Criminal Procedure (Scotland) Act 1995

[F1 Trials for sexual offences S

Textual Amendments

F1 S. 288C and cross-heading inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 1; S.S.I. 2002/443, art. 3 (with art. 4(1)(2))

288C Prohibition of personal conduct of defence in cases of certain sexual offences S

(1) An accused charged with a sexual offence to which this section applies is prohibited from conducting

[F2 (a) his case in person at or for the purposes of a preliminary hearing; and

(b)] his defence in person at the trial [F3 and in any victim statement proof relating to any such offence] .

(2) This section applies to the following sexual offences—

(a) rape;

(b) sodomy;

(c) clandestine injury to women;

(d) abduction of a woman or girl with intent to rape;

(e) assault with intent to rape;

(f) indecent assault;

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

(h) an offence under section [F4 311 (non-consensual sexual acts) or 313 (persons providing care services: sexual offences) of the Mental Health (Care and Treatment)(Scotland) Act 2003] ;

(i) an offence under any of the following provisions of the Criminal Law (Consolidation)(Scotland) Act 1995 (c.39)—

(i) sections 1 to 3 (incest and related offences);

(ii) section 5 (unlawful sexual intercourse with girl under 13 or 16);

(iii) section 6 (indecent behaviour toward girl between 12 and 16);

(iv) section 7(2) and (3)(procuring by threats etc.);

(v) section 8 (abduction and unlawful detention);

(vi) section 10 (seduction, prostitution, etc. of girl under 16);

(vii) section 13(5)(b) or (c)(homosexual offences);

(j) attempting to commit any of the offences set out in paragraphs (a) to (i) above.

(3) This section applies also to an offence in respect of which a court having jurisdiction to try that offence has made an order under subsection (4) below.

(4) Where, in the case of any offence, other than one set out in subsection (2) above, that court is satisfied that there appears to be such a substantial sexual element in the alleged commission of the offence that it ought to be treated, for the purposes of this section, in the same way as an offence set out in that subsection, the court shall, either on the application of the prosecutor or ex proprio motu, make an order under this subsection.

(5) The making of such an order does not affect the validity of anything which—

(a) was done in relation to the alleged offence to which the order relates; and

(b) was done before the order was made.

(6) The Scottish Ministers may by order made by statutory instrument vary the sexual offences to which this section applies by virtue of subsection (2) above by modifying that subsection.

(7) No such statutory instrument shall be made, however, unless a draft of it has been laid before and approved by resolution of the Scottish Parliament.

[F5 (8) In subsection (1)(b) above, “victim statement proof” means any proof ordered in relation to—

(a) a victim statement made by virtue of subsection (2)(or by virtue of that subsection and subsection (6)) of section 14 of the Criminal Justice (Scotland) Act 2003 (asp 7); or

(b) a statement made by virtue of subsection (3) of that section in relation to such a victim statement.]

Textual Amendments

F2 Words in s. 288C(1) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 4(1), 27(1); S.S.I. 2004/405, art. 2(1), Sch. 1 (with savings in arts. 3-5)

F3 Words in s. 288C(1)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 55(a); S.S.I. 2004/405, art. 2(1), Sch. 1 (with savings in arts. 3-5)

F4 Words in s. 288C(2)(h) substituted (27.9.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), art. 2, Sch. 1 para. 27(5)

F5 S. 288C(8) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 55(b); S.S.I. 2004/405, art. 2(1), Sch. 1 (with savings in arts. 3-5)

[F6 288D Appointment of solicitor by court in such cases S

(1) This section applies in the case of proceedings in respect of a sexual offence to which section 288C above applies.

(2) Where the court ascertains that—

(a) the accused has not engaged a solicitor for the purposes of

[F7 (i) the conduct of his case at or for the purposes of a preliminary hearing; or

(ii)] his defence at the trial [F8 or as the case may be at any [F9 victim statement proof] as is mentioned in section [F10 288C(1)(b)] of this Act] ; or

[F11 (iii) the conduct of his case at any commissioner proceedings; or]

(b) having engaged a solicitor for those purposes, the accused has dismissed him; or

(c) the accused’s solicitor has withdrawn,

then, where the court is not satisfied that the accused intends to engage a solicitor or, as the case may be, another solicitor for those purposes, it shall, at its own hand, appoint a solicitor for those purposes.

(3)

A solicitor so appointed is not susceptible to dismissal by the accused or obliged to comply with any instruction by the accused to dismiss counsel.

(4) Subject to subsection (3) above, it is the duty of a solicitor so appointed—

(a) to ascertain and act upon the instructions of the accused; and

(b) where the accused gives no instructions or inadequate or perverse instructions, to act in the best interests of the accused.

(5) In all other respects, a solicitor so appointed has, and may be made subject to, the same obligations and has, and may be given, the same authority as if engaged by the accused; and any employment of and instructions given to counsel by the solicitor shall proceed and be treated accordingly.

(6) Where the court is satisfied that a solicitor so appointed is no longer able to act upon the instructions, or in the best interests, of the accused, the court may relieve that solicitor of his appointment and appoint another solicitor for the purposes of the accused’s defence at the trial [F12 (or at any related commissioner proceedings)] .

[F13 (6A) Where, in relation to commissioner proceedings, the commissioner is satisfied that a solicitor so appointed is no longer able to act upon the instructions, or in the best interests, of the accused, the commissioner is (for the purpose of the application of subsection (6) above) to refer the case to the court.]

(7) The references in subsections (3) to ([F14 (6A)]) above to “a solicitor so appointed” include references to a solicitor appointed under subsection (6) above.

(8) In this section “counsel” includes a solicitor who has right of audience in the High Court of Justiciary under section 25A (rights of audience in various courts including the High Court of Justiciary) of the Solicitors (Scotland) Act 1980 (c.46).

[F15 (9) In this section, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.]]]

Textual Amendments

F6 S. 288D inserted (S.) (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 2(1); S.S.I. 2002/443, art. 3 (with art. 4(1)(2))

F7 Words in s. 288D(2)(a) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 4(2), 27(1); S.S.I. 2004/405, art. 2(1), Sch. 1 (with savings in arts. 3-5)

F8 Words in s. 288D(2)(a) added (25.11.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 15(3), 89; S.S.I. 2003/475, art. 2, Sch.

F9 Words in s. 288D(2)(a)(ii) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 56(a); S.S.I. 2004/405, art. 2(1), Sch. 1 (with savings in arts. 3-5)

F10 Words in s. 288D(2)(a)(ii) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 56(b); S.S.I. 2004/405, art. 2(1), Sch. 1 (with savings in arts. 3-5)

F11 S. 288D(2)(a)(iii) inserted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 35(6)(a), 84; S.S.I. 2007/250, art. 3(a)

F12 Words in s. 288D(6) inserted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 35(6)(b), 84; S.S.I. 2007/250, art. 3(a)

F13 S. 288D(6A) inserted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 35(6)(c), 84; S.S.I. 2007/250, art. 3(a)

F14 Word in s. 288D(7) substituted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 35(6)(d), 84; S.S.I. 2007/250, art. 3(a)

F15 S. 288D(9) added (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 35(6)(e), 84; S.S.I. 2007/250, art. 3(a)