(1)The Criminal Procedure (Scotland) Act 1995 is modified as follows.
(2)Before section 304 (and the Part heading immediately preceding it) insert—
(1)An electronic signature fulfills any requirement (however expressed and for whatever purpose) for the signing or initialling of—
(a)a document of a type mentioned in section 303E(1), or
(b)a deletion or correction to such a document.
(2)In this section, “electronic signature” is to be construed in accordance with section 7(2) of the Electronic Communications Act 2000, but includes a version of an electronic signature which is reproduced on a paper document.
(1)Any requirement (however expressed) that a document of a type mentioned in section 303E(1) be given to a person may be fulfilled by—
(a)transmitting it to the person electronically, or
(b)transmitting it (electronically or otherwise) to a solicitor engaged to act on the person’s behalf in relation to the proceedings in question.
(2)For the purposes of this section—
(a)electronic transmission of a document by one person (“the sender”) to another person (“the recipient”) must be effected in a way that the recipient has indicated to the sender that the recipient is willing to receive the document,
(b)the recipient’s indication of willingness to receive a document in a particular way may be—
(i)specific to the document in question or generally applicable to documents of that kind,
(ii)expressed specifically to the sender or generally (for example on a website),
(iii)inferred from the recipient having previously been willing to receive documents from the sender in that way and not having indicated unwillingness to do so again,
(c)the sender’s uploading of a document to an electronic storage system from which the recipient is able to download the document may constitute electronic transmission of the document from the sender to the recipient.
(3)In this section, references to giving a person a document include—
(a)serving a document on a person,
(b)sending a document to a person, and
(c)lodging a document with, or otherwise applying to or petitioning, a court.
(1)The types of document referred to in sections 303C and 303D are—
(a)an order, warrant, sentence, citation, minute or any other document produced by a court,
(b)an extract of any document mentioned in paragraph (a),
(c)any document that an enactment requires to be given to a person in connection with, or in order to initiate, criminal proceedings,
(d)any document that an enactment requires to be signed or initialled in order that it, or any other thing, may be used in criminal proceedings for any purpose including—
(i)being used as evidence, or
(ii)being treated as sufficient evidence of a matter.
(2)But a type of document mentioned in subsection (1) is not to be regarded as mentioned in that subsection for the purposes of section 303C or 303D (or both) if the Lord Justice General directs that it is not.
(3)A direction under subsection (2)—
(a)may relate to some or all criminal proceedings,
(b)may be varied or revoked,
(c)must be made publicly available for so long as it has effect.
In sections 303C to 303E of this Act—
(a)references to a court include an office holder of a court,
(b)“document” includes a copy of a document.”.
(3)The following provisions are repealed—
(a)in section 66 (service and lodging of indictment, etc.), subsections (6C), (6D) and (6E),
(b)section 72G (service etc. on accused through a solicitor),
(c)section 148D (service etc. on accused through a solicitor).
(1)The Criminal Procedure (Scotland) Act 1995 is modified as follows.
(2)After section 303F (inserted by section 1) insert—
(1)This section applies in relation to a hearing in criminal proceedings in which—
(a)a person is to give evidence, and
(b)section 303H does not apply.
(2)A court may disapply any requirement (however expressed) that a person physically attend the court by directing that the person need not do so.
(3)A court may disapply a requirement for a person’s physical attendance under subsection (2) only if it considers that allowing the person to attend by electronic means in accordance with section 303K would not—
(a)prejudice the fairness of the proceedings, or
(b)otherwise be contrary to the interests of justice.
(4)Nothing in this section affects any other basis upon which a person need not physically attend a court.
(5)References in this section to physically attending a court are to—
(a)being in a particular place, or
(b)being in the same place as another person,
for the purpose of any proceedings before a court or an office holder of a court.
(1)This section applies in relation to criminal proceedings in which the only party is a public official.
(2)Any requirement (however expressed) that a person physically attend a court does not apply, unless the court directs the person to physically attend.
(3)A court may direct a person to physically attend under subsection (2) only if it considers that allowing the person to attend by electronic means in accordance with section 303K would—
(a)prejudice the fairness of the proceedings, or
(b)otherwise be contrary to the interests of justice.
