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Criminal Procedure (Scotland) Act 1995

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Changes over time for: Criminal Procedure (Scotland) Act 1995 (without Schedules)

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Version Superseded: 04/07/1996

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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 attend a sitting of the High Court, the prosecutor may, at any time before the commencement of his trial, apply to the Court to transfer the case to another sitting of the High Court; 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.

(4)Where no cases have been indicted for 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 any case remains indicted for 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.

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 three 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 three 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 and breach of duty by magistrates.

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 three months.

(3)Where a person is convicted by the sheriff of—

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

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

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

(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.

District courtsS

6 District courts: area, constitution and prosecutor.S

(1)Each commission area shall be the district of a district court, and the places at which a district court sits and, subject to section 8 of this Act, the days and times when it sits at any given place, shall be determined by the local authority; and in determining where and when a district court should sit, the local authority shall have regard to the desirability of minimising the expense and inconvenience occasioned to those directly involved, whether as parties or witnesses, in the proceedings before the court.

(2)The jurisdiction and powers of the district 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 commission area shall proceed at the instance of the procurator fiscal.

(4)The procurator fiscal for an area which includes a commission area shall have all the powers and privileges conferred on a district prosecutor by section 6 of the M2District Courts (Scotland) Act 1975.

(5)The prosecutions authorised by the said Act of 1975 under complaint by the procurator fiscal shall be without prejudice to complaints at the instance of any other person entitled to make the same.

(6)In this section—

  • commission area” means the area of a local authority;

  • justice” means a justice of the peace appointed or deemed to have been appointed under section 9 of the said Act of 1975; and

  • local authority” means a council constituted under section 2 of the M3Local Government (Scotland) Act 1994.

Marginal Citations

7 District court: jurisdiction and powers.S

(1)A district court shall continue to have all the jurisdiction and powers exercisable by it at the commencement of this Act.

(2)Where several offences, which if committed in one commission area could be tried under one complaint, are alleged to have been committed in different commission areas, proceedings may be taken for all or any of those offences under one complaint before the district court of any one of such commission areas, and any such offence may be dealt with, heard, tried, determined, adjudged and punished as if the offence had been wholly committed within the jurisdiction of that court.

(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 district court to try any statutory offence which is triable summarily.

(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 district 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 district court when constituted by a stipendiary magistrate shall, in addition to the jurisdiction and powers mentioned in subsection (1) above, have the summary criminal jurisdiction and powers of a sheriff.

(6)The district 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 district 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 district court shall not have jurisdiction to try or to pronounce sentence in the case of any person—

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

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

(i)murder, culpable homicide, robbery, rape, 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 district 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.

Sittings of sheriff and district courtsS

8 Sittings of sheriff and district courts.S

(1)Notwithstanding any enactment or rule of law, a sheriff court or a district 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 M4Sheriff Courts (Scotland) Act 1971 prescribe in respect of criminal business not more than 10 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 M5Banking 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)Notwithstanding section 6(1) of this Act, a sheriff principal may, after consultation with the appropriate local authority, prescribe not more than 10 days, other than Saturdays and Sundays, in a calendar year as court holidays in the district courts within his jurisdiction; and he may, after such consultation, 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 district courts.

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 under one indictment or complaint, are alleged to have been committed by any person in different sheriff court districts, the accused may be tried for all or any of those offences under one indictment or complaint before the sheriff of any one of such sheriff court districts.

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

Valid from 27/06/2003

[F19ACompetence of justice’s actings outwith jurisdictionS

It 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.]

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 indicted to the sheriff 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 under one indictment.

(3)Where, in pursuance of subsection (1) above, a case is tried in the sheriff 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.

Valid from 10/03/2008

[F210AJurisdiction 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.

(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; and

(b)the like powers in relation to such cases as he has for the purposes of criminal proceedings which otherwise come before that sheriff.

(3)Subsections (1) and (2) above, and the provisions mentioned in subsection (1) above, are without prejudice to sections 4, 9 and 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 proceeded against, indicted, 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 dealt with, indicted, tried and punished in Scotland in like manner as if he had stolen it in Scotland.

Valid from 04/09/1998

[F311A Conspiracy to commit offences outside the United Kingdom.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 in a country or territory outside the United Kingdom.

(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 the law in force in the country or territory where the act or other event was intended to take place; and conduct punishable under the law in force in the country or territory is an offence under that law for the purposes of this section however it is described in that law.

(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.]

Textual Amendments

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 his name and address 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 his name and address.

(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 name and address 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 his name and address; 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 his name and address 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)Detention under subsection (1) above shall be terminated not more than six 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 six 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 M6Prisons (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 six 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 subsection (1)(b) of section 15 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) 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 his name and address, and a constable shall so inform him both on so detaining him and on arrival at the police station or other premises.

Marginal Citations

Valid from 30/10/2010

[F414AExtension 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.

Valid from 30/10/2010

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 Rights of person arrested or detained.S

(1)Without prejudice to section 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 solicitor and to one other 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 section 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 actual custody of a child.

Valid from 30/10/2010

[F515ARight 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.

Valid from 01/11/2002

[F617A 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—

(a)that, if he is tried for the offence charged, his defence 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 his defence at the trial, 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 fingerprints, palm prints and such other prints and impressions of an external part of the body 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.

(3)Subject to subsection (4) below, all record of any prints or impressions taken under subsection (2) above, all samples taken under subsection (6) 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) 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)from the inside of the mouth, by means of swabbing, a sample of saliva or other material.

(7)A constable may use reasonable force in exercising any power conferred by subsection (2) or (6) 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 prints, impressions or samples under the authority of a warrant.

Valid from 01/01/2007

[F718ARetention of samples etc.: prosecutions for sexual and violent offencesS

(1)This section applies to any sample, or any information derived from a sample, taken under subsection (6) or (6A) of section 18 of this Act, where the condition in subsection (2) below 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 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 sample or information 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.

(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 sample or information 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 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 the same meanings as in section 19A(6) of this Act and include any attempt, conspiracy or incitement to commit such an offence.]

Valid from 28/03/2011

[F818BRetention 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;.

Valid from 28/03/2011

18CSection 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.]

Valid from 28/03/2011

[F918DRetention 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.]

Valid from 13/12/2010

[F1018ERetention 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

F10Ss. 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)

Valid from 13/12/2010

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

F10Ss. 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)This section applies where a person convicted of an offence—

(a)has not, since the conviction, had a sample, print or impression taken from him; or

(b)has (whether before or after the conviction) had a sample, print or impression taken from him but it was not suitable for the means of analysis for which it 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—

(a)take from the convicted person fingerprints, palmprints and such other prints and impressions of an external part of the body as the constable reasonably considers it appropriate to take; and

(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 (d) of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample.

(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 the sample, print or impression 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.

Valid from 17/11/1997

[F1119A 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; and

(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 (d) of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample.

(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 section 19(1)(a) of this Act or under this section 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 M7Crime 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;

    (b)

    clandestine injury to women;

    (c)

    abduction of a woman with intent to rape;

    (d)

    assault with intent to rape or ravish;

    (e)

    indecent assault;

    (f)

    lewd, indecent or libidinous behaviour or practices;

    (g)

    shameless indecency;

    (h)

    sodomy; and

    (i)

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

    (i)

    section 52 of the M8Civic 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)

    section 106 of the M9Mental Health (Scotland) Act 1984 (protection of mentally handicapped females);

    (iv)

    section 107 of that Act (protection of patients);

    (v)

    section 1 of the M10Criminal 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);

  • 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 M11Explosive Substances Act 1883;

    (ii)

    section 12 of the M12Children 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 M13Firearms Act 1968;

    (iv)

    section 6 of the M14Child Abduction Act 1984 (taking or sending child out of the United Kingdom); and

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

    (a)

    a hospital 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.

(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); 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.]

Valid from 01/09/2006

[F1219AASamples 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).”.

Valid from 01/09/2006

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.]

Valid from 17/11/1997

[F1319B Power of constable in obtaining relevant physical data etc.S

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;

(b)exercising any power conferred by section 18(6), 19(2)(b) or 19A(2)(b) of this Act.]

Textual Amendments

F13S. 19(B) inserted (17.11.1997) by 1997 c. 48, s. 48(2); S.I. 1997/2694, art. 2(2)(b)

Valid from 01/08/2011

[F1419CSections 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, prints, 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 prints, impressions, samples and information.

Valid from 01/01/2007

[F15Testing for Class A drugsS

Textual Amendments

F15Ss. 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)Where a person has been arrested under this section, the officer in charge of a police station may—

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

(b)liberate him without any such undertaking; or

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

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

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

(b)imprisonment for a period—

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

(ii)in any other case, not exceeding 3 months.

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

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

Police liberationS

22 Liberation by police.S

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

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

(b)liberate him without any such undertaking; or

(c)refuse to liberate him.

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

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

(b)imprisonment for a period—

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

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

(3)The refusal of the officer in charge to liberate a person under subsection (1)(c) above and the detention of that person until his case is tried in the usual form shall not subject the officer to any claim whatsoever.

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

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

Modifications etc. (not altering text)

C1S. 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

Valid from 28/03/2011

[F1622ZAOffences 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.

Valid from 28/03/2011

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.]

PART IIIS Bail

Valid from 09/08/2000

[F1722A 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 and within the period specified in subsection (2) below, either admit or refuse to admit that person to bail.

(2)That period is the period of 24 hours beginning with the time when the person accused or charged is brought before the sheriff or judge.

(3)If, by the end of that period, 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.]

Textual Amendments

F17S. 22A inserted before s. 23 (9.8.2000) by 2000 asp 9, s. 1

23 Bail applications.S

(1)Any person accused on petition of a crime which is by law bailable shall be entitled immediately, on any 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, except murder or treason, and having given the prosecutor an opportunity to be heard, admit or refuse to admit the person to bail.

(6)Where a person is charged on complaint with an offence, any judge having jurisdiction to try the offence may, at his discretion, on the application of the accused and after giving the prosecutor an opportunity to be heard, admit or refuse to admit the accused to bail.

(7)An application under subsection (5) or (6) above shall be disposed of within 24 hours after 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.

Valid from 09/08/2000

[F1823A Bail and liberation where person already in custodyS

(1)A person may be admitted to bail under section 22A or 23 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 22A(3) or 23(7) 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 or 23 of this Act.]

Textual Amendments

F18S. 23A inserted (9.8.2000) by 2000 asp 9, s. 2

Valid from 10/12/2007

[F1923BEntitlement 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.

Valid from 10/12/2007

[F1923CGrounds 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 outwith Scotland);

(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.]

Valid from 10/12/2007

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 except, subject to subsection (2) below, murder and treason 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.

(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; and

(ii)that the accused makes himself available for the purpose of participating in an identification parade or of enabling any print, impression or sample to be taken from him.

(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;

(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; and

(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.

(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.

(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.

(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.

Valid from 04/10/2004

24BRegulations as to power to impose remote monitoring requirements under section 24AS

(1)The Scottish Ministers may by regulations prescribe—

(a)which courts, or description or descriptions of courts, may impose remote monitoring requirements under section 24A(1) or (2) of this Act;

(b)what method or methods of monitoring compliance with a movement restriction condition may be specified in any such requirement by any such court; and

(c)the description or descriptions of persons in respect of whom such requirements may be imposed.

(2)Regulations under subsection (1) above may make different provision in relation to the matters mentioned in paragraphs (b) and (c) of that subsection in relation to different courts or descriptions of courts.

(3)Without prejudice to the generality of subsection (1) above, in relation to district courts, regulations under that subsection may make provision as respects such courts by reference to whether the court is constituted by a stipendiary magistrate or by one or more justices.

(4)Regulations under subsection (1) above may make such transitional and consequential provisions, including provision in relation to the continuing effect of any remote monitoring requirements imposed under section 24A(1) or (2) in force when new regulations are made, as the Scottish Ministers consider appropriate.

(5)Regulations under subsection (1) above shall be made by statutory instrument and a statutory instrument containing any such regulations (other than the first such regulations) shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(6)The first regulations under subsection (1) above shall not be made unless a draft of the statutory instrument containing the regulations has been laid before, and approved by resolution of, the Parliament.

Valid from 04/10/2004

24CMonitoring of compliance in pursuance of requirements imposed under section 24AS

(1)Where the Scottish Ministers, in regulations under section 24B(1) of this Act, empower a court or a description of court to impose remote monitoring requirements under section 24A(1) or (2) of this Act they shall notify the court or, as the case may be, each court of that description of the person or description of persons who may be designated by that court for the purpose of monitoring the compliance with any movement restriction condition of the person in respect of whom the requirement is imposed.

(2)A court which imposes a remote monitoring requirement under section 24A(1) or (2) of this Act shall include provisions in the requirement for making a person notified by the Scottish Ministers under subsection (1) above or a description of persons so notified responsible for monitoring the compliance of the person in respect of whom it is imposed with the movement restriction condition in respect of which it is imposed.

(3)Where the Scottish Ministers change the person or description of persons notified by them under subsection (1) above, any court which has imposed a remote monitoring requirement under 24A(1) or (2) of this Act shall, if necessary, vary the requirement accordingly and shall notify the variation to the person in respect of whom the order was made.

Valid from 04/10/2004

24DRemote monitoringS

(1)The Scottish Ministers may make such arrangements, including contractual arrangements, as they consider appropriate with such persons, whether legal or natural, as they think fit for the remote monitoring, in pursuance of remote monitoring requirements imposed under section 24A(1) or (2), of the compliance of persons in respect of whom such requirements are imposed with the movement restriction conditions in respect of which they are imposed.

(2)Different arrangements may be made under subsection (1) above in relation to different areas or different forms of remote monitoring.

(3)A court imposing a remote monitoring requirement under section 24A(1) or (2) of this Act shall include in the requirement, as a further condition of bail, a requirement that the person in respect of whom it is imposed—

(a)shall, either continuously or for such periods as may be specified, wear or carry a device for the purpose of enabling the remote monitoring of his compliance with the movement restriction condition in respect of which it is imposed to be carried out; and

(b)shall not tamper with or intentionally damage the device or knowingly allow it to be tampered with or intentionally damaged.

(4)The Scottish Ministers shall by regulations specify devices which may be used for the purpose of remotely monitoring the compliance of persons in respect of whom remote monitoring requirements have been imposed under section 24A(1) or (2) of this Act with the movement restriction conditions in respect of which they are imposed.

(5)Regulations under subsection (4) above shall be made by statutory instrument and a statutory instrument containing such regulations shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

Valid from 04/10/2004

24EDocumentary evidence in proceedings for breach of bail conditions being remotely monitoredS

(1)This section applies in proceedings against a person (referred to in this section as “the accused”) for an offence under subsection (1)(b) of section 27 of this Act (failure to comply with a condition imposed on bail) where the condition referred to in that subsection is—

(a)a movement restriction condition in respect of which a remote monitoring requirement has been imposed under section 24A(1) or (2); or

(b)a requirement imposed under section 24D(3)(b) of this Act.

(2)Evidence of—

(a)in the case referred to in subsection (1)(a) above, the presence or absence of the accused at a particular place at a particular time; or

(b)in the case referred to in subsection (1)(b) above, any tampering with or damage to a device worn or carried by the accused for the purpose of remotely monitoring his whereabouts,

may, subject to subsections (5) and (6) below, be given by the production of the document or documents referred to in subsection (3) below.

(3)That document or those documents is or are a document or documents bearing to be—

(a)a statement automatically produced by a device specified in regulations made under section 24D(4) of this Act, by which the accused’s whereabouts were remotely monitored; and

(b)a certificate signed by a person nominated for the purpose of this paragraph by the Scottish Ministers that the statement relates to—

(i)in the case referred to in subsection (1)(a) above, the whereabouts of the accused at the dates and times shown in the statement; or

(ii)in the case referred to in subsection (1)(b) above, any tampering with or damage to the device.

(4)The statement and certificate mentioned in subsection (3) above shall, when produced in the proceedings, be sufficient evidence of the facts set out in them.

(5)Neither the statement nor the certificate mentioned in subsection (3) above shall be admissible in evidence unless a copy of both has been served on the accused prior to the trial.

