Criminal Justice (Scotland) Act 1995

46 New prosecution for same or similar offence

(1) In section 255 of the 1975 Act (supplementary provisions where High Court authorises new prosecution)—

(a) at the beginning of subsection (1) there shall be inserted “Subject to subsection (1A) below,”;

(b) after subsection (1) there shall be inserted the following subsections—

“(1A) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings.

(1B) In proceedings in a new prosecution under this section it shall, subject to subsection (1C) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.

(1C) The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above which would not have been competent but for that subsection.”; and

(c) after subsection (4) there shall be inserted the following subsections—

“(5) On granting authority under section 254(1)(c) of this Act to bring a new prosecution, the High Court shall, after giving the parties an opportunity of being heard, order the detention of the accused person in custody or admit him to bail.

(6) Subsections (2)(b) and (4) to (6) of section 101 of this Act (prevention of delay in trials) shall apply to an accused person who is detained under subsection (5) above as they apply to an accused person detained by virtue of being committed until liberated in due course of law.”.

(2) In section 452B of the 1975 Act (corresponding provision in relation to summary proceedings)—

(a) at the beginning of subsection (1) there shall be inserted “Subject to subsection (1A) below,”;

(b) after subsection (1) there shall be inserted the following subsections—

“(1A) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings.

(1B) In proceedings in a new prosecution under this section it shall, subject to subsection (1C) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.

(1C) The complaint in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above which would not have been competent but for that subsection.”; and

(c) after subsection (4) there shall be inserted the following subsection—

“(5) On granting authority under section 452A(1)(d) of this Act to bring a new prosecution, the High Court may, after giving the parties an opportunity of being heard, order the detention of the accused person in custody; but an accused person may not be detained by virtue of this subsection for a period of more than 40 days.”.