The Criminal Justice (Scotland) Act 2016 (Commencement No. 5, Transitional and Saving Provisions) Order 2017

Persons arrested or detained before appointed day- transitional and saving provisions

4.—(1) This article applies in relation to a person who is arrested or detained by a constable before the appointed day, and remains in police custody at the beginning of the appointed day following that arrest or detention.

(2) Sections 3 to 34, 38 to 41, 43, 44 and 55 of the 2016 Act do not apply in relation to any matter arising from that arrest or detention.

(3) Despite the coming into force of schedule 2 paragraphs 4, 27, 28, 31, 35, 36, 37, 39 and 40 of the 2016 Act in accordance with article 3, the following provisions continue to have effect on and after the appointed day as they did immediately before that day in relation to any matter arising from that arrest or detention:—

(a) section 4 of the Trespass (Scotland) Act 1865(1);

(b) section 8A(2)(a) of the Legal Aid (Scotland) Act 1986(2);

(c) section 6D(2A) of the Road Traffic Act 1988(3);

(d) sections 14 to 15A, 17, 17A, 18, 18B, 18D, 19AA, 22, 22ZA, 22ZB, 42(3), (7) and (8), 43 and 135(3) of the 1995 Act(4);

(e) schedule 8 paragraphs 18, 20(1) and 27 of the Terrorism Act 2000(5);

(f) sections 65, 66, 68, 69 and 72 of the Children’s Hearings (Scotland) Act 2011(6).

(4) Despite the coming into force of section 54 of the 2016 Act in accordance with article 3, the power of a constable at common law to arrest a person to whom this article applies in respect of an offence while the person remains in police custody following the arrest or detention referred to in paragraph (1) continues to have effect on and after the appointed day.

(5) But the power referred to in paragraph (4) continues to have effect only for the purpose of immediately charging the person with an offence.

(1)

1865 c.56 (28 & 29 Vict). Section 4 was amended by the Criminal Justice Act 1982 (c.45), section 77 and schedule 15 paragraph 1.

(2)

1986 c.47. Section 8A was inserted by the 2010 Act section 2(3) and amended by S.I. 2011/1739 article 3; the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 (asp 3) sections 17 and 23(4); and the Crime and Courts Act 2013 (c.22) schedule 21 paragraph 50(1).

(3)

1988 c.52. Section 6D was inserted by the Railways and Transport Safety Act 2003 (c.20) schedule 7 paragraph 1 and amended by the Serious Organised Crime and Police Act 2005 (c.15) section 154(1) to (3).

(4)

Sections 14A and 14B were inserted by the 2010 Act section 3(2). Section 15 was amended by the Crime and Punishment (Scotland) Act 1997 (c.48) section 62(1) and schedule 1 paragraph 21(2) and the 2010 Act section 1(3). Section 15A was inserted by the 2010 Act section 1(4). Section 17A was inserted by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9) schedule 1 paragraph 2 and amended by the Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5) schedule 1 paragraph 3(b) and the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) schedule 7 paragraph 29. Section 18 was amended by the Crime and Punishment (Scotland) Act 1997 section 47(1)(a) and (d) and schedule 3; the Crime and Disorder Act 1998 (c.37) section 119 and schedule 8 paragraph 117(1); the Criminal Justice (Scotland) Act 2003 (asp 7) section 55(2); the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) section 83(1) and schedule 6 paragraph 4(2); the Criminal Justice and Licensing (Scotland) Act 2010 section 77(2) and schedule 7 paragraph 30; the Police and Fire Reform (Scotland) Act 2012 (asp 8) schedule 7 paragraph 12(3) and the Protection of Freedoms Act 2012 (c.9) schedule 1 paragraph 6(2). Sections 18B and 18D were inserted by the Criminal Justice and Licensing (Scotland) Act 2010 sections 78 and 79. Section 19AA was inserted by the Police, Public Order and Criminal Justice (Scotland) Act 2006 section 77(2) and amended by the Anti-social Behaviour, Crime and Policing Act 2014 (c.12) schedule 11 paragraph 51. Section 22 was amended by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) section 7 and the Criminal Justice and Licensing (Scotland) Act 2010 schedule 7 paragraph 34. Sections 22ZA and 22ZB were inserted by the Criminal Justice and Licensing (Scotland) Act 2010 section 55. Section 42 was amended by the Criminal Justice and Licensing (Scotland) Act 2010 section 52(3). Section 43 was amended by the Crime and Punishment (Scotland) Act 1997 section 55(2) and (3). Section 135 was amended by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 section 7(3) and schedule 1 paragraph 17.

(5)

2000 c.11. Schedule 8 paragraph 18 was amended by the Anti-social Behaviour, Crime and Policing Act 2014 (c.12) schedule 9 paragraph 5(12). Paragraph 20 was amended by the Anti-terrorism, Crime and Security Act 2001 (c.24) section 89(3) and (4) and the Protection of Freedoms Act 2012 (c.9) schedule 10.

(6)

Section 66 was amended by S.S.I. 2013/211 schedule 1 paragraph 20(7).