(6)Without prejudice to subsection (5) above, where it appears to the court that the accused has had insufficient notice of the statement or certificate, it may adjourn the trial or make an order which it thinks appropriate in the circumstances.

Valid from 01/01/2004

[F2024ABail: 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.]

Textual Amendments

25 Bail conditions: supplementary.S

(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

(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.

(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.

Valid from 01/02/2005

[F2125AFailure 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

26 Bail: circumstances where not available.S

(1)Notwithstanding sections 23, 24 (except subsection (2)), 30, 32, 33 and 112 of this Act, a person who in any proceedings has been charged with or convicted of—

(a)attempted murder;

(b)culpable homicide;

(c)rape; or

(d)attempted rape,

in circumstances where this section applies shall not be granted bail in those proceedings.

(2)This section applies where—

(a)the person has previously been convicted by or before a court in any part of the United Kingdom of any offence specified in subsection (1) above or of murder or manslaughter; and

(b)in the case of a previous conviction of culpable homicide or of manslaughter—

(i)he was sentenced to imprisonment or, if he was then a child or young person, to detention under any of the relevant enactments;

(ii)a hospital order was imposed in respect of him;

(iii)an order having the same effect as a hospital order was made in respect of him under section 57(2)(a) of this Act; or

(iv)an order having equivalent effect to an order referred to in sub-paragraph (ii) or (iii) above has been made in respect of him by a court in England and Wales.

(3)This section applies whether or not an appeal is pending against conviction or sentence or both.

(4)In this section—

  • conviction” includes—

    (a)

    a finding that a person is not guilty by reason of insanity;

    (b)

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

    (c)

    a finding under section 4A(3) of the M15Criminal Procedure (Insanity) Act 1964 (cases of unfitness to plead) that a person did the act or made the omission charged against him; and

    (d)

    a conviction of an offence for which an order is made placing the offender on probation or discharging him absolutely or conditionally;

    and “convicted” shall be construed accordingly; and

  • the relevant enactments” means—

    (a)

    as respects Scotland, sections 205(1) to (3) and 208 of this Act;

    (b)

    as respects England and Wales, section 53(2) of the M16Children and Young Persons Act 1933; and

    (c)

    as respects Northern Ireland, section 73(2) of the M17Children and Young Persons Act (Northern Ireland) 1968.

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; 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 district court, not exceeding 60 days; or

(ii)in any other case, not exceeding 3 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.

(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.

(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 district 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.

(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 2 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.

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

(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.

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.

(2)An accused who is arrested under this section 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.

(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.

(2)A court shall, on the application of any person mentioned in subsection (1) above, have power to review its decision to admit to bail or its decision as to the conditions imposed and may, on cause shown, admit the person to bail or, as the case may be, fix bail on different conditions.

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

(4)Nothing in 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.

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

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

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

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

32 Bail appeal.S

(1)Where an application for bail—

(a)after committal until liberation in due course of law; or

(b)by a person charged on complaint with an offence,

is refused or where the applicant 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, an application for 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 applicant shall not be liberated, subject to subsection (7) below, until the appeal by the prosecutor is disposed of.

(3)Written notice of appeal shall be immediately given to the opposite party by a party appealing under this section.

(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 applicant 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 applicant’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 applicant to whom bail has been granted shall, if the bail fixed has been found by him, be liberated after 72 hours from the granting of the application, whether the appeal has been disposed of or not, unless the High Court grants an order for his further detention in custody.

(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 applicant pending arrival of the order in due course of post.

Valid from 10/12/2007

[F2232ABail 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 his application for bail or of the appeal of such application to the High Court.

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.

Valid from 10/03/2008

[F23Petition 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.

(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.

(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.

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 accused is brought for examination as mentioned in subsection (1) above, he may be dealt with in every respect as if all of the charges had arisen in the district where he is examined.

(3)This section is without prejudice to the power of the Lord Advocate under section 10 of this Act to determine the court before which the accused shall be tried on such charges.

CommittalS

40 Committal until liberated in due course of law.S

(1)Every petition shall be signed and no accused shall be committed until liberated in due course of law for any crime or offence without a warrant in writing expressing the particular charge in respect of which he is committed.

(2)Any such warrant for imprisonment which either proceeds on an unsigned petition or does not express the particular charge shall be null and void.

(3)The accused shall immediately be given a true copy of the warrant for imprisonment signed by the constable or person executing the warrant before imprisonment or by the prison officer receiving the warrant.

PART VU.K. Children and Young Persons

41 Age of criminal responsibility.S

It shall be conclusively presumed that no child under the age of eight years can be guilty of any offence.

Valid from 28/03/2011

[F2441AProsecution of children under 12S

(1)A child under the age of 12 years may not be prosecuted for an offence.

(2)A person aged 12 years or more may not be prosecuted for an offence which was committed at a time when the person was under the age of 12 years.]

42 Prosecution of children.S

(1)No child under the age of 16 years shall be prosecuted for any offence except on the instructions of the Lord Advocate, or at his instance; and no court other than the High Court and the sheriff court shall have jurisdiction over a child under the age of 16 years for an offence.

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

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

(4)For the purpose of enforcing the attendance of a parent or guardian and enabling him to take part in the proceedings and enabling orders to be made against him, rules may be made under section 305 of this Act, for applying, with the necessary adaptations and modifications, such of the provisions of this Act relating to summary proceedings as appear appropriate for the purpose.

(5)The parent or guardian whose attendance is required under this section is—

(a)the parent who has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the M18Children (Scotland) Act 1995) in relation to the child; or

(b)the guardian having actual possession and control of him.

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

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

(8)Where a local authority receive notification under subsection (7) above they shall make such investigations and submit to the court a report which shall contain such information as to the home surroundings of the child as appear to them will assist the court in the disposal of his case, and the report shall contain information, which the appropriate education authority shall have a duty to supply, as to the school record, health and character of the child.

(9)Any child detained in a police station, or being conveyed to or from any criminal court, or waiting before or after attendance in such court, shall be prevented from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child is jointly charged.

(10)Any female child shall, while detained, being conveyed or waiting as mentioned in subsection (9) above, be kept under the care of a woman.

Marginal Citations

43 Arrangements where children arrested.S

(1)Where a person who is apparently a child is apprehended, with or without warrant, and cannot be brought forthwith before a sheriff, a police officer of the rank of inspector or above or the officer in charge of the police station to which he is brought, shall inquire into the case, and, subject to subsection (3) below, shall liberate him on a written undertaking being entered into by him or his parent or guardian that he will attend at the hearing of the charge.

(2)An undertaking mentioned in subsection (1) above shall be signed by the child or, as the case may be, the parent or guardian and shall be certified by the officer mentioned in that subsection.

(3)A person shall not be liberated under subsection (1) where—

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

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

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

(4)Where a person who is apparently a child having been apprehended is not liberated as mentioned in subsection (1) above, the police officer referred to in that subsection shall cause him to be kept in a place of safety other than a police station until he can be brought before a sheriff unless the officer certifies—

(a)that it is impracticable to do so;

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

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

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

(5)Where a person who is apparently a child has not been liberated as mentioned in subsection (1) above but has been kept under subsection (4) above, and it is decided not to proceed with the charge against him, a constable shall so inform the Principal Reporter.

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

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

Modifications etc. (not altering text)

C2S. 43 modified (1.4.1997) by S.I. 1996/3255, reg. 14(1)(b)

44 Detention of children.U.K.

(1)Where a child appears before the sheriff in summary proceedings and pleads guilty to, or is found guilty of, an offence to which this section applies, the sheriff may order that he be detained in residential accommodation provided under Part II of the M19Children (Scotland) Act 1995 by the appropriate local authority for such period not exceeding one year as may be specified in the order in such place (in any part of the United Kingdom) as the local authority may, from time to time, consider appropriate.

(2)This section applies to any offence in respect of which it is competent to impose imprisonment on a person of the age of 21 years or more.

(3)Where a child in respect of whom an order is made under this section is detained by the appropriate local authority, that authority shall have the same powers and duties in respect of the child as they would have if he were subject to a supervision requirement.

(4)Where a child in respect of whom an order is made under this section is also subject to a supervision requirement, subject to subsection (6) below, the supervision requirement shall be of no effect during any period for which he is required to be detained under the order.

(5)The Secretary of State may, by regulations made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, make such provision as he considers necessary as regards the detention in secure accommodation of children in respect of whom orders have been made under this section.

(6)Where a child is detained in residential accommodation in pursuance of an order under—

(a)subsection (1) above, he shall be released from such detention not later than the date by which half the period specified in the order has (following commencement of the detention) elapsed but, without prejudice to subsection (7) below, until the entire such period has so elapsed may be required by the local authority to submit to supervision in accordance with such conditions as they consider appropriate;

(b)subsection (1) above or (8) below, the local authority may at any time review his case and may, in consequence of such review and after having regard to the best interests of the child and the need to protect members of the public, release the child—

(i)for such period and on such conditions as the local authority consider appropriate; or

(ii)unconditionally.

(7)Where a child released under paragraph (a) or (b)(ii) of subsection (6) above is subject to a supervision requirement, the effect of that requirement shall commence or, as the case may be, resume upon such release.

(8)If, while released under paragraph (a) or (b) of subsection (6) above (and before the date on which the entire period mentioned in the said paragraph (a) has, following the commencement of the detention, elapsed), a child commits an offence to which this section applies and (whether before or after that date) pleads guilty to or is found guilty of it a court may, instead of or in addition to making any other order in respect of that plea or finding, order that he be returned to the residential accommodation provided by the authority which released him and that his detention in that accommodation or any other such accommodation provided by that authority shall continue for the whole or any part of the period which—

(a)begins with the date of the order for his return; and

(b)is equal in length to the period between the date on which the new offence was committed and the date on which that entire period elapses.

(9)An order under subsection (8) above for return to residential accommodation provided by the appropriate local authority—

(a)shall be taken to be an order for detention in residential accommodation for the purpose of this Act and any appeal; and

(b)shall, as the court making that order may direct, either be for a period of detention in residential accommodation before and to be followed by, or to be concurrent with, any period of such detention to be imposed in respect of the new offence (being in either case disregarded in determining the appropriate length of the period so imposed).

(10)Where a local authority consider it appropriate that a child in respect of whom an order has been made under subsection (1) or (8) above should be detained in a place in any part of the United Kingdom outside Scotland, the order shall be a like authority as in Scotland to the person in charge of the place to restrict the child’s liberty to such an extent as that person may consider appropriate having regard to the terms of the order.

(11)In this section—

  • the appropriate local authority” means—

    (a)

    where the child usually resides in Scotland, the local authority for the area in which he usually resides;

    (b)

    in any other case, the local authority for the area in which the offence was committed; and

  • secure accommodation” has the meaning assigned to it in Part II of the M20Children (Scotland) Act 1995.

Modifications etc. (not altering text)

C3S. 44 modified (1.4.1997) by S.I. 1996/3255, art. 13(1)

Marginal Citations

45 Security for child’s good behaviour.S

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

(2)Subject to subsection (3) below, an order under this section shall not be made unless the parent or guardian has been given the opportunity of being heard.

(3)Where a parent or guardian has been required to attend and fails to do so, the court may make an order under this section.

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

(5)In this section “parent” means either of the child’s parents, if that parent has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to him.

46 Presumption and determination of age of child.S

(1)Where a person charged with an offence is brought before a court other than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due enquiry as to the age of that person, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, and the age presumed or declared by the court to be the age of that person shall, for the purposes of this Act or the M21Children and Young Persons (Scotland) Act 1937, be deemed to be the true age of that person.

(2)The court in making any inquiry in pursuance of subsection (1) above shall have regard to the definition of child for the purposes of this Act.

(3)Where in an indictment or complaint for—

(a)an offence under the Children and Young Persons (Scotland) 1937;

(b)any of the offences mentioned in paragraphs 3 and 4 of Schedule 1 to this Act; or

(c)an offence under section 1, 10(1) to (3) or 12 of the M22Criminal Law (Consolidation) (Scotland) Act 1995,

it is alleged that the person by or in respect of whom the offence was committed was a child or was under or had attained any specified age, and he appears to the court to have been at the date of the commission of the alleged offence a child, or to have been under or to have attained the specified age, as the case may be, he shall for the purposes of this Act or the M23Children and Young Persons (Scotland) Act 1937 or Part I of the Criminal Law (Consolidation) (Scotland) Act 1995 be presumed at that date to have been a child or to have been under or to have attained that age, as the case may be, unless the contrary is proved.

(4)Where, in an indictment or complaint for an offence under the Children and Young Persons (Scotland) Act 1937 or any of the offences mentioned in Schedule 1 to this Act, it is alleged that the person in respect of whom the offence was committed was a child or was a young person, it shall not be a defence to prove that the person alleged to have been a child was a young person or the person alleged to have been a young person was a child in any case where the acts constituting the alleged offence would equally have been an offence if committed in respect of a young person or child respectively.

(5)An order or judgement of the court shall not be invalidated by any subsequent proof that—

(a)the age of a person mentioned in subsection (1) above has not been correctly stated to the court; or

(b)the court was not informed that at the material time the person was subject to a supervision requirement or that his case had been referred to a children’s hearing by virtue of regulations made under the M24Children (Scotland) Act 1995 for the purpose of giving effect to orders made in different parts of the United Kingdom.

(6)Where it appears to the court that a person mentioned in subsection (1) above has attained the age of 17 years, he shall for the purposes of this Act or the Children and Young Persons (Scotland) Act 1937 be deemed not to be a child.

(7)In subsection (3) above, references to a child (other than a child charged with an offence) shall be construed as references to a child under the age of 17 years; but except as aforesaid references in this section to a child shall be construed as references to a child within the meaning of section 307 of this Act.

47 Restriction on report of proceedings involving children.U.K.

(1)Subject to subsection (3) below, no newspaper report of any proceedings in a court shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any person under the age of 16 years concerned in the proceedings, either—

(a)as being a person against or in respect of whom the proceedings are taken; or

(b)as being a witness in the proceedings.

(2)Subject to subsection (3) below, no picture which is, or includes, a picture of a person under the age of 16 years concerned in proceedings as mentioned in subsection (1) above shall be published in any newspaper in a context relevant to the proceedings.

(3)The requirements of subsections (1) and (2) above shall be applied in any case mentioned in any of the following paragraphs to the extent specified in that paragraph—

(a)where a person under the age of 16 years is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the age of 16 years, the requirements shall not apply unless the court so directs;

(b)where, at any stage of the proceedings, the court, if it is satisfied that it is in the public interest so to do, directs that the requirements (including the requirements as applied by a direction under paragraph (a) above) shall be dispensed with to such extent as the court may specify; and

(c)where the Secretary of State, after completion of the proceedings, if satisfied as mentioned in paragraph (b) above, by order dispenses with the requirements to such extent as may be specified in the order.

(4)This section shall, with the necessary modifications, apply in relation to sound and television programmes included in a programme service (within the meaning of the M25Broadcasting Act 1990) as it applies in relation to newspapers.

(5)A person who publishes matter in contravention of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 of the standard scale.

(6)In this section, references to a court shall not include a court in England, Wales or Northern Ireland.

Modifications etc. (not altering text)

Marginal Citations

48 Power to refer certain children to reporter.S

(1)A court by or before which a person is convicted of having committed an offence to which this section applies may refer—

(a)a child in respect of whom an offence mentioned in paragraph (a) or (b) of subsection (2) below has been committed; or

(b)any child who is, or who is likely to become, a member of the same household as the person who has committed an offence mentioned in paragraph (b) or (c) of that subsection or the person in respect of whom the offence so mentioned was committed,

to the Principal Reporter, and certify that the offence shall be a ground established for the purposes of Chapter 3 of Part II of the M26Children (Scotland) Act 1995.

(2)This section applies to an offence—

(a)under section 21 of the M27Children and Young Persons (Scotland) Act 1937;

(b)mentioned in Schedule 1 to this Act; or

(c)in respect of a person aged 17 years or over which constitutes the crime of incest.

