)(a)

F234Words in s. 32(2) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(2)(b)

F238Words in s. 32(7) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(2)(c)

[F24032ABail after conviction: prosecutor's attitudeS

(1)Where—

(a)a person has been convicted in any proceedings of an offence; and

(b)a question of bail (including as to bail conditions) subsequently arises in the proceedings (whether before sentencing or pending appeal or otherwise),

the prosecutor and the convicted person must be given an opportunity to make submissions in relation to the question.

(2)But the attitude of the prosecutor towards the question does not restrict the court's exercise of its discretion in determining the question in accordance with the rules applying in the case.

(3)Despite subsection (1) above, the prosecutor need not be given an opportunity to make submissions in relation to a question of bail arising under section 245J of this Act.

(4)This section is without prejudice to any other right of the parties to be heard.]

33 Bail: no fees exigible.S

No clerks fees, court fees or other fees or expenses shall be exigible from or awarded against an accused in respect of [F241a decision on bail under section 22A above, an] application for bail or of the appeal of such [F242a decision or] application to the High Court.

Textual Amendments

F241Words in s. 33 substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(3)(a)

F242Words in s. 33 inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(3)(b)

PART IVS Petition Procedure

WarrantsS

34 Petition for warrant.S

(1)A petition for warrant to arrest and commit a person suspected of or charged with crime may be in the forms—

(a)set out in Schedule 2 to this Act; or

(b)prescribed by Act of Adjournal,

or as nearly as may be in such form; and Schedule 3 to this Act shall apply to any such petition as it applies to the indictment.

(2)If on the application of the procurator fiscal, a sheriff is satisfied that there is reasonable ground for suspecting that an offence has been or is being committed by a body corporate, the sheriff shall have the like power to grant warrant for the citation of witnesses and the production of documents and articles as he would have if a petition charging an individual with the commission of the offence were presented to him.

[F243Petition proceedings outwith sheriffdomS

Textual Amendments

34APetition proceedings outwith sheriffdomS

(1)Where the prosecutor believes—

(a)that, because of exceptional circumstances (and without an order under subsection (3) below), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases on petition in the sheriff courts in the sheriffdom; and

(b)that it would not be practicable for those courts to deal with all the cases involved,

the prosecutor may apply to the sheriff principal for the order referred to in subsection (2) below.

(2)For the purposes of subsection (1) above, the order is for authority for petition proceedings against some or all of the accused persons to be—

(a)taken at a sheriff court in another sheriffdom; and

(b)maintained—

(i)there; or

(ii)at any of the sheriff courts referred to in subsection (1) above as may at the first calling of the case be appointed for further proceedings.

(3)On an application under subsection (1) above, the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.

(4)An order under subsection (3) above may be made by reference to a particular period or particular circumstances.

(5)This section does not confer jurisdiction for any subsequent proceedings on indictment.]

Judicial examinationS

35 Judicial examination.S

(1)The accused’s solicitor shall be entitled to be present at the examination.

(2)The sheriff may delay the examination for a period not exceeding 48 hours from and after the time of the accused’s arrest, in order to allow time for the attendance of the solicitor.

(3)Where the accused is brought before the sheriff for examination on any charge and he or his solicitor intimates that he does not desire to emit a declaration in regard to such a charge, it shall be unnecessary to take a declaration, and, subject to section 36 of this Act, the accused may be committed for further examination or until liberated in due course of law without a declaration being taken.

(4)Nothing in subsection (3) above shall prejudice the right of the accused subsequently to emit a declaration on intimating to the prosecutor his desire to do so; and that declaration shall be taken in further examination.

[F244(4A)An accused charged with a sexual offence to which section 288C of this Act applies shall, as soon as he is brought before the sheriff for examination on the charge, be told—

[F245(a)that his case at, or for the purposes of, any relevant hearing (within the meaning of section 288C(1A)) in the course of the proceedings may be conducted only by a lawyer,]

(b)that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and

(c)that, if he does not engage a solicitor for the purposes of [F246the conduct of his case at or for the purposes of the] [F247hearing], the court will do so.

(4B)A failure to comply with subsection (4A) above does not affect the validity or lawfulness of the examination or of any other element of the proceedings against the accused.]

(5)Where, subsequent to examination or further examination on any charge, the prosecutor desires to question the accused as regards an extrajudicial confession, whether or not a full admission, allegedly made by him to or in the hearing of a constable, which is relevant to the charge and as regards which he has not previously been examined, the accused may be brought before the sheriff for further examination.

(6)Where the accused is brought before the sheriff for further examination the sheriff may delay that examination for a period not exceeding 24 hours in order to allow time for the attendance of the accused’s solicitor.

(7)Any proceedings before the sheriff in examination or further examination shall be conducted in chambers and outwith the presence of any co-accused.

(8)This section applies to procedure on petition, without prejudice to the accused being tried summarily by the sheriff for any offence in respect of which he has been committed until liberated in due course of law.

36 Judicial examination: questioning by prosecutor.S

(1)Subject to the following provisions of this section, an accused on being brought before the sheriff for examination on any charge (whether the first or a further examination) may be questioned by the prosecutor in so far as such questioning is directed towards eliciting any admission, denial, explanation, justification or comment which the accused may have as regards anything to which subsections (2) to (4) below apply.

(2)This subsection applies to matters averred in the charge, and the particular aims of a line of questions under this subsection shall be to determine—

(a)whether any account which the accused can give ostensibly discloses a defence; and

(b)the nature and particulars of that defence.

