2020 No. 339
Exiting The European Union
Criminal Law
Criminal Procedure
Electronic Communications
Licences And Licensing

The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020

Made
Laid before the Scottish Parliament
Coming into force in accordance with regulation 1
The Scottish Ministers make the following Regulations in exercise of the powers conferred by paragraphs 1(1) and (3) and 11G(1) of schedule 2 and paragraph 21(b) of schedule 7 of the European Union (Withdrawal) Act 20181 and all other powers enabling them to do so.

In accordance with paragraph 4 of schedule 2 of that Act, they have consulted with the Secretary of State.

PART 1Preliminary

Citation and commencement1.

(1)

These Regulations may be cited as the Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020.

(2)

Regulation 20 comes into force immediately before IP completion day.

(3)

All other regulations come into force on IP completion day.

PART 2Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition of financial penalties

Interpretation2.

In this Part, “the 1995 Act” means the Criminal Procedure (Scotland) Act 19952.

Amendment of the 1995 Act3.

(1)

The 1995 Act is amended as follows.

(2)

In section 211(6)3 (fines) for “Except where the provisions of section 223R(2) apply, all” substitute “All”.

(3)

Omit sections 223A to 223FA and 223H to 223T4.

(4)

In section 226B5 (enforcement orders)—

(a)

omit subsection (6A), and

(b)

in subsection (7), for “,(6) or (6A)” substitute “or (6)”.

(5)

Omit section 226HA6.

(6)

In section 226I7 (enforcement of fines etc.: interpretation)—

(a)

in subsection (1)—

(i)

for “Subject to subsection (1A), in” substitute “In”,

(ii)

for “226HA” substitute “226H”,

(iii)

omit the definitions of “central authority for Scotland”, “certificate”, “competent authority for Scotland”, “decision”, “financial penalty” and “Framework Decision on financial penalties”,

(iv)

in the definition of “enforcement order” for “(6A)” substitute “(6)”,

(v)

in the definition of “relevant court” omit paragraph (d); and

(b)

omit subsection (1A).

(7)

Omit schedules 11 and 128.

Amendment of the Criminal Proceedings etc. (Reform) (Scotland) Act 20074.

(1)

The Criminal Proceedings etc. (Reform) (Scotland) Act 20079 is amended as follows.

(2)

Omit section 5610.

(3)

In section 81(3)(a)11 (orders), omit “56,”.

Consequential revocations5.

The following are revoked—

(a)

paragraph 19 of the schedule of the Civil Jurisdiction and Judgments Regulations 200712,

(b)

the Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) Order 200913,

(c)

the Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) (No. 1) Order 201414,

(d)

the Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) (No. 2) Order 201415, and

(e)

paragraph 6 of schedule 4 of the Civil Jurisdiction and Judgments (Amendment) Regulations 201416.

Transitional and saving provision: decisions requiring payment of financial penalties received before IP completion day6.

(1)

The following provisions of the 1995 Act continue to apply to relevant decisions requiring payment of financial penalties as if the provisions had not been repealed or amended by regulation 317—

(a)

sections 223A to 223E,

(b)

sections 223F and 223FA,

(c)

sections 223H to 223T,

(d)

section 226B(6A) and (7),

(e)

section 226I(1) and (1A),

(f)

schedule 11,

(g)

schedule 12.

(2)

In paragraph (1) “relevant decisions requiring payment of financial penalties” are decisions which, together with a certificate, have been received before IP completion day by—

(a)

the central authority, or the competent authority, of a member State under section 223B(3) of the 1995 Act (requests to other member States: procedure on issue of certificate), or by any other authority of the member State with no jurisdiction to enforce a penalty but which transmits the decision and certificate to the competent authority, or

(b)

the central authority for Scotland under section 223F(1)(a) of the 1995 Act (recognition of financial penalties: requests from other member States), or by any other authority in Scotland with no jurisdiction to enforce a penalty but which transmits the decision and certificate to the competent authority, where the financial penalty to which the certificate relates meets the requirements of section 223F(1)(b) of the 1995 Act.

(3)

For the purposes of this regulation—

(a)

“central authority”, “central authority for Scotland” and “certificate” have the same meaning as in section 223T of the 1995 Act (interpretation of sections 223A to 223S),

(b)

“competent authority” in relation to a member State means an authority designated by the State as a competent authority for the purposes of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties18 as amended by Council Framework Decision 2009/299/JHA19,

(c)

the provisions of the 1995 Act referred to in paragraph (1) are to be read as if the term “member State” included the United Kingdom.