Marginal Citations

49 Reference or remit to children’s hearing.S

(1)Where a child who is not subject to a supervision requirement pleads guilty to, or is found guilty of, an offence the court—

(a)instead of making an order on that plea or finding, may remit the case to the Principal Reporter to arrange for the disposal of the case by a children’s hearing; or

(b)on that plea or finding may request the Principal Reporter to arrange a children’s hearing for the purposes of obtaining their advice as to the treatment of the child.

(2)Where a court has acted in pursuance of paragraph (b) of subsection (1) above, the court, after consideration of the advice received from the children’s hearing may, as it thinks proper, itself dispose of the case or remit the case as mentioned in paragraph (a) of that subsection.

(3)Where a child who is subject to a supervision requirement pleads guilty to, or is found guilty of, an offence the court dealing with the case if it is—

(a)the High Court, may; and

(b)the sheriff court, shall,

request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child, and on consideration of that advice may, as it thinks proper, itself dispose of the case or remit the case as mentioned in subsection (1)(a) above.

(4)Where a court has remitted a case to the Principal Reporter under this section, the jurisdiction of the court in respect of the child shall cease, and his case shall stand referred to a children’s hearing.

(5)Nothing in this section shall apply to a case in respect of an offence the sentence for which is fixed by law.

(6)Where a person who is—

(a)not subject to a supervision requirement;

(b)over the age of 16; and

(c)not within six months of attaining the age of 18,

is charged summarily with an offence and pleads guilty to, or has been found guilty of, the offence the court may request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the person.

(7)On consideration of any advice obtained under subsection (6) above, the court may, as it thinks proper—

(a)itself dispose of the case; or

(b)where the hearing have so advised, remit the case to the Principal Reporter for the disposal of the case by a children’s hearing.

50 Children and certain proceedings.S

(1)No child under 14 years of age (other than an infant in arms) shall be permitted to be present in court during any proceedings against any other person charged with an offence unless his presence is required as a witness or otherwise for the purposes of justice.

(2)Any child present in court when, under subsection (1) above, he is not to be permitted to be so shall be ordered to be removed.

(3)Where, in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, a person who, in the opinion of the court, is a child is called as a witness, the court may direct that all or any persons, not being—

(a)members or officers of the court;

(b)parties to the case before the court, their counsel or solicitors or persons otherwise directly concerned in the case;

(c)bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings; or

(d)such other persons as the court may specially authorise to be present,

shall be excluded from the court during the taking of the evidence of that witness.

(4)The powers conferred on a court by subsection (3) above shall be in addition and without prejudice to any other powers of the court to hear proceedingsin camera.

(5)Where in any proceedings relating to any of the offences mentioned in Schedule 1 to this Act, the court is satisfied that the attendance before the court of any person under the age of 17 years in respect of whom the offence is alleged to have been committed is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of that person.

(6)Every court in dealing with a child who is brought before it as an offender shall have regard to the welfare of the child and shall in a proper case take steps for removing him from undesirable surroundings.

51 Remand and committal of children and young persons.S

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

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

(i)where the court so requires, in secure accommodation within the meaning of Part II of the M28Children (Scotland) Act 1995; and

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

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

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

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

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

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

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

(a)where the court so requires, in secure accommodation within the meaning of Part II of the M29Children (Scotland) Act 1995; and

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

Modifications etc. (not altering text)

C5S. 51(1)(a)(ii) modified (1.4.1997) by S.I. 1996/3255, reg. 14(1)(a)

S. 51(4)(b) modified (1.4.1997) by S.I. 1996/3255, reg. 14(1)(a)

Marginal Citations

PART VIS Mental Disorder

Modifications etc. (not altering text)

C6Pt. VI (ss. 52-63) power to apply conferred (prosp.) by 1955 c. 18, s. 116B(4)(c) (as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 1 (the said 1996 c. 46, Sch. 2 was repealed (21.3. 2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

Pt. VI (ss. 52-63) power to apply conferred (prosp.) by 1995 c. 19, s. 116B(4)(c) (as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 1) (the said 1996 c. 46, Sch. 2 was repealed (21.3. 2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

Pt. VI (ss. 52-63) power to apply conferred (prosp.) by 1957 c. 53, s. 63B(4)(c) (as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 4) (the said 1996 c. 46, Sch. 2 was repealed (21.3. 2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

C7Pt. VI (ss. 52-63) applied (prosp.) by 1955 c. 18, s. 116C(6) (as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 1) (the said 1996 c. 46, Sch. 2 was repealed (21.3. 2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

Pt. VI (ss. 52-63) applied (prosp.) by 1955 c. 19, s. 116C(6) (as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 1) (the said 1996 c. 46, Sch. 2 was repealed (21.3. 2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

Pt. VI (ss. 52-63) applied (prosp.) by 1957 c. 53, s. 63C(6) (as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 4) (the said 1996 c. 46, Sch. 2 was repealed (21.3. 2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

Pt. VI (ss. 52-63) applied (prosp. ) by 1968 c. 20, s. 23(4) (as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 9) (the said 1996 c. 46, Sch. 2 was repealed (21.3. 2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

Valid from 25/06/2012

[F25Criminal responsibility of mentally disordered personsS

Textual Amendments

51ACriminal responsibility of persons with mental disorderS

(1)A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct.

(2)But a person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct.

(3)The defence set out in subsection (1) is a special defence.

(4)The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities.

(5)In this section, “conduct” includes acts and omissions.

Valid from 25/06/2012

Diminished responsibilityS

51BDiminished responsibilityS

(1)A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person's ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.

(2)For the avoidance of doubt, the reference in subsection (1) to abnormality of mind includes mental disorder.

(3)The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself—

(a)constitute abnormality of mind for the purposes of subsection (1), or

(b)prevent such abnormality from being established for those purposes.

(4)It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied.

(5)In this section, “conduct” includes acts and omissions.]

Committal of mentally disordered personsS

52 Power of court to commit to hospital an accused suffering from mental disorder.S

(1)Where it appears to the prosecutor in any court before which a person is charged with an offence that the person may be suffering from mental disorder, it shall be the duty of the prosecutor to bring before the court such evidence as may be available of the mental condition of that person.

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

(3)Where an accused is committed to a hospital as mentioned in subsection (2) above, the hospital shall be specified in the warrant, and if the responsible medical officer is satisfied that he is suffering from mental disorder of a nature or degree which warrants his admission to a hospital under Part V of the M30Mental Health (Scotland) Act 1984, he shall be detained in the hospital specified in the warrant for the period for which he is remanded or the period of committal, unless before the expiration of that period he is liberated in due course of law.

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

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

(6)Without prejudice to subsection (4) above, the court may review an order under subsection (2) above on the ground that there has been a change of circumstances since the order was made and, on such review—

(a)where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may deal with him in such way mentioned in subsection (4) above as the court thinks appropriate;

(b)in any other case, the court may—

(i)confirm or vary the order; or

(ii)revoke the order and deal with him in such way mentioned in subsection (4) above as the court considers appropriate.

(7)Subsections (2) to (5) above shall apply to the review of an order under subsection (6) above as they apply to the making of an order under subsection (2) above.

Marginal Citations

Valid from 05/10/2005

[F26Remit of mentally disordered persons from district courtS

Textual Amendments

F26Ss. 52A-52U inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. {130}, 333(1)-(4); S.S.I. 2005/161, art. 3 (as amended (27.9.2005) by S.S.I. 2005/465, art. 2, Sch. 1 para. 32(13)(a)(i)(ii) and {Sch. 2})

52ARemit of certain mentally disordered persons from district court to sheriff courtS

Where—

(a)a person has been charged in a district court with an offence punishable by imprisonment; and

(b)it appears to the court that the person has a mental disorder,

the district court shall remit the person to the sheriff in the manner provided by section 7(9) and (10) of this Act.

Valid from 05/10/2005

Assessment ordersS

52BProsecutor’s power to apply for assessment orderS

(1)Where—

(a)a person has been charged with an offence;

(b)a relevant disposal has not been made in the proceedings in respect of the offence; and

(c)it appears to the prosecutor that the person has a mental disorder,

the prosecutor may apply to the court for an order under section 52D(2) of this Act (in this Act referred to as an “assessment order”) in respect of that person.

(2)Where the prosecutor applies for an assessment order under subsection (1) above, the prosecutor shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3)Those persons are—

(a)the person in respect of whom the application is made;

(b)any solicitor acting for the person; and

(c)in a case where the person is in custody, the Scottish Ministers.

(4)In this section—

  • court” means any court, other than a district court, competent to deal with the case; and

  • relevant disposal” means—

    (a)

    the liberation in due course of law of the person charged;

    (b)

    the desertion of summary proceedings pro loco et tempore or simpliciter;

    (c)

    the desertion of solemn proceedings simpliciter;

    (d)

    the acquittal of the person charged; or

    (e)

    the conviction of the person charged.

52CScottish Ministers' power to apply for assessment orderS

(1)Where—

(a)a person has been charged with an offence;

(b)the person has not been sentenced;

(c)the person is in custody; and

(d)it appears to the Scottish Ministers that the person has a mental disorder,

the Scottish Ministers may apply to the court for an assessment order in respect of that person.

(2)Where the Scottish Ministers apply for an order under subsection (1) above, they shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3)Those persons are—

(a)the person in respect of whom the application is made;

(b)any solicitor acting for the person; and

(c)in a case where a relevant disposal has not been made in the proceedings in respect of the offence with which the person is charged, the prosecutor.

(4)In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.

52DAssessment orderS

(1)This section applies where an application for an assessment order is made under section 52B(1) or 52C(1) of this Act.

(2)If the court is satisfied—

(a)on the written or oral evidence of a medical practitioner, as to the matters mentioned in subsection (3) below; and

(b)that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (5) below, make an assessment order authorising the measures mentioned in subsection (6) below and specifying any matters to be included in the report under section 52G(1) of this Act.

(3)The matters referred to in subsection (2)(a) above are—

(a)that there are reasonable grounds for believing—

(i)that the person in respect of whom the application is made has a mental disorder;

(ii)that it is necessary to detain the person in hospital to assess whether the conditions mentioned in subsection (7) below are met in respect of the person; and

(iii)that if the assessment order were not made there would be a significant risk to the health, safety or welfare of the person or a significant risk to the safety of any other person;

(b)that the hospital proposed by the medical practitioner is suitable for the purpose of assessing whether the conditions mentioned in subsection (7) below are met in respect of the person;

(c)that, if an assessment order were made, the person could be admitted to such hospital before the expiry of the period of 7 days beginning with the day on which the order is made; and

(d)that it would not be reasonably practicable to carry out the assessment mentioned in paragraph (b) above unless an order were made.

(4)The matters referred to in subsection (2)(b) above are—

(a)all the circumstances (including the nature of the offence with which the person in respect of whom the application is made is charged or, as the case may be, of which the person was convicted); and

(b)any alternative means of dealing with the person.

(5)The court may make an assessment order only if the person in respect of whom the application is made has not been sentenced.

(6)The measures are—

(a)in the case of a person who, when the assessment order is made, has not been admitted to the specified hospital, the removal, before the expiry of the period of 7 days beginning with the day on which the order is made, of the person to the specified hospital by—

(i)a constable;

(ii)a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii)a specified person;

(b)the detention, for the period of 28 days beginning with the day on which the order is made, of the person in the specified hospital; and

(c)during the period of 28 days beginning with the day on which the order is made, the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment.

(7)The conditions referred to in paragraphs (a)(ii) and (b) of subsection (3) above are—

(a)that the person in respect of whom the application is made has a mental disorder;

(b)that medical treatment which would be likely to—

(i)prevent the mental disorder worsening; or

(ii)alleviate any of the symptoms, or effects, of the disorder,

is available for the person; and

(c)that if the person were not provided with such medical treatment there would be a significant risk—

(i)to the health, safety or welfare of the person; or

(ii)to the safety of any other person.

(8)The court may make an assessment order in the absence of the person in respect of whom the application is made only if—

(a)the person is represented by counsel or a solicitor;

(b)that counsel or solicitor is given an opportunity of being heard; and

(c)the court is satisfied that it is—

(i)impracticable; or

(ii)inappropriate,

for the person to be brought before it.

(9)An assessment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and detention of the person in, a place of safety pending the person’s admission to the specified hospital.

(10)The court shall, as soon as reasonably practicable after making an assessment order, give notice of the making of the order to—

(a)the person subject to the order;

(b)any solicitor acting for the person;

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor;

(d)in a case where the person, immediately before the order was made, was in custody, the Scottish Ministers; and

(e)the Mental Welfare Commission.

(11)In this section—

  • court” has the same meaning as in section 52B of this Act;

  • medical treatment” has the meaning given by section 329(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

  • relevant disposal” has the same meaning as in section 52B of this Act; and

  • specified” means specified in the assessment order.

52EAssessment order made ex proprio motu: application of section 52DS

(1)Where—

(a)a person has been charged with an offence;

(b)the person has not been sentenced; and

(c)it appears to the court that the person has a mental disorder,

the court may, subject to subsections (2) and (3) below, make an assessment order in respect of that person.

(2)The court may make an assessment order under subsection (1) above only if it would make one under subsections (2) to (11) of section 52D of this Act; and those subsections shall apply for the purposes of subsection (1) above as they apply for the purposes of subsection (1) of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make an assessment order.

(3)An assessment order made under subsection (1) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52D(2) of this Act.

(4)In this section, “court” has the same meaning as in section 52B of this Act.

52FAssessment order: supplementaryS

(1)If, before the expiry of the period of 7 days beginning with the day on which an assessment order is made—

(a)in the case of a person who, immediately before the order was made, was in custody, it appears to the Scottish Ministers; or

(b)in any other case, it appears to the court,

that, by reason of emergency or other special circumstances, it is not reasonably practicable for the person to be admitted to the hospital specified in the order, the Scottish Ministers, or, as the case may be, the court, may direct that the person be admitted to the hospital specified in the direction.

(2)Where the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the person subject to the assessment order of the making of the direction.

(3)Where the Scottish Ministers make a direction under subsection (1) above, they shall, as soon as reasonably practicable after making the direction, inform—

(a)the court;

(b)the person having custody of the person subject to the assessment order; and

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor,

of the making of the direction.

(4)Where a direction is made under subsection (1) above, the assessment order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(5)In this section—

  • court” means the court which made the assessment order; and

  • relevant disposal” has the same meaning as in section 52B of this Act.

52GReview of assessment orderS

(1)The responsible medical officer shall, before the expiry of the period of 28 days beginning with the day on which the assessment order is made, submit a report in writing to the court—

(a)as to whether the conditions mentioned in section 52D(7) of this Act are met in respect of the person subject to the order; and

(b)as to any matters specified by the court under section 52D(2) of this Act.

(2)The responsible medical officer shall, at the same time as such officer submits the report to the court, send a copy of such report—

(a)to the person in respect of whom the report is made;

(b)to any solicitor acting for the person;

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

to the prosecutor; and

(d)to the Scottish Ministers.

(3)Subject to subsection (4) below, the court shall, on receiving a report submitted under subsection (1) above, revoke the assessment order and—

(a)subject to subsections (7) and (8) below, make a treatment order; or

(b)commit the person to prison or such other institution to which the person might have been committed had the assessment order not been made or otherwise deal with the person as the court considers appropriate.

(4)If, on receiving a report submitted under subsection (1) above, the court is satisfied that further time is necessary to assess whether the conditions mentioned in section 52D(7) of this Act are met in respect of the person subject to the assessment order, it may, on one occasion only, make an order extending the assessment order for a period not exceeding 7 days beginning with the day on which the order otherwise would cease to authorise the detention of the person in hospital.

(5)The court may, under subsection (4) above, extend an assessment order in the absence of the person subject to the order only if—

(a)the person is represented by counsel or a solicitor;

(b)that counsel or solicitor is given an opportunity of being heard; and

(c)the court is satisfied that it is—

(i)impracticable; or

(ii)inappropriate,

for the person to be brought before it.