(4)Nothing in this section affects any other basis upon which a person need not physically attend a court.
(5)References in this section to physically attending a court are to be construed in accordance with section 303G(5).
(1)A court may issue a direction under section 303G(2) or 303H(2) on the motion of a party or of its own accord.
(2)The power to issue a direction under section 303G(2) or 303H(2) includes the power to revoke an earlier direction under that section.
(3)In considering whether to issue a direction under section 303G(2) or 303H(2), the court must—
(a)give all parties an opportunity to make representations (subject to subsection (4)), and
(b)have regard to any guidance issued by the Lord Justice General.
(4)A court may, of its own accord, issue the first direction under section 303G(2) or 303H(2) in relation to a hearing or proceedings without having given the parties an opportunity to make representations.
(5)Where a direction under section 303G(2) or 303H(2) is issued as described in subsection (4), the court must—
(a)take steps to ensure that the parties are aware of their right to make a motion for the revocation of the direction, and
(b)deal with any motion for the direction’s revocation,
before dealing with any other matter at the hearing, other than a decision to adjourn or a matter that an enactment requires that the court deal with before another hearing could practicably be arranged.
(1)This section applies in relation to any criminal proceedings other than—
(a)a hearing to which section 303G applies, or
(b)proceedings to which section 303H applies.
(2)Any requirement (however expressed) that a person physically attend a court does not apply if—
(a)a determination made by the Lord Justice General states that it does not, and
(b)the court has not directed the person to physically attend.
(3)A determination under subsection (2)(a)—
(a)may, in particular, disapply a requirement for physical attendance—
(i)in relation to persons, hearings or proceedings described in the determination,
(ii)by enabling a court to disapply it in circumstances specified in the determination,
(b)may make different provision for—
(i)different purposes,
(ii)different areas,
(c)may be varied or revoked,
(d)must set out the reason for making the determination,
(e)must be made publicly available for so long as it has effect.
(4)The Lord Justice General may make a determination under subsection (2)(a) disapplying a requirement for physical attendance only if (taking into account the discretion conferred by subsection (2)(b)), the Lord Justice General is satisfied that it would not—
(a)prejudice the fairness of proceedings, or
(b)otherwise be contrary to the interests of justice.
(5)A direction under subsection (2)(b)—
(a)may be issued by a court on the motion of a party or of its own accord,
(b)may be revoked.
(6)Where, by reason of a determination under subsection (2)(a), a person is to attend a court hearing by electronic means in accordance with section 303K, the court must—
(a)take steps to ensure that the parties are aware of their right to make a motion for a direction under subsection (2)(b), and
(b)deal with any motion for a direction under that subsection,
before dealing with any other matter at the hearing, other than a decision to adjourn or a matter that an enactment requires that the court deal with before another hearing could practicably be arranged.
(7)Nothing in this section affects any other basis upon which a person need not physically attend a court.
(8)References in this section to physically attending a court are to be construed in accordance with section 303G(5).
(1)A person excused from a requirement to physically attend a court by virtue of section 303G(2), 303H(2) or 303J(2)(a) must instead appear before the court or office holder (as the case may be) by electronic means in accordance with a direction issued by the court.
(2)A person who fails to do so is to be regarded as having failed to comply with the requirement to physically attend from which the person is excused.
(3)A direction under subsection (1)—
(a)is to set out how the person is to appear by electronic means before the court or office holder, including what requirements must be satisfied by the location from which the person is to appear,
(b)may include any other provision which the court considers appropriate,
(c)may be made by a court on the motion of a party or of its own accord.
(4)The power to issue a direction under subsection (1) includes the power to vary or revoke an earlier direction issued under that subsection.
(5)Before issuing a direction under subsection (1), the court must—
(a)give all parties an opportunity to make representations (subject to subsection (6)), and
(b)have regard to any guidance issued by the Lord Justice General.
(6)The court may, of its own accord, issue the first direction under subsection (1) in relation to a hearing or proceedings without having given the parties an opportunity to make representations.
