Draft Regulations laid before the Scottish Parliament under section 115(2)(a) of the Criminal Justice (Scotland) Act 2016 for approval by resolution of the Scottish Parliament.

2017 No. 

Criminal Procedure

The Criminal Justice (Scotland) Act 2016 (Consequential and Supplementary Modifications) Regulations 2017

Made

Coming into force

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 115(1) of the Criminal Justice (Scotland) Act 20161 and all other powers enabling them to do so.

In accordance with section 115(2)(a) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation and commencement1

These Regulations may be cited as the Criminal Justice (Scotland) Act 2016 (Consequential and Supplementary Modifications) Regulations 2017 and come into force on 25th January 2018.

Consequential and supplementary modifications of enactments2

1

The schedule contains modifications of enactments consequential on and supplementary to the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”).

2

Paragraphs 1, 7, 12(2) and 13 to 18 of the schedule do not apply in respect of any matter arising from an arrest or detention of a person by a constable where—

a

the arrest or detention takes place before the appointed day; and

b

the person remains in police custody following that arrest or detention at the beginning of the appointed day.

3

In this regulation—

  • “constable” means—

    1. a

      a constable within the meaning given by section 62 of the 2016 Act; and

    2. b

      a member of the staff of the Police Investigations and Review Commissioner designated under paragraph 7B of schedule 4 of the Police, Public Order and Criminal Justice (Scotland) Act 20062—

      1. i

        to take charge of any investigation on behalf of the Commissioner; or

      2. ii

        to assist a member of the Commissioner’s staff designated to take charge of such an investigation;

  • “detention” means detention under section 14 of the Criminal Procedure (Scotland) Act 19953, and “detained” is to be construed accordingly;

  • “the appointed day” means 25th January 2018.

4

For the purposes of this regulation, a person is in police custody from the time when the person is arrested or detained by a constable until any one of the events mentioned in paragraph (5) occurs.

5

The events are—

a

the person is released from custody;

b

the person is brought before a court in accordance with any enactment or rule of law or the terms of any warrant;

c

the Principal Reporter makes a direction under section 65(2)(b) of the Children’s Hearings (Scotland) Act 20114 that the person continue to be kept in a place of safety.

NameA member of the Scottish GovernmentSt Andrew’s House,Edinburgh

SCHEDULECONSEQUENTIAL AND SUPPLEMENTARY MODIFICATIONS

Regulation 2

PART 1Primary Legislation

Salmon Fisheries (Scotland) Act 1868

1

In section 29 of the Salmon Fisheries (Scotland) Act 18685 (apprehension of offenders), the words from “or to deliver” to “magistrate” are omitted.

Official Secrets Act 1911

2

Section 6 of the Official Secrets Act 19116 (power to arrest) is repealed.

Public Order Act 1936

3

In section 7 of the Public Order Act 19367 (enforcement), subsection (3) is repealed.

Children and Young Persons (Scotland) Act 1937

4

In section 21 of the Children and Young Persons (Scotland) Act 19378 (punishment of vagrants preventing children from receiving education), subsection (2) is repealed.

Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951

5

In section 12(2) of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 19519 (apprehension of offenders), both occurrences of “, constable” are omitted.

Sea Fisheries (Shellfish) Act 1967

6

In section 4D of the Sea Fisheries (Shellfish) Act 196710 (sections 4A to 4CA: supplementary), subsections (2A) and (2B) are repealed.

Immigration Act 1971

7

In section 28H(13) of the Immigration Act 197111 (searching persons in police custody), for paragraph (b) substitute—

b

he is arrested at a police station after attending voluntarily at the station or accompanying a constable to it,

Misuse of Drugs Act 1971

8

Section 24 of the Misuse of Drugs Act 197112 (power of arrest) is repealed.

Inshore Fishing (Scotland) Act 1984

9

In section 6A of the Inshore Fishing (Scotland) Act 198413 (power to enter land), subsections (6) and (7) are repealed.