(6)Where the court makes an order under subsection (4) above, it shall, as soon as reasonably practicable after making the order, give notice of the making of the order to—

(a)the persons mentioned in paragraphs (a) and (b) of subsection (2) above;

(b)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor;

(c)the Scottish Ministers; and

(d)the person’s responsible medical officer.

(7)The court shall make a treatment order under subsection (3)(a) above only if it would make one under subsections (2) to (10) of section 52M of this Act; and those subsections shall apply for the purposes of subsection (3)(a) above as they apply for the purposes of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make a treatment order.

(8)A treatment order made under subsection (3)(a) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52M(2) of this Act.

(9)The responsible medical officer shall, where that officer is satisfied that there has been a change of circumstances since the assessment order was made which justifies the variation of the order, submit a report to the court in writing.

(10)Where a report is submitted under subsection (9) above, the court shall—

(a)if satisfied that the person need not be subject to an assessment order, revoke the order and take any action mentioned in subsection (3)(b) above; or

(b)if not so satisfied—

(i)confirm the order;

(ii)vary the order; or

(iii)revoke the order and take any action mentioned in subsection (3)(b) above.

(11)Sections 52D, 52F, 52H and 52J of this Act and subsections (1) to (3) above apply to the variation of an order under subsection (10)(b)(ii) above as they apply to an assessment order.

(12)In this section—

  • court” means the court which made the assessment order;

  • relevant disposal” has the same meaning as in section 52B of this Act; and

  • responsible medical officer” means the person’s responsible medical officer appointed under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

52HEarly termination of assessment orderS

(1)This section applies where—

(a)in the case of a person who, when the assessment order is made, has not been removed to the hospital specified in the order, the period of 7 days beginning with the day on which the order is made has not expired;

(b)in the case of a person—

(i)who, when the assessment order is made, has been admitted to the hospital specified in the order; or

(ii)who has been removed under paragraph (a) of subsection (6) of section 52D of this Act to the hospital so specified,

the period of 28 days beginning with the day on which the order is made has not expired; or

(c)in the case of a person in respect of whom the court has made an order under section 52G(4) of this Act extending the assessment order for a period, the period for which the order was extended has not expired.

(2)An assessment order shall cease to have effect on the occurrence of any of the following events—

(a)the making of a treatment order in respect of the person subject to the assessment order;

(b)in a case where—

(i)the person subject to the assessment order has been charged with an offence; and

(ii)a relevant disposal had not been made in the proceedings in respect of that offence when the order was made,

the making of a relevant disposal in such proceedings;

(c)in a case where the person subject to the assessment order has been convicted of an offence but has not been sentenced—

(i)the deferral of sentence by the court under section 202(1) of this Act;

(ii)the making of one of the orders mentioned in subsection (3) below or

(iii)the imposition of any sentence.

(3)The orders are—

(a)an interim compulsion order;

(b)a compulsion order;

(c)a guardianship order;

(d)a hospital direction;

(e)any order under section 57 of this Act; or

(f)a probation order which includes a requirement imposed by virtue of section 230(1) of this Act.

(4)In this section, “relevant disposal” has the same meaning as in section 52B of this Act.

52JPower of court on assessment order ceasing to have effectS

(1)Where, otherwise than by virtue of section 52G(3) or (10) or 52H(2) of this Act, an assessment order ceases to have effect the court shall commit the person who was subject to the order to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate.

(2)In this section, “court” has the same meaning as in section 52B of this Act.

Valid from 05/10/2005

Treatment ordersS

52KProsecutor’s power to apply for treatment orderS

(1)Where—

(a)a person has been charged with an offence;

(b)a relevant disposal has not been made in the proceedings in respect of the offence; and

(c)it appears to the prosecutor that the person has a mental disorder,

the prosecutor may apply to the court for an order under section 52M of this Act (in this Act referred to as a “treatment order”) in respect of that person.

(2)Where the prosecutor applies for a treatment order under subsection (1) above, the prosecutor shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3)Those persons are—

(a)the person in respect of whom the application is made;

(b)any solicitor acting for the person; and

(c)in a case where the person is in custody, the Scottish Ministers.

(4)In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.

52LScottish Ministers' power to apply for treatment orderS

(1)Where—

(a)a person has been charged with an offence;

(b)the person has not been sentenced;

(c)the person is in custody; and

(d)it appears to the Scottish Ministers that the person has a mental disorder,

the Scottish Ministers may apply to the court for a treatment order in respect of that person.

(2)Where the Scottish Ministers apply for an order under subsection (1) above, they shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3)Those persons are—

(a)the person in respect of whom the application is made;

(b)any solicitor acting for the person; and

(c)in a case where a relevant disposal has not been made in the proceedings in respect of the offence with which the person is charged, the prosecutor.

(4)In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.

52MTreatment orderS

(1)This section applies where an application for a treatment order is made under section 52K(1) or 52L(1) of this Act.

(2)If the court is satisfied—

(a)on the written or oral evidence of two medical practitioners, as to the matters mentioned in subsection (3) below; and

(b)that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (5) below, make a treatment order authorising the measures mentioned in subsection (6) below.

(3)The matters referred to in subsection (2)(a) above are—

(a)that the conditions mentioned in subsection (7) of section 52D of this Act are met in relation to the person in respect of whom the application is made;

(b)that the hospital proposed by the approved medical practitioner and the medical practitioner is suitable for the purpose of giving medical treatment to the person; and

(c)that, if a treatment order were made, such person could be admitted to such hospital before the expiry of the period of 7 days beginning with the day on which the order is made.

(4)The matters referred to in subsection (2)(b) above are—

(a)all the circumstances (including the nature of the offence with which the person in respect of whom the application is made is charged or, as the case may be, of which the person was convicted); and

(b)any alternative means of dealing with the person.

(5)The court may make a treatment order only if the person in respect of whom the application is made has not been sentenced.

(6)The measures are—

(a)in the case of a person who, when the treatment order is made, has not been admitted to the specified hospital, the removal, before the expiry of the period of 7 days beginning with the day on which the order is made, of the person to the specified hospital by—

(i)a constable;

(ii)a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii)a specified person;

(b)the detention of the person in the specified hospital; and

(c)the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment.

(7)The court may make a treatment order in the absence of the person in respect of whom the application is made only if—

(a)the person is represented by counsel or solicitor;

(b)that counsel or solicitor is given an opportunity of being heard; and

(c)the court is satisfied that it is—

(i)impracticable; or

(ii)inappropriate,

for the person to be brought before it.

(8)A treatment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and detention of the person in, a place of safety pending the person’s admission to the specified hospital.

(9)The court shall, as soon as reasonably practicable after making a treatment order, give notice of the making of the order to—

(a)the person subject to the order;

(b)any solicitor acting for the person;

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor;

(d)in a case where the person, immediately before the order was made—

(i)was in custody; or

(ii)was subject to an assessment order and, immediately before that order was made, was in custody,

the Scottish Ministers; and

(e)the Mental Welfare Commission.

(10)In this section—

  • court” has the same meaning as in section 52B of this Act;

  • medical treatment” has the same meaning as in section 52D of this Act; and

  • specified” means specified in the treatment order.

52NTreatment order made ex proprio motu: application of section 52MS

(1)Where—

(a)a person has been charged with an offence;

(b)the person has not been sentenced; and

(c)it appears to the court that the person has a mental disorder,

the court may, subject to subsections (2) and (3) below, make a treatment order in respect of that person.

(2)The court may make a treatment order under subsection (1) above only if it would make one under subsections (2) to (10) of section 52M of this Act; and those subsections shall apply for the purposes of subsection (1) above as they apply for the purposes of subsection (1) of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make a treatment order.

(3)A treatment order made under subsection (1) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52M(2) of this Act.

(4)In this section, “court” has the same meaning as in section 52B of this Act.

52PTreatment order: supplementaryS

(1)If, before the expiry of the period of 7 days beginning with the day on which the treatment order is made—

(a)in the case of a person to whom subsection (2) below applies, it appears to the Scottish Ministers; or

(b)in any other case, it appears to the court,

that, by reason of emergency or other special circumstances, it is not reasonably practicable for the person to be admitted to the hospital specified in the order, the Scottish Ministers, or, as the case may be, the court, may direct that the person be admitted to the hospital specified in the direction.

(2)This subsection applies to—

(a)a person who is in custody immediately before the treatment order is made; or

(b)a person—

(i)who was subject to an assessment order immediately before the treatment order is made; and

(ii)who was in custody immediately before that assessment order was made.

(3)Where the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the person subject to the treatment order of the making of the direction.

(4)Where the Scottish Ministers make a direction under subsection (1) above, they shall, as soon as reasonably practicable after making the direction, inform—

(a)the court;

(b)the person having custody of the person subject to the treatment order; and

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor,

of the making of the direction.

(5)Where a direction is made under subsection (1) above, the treatment order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(6)In this section—

  • court” means the court which made the treatment order; and

  • relevant disposal” has the same meaning as in section 52B of this Act.

52QReview of treatment orderS

(1)The responsible medical officer shall, where that officer is satisfied—

(a)that any of the conditions mentioned in section 52D(7) of this Act are no longer met in respect of the person subject to the treatment order; or

(b)that there has otherwise been a change of circumstances since the order was made which makes the continued detention of the person in hospital by virtue of the order no longer appropriate,

submit a report in writing to the court.

(2)Where a report is submitted under subsection (1) above, the court shall—

(a)if satisfied that the person need not be subject to the treatment order—

(i)revoke the order; and

(ii)commit the person to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate; or

(b)if not so satisfied—

(i)confirm the order;

(ii)vary the order; or

(iii)revoke the order and take any action mentioned in paragraph (a)(ii) above.

(3)Sections 52M, 52P, this section and sections 52R and 52S of this Act apply to the variation of a treatment order under subsection (2)(b)(ii) above as they apply to a treatment order.

(4)In this section—

  • court” means the court which made the treatment order; and

  • responsible medical officer” means the person’s responsible medical officer appointed under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

52RTermination of treatment orderS

(1)This section applies—

(a)where, in the case of a person who, when the treatment order is made, has not been removed to the hospital specified in the order, the period of 7 days beginning with the day on which the order is made has not expired; or

(b)in the case of a person—

(i)who, when the treatment order is made, has been admitted to the hospital specified in the order; or

(ii)who has been removed under paragraph (a) of subsection (6) of section 52M of this Act to the hospital so specified.

(2)A treatment order shall cease to have effect on the occurrence of any of the following events—

(a)in a case where—

(i)the person subject to the treatment order has been charged with an offence; and

(ii)a relevant disposal had not been made in the proceedings in respect of such offence when the order was made,

the making of a relevant disposal in such proceedings;

(b)in a case where the person subject to the treatment order has been convicted of an offence but has not been sentenced—

(i)the deferral of sentence by the court under section 202(1) of this Act;

(ii)the making of one of the orders mentioned in subsection (3) below; or

(iii)the imposition of any sentence.

(3)The orders are—

(a)an interim compulsion order;

(b)a compulsion order;

(c)a guardianship order;

(d)a hospital direction;

(e)any order under section 57 of this Act; or

(f)a probation order which includes a requirement imposed by virtue of section 230(1) of this Act.

(4)In this section, “relevant disposal” has the same meaning as in section 52B of this Act.

52SPower of court on treatment order ceasing to have effectS

(1)Where, otherwise than by virtue of section 52Q(2) or 52R(2) of this Act, a treatment order ceases to have effect the court shall commit the person who was subject to the order to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate.

(2)In this section, “court” has the same meaning as in section 52B of this Act.

Valid from 05/10/2005

Prevention of delay in trialsS

52TPrevention of delay in trials: assessment orders and treatment ordersS

(1)Subsections (4) to (9) of section 65 of this Act shall apply in the case of a person committed for an offence until liberated in due course of law who is detained in hospital by virtue of an assessment order or a treatment order as those subsections apply in the case of an accused who is—

(a)committed for an offence until liberated in due course of law; and

(b)detained by virtue of that committal.

(2)Section 147 of this Act shall apply in the case of a person charged with an offence in summary proceedings who is detained in hospital by virtue of an assessment order or a treatment order as it applies in the case of an accused who is detained in respect of that offence.

(3)Any period during which, under—

(a)section 221 (as read with sections 222 and 223) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); or

(b)section 224 (as read with sections 225 and 226) of that Act,

a patient’s detention is not authorised shall be taken into account for the purposes of the calculation of any of the periods mentioned in subsection (4) below.

(4)Those periods are—

(a)the total periods of 80 days, 110 days and 140 days referred to in subsection (4) of section 65 of this Act as applied by subsection (1) above;

(b)those total periods as extended under subsection (5) or, on appeal, under subsection (8) of that section as so applied;

(c)the total of 40 days referred to in section 147 of this Act (prevention of delay in trials in summary proceedings) as applied by subsection (2) above; and

(d)that period as extended under subsection (2) of that section or, on appeal, under subsection (3) of that section as so applied.

Valid from 05/10/2005

Effect of assessment and treatment orders on pre-existing mental health ordersS

52UEffect of assessment order and treatment order on pre-existing mental health orderS

(1)This section applies where—

(a)a patient is subject to a relevant order; and

(b)an assessment order or a treatment order is made in respect of the patient.

(2)The relevant order shall cease to authorise the measures specified in it for the period during which the patient is subject to the assessment order or, as the case may be, treatment order.

(4)In this section, a “relevant order” means—

(a)an interim compulsory treatment order made under section 65(2) of the 2003 Act; and

(b)a compulsory treatment order made under section 64(4)(a) of that Act.]

Interim hospital ordersS

53 Interim hospital orders.S

(1)Where, in the case of a person to whom this section applies the court is satisfied on the written or oral evidence of two medical practitioners (complying with subsection (2) below and section 61 of this Act)—

(a)that the offender is suffering from mental disorder within the meaning of section 1(2) of the M31Mental Health (Scotland) Act 1984; and

(b)that there is reason to suppose—

(i)that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case; and

(ii)that, having regard to section 58(5) of this Act, the hospital to be specified in any such hospital order may be a State hospital,

the court may, before making a hospital order or dealing with the offender in some other way, make an order (to be known as “an interim hospital order”) authorising his admission to and detention in a state hospital or such other hospital as for special reasons the court may specify in the order.

(2)Of the medical practitioners whose evidence is taken into account under subsection (1) above at least one shall be employed at the hospital which is to be specified in the order.

(3)An interim hospital order shall not be made in respect of an offender unless the court is satisfied that the hospital which is to be specified in the order, in the event of such an order being made by the court, is available for his admission thereto within 28 days of the making of such an order.

(4)Where a court makes an interim hospital order it shall not make any other order for detention or impose a fine or pass sentence of imprisonment or make a probation order or a community service order in respect of the offence, but may make any other order which it has power to make apart from this section.

(5)The court by which an interim hospital order is made may include in the order such direction as it thinks fit for the conveyance of the offender to a place of safety and his detention therein pending his admission to the hospital within the period of 28 days referred to in subsection (3) above.

(6)An interim hospital order—

(a)shall be in force for such period, not exceeding 12 weeks, as the court may specify when making the order; but

(b)may be renewed for further periods of not more than 28 days at a time if it appears to the court on the written or oral evidence of the responsible medical officer that the continuation of the order is warranted,

but no such order shall continue in force for more than six months in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides, after considering the written or oral evidence of the responsible medical officer, to deal with the offender in some other way.

(7)An interim hospital order may be renewed under subsection (6) above without the offender being brought before the court if he is represented by counsel or a solicitor and his counsel or solicitor is given an opportunity of being heard.

(8)If an offender absconds from a hospital in which he is detained in pursuance of an interim hospital order, or while being conveyed to or from such a hospital, he may be arrested without warrant by a constable and shall, after being arrested, be brought as soon as practicable before the court which made the order; and the court may thereupon terminate the order and deal with him in any way in which it could have dealt with him if no such order had been made.

(9)When an interim hospital order ceases to have effect in relation to an offender the court may deal with him in any way (other than by making a new interim hospital order) in which it could have dealt with him if no such order had been made.