(7)Where a direction is issued as described in subsection (6), the court must—
(a)take steps to ensure that the parties are aware of their right to make a motion for the variation or revocation of the direction, and
(b)deal with any motion for the variation or revocation of the direction,
before taking a decision about any other matter at the hearing, other than a decision to adjourn, a decision in respect of a motion for a direction under section 303G, 303H or 303J or a matter that an enactment requires that the court deal with before another hearing could practicably be arranged.
(8)A direction under subsection (1) setting out—
(a)how a party to proceedings is to attend by electronic means a hearing in which a person is to give evidence, must provide for the party to use means that enable the party to both see and hear all of the other parties, the judge and (where applicable) the jury and any witness who is giving evidence,
(b)how a witness who is to give evidence at a hearing is to attend by electronic means, must provide for the witness to use means that enable all of the parties, the judge and (where applicable) the jury to both see and hear the witness.
(9)Nothing in subsection (8) is to be taken to mean that a person is to be enabled to see or hear a witness in a way that measures taken in accordance with an order of the court would otherwise prevent.
(1)A court may—
(a)issue a direction under section 303K(1) that applies for the purpose of all proceedings of a type specified in the direction, provided that the only party to the proceedings is a public official,
(b)issue a further direction under section 303K(1) overriding, for the purpose of specific proceedings, a general direction issued by virtue of paragraph (a).
(2)Section 303K(5)(a) does not apply in relation to a general direction issued by virtue of subsection (1)(a).
Where the Lord Justice General issues guidance relevant to the issuing of directions under section 303G(2), 303H(2) or 303K(1), the Lord Justice General must make the guidance publicly available for so long as it has effect.”.
(1)The Scottish Ministers must, as soon as reasonably practicable after the end of the review period—
(a)undertake a review of the operation of the virtual attendance provisions,
(b)prepare a report on that review,
(c)publish the report and lay a copy of it before the Scottish Parliament.
(2)In undertaking the review, the Scottish Ministers must consult—
(a)the Lord Justice General,
(b)the Scottish Courts and Tribunals Service,
(c)the chief constable of the Police Service of Scotland,
(d)the Lord Advocate,
(e)the Scottish Legal Aid Board,
(f)the Law Society of Scotland,
(g)the Faculty of Advocates, and
(h)such other persons as the Scottish Ministers consider appropriate.
(3)For the purposes of this section—
“review period” means the period of 2 years beginning with the day on which section 2 comes into force,
“virtual attendance provisions” means sections 303G to 303M of the Criminal Procedure (Scotland) Act 1995, as inserted by section 2.
(1)The Criminal Procedure (Scotland) Act 1995 is modified as follows.
(2)After section 303M (inserted by section 2) insert—
(1)A direction or determination under a provision of the schedule of the Coronavirus (Recovery and Reform) (Scotland) Act 2022 mentioned in the first column of the table below is, insofar as it relates to criminal proceedings, to be treated as though it were a direction or determination under the provision of this Act mentioned in the corresponding entry in the second column.
| Provision of the schedule of the Coronavirus (Recovery and Reform) (Scotland) Act 2022 under which the direction or determination was issued | Provision of this Act under which the direction or determination is to be treated as having been issued |
|---|---|
| paragraph 3(2)(b) | section 303E(2) |
| paragraph 6(2) | section 303H(2) |
| paragraph 6(4) | section 303G(2) |
| paragraph 7(2)(a) | section 303J(2)(a) |
| paragraph 7(2)(b) | section 303J(2)(b) |
| paragraph 8(1) | section 303K(1) |
(2)A general direction issued by virtue of paragraph 9(1)(a) of the schedule of the Coronavirus (Recovery and Reform) (Scotland) Act 2022 is to be treated as though it were issued by virtue of section 303L(1)(a) of this Act.
