(This note is not part of the Order)
This Order applies sections 271 to 271M, 288E and 288F of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) to proceedings in justice of the peace courts (“JP Courts”) subject to certain modifications. This Order comes into force only in relation to criminal proceedings which are commenced on or after the date on which the Order comes into force and, for this purpose, criminal proceedings are taken as commenced on the date on which a report of the case has been received by the procurator fiscal.
Sections 271 to 271M of the 1995 Act make provision for the use of special measures in criminal proceedings in the high court or sheriff court. These procedures are not currently available in JP courts as JP Courts are not included in the definition of “court” in section 271(5). By applying sections 271 to 271M of the 1995 Act to JP Courts, Article 3 provides that special measures can be applied for and granted in JP courts. Article 3 also makes modifications of sections 271, 271I and 271J for this purpose.
Section 288E of the 1995 Act prohibits the accused from conducting his or her defence in person where the offence in question is one of the offences listed in subsection (3) and a child witness under the age of 12 is to give evidence at any hearing in the proceedings. Section 288E(2) provides that this rule does not apply to JP courts. By applying section 288E to JP Courts, Article 4 ensures that the accused in criminal proceedings in a JP Court cannot, in certain circumstances, conduct his or her defence in person. Article 4 also makes modifications of section 288E for this purpose. These modifications of section 288E ensure, amongst other things, that a JP court can appoint a solicitor for an accused who is prohibited from conducting his or her defence and has not instructed a solicitor.
Section 288F of the 1995 Act allows the court to prohibit the accused from conducting his or her defence in person at any hearing at, or for the purposes of which, a vulnerable witness is to give evidence. Section 288F(1) provides that this rule does not apply to JP courts. By applying section 288F to JP Courts, Article 5 ensures that JP Courts can prohibit the accused, in certain circumstances, from conducting his or her defence in person. Article 5 also makes modifications of section 288F for this purpose. These modifications of section 288F ensure, amongst other things, that a JP court can appoint a solicitor for an accused who is prohibited from conducting his or her defence and has not instructed a solicitor.
A Business Regulatory Impact Assessment has been prepared and placed in the Scottish Parliament Information Centre. Copies can be obtained from Criminal Justice Division, St. Andrews House, Regent Road, Edinburgh EH1 3DG.