(10)The power conferred on the court by this section is without prejudice to the power of the court under section 200(1) of this Act to remand a person in order that an inquiry may be made into his physical or mental condition.

(11)This section applies to any person—

(a)convicted in the High Court or the sheriff court of an offence punishable with imprisonment (other than an offence the sentence for which is fixed by law);

(b)charged on complaint in the sheriff court if the sheriff is satisfied that he did the act or made the omission charged but does not convict him; or

(c)remitted to the sheriff court from the district court under section 58(10) of this Act if the sheriff is satisfied as mentioned in paragraph (b) above.

(12)In this section “the court” means—

(a)the High Court, as regards a person—

(i)convicted on indictment in that court; or

(ii)convicted on indictment in the sheriff court and remitted for sentence to the High Court; and

(b)the sheriff court, as regards a person—

(i)convicted in the sheriff court and not remitted as mentioned in paragraph (a)(ii) above; or

(ii)referred to in paragraph (b) or (c) of subsection (11) above.

Marginal Citations

Valid from 05/10/2005

[F2753AInterim compulsion order: supplementaryS

(1)If, before the expiry of the period of 7 days beginning with the day on which the interim compulsion order is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the order, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to the hospital specified in the direction.

(2)Where—

(a)the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the offender; and

(b)the Scottish Ministers make such a direction, they shall, as soon as reasonably practicable after making the direction, inform—

(i)the court; and

(ii)the person having custody of the offender.

(3)Where a direction is made under subsection (1) above, the interim compulsion order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(4)In this section, “court” means the court which made the interim compulsion order.]

Textual Amendments

F27Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

Valid from 05/10/2005

[F2853BReview and extension of interim compulsion orderS

(1)The responsible medical officer shall, before the expiry of the period specified by the court under section 53(8)(b) of this Act, submit a report in writing to the court—

(a)as to the matters mentioned in subsection (2) below; and

(b)as to any matters specified by the court under section 53(2) of this Act.

(2)The matters are—

(a)whether the conditions mentioned in section 53(5) of this Act are met in respect of the offender;

(b)the type (or types) of mental disorder that the offender has; and

(c)whether it is necessary to extend the interim compulsion order to allow further time for the assessment mentioned in section 53(3)(b) of this Act.

(3)The responsible medical officer shall, at the same time as such officer submits the report to the court, send a copy of such report to—

(a)the offender; and

(b)any solicitor acting for the offender.

(4)The court may, on receiving the report submitted under subsection (1) above, if satisfied that the extension of the order is necessary, extend the order for such period (not exceeding 12 weeks beginning with the day on which the order would cease to have effect were such an extension not made) as the court may specify.

(5)The court may extend an interim compulsion order under subsection (4) above for a period only if, by doing so, the total period for which the offender will be subject to the order does not exceed 12 months beginning with the day on which the order was first made.

(6)The court may, under subsection (4) above, extend an interim compulsion order in the absence of the offender only if—

(a)the offender is represented by counsel or a solicitor;

(b)that counsel or solicitor is given an opportunity of being heard; and

(c)the court is satisfied that it is—

(i)impracticable; or

(ii)inappropriate,

for the offender to be brought before it.

(7)Subsections (1) to (9) of this section shall apply for the purposes of an interim compulsion order extended under subsection (4) above as they apply for the purposes of an interim compulsion order, references in those subsections to the period specified by the court under section 53(8)(b) of this Act being construed as references to the period specified by the court under subsection (4) above.

(8)Where a report is submitted under subsection (1) above, the court may, before the expiry of the period specified by the court under section 53(8)(b) of this Act—

(a)revoke the interim compulsion order and make one of the disposals mentioned in section 53(6) of this Act; or

(b)revoke the interim compulsion order and deal with the offender in any way (other than by making an interim compulsion order) in which the court could have dealt with the offender if no such order had been made.

(9)In this section—

  • court” means the court which made the interim compulsion order; and

  • responsible medical officer” means the responsible medical officer appointed in respect of the offender under section 230 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13).]

Textual Amendments

F28Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

Valid from 05/10/2005

[F2953CEarly termination of interim compulsion orderS

(1)An interim compulsion order shall cease to have effect if the court—

(a)makes a compulsion order in relation to the offender;

(b)makes a hospital direction in relation to the offender; or

(c)deals with the offender in some other way, including the imposing of a sentence of imprisonment on the offender.

(2)In this section, “court” means the court which made the interim compulsion order.]

Textual Amendments

F29Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

Valid from 05/10/2005

[F3053DPower of court on interim compulsion order ceasing to have effectS

(1)Where, otherwise than by virtue of section 53B(8) or 53C of this Act, an interim compulsion order ceases to have effect the court may deal with the offender who was subject to the order in any way (other than the making of a new interim compulsion order) in which it could have dealt with the offender if no such order had been made.

(2)In this section, “court” means the court which made the interim compulsion order.]

Textual Amendments

F30Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

Valid from 25/06/2012

[F31Acquittal involving mental disorderS

Textual Amendments

F31S. 53E and cross-heading inserted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 169, 206(1); S.S.I. 2012/160, art. 3, sch.

53EAcquittal involving mental disorderS

(1)Where the prosecutor accepts a plea (by the person charged with the commission of an offence) of the special defence set out in section 51A of this Act, the court must declare that the person is acquitted by reason of the special defence.

(2)Subsection (3) below applies where—

(a)the prosecutor does not accept such a plea, and

(b)evidence tending to establish the special defence set out in section 51A of this Act is brought before the court.

(3)Where this subsection applies the court is to—

(a)in proceedings on indictment, direct the jury to find whether the special defence has been established and, if they find that it has, to declare whether the person is acquitted on that ground,

(b)in summary proceedings, state whether the special defence has been established and, if it states that it has, declare whether the person is acquitted on that ground.]

Valid from 25/06/2012

[F32Unfitness for trialS

Textual Amendments

53FUnfitness for trialS

(1)A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial.

(2)In determining whether a person is unfit for trial the court is to have regard to—

(a)the ability of the person to—

(i)understand the nature of the charge,

(ii)understand the requirement to tender a plea to the charge and the effect of such a plea,

(iii)understand the purpose of, and follow the course of, the trial,

(iv)understand the evidence that may be given against the person,

(v)instruct and otherwise communicate with the person's legal representative, and

(b)any other factor which the court considers relevant.

(3)The court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge.

(4)In this section “the court” means—

(a)as regards a person charged on indictment, the High Court or the sheriff court,

(b)as regards a person charged summarily, the sheriff court.]

Insanity in bar of trialS

54 Insanity in bar of trial.S

(1)Where the court is satisfied, on the written or oral evidence of two medical practitioners, that a person charged with the commission of an offence is insane so that his trial cannot proceed or, if it has commenced, cannot continue, the court shall, subject to subsection (2) below—

(a)make a finding to that effect and state the reasons for that finding;

(b)discharge the trial diet and order that a diet (in this Act referred to as an “an examination of facts”) be held under section 55 of this Act; and

(c)remand the person in custody or on bail or, where the court is satisfied—

(i)on the written or oral evidence of two medical practitioners, that he is suffering from mental disorder of a nature or degree which warrants his admission to hospital under Part V of the M32Mental Health (Scotland) Act 1984; and

(ii)that a hospital is available for his admission and suitable for his detention,

make an order (in this section referred to as a “temporary hospital order”) committing him to that hospital until the conclusion of the examination of facts.

(2)Subsection (1) above is without prejudice to the power of the court, on an application by the prosecutor, to desert the dietpro loco et tempore.

(3)The court may, before making a finding under subsection (1) above as to the insanity of a person, adjourn the case in order that investigation of his mental condition may be carried out.

(4)The court which made a temporary hospital order may, at any time while the order is in force, review the order on the ground that there has been a change of circumstances since the order was made and, on such review—

(a)where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may remand him in custody or on bail;

(b)in any other case, the court may—

(i)confirm or vary the order; or

(ii)revoke the order and make such other order, under subsection (1)(c) above or any other provision of this Act, as the court considers appropriate.

(5)Where it appears to a court that it is not practicable or appropriate for the accused to be brought before it for the purpose of determining whether he is insane so that his trial cannot proceed, then, if no objection to such a course is taken by or on behalf of the accused, the court may order that the case be proceeded with in his absence.

(6)Where evidence is brought before the court that the accused was insane at the time of doing the act or making the omission constituting the offence with which he is charged and he is acquitted, the court shall—

(a)in proceedings on indictment, direct the jury to find; or

(b)in summary proceedings, state,

whether the accused was insane at such time as aforesaid, and, if so, to declare whether he was acquitted on account of his insanity at that time.

(7)It shall not be competent for a person charged summarily in the sheriff court to found on a plea of insanity standing in bar of trial unless, before the first witness for the prosecution is sworn, he gives notice to the prosecutor of the plea and of the witnesses by whom he proposes to maintain it; and where such notice is given, the court shall, if the prosecutor so moves, adjourn the case.

(8)In this section, “the court” means—

(a)as regards a person charged on indictment, the High Court or the sheriff court;

(b)as regards a person charged summarily, the sheriff court.

Marginal Citations

Examination of factsS

55 Examination of facts.S

(1)At an examination of facts ordered under section 54(1)(b) of this Act the court shall, on the basis of the evidence (if any) already given in the trial and such evidence, or further evidence, as may be led by either party, determine whether it is satisfied—

(a)beyond reasonable doubt, as respects any charge on the indictment or, as the case may be, the complaint in respect of which the accused was being or was to be tried, that he did the act or made the omission constituting the offence; and

(b)on the balance of probabilities, that there are no grounds for acquitting him.

(2)Where the court is satisfied as mentioned in subsection (1) above, it shall make a finding to that effect.

(3)Where the court is not so satisfied it shall, subject to subsection (4) below, acquit the person of the charge.

(4)Where, as respects a person acquitted under subsection (3) above, the court is satisfied as to the matter mentioned in subsection (1)(a) above but it appears to the court that the person was insane at the time of doing the act or making the omission constituting the offence, the court shall state whether the acquittal is on the ground of such insanity.

(5)Where it appears to the court that it is not practical or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence.

(6)Subject to the provisions of this section, section 56 of this Act and any Act of Adjournal the rules of evidence and procedure and the powers of the court shall, in respect of an examination of facts, be as nearly as possible those applicable in respect of a trial.

(7)For the purposes of the application to an examination of facts of the rules and powers mentioned in subsection (6) above, an examination of facts—

(a)commences when the indictment or, as the case may be, complaint is called; and

(b)concludes when the court—

(i)acquits the person under subsection (3) above;

(ii)makes an order under subsection (2) of section 57 of this Act; or

(iii)decides, under paragraph (e) of that subsection, not to make an order.

56 Examination of facts: supplementary provisions.S

(1)An examination of facts ordered under section 54(1)(b) of this Act may, where the order is made at the trial diet, be held immediately following the making of the order and, where it is so held, the citation of the accused and any witness to the trial diet shall be a valid citation to the examination of facts.

(2)Where an examination of facts is ordered in connection with proceedings on indictment, a warrant for citation of an accused and witnesses under section 66(1) of this Act shall be sufficient warrant for citation to an examination of facts.

(3)Where an accused person is not legally represented at an examination of facts the court shall appoint counsel or a solicitor to represent his interests.

(4)The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the indictment or, as the case may be, complaint in priority to other such charges.

(5)The court may, on the motion of the prosecutor and after hearing the accused, at any time desert the examination of facts pro loco et tempore as respects either the whole indictment or, as the case may be, complaint or any charge therein.

(6)Where, and to the extent that, an examination of facts has, under subsection (5) above, been deserted pro loco et tempore

(a)in the case of proceedings on indictment, the Lord Advocate may, at any time, raise and insist in a new indictment; or

(b)in the case of summary proceedings, the prosecutor may at any time raise a fresh libel,

notwithstanding any time limit which would otherwise apply in respect of prosecution of the alleged offence.

(7)If, in a case where a court has made a finding under subsection (2) of section 55 of this Act, a person is subsequently charged, whether on indictment or on a complaint, with an offence arising out of the same act or omission as is referred to in subsection (1) of that section, any order made under section 57(2) of this Act shall, with effect from the commencement of the later proceedings, cease to have effect.

(8)For the purposes of subsection (7) above, the later proceedings are commenced when the indictment or, as the case may be, the complaint is served.

Disposal in case of insanityS

57 Disposal of case where accused found to be insane.S

(1)This section applies where—

(a)a person is, by virtue of section 54(6) or 55(3) of this Act, acquitted on the ground of his insanity at the time of the act or omission; or

(b)following an examination of facts under section 55, a court makes a finding under subsection (2) of that section.

(2)Subject to subsection (3) below, where this section applies the court may, as it thinks fit—

(a)make an order (which shall have the same effect as a hospital order) that the person be detained in such hospital as the court may specify;

(b)in addition to making an order under paragraph (a) above, make an order (which shall have the same effect as a restriction order) that the person shall, without limit of time, be subject to the special restrictions set out in section 62(1) of the M33Mental Health (Scotland) Act 1984;

(c)make an order (which shall have the same effect as a guardianship order) placing the person under the guardianship of a local authority or of a person approved by a local authority;

(d)make a supervision and treatment order (within the meaning of paragraph 1(1) of Schedule 4 to this Act); or

(e)make no order.

(3)Where the offence with which the person was charged is murder, the court shall make orders under both paragraphs (a) and (b) of subsection (2) above in respect of that person.

(4)Sections 58(1), (2) and (4) to (7) and 59 and 61 of this Act shall have effect in relation to the making, terms and effect of an order under paragraph (a), (b) or (c) of subsection (2) above as those provisions have effect in relation to the making, terms and effect of, respectively, a hospital order, a restriction order and a guardianship order as respects a person convicted of an offence, other than an offence the sentence for which is fixed by law, punishable by imprisonment.

(5)Schedule 4 to this Act shall have effect as regards supervision and treatment orders.

Modifications etc. (not altering text)

C8S. 57(2)(a) extended (1.1.1998) by 1997 c. 48, s. 9(1)(a) (subject to s. 9(2)); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

Marginal Citations

Valid from 21/03/2005

[F33Compulsion ordersS

Textual Amendments

F33Ss. 57A-57D and cross-heading inserted (21.3.2005 for certain purposes and otherwise 5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 133, 333(1)-(4); S.S.I. 2005/161, arts. 2, 3, Sch. 1 (as amended (27.9.2005) by S.S.I. 2005/465, art. 2, Sch. 1 para. 32(14))

57ACompulsion orderS

(1)This section applies where a person (in this section and in sections 57B to 57D of this Act, referred to as the “offender”)—

(a)is convicted in the High Court or the sheriff court of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law); or

(b)is remitted to the High Court by the sheriff under any enactment for sentence for such an offence.

(2)If the court is satisfied—

(a)on the written or oral evidence of two medical practitioners, that the conditions mentioned in subsection (3) below are met in respect of the offender; and

(b)that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (5) below, make an order (in this Act referred to as a “compulsion order”) authorising, subject to subsection (7) below, for the period of 6 months beginning with the day on which the order is made such of the measures mentioned in subsection (8) below as may be specified in the order.

(3)The conditions referred to in subsection (2)(a) above are—

(a)that the offender has a mental disorder;

(b)that medical treatment which would be likely to—

(i)prevent the mental disorder worsening; or

(ii)alleviate any of the symptoms, or effects, of the disorder,

is available for the offender;

(c)that if the offender were not provided with such medical treatment there would be a significant risk—

(i)to the health, safety or welfare of the offender; or

(ii)to the safety of any other person; and

(d)that the making of a compulsion order in respect of the offender is necessary.

(4)The matters referred to in subsection (2)(b) above are—

(a)the mental health officer’s report, prepared in accordance with section 57C of this Act, in respect of the offender;

(b)all the circumstances, including—

(i)the nature of the offence of which the offender was convicted; and

(ii)the antecedents of the offender; and

(c)any alternative means of dealing with the offender.