(1)In sections 303C to 303N of this Act—
“court” means any of—
the High Court of Justiciary,
the Sheriff Appeal Court when exercising criminal jurisdiction,
the sheriff courts when exercising criminal jurisdiction, and
justice of the peace courts,
“enactment” includes—
an enactment contained in any local Act or any order, regulation or other instrument having effect by virtue of an Act, and
an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament,
“proceedings” includes any process before a court, or any office holder of a court (for example, a process by which a warrant may be obtained for the purpose of investigating a suspected offence),
“public official” means—
a person who is a public authority and is acting in that capacity, or
a person who is acting on behalf of a public authority,
“requirement” means a requirement arising from an enactment or rule of law.
(2)For the purposes of the definition of “public official”, “public authority” is to be construed in accordance with section 6 of the Human Rights Act 1998.”.
(1)The Criminal Procedure (Scotland) Act 1995 is modified as follows.
(2)In section 68 (productions)—
(a)in subsection (2), at the end insert “(but see subsection (2A))”,
(b)after subsection (2), insert—
“(2A)But subsection (2) does not apply to a production if—
(a)it is in electronic form, and
(b)the accused is otherwise given an opportunity to see it in such form.”,
(c)in subsection (3), after “lodged” insert “or the accused has otherwise been given an opportunity to see the production in an electronic form”,
(d)after subsection (3), insert—
“(3A)Where—
(a)a person is adduced to give evidence in relation to a physical item which the person has examined,
(b)an image of the item is a production in the proceedings (by virtue of section 279B), and
(c)the image has been lodged as a production or the accused has otherwise been given an opportunity to see it in an electronic form as mentioned in subsection (3),
subsection (3) applies to the physical item as if it were a production.”.
(3)In section 71 (first diet), in subsection (2A), after “section 275” insert “, or subsection (2) of section 279B”.
(4)In section 79 (preliminary pleas and preliminary issues)—
(a)in subsection (2)(b)—
(i)the word “and” immediately following sub-paragraph (v) is repealed,
(ii)after sub-paragraph (v), insert—
“(va)any other point raised by a party, as regards any matter not mentioned in paragraph (a) or sub-paragraphs (i) to (v), which concerns the accessing, examination, production or use of evidence in an electronic form; and”,
(b)after subsection (2), insert—
“(2A)Subsection (2)(b) is subject to section 279B(7).”.
(5)After section 279A, insert—
(1)In any criminal proceedings an image of physical evidence is, unless the court otherwise directs, to be treated for evidential purposes as if it were the physical evidence itself, whether or not the physical evidence is still in existence.
(2)A direction under subsection (1) may be issued only where, on the application of a party, the court is satisfied that treating the image as if it were the physical evidence itself would prejudice the fairness of the proceedings.
(3)Any application under subsection (2) for a direction must be made—
(a)where an image is disclosed in summary proceedings, no later than 28 days after the date the image is disclosed to the party making the application,
(b)in the case of proceedings on petition or indictment—
(i)where the application is made by the prosecutor in respect of an image of which written notice has been given by the accused in accordance with section 78(4)(a) of this Act, no later than 28 days after the date the notice is given,
(ii)where the application is made by the accused in respect of an image that is included in the list of productions lodged in accordance with section 66(5) of this Act, no later than 28 days after the date the indictment is served.
(4)Subsection (3) does not apply to the extent that the court considers that the application was made as soon as was reasonably practicable.
(5)Where an application under subsection (2) for a direction is made in respect of an image not mentioned in subsection (3), the application may be made—
(a)in the case of summary proceedings, at any time,
(b)in the case of proceedings on petition or indictment, at any time prior to the image being led as evidence in the proceedings.
(6)Where the court issues a direction under subsection (1) in proceedings on petition or indictment, the court may permit the physical evidence to be produced in evidence, notwithstanding that it is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(7)An application under subsection (2) for a direction is not a preliminary issue for the purpose of section 79(2)(b) of this Act.
(8)For the purposes of subsection (1), an image of physical evidence—
(a)is a moving or still image,
(b)may include accompanying explanatory material and authenticating documents.
(9)This section does not apply to documents within the meaning of paragraph 8 of schedule 8.
(1)The Lord Advocate must prepare and publish guidance setting out—
(a)factors that prosecutors will take into account when deciding whether to produce an image of physical evidence in reliance on section 279B(1), and
(b)in general terms, where an image is so produced, the approach of prosecutors to the physical evidence.
