Act of Adjournal (Consolidation Amendment) (Criminal Justice International Co-operation Act 1990) 1992

Statutory Instruments

1992 No. 1489 (S.143)

HIGH COURT OF JUSTICIARY, SCOTLAND

SUMMARY JURISDICTION, SCOTLAND

Act of Adjournal (Consolidation Amendment) (Criminal Justice International Co-operation Act 1990) 1992

Made

19th June 1992

Coming into force

13th July 1992

The Lord Justice General, the Lord Justice Clerk and the Lords Commissioners of Justiciary under and by virtue of the powers conferred on them by sections 282 and 457 of the Criminal Procedure (Scotland) Act 1975((1)), section 10 of the Criminal Justice International Co-operation Act 1990((2)), and of all other powers enabling them in that behalf, do hereby enact and declare:

Citation and commencement

1.—(1) This Act of Adjournal may be cited as the Act of Adjournal (Consolidation Amendment) (Criminal Justice International Co-operation Act 1990) 1992 and shall come into force on 13th July 1992.

(2) This Act of Adjournal shall be inserted in the Books of Adjournal.

Amendment of Act of Adjournal (Consolidation) 1988

2.—(1) The Act of Adjournal (Consolidation) 1988((3)) shall be amended in accordance with the following sub-paragraphs.

(2) For rule 168, substitute the following rule:—

“Criminal Justice (International Co-operation) Act 1990

Interpretation

168.   In rules 168 to 176—

• “the Act of 1990((4))” means the Criminal Justice (International Co-operation) Act 1990; and

• “document” means a document to which section 2 of the Act of 1990 (service of United Kingdom process overseas) applies.”

(3) After rule 168 insert the following rules:—

“Service of order outside the United Kingdom

169.   Where a document is to be served on a person outside the United Kingdom, it shall be sent by the Clerk of Justiciary or sheriff clerk to the Crown Agent with a view to its being served in accordance with arrangements made by the Secretary of State.

Proof of service outside the United Kingdom

170.   The service on any person of a document may be proved in any legal proceedings by a certificate given by or on behalf of the Secretary of State, and such a certificate shall be sufficient evidence of the facts stated therein.

Notice of applications for letters of request

171.   An application under section 3(1) of the Act of 1990 (which relates to letters of request)—

(a) shall be made in Form 89;

(b) shall be lodged with the Clerk of Justiciary or sheriff clerk; and

(c) shall—

(i) be made in writing;

(ii) state the particulars of the offence which it is alleged has been committed or the grounds upon which it is suspected that an offence has been committed;

(iii) state whether proceedings in respect of the offence have been instituted or the offence is being investigated; and

(iv) include particulars of the assistance requested in a draft letter of request which may be in Form 90.

Hearing of applications for letters of request

172.— (1) Where the prosecutor presents an application under section 3(1) of the Act of 1990, before either the first appearance of the accused on petition or the service of a summary complaint the High Court or sheriff shall, without requiring intimation to the other party or parties, proceed to consider the application.

(2) Where any party presents such application following the first appearance of the accused on petition or the service of a summary complaint the High Court or sheriff may—

(a) before the lodging of an indictment, dispense on cause shown with intimation to the other party or parties and proceed to consider the application; or

(b) fix a diet for hearing such application and order intimation of the diet and application to the other party or parties.

(3) The High Court or sheriff, after considering any such application—

(a) may allow summary adjustment of the statement of assistance required in the letter of request;

(b) shall grant the application, with or without any modifications which it or he deems appropriate, or shall refuse it.

(4) On granting such application the High Court or sheriff shall—

(a) approve and sign the letter of request;

(b) if English is not an official language of the body to whom the letter of request is addressed, specify a period within which a translation of the letter of request and of any production is to be lodged.

Court register of applications for letters of request

173.— (1) A register shall be kept by the Clerk of Justiciary and by the sheriff clerk of applications under section 3(1) of the Act of 1990.

(2) Save as authorised by the court, the register relating to applications mentioned in paragraph (1) above shall not be open to inspection by any person.

