Expiry of undertaking under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016
89.Paragraph 6 makes provision which enables the court to prevent the expiry of an undertaking given under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) when certain conditions are met.
90.Paragraph 6(2) makes a consequential amendment to section 29(1)(a) of the 2016 Act by introducing reference to new section 29A.
91.Paragraph 6(3) inserts a new section 29A into the 2016 Act, which deals with expiry of undertakings. The new section 29A enables the court to modify the terms of an undertaking given under section 25(2)(a) of the 2016 Act by changing the time at which the person who gave the undertaking is to appear at court where certain conditions are met, as set out in subsection (1). Where the court exercises this power, this has the effect of the undertaking and any conditions attached to it continuing until the newly specified time at which the person is to appear at court.
92.Those conditions are:
the person has failed to appear at court as required by the terms of the undertaking,
the court considers that the failure to appear is attributable to a reason related to coronavirus, and
the court does not consider it appropriate to grant a warrant for the person’s arrest on account of the failure to appear.
93.Subsection (2) requires the procurator fiscal to give notice, as soon as reasonably practicable, to the person who gave the undertaking that the terms of the undertaking have been modified, where the court makes such an order under subsection (1).
94.Subsection (3) prescribes the manner in which notice under subsection (2) must be effected and provides that the same requirements as in section 141 of the Criminal Procedure (Scotland) Act 1995 apply. This includes delivering the notice personally or leaving it at the person’s home.
95.Subsection (4) provides that the references in subsection (1) to the terms of the undertaking include those modified by the procurator fiscal under section 27(1).
96.Subsection (5) provides that a reference in any enactment to the modification of the terms of an undertaking made by the procurator fiscal under section 27(1) is to be treated as including modification by the court under subsection (1).
97.Fixed penalty notices under the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020
98.The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020([1])[1] (“the Health Protection Regulations”) create a number of criminal offences for the purpose of responding to the threat to public health posed by the incidence and spread of coronavirus in Scotland. Under Regulation 9 a police officer may issue a fixed penalty notice (“an FPN”) to a person where the officer reasonably believes that the person:
has committed an offence under the Regulations, and
is aged 16 years or over.
99.Paragraph 7 of schedule 2 amends regulation 9 of the Health Protection Regulations to change the age to 18.
100.As a consequence, a police officer will only be able to issue an FPN under those Regulations where the officer reasonably believes that the person is aged 18 or over.