Public Order Act 1986

10

In each of sections 14B and 14C of the Public Order Act 198614 (trespassory assemblies), subsection (4) is repealed.

Road Traffic Act 1988

11

Sections 167 (power of arrest) and 178(3) (taking motor vehicle without authority) of the Road Traffic Act 198815 are repealed.

Criminal Procedure (Scotland) Act 1995

12

1

The Criminal Procedure (Scotland) Act 1995 is amended as follows.

2

In section 24(3)(b) (bail and bail conditions) for “section 21, 22 or 43 of this Act” substitute “section 25 of the Criminal Justice (Scotland) Act 2016”.

3

In section 288K(1)16 (live television links: specified hearings), after “High Court,” insert “Sheriff Appeal Court,”.

Terrorism Act 2000

13

In paragraph 18(3)(b) of schedule 8 of the Terrorism Act 200017 (treatment of persons detained under section 41 or schedule 7) for “section 15(4) of the Criminal Procedure (Scotland) Act 1995” substitute “section 40 of the Criminal Justice (Scotland) Act 2016”.

Extradition Act 2003

14

In section 206C(5) of the Extradition Act 200318 (live links: interpretation), paragraph (c) is omitted.

PART 2Secondary Legislation

Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013

15

In rule 12(3)(b) of the Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 201319 (record keeping by the Reporter of investigation and determination) for “section 43(5) (arrangements where children arrested) of the Criminal Procedure (Scotland) Act 1995” substitute “section 53(2) of the Criminal Justice (Scotland) Act 2016 (duty to inform Principal Reporter if child not being prosecuted)”.

Secure Accommodation (Scotland) Regulations 2013

16

In regulation 12(1)(b) of the Secure Accommodation (Scotland) Regulations 201320 (children otherwise dealt with under the Criminal Procedure Act) for “section 43 of the Criminal Procedure Act” substitute “section 22 or 53 of the Criminal Justice (Scotland) Act 2016”.

Right to Information (Suspects and Accused Persons) (Scotland) Regulations 2014

17

In regulation 2 of the Right to Information (Suspects and Accused Persons) (Scotland) Regulations 201421 (interpretation) for paragraph (1) substitute—

1

For the purposes of these Regulations, a person is in police custody if the person has been arrested by a constable in connection with an offence, except where arrested under the Extradition Act 2003, and is in custody in a police station or other premises.

Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 2014

18

In regulation 2 of the Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 201422 (interpretation) for paragraph (2) substitute—

2

For the purposes of these Regulations, a person is in police custody if the person has been arrested by a constable in connection with an offence, except where arrested under the Extradition Act 2003, and is in custody in a police station or other premises.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision consequential on the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”). Paragraph 12(3) of the schedule makes provision supplemental to that Act.

The Regulations modify primary and secondary legislation to remove references to powers of arrest abolished by section 54 of the 2016 Act and to remove references to detention under section 14 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) (which is repealed by schedule 2 paragraph 27 of the 2016 Act). Other modifications replace references to provisions of the 1995 Act with references to replacement provisions in the 2016 Act.

Paragraph 12(3) of the schedule amends section 288K(1) of the 1995 Act (inserted by section 110(1) of the 2016 Act) to enable the Lord Justice General to specify hearings in the Sheriff Appeal Court (as well as the High Court, sheriff court and JP court) as appropriate for the appearance of an accused by live television link. Reference to the Sheriff Appeal Court was not included in this power as presently framed because the Bill which became the 2016 Act was introduced in the Scottish Parliament before the Bill which became the Courts Reform (Scotland) Act 201423 and which created the Sheriff Appeal Court.

Regulation 2(2) to (5) contains transitional provision disapplying some of the consequential modifications in respect of individuals arrested or detained before 25th January 2018 (the date of commencement of relevant provisions of the 2016 Act) and still in police custody at the beginning of that day.