(3)This subsection applies to the alleged making by the accused, to or in the hearing of a constable, of an extrajudicial confession (whether or not a full admission) relevant to the charge, and questions under this subsection may only be put if the accused has, before the examination, received from the prosecutor or from a constable a written record of the confession allegedly made.

(4)This subsection applies to what is said in any declaration emitted in regard to the charge by the accused at examination.

(5)The prosecutor shall, in framing questions in exercise of his power under subsection (1) above, have regard to the following principles—

(a)the question should not be designed to challenge the truth of anything said by the accused;

(b)there should be no reiteration of a question which the accused has refused to answer at the examination; and

(c)there should be no leading questions,

and the sheriff shall ensure that all questions are fairly put to, and understood by, the accused.

(6)The accused shall be told by the sheriff—

(a)where he is represented by a solicitor at the judicial examination, that he may consult that solicitor before answering any question; and

(b)that if he answers any question put to him at the examination under this section in such a way as to disclose an ostensible defence, the prosecutor shall be under the duty imposed by subsection (10) below.

(7)With the permission of the sheriff, the solicitor for the accused may ask the accused any question the purpose of which is to clarify any ambiguity in an answer given by the accused to the prosecutor at the examination or to give the accused an opportunity to answer any question which he has previously refused to answer.

(8)An accused may decline to answer a question under subsection (1) above; and, where he is subsequently tried on the charge mentioned in that subsection or on any other charge arising out of the circumstances which gave rise to the charge so mentioned, his having so declined may be commented upon by the prosecutor, the judge presiding at the trial, or any co-accused, only where and in so far as the accused (or any witness called on his behalf) in evidence avers something which could have been stated appropriately in answer to that question.

(9)The procedure in relation to examination under this section shall be prescribed by Act of Adjournal.

(10)Without prejudice to any rule of law, on the conclusion of an examination under this section the prosector shall secure the investigation, to such extent as is reasonably practicable, of any ostensible defence disclosed in the course of the examination.

(11)The duty imposed by subsection (10) above shall not apply as respects any ostensible defence which is not reasonably capable of being investigated.

37 Judicial examination: record of proceedings.S

(1)The prosecutor shall provide for a verbatim record to be made by means of shorthand notes or by mechanical means of all questions to and answers and declarations by the accused in examination, or further examination, under sections 35 and 36 of this Act.

(2)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.

(3)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.

(4)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.

(5)A transcript certified under subsection (4)(b) above shall, subject to section 38(1) of this Act, be deemed for all purposes to be a complete and correct record of the questions, answers and declarations mentioned in subsection (1) above.

(6)Subject to subsections (7) to (9) below, within 14 days of the date of examination or further examination, the prosecutor shall—

(a)serve a copy of the transcript on the accused examined; and

(b)serve a further such copy on the solicitor (if any) for that accused.

(7)Where at the time of further examination a trial diet is already fixed and the interval between the further examination and that diet is not sufficient to allow of the time limits specified in subsection (6) above and subsection (1) of section 38 of this Act, the sheriff shall (either or both)—

(a)direct that those subsections shall apply in the case with such modifications as to time limits as he shall specify;

(b)subject to subsection (8) below, postpone the trial diet.

(8)Postponement under paragraph (b) of subsection (7) above alone shall only be competent where the sheriff considers that to proceed under paragraph (a) of that subsection alone, or paragraphs (a) and (b) together, would not be practicable.

(9)Any time limit mentioned in subsection (6) above and subsection (1) of section 38 of this Act (including any such time limit as modified by a direction under subsection (7) above) may be extended, in respect of the case, by the High Court [F248; and an application to the High Court for any such extension shall be disposed of by the High Court or any Lord Commissioner of Justiciary in court or in chambers.]

(10)A copy of—

(a)a transcript required by paragraph (a) of subsection (6) above to be served on an accused or by paragraph (b) of that subsection to be served on his solicitor; or

(b)a notice required by paragraph (a) of section 38(1) of this Act to be served on an accused or on the prosecutor,

shall be served in such manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served such transcript or notice, together with, where appropriate, the relevant post office receipt shall be sufficient evidence of service of such a copy.

Textual Amendments

F248Words in s. 37(9) added (1.12.1998) by S.I. 1998/2635, para. 2

38 Judicial examination: rectification of record of proceedings.S

(1)Subject to subsections (7) to (9) of section 37 of this Act, where notwithstanding the certification mentioned in subsection (5) of that section the accused or the prosecutor is of the opinion that a transcript served under paragraph (a) of subsection (6) of that section contains an error or is incomplete he may—

(a)within 10 days of service under the said paragraph (a), serve notice of such opinion on the prosecutor or as the case may be the accused; and

(b)within 14 days of service under paragraph (a) of this subsection, apply to the sheriff for the error or incompleteness to be rectified,

and the sheriff shall within 7 days of the application hear the prosecutor and the accused in chambers and may authorise rectification.

(2)Where—

(a)the person on whom notice is served under paragraph (a) of subsection (1) above agrees with the opinion to which that notice relates the sheriff may dispense with such hearing;

(b)the accused neither attends, nor secures that he is represented at, such hearing it shall, subject to paragraph (a) above, nevertheless proceed.

(3)In so far as it is reasonably practicable so to arrange, the sheriff who deals with any application made under subsection (1) above shall be the sheriff before whom the examination or further examination to which the application relates was conducted.

(4)Any decision of the sheriff, as regards rectification under subsection (1) above, shall be final.

39 Judicial examination: charges arising in different districts.S

(1)An accused against whom there are charges in more than one sheriff court district may be brought before the sheriff of any one such district at the instance of the procurator fiscal of such district for examination on all or any of the charges.

(2)Where an accuse