(5)The court may, subject to subsection (6) below, make a compulsion order authorising the detention of the offender in a hospital by virtue of subsection (8)(a) below only if satisfied, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, that—

(a)the medical treatment mentioned in subsection (3)(b) above can be provided only if the offender is detained in hospital;

(b)the offender could be admitted to the hospital to be specified in the order before the expiry of the period of 7 days beginning with the day on which the order is made; and

(c)the hospital to be so specified is suitable for the purpose of giving the medical treatment to the offender.

(6)A compulsion order may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court—

(a)that the offender requires to be detained in hospital under conditions of special security; and

(b)that such conditions of special security can be provided only in a state hospital.

(7)Where the court—

(a)makes a compulsion order in respect of an offender; and

(b)also makes a restriction order in respect of the offender,

the compulsion order shall authorise the measures specified in it without limitation of time.

(8)The measures mentioned in subsection (2) above are—

(a)the detention of the offender in the specified hospital;

(b)the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), of medical treatment;

(c)the imposition of a requirement on the offender to attend—

(i)on specified or directed dates; or

(ii)at specified or directed intervals,

specified or directed places with a view to receiving medical treatment;

(d)the imposition of a requirement on the offender to attend—

(i)on specified or directed dates; or

(ii)at specified or directed intervals,

specified or directed places with a view to receiving community care services, relevant services or any treatment, care or service;

(e)subject to subsection (9) below, the imposition of a requirement on the offender to reside at a specified place;

(f)the imposition of a requirement on the offender to allow—

(i)the mental health officer;

(ii)the offender’s responsible medical officer; or

(iii)any person responsible for providing medical treatment, community care services, relevant services or any treatment, care or service to the offender who is authorised for the purposes of this paragraph by the offender’s responsible medical officer,

to visit the offender in the place where the offender resides;

(g)the imposition of a requirement on the offender to obtain the approval of the mental health officer to any change of address; and

(h)the imposition of a requirement on the offender to inform the mental health officer of any change of address before the change takes effect.

(9)The court may make a compulsion order imposing, by virtue of subsection (8)(e) above, a requirement on an offender to reside at a specified place which is a place used for the purpose of providing a care home service only if the court is satisfied that the person providing the care home service is willing to receive the offender.

(10)The Scottish Ministers may, by regulations made by statutory instrument, make provision for measures prescribed by the regulations to be treated as included among the measures mentioned in subsection (8) above.

(11)The power conferred by subsection (10) above may be exercised so as to make different provision for different cases or descriptions of case or for different purposes.

(12)No regulations shall be made under subsection (10) above unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the Scottish Parliament.

(13)The court shall be satisfied as to the condition mentioned in subsection (3)(a) above only if the description of the offender’s mental disorder by each of the medical practitioners mentioned in subsection (2)(a) above specifies, by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), at least one type of mental disorder that the offender has that is also specified by the other.

(14)A compulsion order—

(a)shall specify—

(i)by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), the type (or types) of mental disorder that each of the medical practitioners mentioned in subsection (2)(a) above specifies that the offender has that is also specified by the other; and

(ii)if the order does not, by virtue of subsection (8)(a) above, authorise the detention of the offender in hospital, the name of the hospital the managers of which are to have responsibility for appointing the offender’s responsible medical officer; and

(b)may include—

(i)in a case where a compulsion order authorises the detention of the offender in a specified hospital by virtue of subsection (8)(a) above; or

(ii)in a case where a compulsion order imposes a requirement on the offender to reside at a specified place by virtue of subsection (8)(e) above,

such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender’s admission to the specified hospital or, as the case may be, place.

(15)Where the court makes a compulsion order in relation to an offender, the court—

(a)shall not—

(i)make an order under section 200 of this Act;

(ii)make an interim compulsion order;

(iii)make a guardianship order;

(iv)pass a sentence of imprisonment;

(v)impose a fine;

(vi)make a probation order; or

(vii)make a community service order,

in relation to the offender;

(b)may make any other order that the court has power to make apart from this section.

(16)In this section—

  • care home service” has the meaning given by section 2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8);

  • community care services” has the meaning given by section 5A(4) of the Social Work (Scotland) Act 1968 (c. 49);

  • medical treatment” has the same meaning as in section 52D of this Act;

  • relevant services” has the meaning given by section 19(2) of the Children (Scotland) Act 1995 (c. 36);

  • responsible medical officer”, in relation to an offender, means the responsible medical officer appointed in respect of the offender under section 230 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13);

  • restriction order” means an order under section 59 of this Act;

  • sentence of imprisonment” includes any sentence or order for detention; and

  • specified” means specified in the compulsion order.

57BCompulsion order authorising detention in hospital or requiring residence at place: ancillary provisionS

(1)Where a compulsion order—

(a)authorises the detention of an offender in a specified hospital; or

(b)imposes a requirement on an offender to reside at a specified place,

this section authorises the removal, before the expiry of the period of 7 days beginning with the day on which the order is made, of the offender to the specified hospital or place, by any of the persons mentioned in subsection (2) below.

(2)Those persons are—

(a)a constable;

(b)a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; and

(c)a specified person.

(3)In this section, “specified” means specified in the compulsion order.

57CMental health officer’s reportS

(1)This section applies where the court is considering making a compulsion order in relation to an offender under section 57A of this Act.

(2)If directed to do so by the court, the mental health officer shall—

(a)subject to subsection (3) below, interview the offender; and

(b)prepare a report in relation to the offender in accordance with subsection (4) below.

(3)If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so.

(4)The report shall state—

(a)the name and address of the offender;

(b)if known by the mental health officer, the name and address of the offender’s primary carer;

(c)in so far as relevant for the purposes of section 57A of this Act, details of the personal circumstances of the offender; and

(d)any other information that the mental health officer considers relevant for the purposes of that section.

(5)In this section—

  • carer”, and “primary”, in relation to a carer, have the meanings given by section 329(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13);

  • mental health officer” means a person appointed (or deemed to be appointed) under section 32(1) of that Act; and

  • named person” has the meaning given by section 329(1) of that Act.

57DCompulsion order: supplementaryS

(1)If, before the expiry of the period of 7 days beginning with the day on which a compulsion order authorising detention of the offender in a hospital is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the order, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to the hospital specified in the direction.

(2)Where—

(a)the court makes a direction under subsection (1) above, it shall inform the person having custody of the offender; and

(b)the Scottish Ministers make such a direction, they shall inform—

(i)the court; and

(ii)the person having custody of the offender.

(3)Where a direction is made under subsection (1) above, the compulsion order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(4)In this section, “court” means the court which made the compulsion order.]

Hospital orders and guardianshipS

58 Order for hospital admission or guardianship.S

(1)Where a person is convicted in the High Court or the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the following conditions are satisfied, that is to say—

(a)the court is satisfied, on the written or oral evidence of two medical practitioners (complying with section 61 of this Act) that the grounds set out in—

(i)section 17(1); or, as the case may be

(ii)section 36(a),

of the Mental Health (Scotland) Act 1984 apply in relation to the offender;

(b)the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,

subject to subsection (2) below, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of such local authority or of such other person approved by a local authority as may be so specified.

(2)Where the case is remitted by the sheriff to the High Court for sentence under any enactment, the power to make an order under subsection (1) above shall be exercisable by that court.

(3)Where in the case of a person charged summarily in the sheriff court with an act or omission constituting an offence the court would have power, on convicting him, to make an order under subsection (1) above, then, if it is satisfied that the person did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.

(4)An order for the admission of a person to a hospital (in this Act, referred to as “a hospital order”) shall not be made under this section in respect of an offender or of a person to whom subsection (3) above applies unless the court is satisfied that that hospital, in the event of such an order being made by the court, is available for his admission thereto within 28 days of the making of such an order.

(5)A State hospital shall not be specified in a hospital order in respect of the detention of a person unless the court is satisfied, on the evidence of the medical practitioners which is taken into account under paragraph (a) of subsection (1) above, that the offender, on account of his dangerous, violent or criminal propensities, requires treatment under conditions of special security, and cannot suitably be cared for in a hospital other than a State hospital.

(6)An order placing a person under the guardianship of a local authority or of any other person (in this Act referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied—

(a)after taking into consideration the evidence of a mental health officer, that it is necessary in the interests of the welfare of the person that he should be placed under guardianship; and

(b)that that authority or person is willing to receive that person into guardianship.

(7)A hospital order or guardianship order shall specify the form of mental disorder, being mental illness or mental handicap or both, from which, upon the evidence taken into account under paragraph (a) of subsection (1) above, the offender is found by the court to be suffering; and no such order shall be made unless the offender is described by each of the practitioners, whose evidence is taken into account as aforesaid, as suffering from the same form of mental disorder, whether or not he is also described by either of them as suffering from the other form.

(8)Where an order is made under this section, the court shall not pass sentence of imprisonment or impose a fine or make a probation order or a community service order in respect of the offence, but may make any other order which the court has power to make apart from this section; and for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention.

(9)The court by which a hospital order is made may give such directions as it thinks fit for the conveyance of the patient to a place of safety and his detention therein pending his admission to the hospital within the period of 28 days referred to in subsection (4) above; but a direction for the conveyance of a patient to a residential establishment shall not be given unless the court is satisfied that the authority is willing to receive the patient therein.

(10)Where a person is charged before the district court with an act or omission constituting an offence punishable with imprisonment, the district court, if it appears to it that that person may be suffering from mental disorder, shall remit him to the sheriff court in the manner provided by section 7(9) and (10) of this Act, and the sheriff court shall, on any such remit being made, have the like power to make an order under subsection (1) above in respect of him as if he had been charged before that court with the said act or omission as an offence, or in dealing with him may exercise the like powers as the district court.

Modifications etc. (not altering text)

C10S. 58 extended (1.1.1998) by 1997 c. 48, s. 9(1)(b) (subject to s. 9(2)); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

Valid from 01/04/2002

[F3458A Application of Adults with Incapacity (Scotland) Act 2000S

(1)Subject to the provisions of this section, the provisions of Parts 1, 5, 6 and 7 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (“the 2000 Act”) apply—

(a)to a guardian appointed by an order of the court under section 57(2)(c), 58(1) or 58(1A) of this Act (in this section referred to as a “guardianship order”) whether appointed before or after the coming into force of these provisions, as they apply to a guardian with powers relating to the personal welfare of an adult appointed under section 58 of that Act;

(b)to a person authorised under an intervention order under section [F3560B] of this Act as they apply to a person so authorised under section 53 of that Act.

(2)In making a guardianship order the court shall have regard to any regulations made by the Scottish Ministers under section 64(11) of the 2000 Act and—

(a)shall confer powers, which it shall specify in the order, relating only to the personal welfare of the person;

(b)may appoint a joint guardian;

(c)may appoint a substitute guardian;

(d)may make such consequential or ancillary order, provision or direction as it considers appropriate.

(3)Without prejudice to the generality of subsection (2), or to any other powers conferred by this Act, the court may—

(a)make any order granted by it subject to such conditions and restrictions as appear to it to be appropriate;

(b)order that any reports relating to the person who will be the subject of the order be lodged with the court or that the person be assessed or interviewed and that a report of such assessment or interview be lodged;

(c)make such further inquiry or call for such further information as appears to it to be appropriate;

(d)make such interim order as appears to it to be appropriate pending the disposal of the proceedings.

(4)Where the court makes a guardianship order it shall forthwith send a copy of the interlocutor containing the order to the Public Guardian who shall—

(a)enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv) of the 2000 Act;

(b)unless he considers that the notification would be likely to pose a serious risk to the person’s health notify the person of the appointment of the guardian; and

(c)notify the local authority and the Mental Welfare Commission of the terms of the interlocutor.

(5)A guardianship order shall continue in force for a period of 3 years or such other period (including an indefinite period) as, on cause shown, the court may determine.

(6)Where any proceedings for the appointment of a guardian under section 57(2)(c) or 58(1) of this Act have been commenced and not determined before the date of coming into force of section 84 of, and paragraph 26 of schedule 5 to, the Adults with Incapacity (Scotland) Act 2000 (asp 4) they shall be determined in accordance with this Act as it was immediately in force before that date.]

Textual Amendments

F34S. 58A inserted (1.4.2002) by 2000 asp 4, s. 84(2); S.S.I. 2001/81, art. 3, Sch. 2

F35S. 58A: "In section 84 (applications to guardians appointed under Criminal Procedure (Scotland) Act 1995 (c. 46), in subsection (1)(b) of the section prospectively inserted by subsection (2), for the words "60A" there is substituted "60B"" (1.4.2002) by virtue of 2001 asp 8, s. 79, Sch. 3 para. 23(5); S.S.I. 2002/162, art. 2(h) (subject to arts. 3-13)

59 Hospital orders: restrictions on discharge.S

(1)Where a hospital order is made in respect of a person, and it appears to the court—

(a)having regard to the nature of the offence with which he is charged;

(b)the antecedents of the person; and

(c)the risk that as a result of his mental disorder he would commit offences if set at large,

that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in section 62(1) of the M34Mental Health (Scotland) Act 1984, without limit of time.

(2)An order under this section (in this Act referred to as “a restriction order”) shall not be made in the case of any person unless the medical practitioner approved by the Health Board for the purposes of section 20 or section 39 of the Mental Health (Scotland) Act 1984, whose evidence is taken into account by the court under section 58(1)(a) of this Act, has given evidence orally before the court.

(3)Where a restriction order is in force in respect of a patient, a guardianship order shall not be made in respect of him; and where the hospital order relating to him ceases to have effect by virtue of section 60(3) of the Mental Health (Scotland) Act 1984 on the making of another hospital order, that order shall have the same effect in relation to the restriction order as the previous hospital order, but without prejudice to the power of the court making that other hospital order to make another restriction order to have effect on the expiration of the previous such order.

Marginal Citations

Valid from 01/01/1998

[F3659A Hospital directions.S

(1)Subject to subsection (2) and (3) below, where a person is convicted on indictment in the High Court or in the sheriff court of an offence punishable by imprisonment, the court may, in addition to any sentence of imprisonment which it has the power or the duty to impose, by a direction under this subsection (in this Act referred to as a “hospital direction”) authorise his admission to and detention in such hospital as may be specified in the direction.

(2)Subsection (1) above shall not apply where the person convicted is a child.

(3)A hospital direction shall not be made unless—

(a)the court is satisfied on the written or oral evidence of two medical practitioners (complying with section 61 of this Act) that the grounds set out in section 17(1) of the M35Mental Health (Scotland) Act 1984 apply in relation to the offender;

(b)the medical practitioners mentioned in paragraph (a) above each describe the person as suffering from the same form of mental disorder, being mental illness or mental handicap, whether or not he is also described by either of them as suffering from the other form; and

(c)the court is satisfied that the hospital to be specified in the direction can admit the person in respect of whom it is to be made within 7 days of the direction being made.

(4)A State hospital shall not be specified in a hospital direction in respect of the detention of a person unless the court is satisfied, on the evidence of the medical practitioners which is taken into account under paragraphs (a) and (b) of subsection (3) above, that the person—

(a)on account of his dangerous violent or criminal propensities requires treatment under conditions of special security; and

(b)cannot suitably be cared for in a hospital other than a State hospital.

(5)A hospital direction shall specify the form of mental disorder from which, upon the evidence taken into account under paragraphs (a) and (b) of subsection (3) above, the person in respect of whom it is made is found to be suffering.

(6)The court by which a hospital direction is made may give such additional directions as it thinks fit for the conveyance of the person in respect of whom it is made to a place of safety and for his detention in that place pending his admission to hospital within the period mentioned in paragraph (c) of subsection (3) above.

(7)The court shall not make an additional direction under subsection (6) above directing the conveyance of the person concerned to a place of safety which is a residential establishment unless it is satisfied that the managers of that establishment are willing to receive him in the establishment.]

Textual Amendments

F36S. 59A inserted (1.1.1998) by 1997 c. 48, s. 6(1); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

Modifications etc. (not altering text)

C11S. 59A extended (1.1.1998) by 1997 c. 48, s. 9(1)(c) (subject to s. 9(2)); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

Marginal Citations

60 Appeals against hospital orders.S

Where a hospital order, interim hospital order (but not a renewal thereof), guardianship order or a restriction order has been made by a court in respect of a person charged or brought before it, he may without prejudice to any other form of appeal under any rule of law (or, where an interim hospital order has been made, to any right of appeal against any other order or sentence which may be imposed), appeal against that order in the same manner as against sentence.