PART 3Council Framework Decision 2009/829/JHA on the application between member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention

Interpretation7.

In this Part, “the 2014 Regulations” means the Mutual Recognition of Supervision Measures in the European Union (Scotland) Regulations 201420.

Revocation of the 2014 Regulations8.

The 2014 Regulations are revoked.

Transitional and saving provision: decisions on supervision measures received before IP completion day9.

(1)

The 2014 Regulations continue to apply, as if they had not been revoked by regulation 8, to relevant decisions on supervision measures21.

(2)

In paragraph (1) “relevant decisions on supervision measures” are decisions received before IP completion day by—

(a)

the central authority or competent authority in the executing State under paragraph 2(3) of schedule 1 of the 2014 Regulations (request to executing State for recognition of a bail order) or any other authority in the executing State with no competence to recognise a decision on supervision measures but which forwards the decision to the competent authority,

(b)

the Scottish central authority under paragraph 2(1) (receipt of a request to forward a decision on supervision measures) or paragraph 3(1) (receipt of a request for recognition of a decision on supervision measures) of schedule 2 of the 2014 Regulations or any other authority in Scotland with no competence to recognise a decision on supervision measures but which forwards the decision to the competent authority.

(3)

For the purposes of this regulation—

(a)

“central authority” and “competent authority” have the same meaning as in regulation 2(1) of the 2014 Regulations,

(b)

“the executing State” means the member State of the central authority or competent authority to which the request is made,

(c)

“Scottish central authority” has the same meaning as in paragraph 1(1) of schedule 2 of the 2014 Regulations,

(d)

the 2014 Regulations are to be read as if the term “member State” included the United Kingdom.

PART 4Council Framework Decision 2008/675/JHA on taking account of convictions in the member States of the European Union in the course of new criminal proceedings

Amendment of the Civic Government (Scotland) Act 198210.

For section 58(4A) of the Civic Government (Scotland) Act 198222 (convicted thief in possession) substitute—

“(4A)

In subsection (4), the reference to a conviction for theft includes—

(a)

a reference to a conviction by a court in England and Wales or Northern Ireland, and

(b)

if the court considers appropriate, a reference to a conviction by a court in a member State of the European Union

of an offence that is equivalent to theft.”.

Amendment of the Prisoners and Criminal Proceedings (Scotland) Act 199311.

In section 27(1) of the Prisoners and Criminal Proceedings (Scotland) Act 199323 (interpretation of Part 1), for the definition of “previous conviction” substitute—

““previous conviction” means—

(a)

a previous conviction by a court in any part of the United Kingdom, or

(b)

if the court considers appropriate, a previous conviction by a court in any member State of the European Union;”.

Amendment of the Criminal Law (Consolidation) (Scotland) Act 199512.

In section 9(2A)(aa) of the Criminal Law (Consolidation) (Scotland) Act 199524 (permitting girl to use premises for intercourse) after “16” insert “and the court considers it appropriate for the conviction to have that effect”.

Amendment of the Criminal Procedure (Scotland) Act 199513.

(1)

The Criminal Procedure (Scotland) Act 199525 is amended as follows.

(2)

In section 23C(2)(d)(i)26 (grounds relevant as to question of bail) for “the European Union” substitute “Scotland”.

(3)

In section 23D(5)(b)27 (restriction on bail in certain solemn cases)—

(a)

at the beginning insert “if the court considers appropriate”, and

(b)

omit “other than the United Kingdom”.

(4)

In section 27 (breach of bail conditions: offences) for subsection (3A)28 substitute—

“(3A)

The reference in subsection (3)(b) to any previous conviction of an offence under subsection (1)(b) includes—

(a)

any previous conviction by a court in England and Wales or Northern Ireland, and

(b)

if the court considers appropriate, any previous conviction by a court in a member State of the European Union,

of an offence that is equivalent to an offence under subsection (1)(b).”.

(5)

In section 6929 (notice of previous convictions) after subsection (7) insert—

“(8)

Any reference in this section to a previous conviction includes, where relevant, a conviction by a court in any part of the United Kingdom or in any member State of the European Union.”.

(6)

In section 10130 (previous convictions: solemn proceedings) after subsection (11) insert—

“(12)

Any reference in this section to a previous conviction includes, where relevant, a conviction by a court in any part of the United Kingdom or in any member State of the European Union.”.