(2)The Lord Advocate—
(a)may revise the guidance from time to time, and
(b)where the guidance is so revised, must publish the guidance as revised.
(3)In this section, “prosecutor” means the Lord Advocate, the Solicitor General, Crown Counsel or the procurator fiscal (and any person duly authorised to represent or act for them).”.
(6)In section 281 (production of autopsy and forensic science reports)—
(a)in subsection (1), after “prosecutor” insert “, or the accused has otherwise been given an opportunity to see the report in an electronic form,”,
(b)in subsection (2) after “production” insert “, or providing the accused with an opportunity to see the report in an electronic form,”.
(1)Schedule 8 (documentary evidence in criminal proceedings) of the Criminal Procedure (Scotland) Act 1995 is modified as follows.
(2)After paragraph 1(1), insert—
“(1A)For the purposes of any criminal proceedings, where—
(a)a copy of, or of a material part of, a document is stored on the digital evidence storage system, and
(b)either—
(i)the copy was created by the document, or the material part, being uploaded to that system from another electronic device (“the initial copy”), or
(ii)the copy is a subsequent version of the initial copy,
the copy is to be deemed and treated as mentioned in sub-paragraph (1) unless, in the case mentioned in paragraph (b)(ii), the court otherwise directs.
(1B)The court may direct that a copy of a document, or of a material part of a document, to which sub-paragraph (1) or (1A) does not apply is to be deemed and treated as mentioned in sub-paragraph (1)(a) and (b).”.
(3)After paragraph 1(2), insert—
“(2A)This paragraph is without prejudice to section 279A(2) (evidence from certain official documents).”.
(4)In paragraph 1(3), for “a transcript or reproduction” substitute “—
(a)a transcript,
(b)a reproduction,
(c)a document uploaded to an electronic device from another electronic device.”.
(5)In paragraph 6(1)(b), after “1(1),” insert “1(1A)(b)(ii),”.
(6)In paragraph 8, after the definition of “criminal proceedings” insert—
““digital evidence storage system” means—
the system operated by the Police Service of Scotland for the digital storage, sharing and presentation of evidence in criminal investigations and proceedings known as the Digital Evidence Sharing Capability, or
such other digital system as may be prescribed,”.
(1)The Criminal Procedure (Scotland) Act 1995 is modified as follows.
(2)After section 283 insert—
(1)For the purposes of any criminal proceedings—
(a)where visual images (and any sounds) recorded on a body-worn video camera are produced in evidence by the prosecution, and
(b)any or all of the time, date and place of the events recorded are displayed on the recording produced,
the recording is, so far as not disputed under subsection (3), sufficient evidence of the details that are displayed.
(2)Subsection (1) does not apply in relation to visual images (and any sounds) recorded on a body-worn video camera unless the prosecutor has—
(a)disclosed the recording to the accused, and
(b)informed the accused in writing of the accused’s ability to serve a notice under subsection (3) and the period within which any such notice must be served.
(3)If the accused, within the period specified in subsection (4), serves notice on the prosecutor that the accused disputes the accuracy of the details of the time, date or place of the events recorded (or of any part of those events) as displayed on the recording, subsection (1) does not apply in relation to the details that are disputed.
(4)The period within which any notice under subsection (3) must be served is the period of 7 days beginning with the date on which the requirements of subsection (2) were met (or if they were met on different dates, the later of those dates).
(5)For the purposes of this section, “body-worn video camera” means a video recording device issued to and worn by—
(a)a constable, or
(b)a person appointed as a member of police staff under section 26(1) of the Police and Fire Reform (Scotland) Act 2012,
together with any associated equipment required for recording visual images (and any sounds).
(6)The Scottish Ministers may by regulations modify subsection (5) so as to add a person, vary the description of a person, or remove a person.
(7)Before making regulations under subsection (6), the Scottish Ministers must consult—
(a)the chief constable of the Police Service of Scotland,
(b)the Lord Advocate, and
(c)the Lord Justice General.
(8)Regulations under subsection (6)—
(a)may include transitional, transitory or saving provision,
(b)are subject to the negative procedure.”.