Valid from 01/01/1998

[F3760A Appeal by prosecutor against hospital orders etc.S

(1)This section applies where the court, in respect of a person charged or brought before it, has made—

(a)an order under any of paragraphs (a) to (d) of subsection (2) of section 57 of this Act or such a decision as is mentioned in paragraph (e) of that subsection; or

(b)a hospital order, guardianship order, restriction order or a hospital direction.

(2)Where this section applies, the prosecutor may appeal against any such order, decision or direction as is mentioned in subsection (1) above—

(a)if it appears to him that the order, decision or direction was inappropriate; or

(b)on a point of law,

and an appeal under this section shall be treated in the same manner as an appeal against sentence under section 108 of this Act.]

Textual Amendments

F37S. 60A inserted (1.1.1998) by 1997 c. 48, s. 22; S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

Valid from 01/04/2002

60B Intervention ordersS

The court may instead of making a hospital order under section 58(1) of this Act or a guardianship order under section 57(2)(c) or 58(1A) of this Act, make an intervention order(as defined in section 53(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) where it considers that it would be appropriate to do so.

Valid from 21/03/2005

60CAcquitted persons: detention for medical examinationS

(1)Subject to subsection (7) below, this section applies where a person charged with an offence is acquitted.

(2)If the court by or before which the person is acquitted is satisfied—

(a)on the written or oral evidence of two medical practitioners that the conditions mentioned in subsection (3) below are met in respect of the person; and

(b)that it is not practicable to secure the immediate examination of the person by a medical practitioner,

the court may, immediately after the person is acquitted, make an order authorising the measures mentioned in subsection (4) below for the purpose of enabling arrangements to be made for a medical practitioner to carry out a medical examination of the person.

(3)The conditions referred to in subsection (2)(a) above are—

(a)that the person has a mental disorder;

(b)that medical treatment which would be likely to—

(i)prevent the mental disorder worsening; or

(ii)alleviate any of the symptoms, or effects, of the disorder,

is available for the person; and

(c)that if the person were not provided with such medical treatment there would be a significant risk—

(i)to the health, safety or welfare of the person; or

(ii)to the safety of any other person.

(4)The measures referred to in subsection (2) above are—

(a)the removal of the person to a place of safety by—

(i)a constable; or

(ii)a person specified by the court; and

(b)the detention, subject to subsection (6) below, of the person in that place of safety for a period of 6 hours beginning with the time at which the order under subsection (2) above is made.

(5)If the person absconds—

(a)while being removed to a place of safety under subsection (4) above; or

(b)from the place of safety,

a constable or the person specified by the court under paragraph (a) of that subsection may, at any time during the period mentioned in paragraph (b) of that subsection, take the person into custody and remove the person to a place of safety.

(6)An order under this section ceases to authorise detention of a person if, following the medical examination of the person, a medical practitioner grants—

(a)an emergency detention certificate under section 36 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13); or

(b)a short-term detention certificate under section 44 of that Act.

(7)This section does not apply—

(a)in a case where a declaration is made by virtue of section 54(6) of this Act that the person is acquitted on account of the person’s insanity at the time of doing the act or making the omission constituting the offence with which the person was charged; or

(b)in a case where the court states under section 55(4) of this Act that the person is so acquitted on the ground of such insanity.

(8)In this section, “medical treatment” has the same meaning as in section 52D of this Act.

Valid from 21/03/2005

60DNotification of detention under section 60CS

(1)This section applies where a person has been removed to a place of safety under section 60C of this Act.

(2)The court shall, before the expiry of the period of 14 days beginning with the day on which the order under section 60C(2) of this Act is made, ensure that the Mental Welfare Commission is given notice of the matters mentioned in subsection (3) below.

(3)Those matters are—

(a)the name and address of the person removed to the place of safety;

(b)the date on and time at which the person was so removed;

(c)the address of the place of safety;

(d)if the person is removed to a police station, the reason why the person was removed there; and

(e)any other matter that the Scottish Ministers may, by regulations made by statutory instrument, prescribe.

(4)The power conferred by subsection (3)(e) above may be exercised so as to make different provision for different cases or descriptions of case or for different purposes.

(5)A statutory instrument containing regulations under subsection (3)(e) above shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

Valid from 05/10/2005

[F38Hospital directions]S

Textual Amendments

F38Ss. 59A-59C and preceding cross-heading substituted for s. 59A (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(6); S.S.I. 2005/161, art. 3

[F3959BHospital direction: mental health officer’s reportS

(1)This section applies where the court is considering making a hospital direction in relation to an offender under section 59A of this Act.

(2)If directed to do so by the court, the mental health officer shall—

(a)subject to subsection (3) below, interview the offender; and

(b)prepare a report in relation to the offender in accordance with subsection (4) below.

(3)If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so.

(4)The report shall state—

(a)the name and address of the offender;

(b)if known by the mental health officer, the name and address of the offender’s primary carer;

(c)in so far as relevant for the purposes of section 59A of this Act, details of the personal circumstances of the offender; and

(d)any other information that the mental health officer considers relevant for the purposes of that section.

(5)In this section, “carer”, “primary”, in relation to a carer, and “mental health officer” have the same meanings as in section 57C of this Act.]

Textual Amendments

F39Ss. 59A-59C and preceding cross heading substituted for s. 59A (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(6); S.S.I. 2005/161, art. 3

[F4059CHospital direction: supplementaryS

(1)If, before the expiry of the period of 7 days beginning with the day on which a hospital direction is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the hospital direction, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to such other hospital as is specified.

(2)Where—

(a)the court makes a direction under subsection (1) above, it shall inform the person having custody of the offender; and

(b)the Scottish Ministers make such a direction, they shall inform—

(i)the court; and

(ii)the person having custody of the offender.

(3)Where a direction is made under subsection (1) above, the hospital direction shall have effect as if the hospital specified in the hospital direction were the hospital specified by the court, or, as the case may be, the Scottish Ministers, under subsection (1) above.

(4)In this section, “court” means the court which made the hospital direction.]

Textual Amendments

F40Ss. 59A-59C and preceding cross heading substituted for s. 59A (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(6); S.S.I. 2005/161, art. 3

Medical evidenceS

61 Requirements as to medical evidence.S

(1)Of the medical practitioners whose evidence is taken into account under sections 53(1), 54(1) and 58(1)(a) of this Act, at least one shall be a practitioner approved for the purposes of section 20 or section 39 of the M36Mental Health (Scotland) Act 1984 by a Health Board as having special experience in the diagnosis or treatment of mental disorder.

(2)Written or oral evidence given for the purposes of the said section 58(1)(a) shall include a statement as to whether the person giving the evidence is related to the accused and of any pecuniary interest which that person may have in the admission of the accused to hospital or his reception into guardianship.

(3)For the purposes of the said sections 54(1) and 58(1)(a) a report in writing purporting to be signed by a medical practitioner may, subject to the provisions of this section, be received in evidence without proof of the signature or qualifications of the practitioner; but the court may, in any case, require that the practitioner by whom such a report was signed be called to give oral evidence.

(4)Where any such report as aforesaid is tendered in evidence, otherwise than by or on behalf of the accused, then—

(a)if the accused is represented by counsel or solicitor, a copy of the report shall be given to his counsel or solicitor;

(b)if the accused is not so represented, the substance of the report shall be disclosed to the accused or, where he is a child under 16 years of age, to his parent or guardian if present in court;

(c)in any case, the accused may require that the practitioner by whom the report was signed be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by or on behalf of the accused,

and where the court is of the opinion that further time is necessary in the interests of the accused for consideration of that report, or the substance of any such report, it shall adjourn the case.

(5)For the purpose of calling evidence to rebut the evidence contained in any such report as aforesaid, arrangements may be made by or on behalf of an accused person detained in a hospital or, as respects a report for the purposes of the said section 54(1), remanded in custody for his examination by any medical practitioner, and any such examination may be made in private.

Marginal Citations

Appeals under Part VIS

62 Appeal by accused in case involving insanity.S

(1)A person may appeal to the High Court against—

(a)a finding made under section 54(1) of this Act that he is insane so that his trial cannot proceed or continue, or the refusal of the court to make such a finding;

(b)a finding under section 55(2) of this Act; or

(c)an order made under section 57(2) of this Act.

(2)An appeal under subsection (1) above shall be—

(a)in writing; and

(b)lodged—

(i)in the case of an appeal under paragraph (a) of that subsection, not later than seven days after the date of the finding or refusal which is the subject of the appeal;

(ii)in the case of an appeal under paragraph (b), or both paragraphs (b) and (c) of that subsection, not later than 28 days after the conclusion of the examination of facts;

(iii)in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by virtue of section 54(6) or 55(3) of this Act, on the ground of insanity at the time of the act or omission, not later than 14 days after the date of the acquittal;

(iv)in the case of an appeal under that paragraph against an order made on a finding under section 55(2), not later than 14 days after the conclusion of the examination of facts,

or within such longer period as the High Court may, on cause shown, allow.

(3)Where the examination of facts was held in connection with proceedings on indictment, subsections (1)(a) and (2)(b)(i) above are without prejudice to section 74(1) of this Act.

(4)Where an appeal is taken under subsection (1) above, the period from the date on which the appeal was lodged until it is withdrawn or disposed of shall not count towards any time limit applying in respect of the case.

(5)An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.

(6)In disposing of an appeal under subsection (1) above the High Court may—

(a)affirm the decision of the court of first instance;

(b)make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or

(c)remit the case to that court with such directions in the matter as the High Court thinks fit.

(7)Section 60 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1)(c) above.

63 Appeal by prosecutor in case involving insanity.S

(1)The prosecutor may appeal to the High Court on a point of law against—

(a)a finding under subsection (1) of section 54 of this Act that an accused is insane so that his trial cannot proceed or continue;

(b)an acquittal on the ground of insanity at the time of the act or omission by virtue of subsection (6) of that section;

(c)an acquittal under section 55(3) of this Act (whether or not on the ground of insanity at the time of the act or omission); or

(d)any order made under section 57(2) of this Act.

(2)An appeal under subsection (1) above shall be—

(a)in writing; and

(b)lodged—

(i)in the case of an appeal under paragraph (a) or (b) of that subsection, not later than seven days after the finding or, as the case may be, the acquittal which is the subject of the appeal;

(ii)in the case of an appeal under paragraph (c) or (d) of that subsection, not later than seven days after the conclusion of the examination of facts,

or within such longer period as the High Court may, on cause shown, allow.

(3)Where the examination of facts was held in connection with proceedings on indictment, subsections (1)(a) and (2)(b)(i) above are without prejudice to section 74(1) of this Act.

(4)A respondent in an appeal under this subsection shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.

(5)In disposing of an appeal under subsection (1) above the High Court may—

(a)affirm the decision of the court of first instance;

(b)make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or

(c)remit the case to that court with such directions in the matter as the High Court thinks fit.

(6)In this section, “the prosecutor” means, in relation to proceedings on indictment, the Lord Advocate.

PART VIIS Solemn Proceedings

The indictmentS

64 Prosecution on indictment.S

(1)All prosecutions for the public interest before the High Court or before the sheriff sitting with a jury shall proceed on indictment in name of Her Majesty’s Advocate.

(2)The indictment 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.

(3)Indictments in proceedings before the High Court shall be signed by the Lord Advocate or one of his deputes.

(4)Indictments in proceedings before the sheriff sitting with a jury shall be signed by the procurator fiscal, and the words “By Authority of Her Majesty’s Advocate” shall be prefixed to the signature of the procurator fiscal.

(5)The principal record and service copies of indictments and all notices of citation, lists of witnesses, productions and jurors, and all other official documents required in a prosecution on indictment may be either written or printed or partly written and partly printed.

(6)Schedule 3 to this Act shall have effect as regards indictments under this Act.

65 Prevention of delay in trials.S

(1)Subject to subsections (2) and (3) below, an accused shall not be tried on indictment for any offence unless the trial is commenced within a period of 12 months of the first appearance of the accused on petition in respect of the offence; and, failing such commencement within that period, the accused shall be discharged forthwith and thereafter he shall be for ever free from all question or process for that offence.

(2)Nothing in subsection (1) above shall bar the trial of an accused for whose arrest a warrant has been granted for failure to appear at a diet in the case.

(3)On an application made for the purpose, the sheriff or, where an indictment has been served on the accused in respect of the High Court, a single judge of that court, may on cause shown extend the said period of 12 months.

(4)Subject to subsections (5) to (9) below, an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than—

(a)80 days, unless within that period the indictment is served on him, which failing he shall be liberated forthwith; or

(b)110 days, unless the trial of the case is commenced within that period, which failing he shall be liberated forthwith and thereafter he shall be for ever free from all question or process for that offence.

(5)Subject to subsection (6) below, a single judge of the High Court, may, on an application made to him for the purpose, for any sufficient cause extend the period mentioned in subsection (4)(a) above.

(6)An application under subsection (5) above shall not be granted if the judge is satisfied that, but for some fault on the part of the prosecution, the indictment could have been served within the period of 80 days.

(7)A single judge of the High Court may, on an application made to him for the purpose, extend the period mentioned in subsection (4)(b) above where he is satisfied that delay in the commencement of the trial is due to—

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

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

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

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

(9)For the purposes of this section, a trial shall be taken to commence when the oath is administered to the jury.

(10)In calculating the period of 12 months specified in subsections (1) and (3) above there shall be left out of account any period during which the accused is detained, other than while serving a sentence of imprisonment or detention, in any other part of the United Kingdom or in any of the Channel Islands or the Isle of Man in any prison or other institution or place mentioned in subsection (1) or (1A) of section 29 of the M37Criminal Justice Act 1961 (transfer of prisoners for certain judicial purposes).

Marginal Citations

66 Service and lodging of indictment, etc.S

(1)When a sitting of the sheriff court or of the High Court has been appointed to be held for the trial of persons accused on indictment—

(a)where the trial diet is to be held in the sheriff court, the sheriff clerk; and

(b)where the trial diet is to be held in the High Court, the Clerk of Justiciary,

shall issue a warrant to officers of law to cite the accused, witnesses and jurors, in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form, and such warrant authenticated by the signature of such clerk, or a duly certified copy thereof, shall be a sufficient warrant for such citation.

(2)The execution of the citation against an accused, witness or juror shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form.

(3)A witness may be cited by sending the citation to the witness by ordinary or registered post or by the recorded delivery service and a written execution in the form prescribed by Act of Adjournal or as nearly as may be in such form, purporting to be signed by the person who served such citation together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such citation.

(4)The accused shall be served with a copy of the indictment and of the list of the names and addresses of the witnesses to be adduced by the prosecution.

(5)Except in a case to which section 76 of this Act applies, the prosecutor shall on or before the date of service of the indictment lodge the record copy of the indictment with the clerk of court before which the trial is to take place, together with a copy of the list of witnesses and a copy of the list of productions.

(6)Except where the indictment is served under section 76(1) of this Act, a notice shall be served on the accused with the indictment calling upon him to appear and answer to the indictment—

(a)where the case is to be tried in the sheriff court, at a first diet not less than 15 clear days after the service of the indictment and not less than 10 clear days before the trial diet; and

(b)at a trial diet (either in the High Court or in the sheriff court) not less than 29 clear days after the service of the indictment and notice.

(7)Service of the indictment, lists of witnesses and productions, and any notice or intimation to the accused, and the citation of witnesses, whether for precognition or trial, may be effected by any officer of law.

(8)No objection to the service of an indictment or to the citation of a witness shall be upheld on the ground that the officer who effected service or executed the citation was not at the time in possession of the warrant of citation, and it shall not be necessary to produce the execution of citation of an indictment.

(9)The citation of witnesses may be effected by any officer of law duly authorised; and in any proceedings, the evidence on oath of the officer shall, subject to subsection (10) below, be sufficient evidence of the execution of the citation.