(7)

In section 101A(5)31 (post-offence convictions etc.) for “in any other” substitute “, where the court considers appropriate, in any”.

(8)

In section 16632 (previous convictions: summary proceedings) after subsection (11) insert—

“(12)

Any reference in this section to a previous conviction includes, where relevant, a conviction by a court in any part of the United Kingdom or in any member State of the European Union.”.

(9)

In section 166A(5)33 (post-offence convictions etc.) for “in any other” substitute “, where the court considers appropriate, in any”.

(10)

In section 202(2)34 (deferred sentence) for “in another” substitute “, where the court which deferred sentence considers appropriate, by a court in any”.

(11)

In section 204 (restrictions on passing sentence of imprisonment or detention)—

(a)

in subsections (1) and (2)35 for “in another” substitute “or, where the court passing sentence considers appropriate, by a court in any”, and

(b)

in subsection (4A)36 omit “other than the United Kingdom”.

(12)

In section 205B37 (minimum sentence for third conviction of certain offences relating to drug trafficking)—

(a)

in subsection (1A)(b) for “other than the United Kingdom” substitute “which the court passing sentence considers appropriate to take into account”,

(b)

after subsection (5) insert—

“(6)

Any reference in this section to a previous conviction includes, where relevant, a conviction by a court in any part of the United Kingdom or in any member State of the European Union.”.

(13)

In section 210C(1)38 (risk assessment report) after “convicted person” insert “, including a conviction by a court in any part of the United Kingdom or in any member State of the European Union,”.

(14)

In section 271S(2)(e)39 (relevant considerations) after “of the witness” insert “, including any convictions by a court in any part of the United Kingdom or in any member State of the European Union,”.

(15)

In section 275A40(disclosure of accused’s previous convictions where court allows questioning or evidence under section 275)—

(a)

in subsection (2) for “Any” substitute “Subject to subsection (2A) any”,

(b)

after subsection (2) insert—

“(2A)

Where the conviction is a relevant conviction by virtue of subsection (10)(aa)(ii), subsection (2) applies only if the judge considers it appropriate.”,

(c)

in subsection (3) for “such a conviction” substitute “a conviction referred to in subsection (2)”, and

(d)

for subsection (10)(aa)41 substitute—

“(10)

(aa)

 a conviction by a court in—

(i)

England and Wales or Northern Ireland, or

(ii)

a member State of the European Union,

of an offence that is equivalent to one to which section 288C of this Act applies by virtue of subsection (2) thereof, or”.

(16)

In section 28642 (previous convictions: proof in support of substantive charge)—

(a)

in subsection (1) after “previous conviction” insert “including a conviction by a court in a member State of the European Union”,

(b)

in subsection (3) for “another” substitute “a”.

(17)

In section 286A(1)43 (proof of previous conviction by court in other member State) for “another” substitute “a”.

(18)

In section 307(5)(a)44 (interpretation) omit “or in any other member State of the European Union”.

Amendment of the Sexual Offences (Scotland) Act 200914.

Section 39 of the Sexual Offences (Scotland) Act 200945 (defences in relation to offences against older children) is amended as follows—

(a)

in subsection (2)(a)(ia) and (b)(ia)46 after “of 16” insert “and the court before which the charge is brought considers it is appropriate for that conviction to have that effect”, and

(b)

in subsection (5)(aa)47 omit “other than the United Kingdom”.

Amendment of the Criminal Justice and Licensing (Scotland) Act 201015.

(1)

The Criminal Justice and Licensing (Scotland) Act 201048 is amended as follows.

(2)

In section 71 (convictions by courts in other EU member States) omit subsections (2), (3) and (4).

(3)

In section 201 (orders and regulations) omit subsection (4)(b).

(4)

In paragraph 12 of schedule 4 in the definition of “previous conviction”—

(a)

after “or” insert “,where the court considers it to be appropriate,”, and

(b)

omit “other”.

Transitional and saving provision: proceedings commenced before IP completion day16.

(1)

This Part does not apply in relation to criminal proceedings commenced before IP completion day or appellate proceedings arising out of such criminal proceedings49.

(2)

For the purposes of paragraph (1), criminal proceedings are commenced—

(a)

in summary proceedings, on the date of the first calling of the case, and

(b)

in solemn proceedings, on the earliest of—

(i)

the date of the grant of a warrant to arrest and commit,

(ii)

the date of the intimation of a petition,

(iii)

the date of the service of an indictment.

PART 5Directive 2012/13/EU on the right to information in criminal proceedings

Amendment of the Criminal Justice (Scotland) Act 201617.