Letters of request in urgent cases

174.   Where, in a case of urgency, the court sends a letter of request direct to any court or tribunal in accordance with section 3(5) of the Act of 1990, the Clerk of Justiciary or sheriff clerk shall forthwith notify the Crown Agent and Secretary of State of this and send with the notification a copy of the letter of request.

Proceedings before a nominated court

175.— (1) In proceedings before a court nominated under section 4(2) of the Act of 1990 (court for the giving of evidence for use overseas)—

(a) the procurator fiscal or Crown counsel shall participate in any hearing;

(b) the prosecutor of the requesting country mentioned in the request under section 4(1) of the Act of 1990 may participate in any hearing;

(c) where the request under section 4(1) of the Act of 1990 originates from current criminal proceedings any party to or persons with an interest in those proceedings may attend and, with the leave of the court, participate in any hearing;

(d) a judge or investigating magistrate in the current criminal proceedings may participate in any hearing;

(e) a lawyer or person with a right of audience from the requesting country who represents any party to the current criminal proceedings may participate in any hearing;

(f) a solicitor or counsel instructed by any party may participate in any hearing;

(g) any other person may with the leave of the court participate in any hearing;

(h) a shorthand writer may be present to record the proceedings; and

(i) the proceedings shall be in private.

(2) Where any person applies for leave to participate in any hearing the court shall, in determining such application consider any relevant representations made by the party making the request under section 4(1) of the Act of 1990.

Court record of proceedings before a nominated court

176.— (1) Where a court receives evidence in proceedings by virtue of a notice under section 4(2) of the Act of 1990, the sheriff clerk or Clerk of Justiciary shall note in the minute of proceedings—

(a) particulars of the proceedings; and

(b) without prejudice to the generality of (a) above—

(i) which persons were present;

(ii) which of those persons were represented and by whom; and

(iii) whether any of those persons were denied the opportunity of cross-examining a witness as to any part of his testimony.

(2) Save as authorised by the Lord Advocate, or with the leave of the court, the minute or proceedings mentioned in paragraph (1) above shall not be open to inspection by any person.

(3) When so requested by the Lord Advocate, the sheriff clerk shall send to him a certified copy of the minute of proceedings as it relates to any proceedings mentioned in paragraph (1) above.

(4) The sheriff clerk or Clerk of Justiciary shall comply with paragraph 5 of Schedule 1 to the Act of 1990 with regard to the transmission of evidence received by the court.

Revocation

177.   The Acts of Adjournal specified in Schedule 2 are revoked.”

(4) In the Appendix, after Form 88, insert Forms 89 and 90 in the Schedule to this Act of Adjournal.

J.A.D. Hope

Lord Justice General, IPD

Edinburgh,

19th June 1992

Paragraph 2(3)

SCHEDULE

Rule 171(a)

FORM 89 Form of Application for Letter of Request under Criminal Justice (International Co-operation) Act 1990, s. 3

Rule 171(c)(iv)

FORM 90 LETTER OF REQUEST UNDER SECTION 3 OF THE CRIMINAL JUSTICE (INTERNATIONAL CO-OPERATION) ACT 1990

Explanatory Note

(This note is not part of the Act of Adjournal)

This Act of Adjournal amends the Act of Adjournal (Consolidation) 1988 (S.I. 1988/110) by—

(a) prescribing procedure for the service outside the United Kingdom of a document or order under section 2 of the Criminal Justice (International Co-operation) Act 1990 ( “the Act of 1990”), (paragraphs 2(2) and (3));

(b) prescribing procedure for the obtaining of letters of request under section 3 of the Act of 1990 together with the form of application and form of draft letter of request, (paragraphs 2(3) and (4) and Schedule);

(c) providing rules in relation to proceedings before a nominated court under section 4 of the Act of 1990, (paragraph 2(3)).

(1)

1975 c. 21; section 282 was amended by paragraph 47 of, and section 457 by paragraph 72 of, Schedule 7 to the Criminal Justice (Scotland) Act 1980 (c. 62).

(2)

1990 c. 5.

(3)

S.I. 1988/110, to which there are amendments not relevant to this Act of Adjournal.

(4)

1990 c. 5.