(10)A court shall not issue a warrant to apprehend a witness who fails to appear at a diet to which he has been duly cited unless the court is satisfied that the witness received the citation or that its contents came to his knowledge.

(11)No objection to the competency of the officer who served the indictment to give evidence in respect of such service shall be upheld on the ground that his name is not included in the list of witnesses served on the accused.

(12)Any deletion or correction made before service on the record or service copy of an indictment shall be sufficiently authenticated by the initials of the person who has signed, or could by law have signed, the indictment.

(13)Any deletion or correction made on a service copy of an indictment, or on any notice of citation, postponement, adjournment or other notice required to be served on an accused shall be sufficiently authenticated by the initials of any procurator fiscal or of the person serving the same.

(14)Any deletion or correction made on any execution of citation or notice of other document requiring to be served shall be sufficiently authenticated by the initials of the person serving the same.

67 Witnesses.S

(1)The list of witnesses shall consist of the names of the witnesses together with an address at which they can be contacted for the purposes of precognition.

(2)It shall not be necessary to include in the list of witnesses the names of any witnesses to the declaration of the accused or the names of any witnesses to prove that an extract conviction applies to the accused, but witnesses may be examined in regard to these matters without previous notice.

(3)Any objection in respect of misnomer or misdescription of—

(a)any person named in the indictment; or

(b)any witness in the list of witnesses,

shall be intimated in writing to the court before which the trial is to take place, to the prosecutor and to any other accused, where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court, not less than ten clear days before the trial diet; and, except on cause shown, no such objection shall be admitted at the trial diet unless so intimated.

(4)Where such intimation has been given or cause is shown and the court is satisfied that the accused making the objection has not been supplied with sufficient information to enable him to identify the person named in the indictment or to find such witness in sufficient time to precognosce him before the trial, the court may grant such remedy by postponement, adjournment or otherwise as appears to it to be appropriate.

(5)Without prejudice to—

(a)any enactment or rule of law permitting the prosecutor to examine any witness not included in the list of witnesses; or

(b)subsection (6) below,

in any trial it shall be competent with the leave of the court for the prosecutor to examine any witness or to put in evidence any production not included in the lists lodged by him, provided that written notice, containing in the case of a witness his name and address as mentioned in subsection (1) above, has been given to the accused not less than two clear days before the day on which the jury is sworn to try the case.

(6)It shall be competent for the prosecutor to examine any witness or put in evidence any production included in any list or notice lodged by the accused, and it shall be competent for an accused to examine any witness or put in evidence any production included in any list or notice lodged by the prosecutor or by a co-accused.

Valid from 01/08/1997

[F4167A Failure of witness to attend for, or give evidence on, precognition.S

(1)This section applies where a prosecutor has obtained a warrant to cite a witness for precognition and has served a citation for precognition on the witness.

(2)Where this section applies, a witness who—

(a)fails without reasonable excuse, after receiving at least 48 hours notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him; or

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

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a term of imprisonment not exceeding 21 days.]

Textual Amendments

F41S. 67A inserted (1.8.1997) by 1997 c. 48, s. 57(1); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

68 Productions.S

(1)The list of productions shall include the record, made under section 37 of this Act (incorporating any rectification authorised under section 38(1) of this Act), of proceedings at the examination of the accused.

(2)The accused shall be entitled to see the productions according to the existing law and practice in the office of the sheriff clerk of the district in which the court of the trial diet is situated or, where the trial diet is to be in the High Court in Edinburgh, in the Justiciary Office.

(3)Where a person who has examined a production is adduced to give evidence with regard to it and the production has been lodged at least eight days before the trial diet, it shall not be necessary to prove—

(a)that the production was received by him in the condition in which it was taken possession of by the procurator fiscal or the police and returned by him after his examination of it to the procurator fiscal or the police; or

(b)that the production examined by him is that taken possession of by the procurator fiscal or the police,

unless the accused, at least four days before the trial diet, gives in accordance with subsection (4) below written notice that he does not admit that the production was received or returned as aforesaid or, as the case may be, that it is that taken possession of as aforesaid.

(4)The notice mentioned in subsection (3) above shall be given—

(a)where the accused is cited to the High Court for the trial diet, to the Crown Agent; and

(b)where he is cited to the sheriff court for the trial diet, to the procurator fiscal.

69 Notice of previous convictions.S

(1)No mention shall be made in the indictment of previous convictions, nor shall extracts of previous convictions be included in the list of productions annexed to the indictment.

(2)If the prosecutor intends to place before the court any previous conviction, he shall cause to be served on the accused along with the indictment a notice in the form set out in an Act of Adjournal or as nearly as may be in such form, and any conviction specified in the notice shall be held to apply to the accused unless he gives, in accordance with subsection (3) below, written intimation objecting to such conviction on the ground that it does not apply to him or is otherwise inadmissible.

(3)Intimation objecting to a conviction under subsection (2) above shall be given—

(a)where the accused is cited to the High Court for the trial diet, to the Crown Agent; or

(b)where the accused is cited to the sheriff court for the trial diet, to the procurator fiscal,

at least five clear days before the first day of the sitting in which the trial diet is to be held.

(4)Where notice is given by the accused under section 76 of this Act of his intention to plead guilty and the prosecutor intends to place before the court any previous conviction, he shall cause to be served on the accused along with the indictment a notice in the form set out in an Act of Adjournal or as nearly as may be in such form.

(5)Where the accused pleads guilty at any diet, no objection to any conviction of which notice has been served on him under this section shall be entertained unless he has, at least two clear days before the diet, given intimation to the procurator fiscal of the district to the court of which the accused is cited for the diet.

70 Proceedings against bodies corporate.S

(1)This section applies to proceedings on indictment against a body corporate.

(2)The indictment may be served by delivery of a copy of the indictment together with notice to appear at the registered office or, if there is no registered office or the registered office is not in the United Kingdom, at the principal place of business in the United Kingdom of the body corporate.

(3)Where a letter containing a copy of the indictment has been sent by registered post or by the recorded delivery service to the registered office or principal place of business of the body corporate, an acknowledgement or certificate of the delivery of the letter issued by the Post Office shall be sufficient evidence of the delivery of the letter at the registered office or place of business on the day specified in such acknowledgement or certificate.

(4)A body corporate may, for the purpose of—

(a)stating objections to the competency or relevancy of the indictment or proceedings; or

(b)tendering a plea of guilty or not guilty; or

(c)making a statement in mitigation of sentence,

appear by a representative of the body corporate.

(5)Where at the trial diet the body corporate does not appear as mentioned in subsection (4) above, or by counsel or a solicitor, the court shall, on the motion of the prosecutor, if it is satisfied that subsection (2) above has been complied with, proceed to hear and dispose of the case in the absence of the body corporate.

(6)Where a body corporate is sentenced to a fine, the fine may be recovered in like manner in all respects as if a copy of the sentence certified by the clerk of the court were an extract decree of the Court of Session for the payment of the amount of the fine by the body corporate to the Queen’s and Lord Treasurer’s Remembrancer.

(7)Nothing in section 77 of this Act shall require a plea tendered by or on behalf of a body corporate to be signed.

(8)In this section, “representative”, in relation to a body corporate, means an officer or employee of the body corporate duly appointed by it for the purpose of the proceedings; and a statement in writing purporting to be signed by the managing director of, or by any person having or being one of the persons having the management of the affairs of the body corporate, to the effect that the person named in the statement has been appointed the representative of the body corporate for the purpose of any proceedings to which this section applies shall be sufficient evidence of such appointment.

Modifications etc. (not altering text)

C12S. 70 extended (6.1.1997) by S.I. 1996/2827, reg. 70(4)

S. 70 applied (with modifications) (16.2.2001) by 2000 c. 41, s. 153(4) (with s. 156(6)); S.I. 2001/222, art. 2, Sch. 1 Pt. I (subject to transitional provisions in Sch. 1 Pt. II)

Valid from 06/06/2011

[F4270ADefence statementsS

(1)This section applies where an indictment is served on an accused.

(2)The accused must lodge a defence statement at least 14 days before the first diet.

(3)The accused must lodge a defence statement at least 14 days before the preliminary hearing.

(4)At least 7 days before the trial diet the accused must—

(a)where there has been no material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a statement stating that fact,

(b)where there has been a material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a defence statement.

(5)If after lodging a statement under subsection (2), (3) or (4) there is a material change in circumstances in relation to the accused's defence, the accused must lodge a defence statement.

(6)Where subsection (5) requires a defence statement to be lodged, it must be lodged before the trial diet begins unless on cause shown the court allows it to be lodged during the trial diet.

(7)The accused may lodge a defence statement—

(a)at any time before the trial diet, or

(b)during the trial diet if the court on cause shown allows it.

(8)As soon as practicable after lodging a defence statement or a statement under subsection (4)(a), the accused must send a copy of the statement to the prosecutor and any co-accused.

(9)In this section, “defence statement” means a statement setting out—

(a)the nature of the accused's defence, including any particular defences on which the accused intends to rely,

(b)any matters of fact on which the accused takes issue with the prosecution and the reason for doing so,

(c)particulars of the matters of fact on which the accused intends to rely for the purposes of the accused's defence,

(d)any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose,

(e)by reference to the accused's defence, the nature of any information that the accused requires the prosecutor to disclose, and

(f)the reasons why the accused considers that disclosure by the prosecutor of any such information is necessary.]

Textual Amendments

Pre-trial proceedingsS

71 First diet.S

(1)At a first diet the court shall, so far as is reasonably practicable, ascertain whether the case is likely to proceed to trial on the date assigned as the trial diet and, in particular—

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

(b)the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.

(2)In addition to the matters mentioned in subsection (1) above the court shall, at a first diet, consider any matter mentioned in any of paragraphs (a) to (d) of section 72(1) of this Act of which a party has, not less than two clear days before the first diet, given notice to the court and to the other parties.

(3)At a first diet the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) or (2) above.

(4)The accused shall attend a first diet of which he has been given notice and the court may, if he fails to do so, grant a warrant to apprehend him.

(5)A first diet may proceed notwithstanding the absence of the accused.

(6)The accused shall, at the first diet, be required to state how he pleads to the indictment, and section 77 of this Act shall apply where he tenders a plea of guilty.

(7)Where at a first diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court—

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

(b)may fix a further first diet.

(8)Subject to subsection (7) above, the court may, if it considers it appropriate to do so, adjourn a first diet.

(9)In this section “the court” means the sheriff court.

Valid from 01/11/2002

[F4371A Further pre-trial diet: dismissal or withdrawal of solicitor representing accused in case of sexual offenceS

(1)It is the duty of a solicitor who—

(a)was engaged for the purposes of the defence of an accused charged with a sexual offence to which section 288C of this Act applies—

(i)at the time of a first diet,

(ii)at the time of a diet under this section, or

(iii)in the case of a diet which, under subsection (7) below, is dispensed with, at the time when it was so dispensed with; and

(b)after that time but before the trial diet—

(i)is dismissed by the accused; or

(ii)withdraws,

forthwith to inform the court in writing of those facts.

(2)On being so informed, the court shall order that, before the trial diet, there shall be a further pre-trial diet under this section and ordain the accused then to attend.

(3)At a diet under this section, the court shall ascertain whether or not the accused has engaged another solicitor for the purposes of his defence at the trial.

(4)Where, following inquiries for the purposes of subsection (3) above, it appears to the court that the accused has not engaged another solicitor for the purposes of his defence at his trial, it may adjourn the diet under this section for a period of not more than 48 hours and ordain the accused then to attend.

(5)A diet under this section shall be not less than 10 clear days before the trial diet.

(6)A court may, at a diet under this section, postpone the trial diet.

(7)The court may dispense with a diet under this section previously ordered, but only if a solicitor engaged by the accused for the purposes of the defence of the accused at the trial has, in writing—

(a)confirmed his engagement for that purpose; and

(b)requested that the diet be dispensed with.

(8)Where—

(a)a solicitor has requested, under subsection (7) above, that a diet under this section be dispensed with; and

(b)before that diet has been held or dispensed with, the solicitor—

(i)is dismissed by the accused; or

(ii)withdraws,

the solicitor shall forthwith inform the court in writing of those facts.]

72 Preliminary diet: noticeS

(1)Subject to subsections (4) and (5) below, where a party to a case which is to be tried in the High Court within the appropriate period gives written notice to the court and to the other parties—

(a)that he intends to raise—

(i)a matter relating to the competency or relevancy of the indictment; or

(ii)an objection to the validity of the citation against him, on the ground of any discrepancy between the record copy of the indictment and the copy served on him, or on account of any error or deficiency in such service copy or in the notice of citation;

(b)that he intends—

(i)to submit a plea in bar of trial;

(ii)to apply for separation or conjunction of charges or trials;

(iii)to raise a preliminary objection under section 255 of this Act; or

(iv)to make an application under section 278(2) of this Act;

(c)that there are documents the truth of the contents of which ought to be admitted, or that there is any other matter which in his view ought to be agreed;

(d)that there is some point, as regards any matter not mentioned in paragraph (a) to (c) above, which could in his opinion be resolved with advantage before the trial and that he therefore applies for a diet to be held before the trial diet,

the court shall in a case to which paragraph (a) above applies, and in any other case may, order that there be a diet before the trial diet, and a diet ordered under this subsection is in this Act referred to as a “preliminary diet”.

(2)A party giving notice under subsection (1) above shall specify in the notice the matter or, as the case may be, the grounds of submission or the point to which the notice relates.

(3)The fact that a preliminary diet has been ordered on a particular notice under subsection (1) above shall not preclude the court’s consideration at that diet of any other such notice as is mentioned in that subsection, which has been intimated to the court and to the other parties at least 24 hours before that diet.

(4)Subject to subsection (5) below, the court may on ordering a preliminary diet postpone the trial diet for a period not exceeding 21 days; and any such postponement (including postponement for a period which by virtue of the said subsection (5) exceeds 21 days) shall not count towards any time limit applying in respect of the case.

(5)Any period mentioned in subsection (4) above may be extended by the High Court in respect of the case.

(6)In subsection (1) above, “appropriate period” means as regards notice—

(a)under paragraph (a) of that subsection, the period of 15 clear days after service of the indictment;

(b)under paragraph (b) of that subsection, the period from service of the indictment to 10 clear days before the trial diet; and

(c)under paragraph (c) or (d) of that subsection, the period from service of the indictment to the trial diet.

Valid from 01/11/2002

[F4472A Pre-trial diet: inquiry about legal representation of accused in cases of sexual offencesS

(1)Where a case to be tried in the High Court is in respect of a sexual offence to which section 288C of this Act applies, the court shall order that, before the trial diet, there shall be a diet under this section and ordain the accused then to attend.

(2)At a diet under this section, the court shall ascertain whether or not the accused has engaged a solicitor for the purposes of his defence at the trial.

(3)Where, following inquiries for the purposes of subsection (2) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at his trial, it may adjourn the diet under this section for a period of not more than 48 hours and ordain the accused then to attend.

(4)A diet under this section shall be not less than 15 clear days after the service of the indictment and not less than 10 clear days before the trial diet.

(5)A diet under this section may be conjoined with a preliminary diet.

(6)A court may, at a diet under this section, postpone the trial diet.

(7)The court may dispense with a diet under this section previously ordered, but only if a solicitor engaged by the accused for the purposes of the defence of the accused at the trial has, in writing—

(a)confirmed his engagement for that purpose; and

(b)requested that the diet be dispensed with.

(8)Where—

(a)a solicitor has requested, under subsection (7) above, that a diet under this section be dispensed with; and

(b)before that diet has been held or dispensed with, the solicitor—

(i)is dismissed by the accused; or

(ii)withdraws,

the solicitor shall forthwith inform the court in writing of those facts.

(9)It is the duty of a solicitor who—

(a)was engaged for the purposes of the defence of the accused at the trial—

(i)at the time of a diet under this section; or

(ii)in the case of a diet which, under subsection (7) above, is dispensed with, at the time when it was so dispensed with; and

(b)after that time but before the trial diet—

(i)is dismissed by the accused; or

(ii)withdraws,

forthwith to inform the court in writing of those facts.

(10)