In section 5(3) of the Criminal Justice (Scotland) Act 201650 (information to be given at police station) for “requirements of” substitute “requirements placed on member States by”.

PART 6Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings

Amendment of the Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 201418.

(1)

The Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 201451 are amended as follows.

(2)

In regulations 3(3)(b), 4(2)(b), 8(2)(b) and 9(2)(b) after “in accordance with” insert “the requirements placed on member States by”.

PART 7Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce in the Internal Market (Directive on electronic commerce)

Extreme Pornography

Amendment of the Extreme Pornography (Electronic Commerce Directive) (Scotland) Regulations 201119.

(1)

The Extreme Pornography (Electronic Commerce Directive) (Scotland) Regulations 201152 are amended as follows.

(2)

In regulation 2 (interpretation)—

(a)

in paragraph (2)(a)—

(i)

omit “in a particular part of the United Kingdom or”,

(ii)

omit “that part of the United Kingdom or”,

(iii)

after “is a national of”, insert “the United Kingdom or”,

(b)

after paragraph (2), insert—

“(3)

For the purposes of paragraph (2)(a)—

(a)

“a national of the United Kingdom” means—

(i)

a British citizen,

(ii)

a person who is a British subject by virtue of Part 4 of the British Nationality Act 1981 and who has a right of abode in the United Kingdom, or

(iii)

a person who is a British overseas territories citizen by virtue of a connection with Gibraltar,

(b)

Article 54 of the Treaty on the Functioning of the European Union is to be read as if the United Kingdom were a member state.”.

(3)

In regulation 3 (non-UK service providers – restriction on institution of proceedings), in paragraph (4), omit “other than the United Kingdom”.

PART 8Licenses and Licensing

Amendment of the Licensing (Amendment) (EU Exit) (Scotland) Regulations 201920.

(1)

The Licensing (Amendment) (EU Exit) (Scotland) Regulations 201953 are amended as follows.

(2)

In regulation 7 (saving provision), for “exit day” substitute “IP completion day”.

H YOUSAF
A member of the Scottish Government

St Andrew’s House,

Edinburgh

EXPLANATORY NOTE
(This note is not part of the Regulations)

These Regulations are made in exercise of the powers conferred by paragraphs 1(1) and (3) and 11G(1) of schedule 2 and paragraph 21(b) of schedule 7 of the European Union (Withdrawal) Act 2018.

The Regulations address failures of retained EU law to operate effectively and other deficiencies in retained EU law (in particular to address reciprocal arrangements which no longer exist and are no longer appropriate and EU references which are no longer appropriate) arising from the withdrawal of the UK from the European Union.

They also make savings and transitional provision in respect of matters and procedures begun but not completed before the end of the implementation period and in light of Title V of Part 3 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the Atomic Energy Community (“the withdrawal agreement”). Title V makes provision in respect of ongoing judicial co-operation in criminal matters relating to certain EU measures, referred to in the withdrawal agreement as “other separation issues”. Generally the other separation issues preserve the application of particular EU measures in respect of any matters or procedures begun (but not completed) before the end of the implementation period. By virtue of sections 7A and 7C of the European Union (Withdrawal) Act 2018, rights, powers, obligations, remedies etc. as they arise or are created from time to time in the withdrawal agreement are given legal effect in the United Kingdom.

Part 2 amends and consequentially revokes the retained EU law implementing Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties. Regulation 6 makes transitional and saving provision in relation to requests for enforcement received by a member State or in Scotland before the end of the implementation period.

Part 3 revokes the retained EU law implementing Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention. Regulation 9 makes transitional and saving provision in relation to decisions received in the executing State or in Scotland before the end of the implementation period.

Part 4 amends retained EU law implementing Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. Regulation 16 makes transitional and saving provision in relation to criminal proceedings commenced before the end of the implementation period.

Part 5 amends retained EU law implementing Council Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings.

Part 6 amends retained EU law implementing Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings.

Part 7 amends retained EU law implementing Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. The retained EU law relates to an offence under section 51A of the Civic Government (Scotland) Act 1982 (extreme pornography). Other aspects of the Directive were implemented in relation to this offence by S.I 2018/477, as amended by S.I. 2019/87.

Part 8 amends the saving provision in the Licensing (Amendment) (EU Exit) (Scotland) Regulations 2019 so that it applies to matters arising before IP completion day rather than exit day.

No Regulatory Impact Assessment has been prepared for these Regulations.